Thursday, March 03, 2005

Disingenuous and misleading

Denis MacShane - our egregious, to say nothing of mendacious – Europe minister has bitten off more than he can chew.

The proximate cause of his nemesis lies in a response by letter to a Times article about the ECJ published on 22 February, when he claimed that:

The (European Court of Justice) cannot use EU law to expand the EU’s powers; it can only reach judgments based on the treaty commitments and laws that member states agree to.
Today, he gets a magisterial counter-blast from Mr J E Morgan, Fellow and Director of Studies in Law at Christ’s College, Cambridge who writes that the Minister for Europe shows a lamentable understanding of the historical development of EU constitutional law. He continues:

The twin pillars of EU constitutional law are the doctrines of supremacy of European over national law, and EU law's "direct effect" (ie, applicability in the national courts of the member states). Neither of these fundamental doctrines was anywhere stated in the Treaty of Rome.

Rather, they were "discovered" to be part of the "spirit and purpose" of the treaty by the ECJ, in its celebrated decision in Van Gend en Loos (1963). This despite the vigorous arguments to the contrary of several of the national governments who had signed that treaty only a few years previously, and which might have been expected to have a good idea of what its objectives truly were.

These particular doctrines have become widely accepted, but the lesson remains. We must openly acknowledge that the ECJ, like every constitutional supreme court, enjoys very significant influence over the fundamental norms governing the political system, written constitution or not.

That the ECJ is well known for its loose style of teleological interpretation, and for consistently preferring the interests of the Union over those of member states, suggests that the minister’s argument is disingenuous and misleading.
From a senior legal academic, "disingenuous and misleading" is as bad as it gets. On Monday, Rees Mogg asked if we were fools led by liars. Well, there's your answer to the second bit.

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