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It's the sovereignty stoopid…

Posted by Richard Wednesday, May 31, 2006

Given that there were two important judgements delivered by the European Union Court of Justice yesterday, it is perhaps inevitable that the media went into collective overload, most of the newspapers chosing to report only one of them. Faced with the alternative of the highly technical judgement on Sellafield, with equal inevitability, that choice was going to be the issue which had the highest personal interest quotient, hence the focus on yesterday's decision to annul the data sharing agreement with the United States.

Covered at some little length by The Telegraph and many others, the emphasis was on the potential for chaos on transatlantic flights. Thus did the Telegraph report that millions of tourists and business travellers planning to fly to the United States were left in legal limbo after the ECJ struck down the agreement on sharing the personal details of passengers with US authorities.

What does not come over with any clarity from the media reports, however (although it is mentioned) is that the ECJ found that the Council did not have an adequate legal base within the EU Treaty to concluded an agreement with the United States. It is that on which the Court ruled, but left aside another plea, brought by the EU parliament, that the transfer of personal data breached Community rules on data protection.

Aside from the immediate practical implications of the judgement, therefore, there are some profound constitutional issues. Firstly, it appears that 25 member state governments, when acting together within the EU institutional framework of the European Council, are not entitled to reach a decision unless its nature – and the procedure by which it is reached – conform with EU law. Secondly, although there is an option to consider a separate agreement under a different part of the treaty, it is by no means certain that any decision made would comply with Community law.

Neither, it would seem, can the individual member states act separately, collectively reaching a series of bilateral agreements with the United States, as those individual agreements might also be in breach of Community law.

What this effectively amounts to is a fundamental curtailment of the rights of sovereign nations to act, in respect of agreements with third countries. In this sense, there is some commonality between this and the Sellafield judgement.

Reviewing the Court's press release and the advocate general’s report last January on this issue, it seems that the argument rests on the assertion that, where Community law applies – which the commission argued did apply in the case of the Irish government's complaint about Sellafield – member states are obliged to resolve their disputes within the framework of the Treaty. They are not entitled to go elsewhere for their justice. There is, in effect, no higher authority than the ECJ.

That judgement, which rests on Article 292 of the Treaty, therefore also amounts to a fundamental curtailment of the rights of sovereign nations to act. This, our nation, and the other 24 member states, are subordinate to a higher power. We know this of course, but when we are asked why we have such fundamental objections to our membership of the EU, it is as well to remind ourselves of the basic reason – it's the sovereignty, stoopid!

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