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When not to apply EU law

Damian Chalmers

Every autumn about 1,000 people are injured in the UK by fireworks. So what's unreasonable about regulating pyrotechnics and requiring people to stand 15 metres away from the most dangerous fireworks when they go off? Quite a lot if it's the EU deciding it and you live in Spain. The 15-metre rule hidden in a 2007 directive caused protests, and the Madrid Government opted out from it. The regulation would have robbed many of the country's best-known fiestas, including the fallas in Valencia, and San Juan in Barcelona, of their essence. Festivities going back to the Middle Ages would have been regulated out of recognition.

This story captures how the EU is experienced by many: a remote, well-meaning busybody whose know-it-best solutions have a harsh, insensitive and intrusive edge. It also epitomises the challenge for the EU: at half a billion inhabitants, it is simply too big and culturally diverse for EU-wide rules and laws - however reasonably intended - not to be insensitive to local customs or ways of doing things.

How can we resolve this? The first option is to withdraw from the EU and reclaim national self-government. But withdrawal would only give us the freedom not to follow the odd directive; we would still have to comply with the vast majority of EU rules. The EU is our biggest trading partner. So to continue selling our goods and services to the European market, our businesses would have to follow EU diktat and our industry would still be subject to EU competition law. If anyone doubts this, they should see the large amount of EU legislation followed by Turkey, Norway or Switzerland. Even Japan follows things as odd as the EU chemicals regime.

The second option is selective non-participation. This is the policy practised by all British governments in recent times. In the past 20 years the UK has accepted that the EU should have competence over three new, significant areas: citizenship, anti-discrimination policy and free movement of capital. More frequently, the UK has simply reserved the right to opt out of such areas as monetary union, immigration and asylum policy or criminal justice.

This has patently not worked. And it does not go to the nub of the problem: the imposition of common solutions that are insensitive to local differences in policy areas in which it is agreed that the EU should have competence. The fireworks case arose out of the need to have a common market in fireworks, something all the main British parties support.

There is a third option, one that focuses on the quality of the relationship. The gist of people's beef with the EU is that they must obey its laws even when they call for perverse things or destroy things that they like. To be sure, the range of what the EU intrudes into exacerbates this feeling, but it does not generate this alienation. The source of this problem lies in the authority of EU law. It imposes common solutions because, we are told, EU law takes precedence over national law. Yet, read the law carefully, and the basis for this precedence rests exclusively on the idea that EU law must be authoritative. It is this underlying idea of authority that must be thought through more carefully.

Something is only authoritative when there are good reasons for obeying it. It is not authoritative if it is obeyed out of fear or passivity. There are good reasons for obeying EU law: it enables the EU to work. But this is not a trump reason. The EU is, at best, just one good thing in our lives and should be weighed against other good things. Moreover, other member states do not accept it as a trump reason. They believe that other things take precedence over EU law. For example, the Czech constitutional court has stated that EU law should only be observed if it contributes to the Czech Republic being a democratic, law-based state.

So we need not accept an EU law if it has perverse local effects or if it destroys or undermines something that is longstanding and gives meaning and stability to people's lives. Call it "culture", "tradition" or "local way of life". We all know it when we see it. It is what brings us together.

So we need a body that helps us to assess when EU law has gone too far and a way for ordinary people to express their concerns. I would suggest setting up a British constitutional council, made up of legally informed people, but not necessarily judges. It would hear petitions that have been signed by more than, say, 50,000 citizens who disagree with an EU law. The citizens would explain to the council the heritage, value and meaning of the threatened local law or practice.

The European Commission would have to put its case before the court and explain its reasons for the EU law and the overall effects for the EU of non-compliance by a particular local industry, region or state. The British Government would have to explain its position, after which the council would take a decision, weighing up all the arguments.

The problem is not simply that we are bothered by the EU and its regulations, but also that we are not bothered about them. The anti-EU parties celebrating their poll successes this weekend should remember that the real winners are the "don't knows" and "don't cares", who far outnumber their supporters.

One attraction of this council is that it would not just prevent the EU devaluing our lives but also allow wideranging debate about how Europe can and can not contribute to the national good. Isn't that what national self-determination is about?

Damian Chalmers is Professor of EU Law and head of LSE's European Institute

This article first appeared in The Times|