+44 (0)20 7799 6677

European Court ruling in favour of UK must not change the debate on sovereignty

Justin Protts, 14 June 2016

The ruling by the European Court of Justice (ECJ) today means the UK government is allowed to restrict welfare payments based on the ‘right to reside’ in the UK. This means that the UK does not have to pay welfare benefits to EU citizens who are economically inactive.

The European Commission, in its role of ensuring the implementation of EU law, challenged the UK government on the basis that, because UK citizens automatically have a right to reside in the UK, the UK policy discriminates against other EU citizens who have to work to get that right.

The ruling reflects a shift in support towards the UK government’s interpretation of the EU’s  Freedom of Movement rules. There is no doubt that those campaigning for the UK to vote to stay in the EU in the upcoming referendum will be hugely relieved, and to some extent the leave campaigners will feel like they have missed an opportunity to showcase how the EU overrules UK national sovereignty.

However, the ruling is more complex than it first appears, the court supported one of the Commission’s arguments, that:

‘the condition requiring a right to reside in the UK gives rise to unequal treatment because UK nationals can satisfy it more easily than nationals of the other Member States.’

Despite this, the ruling allows the UK to impose the condition requiring the right to reside in order to access benefits because it can be considered necessary to achieve the legitimate objective of protecting the finances of the UK. The ruling stated:

‘the condition does not go beyond what is necessary to attain the legitimate objective pursued by the UK, namely the need to protect its finances.’

This implies that, if the condition on right to reside is at any point no longer seen as a necessary means of protecting UK finances, the Commission would have cause to have the ruling challenged and in doing so it could force a change in British law.

The truth is that this ruling, in fact any significant ruling by the ECJ, should make it more and more clear that the power of the UK parliament and therefore the people of the UK to determine law is in decline. The question should not be about whether or not the Court supports the UK government.

It should be about whether the European Commission, not elected by the British public, should be able to challenge the UK parliament, directly elected by the British public, in a court that has the power to force a change in UK law against the wishes of the British people.

Those who want to leave the European Union on the grounds that sovereignty has been taken from the British people should be highlighting the ridiculous situation where the European Commission, or any other member of the EU, can take a country to court and force it to change its laws, even on areas of national welfare spending. The EU institutions therefore have the power to force a change in law in contradiction to the policies a government may have been elected to implement.

The fact that the UK happened to win this time should not be celebrated as a victory for national sovereignty, but should highlight how close the European Commission came to forcing the UK government to change its policies only days before a referendum on whether we remain a member of the EU.

If a government cannot be held accountable for the laws of the country it claims to govern, then that government is not sovereign. The fact that the European Commission, the effective government of the EU, challenged the UK’s position shows that the European Commission’s stance on free movement policy stands in direct contradiction of that of the British public, and there is no means of the British public expressing their dissatisfaction effectively.

It is worth paying attention to the note included at the bottom of the press release, which sets out the power of European Courts over member state governments:

‘An action for failure to fulfil obligations directed against a Member State which has failed to comply with its obligations under European Union law may be brought by the Commission or by another Member State. If the Court of Justice finds that there has been a failure to fulfil obligations, the Member State concerned must comply with the Court’s judgment without delay.

Where the Commission considers that the Member State has not complied with the judgment, it may bring a further action seeking financial penalties. However, if measures transposing a directive have not been notified to the Commission, the Court of Justice can, on a proposal from the Commission, impose penalties at the stage of the initial judgment.’

Bearing this in mind, how much power, as members of the European Union, do national governments have in the face of the European Union institutions?

What type of club is the EU if it can force governments to act against the democratic will of the people?

Add your comments to the debate here