3 Findings and Conclusions
19. We have identified several approaches to the
interpretation of Article 308.
20. The literal approach: we and our
predecessors have followed an approach similar to that taken by
the courts in the United Kingdom on questions about the interpretation
of Acts of Parliament.[12]
Accordingly, we have consistently taken the view that all the
words in Article 308 should be given their plain meaning. We note
in this context that the Member States have had a number of opportunities,
when other revisions were being made to the EC Treaty, to remove
the reference to "the operation of the common market"
but did not use them. The "literal approach" leads to
the view that Article 308 is not an appropriate legal base for
a measure if it does not have a substantive connection with the
operation of the common market.
21. Opinion 2/94 of the European Court of Justice
(ECJ): the representatives of the Commission and Council
Legal Services and Professor Dashwood referred us to the ECJ's
interpretation of Article 235 (now 308) in Opinion 2/94. It made
no reference at all to the operation of the common market and
referred only to whether the use of Article 235 was necessary
to enable the Community to attain one or more of the objectives
of the Treaty.[13]
22. The Opinion was about whether the Community has
competence to become a contracting party to the European Convention
on Human Rights on the basis of Article 235. The UK and others
argued that the protection of human rights was not an objective
of the Community and so the Article did not provide an appropriate
legal base. The Court held that the Community's accession to the
Convention would entail a substantial change in the system for
protecting human rights of constitutional significance and was,
therefore, beyond the scope of Article 235. The interpretation
of "in the course of the operation of the common market"
was not before the ECJ for settlement.
23. The purposive approach: the representatives
of the Commission and the Council Legal Service suggested to us
that in 1957 "most of the objectives of the EEC were concerned
with creating the economic community. So, at the time of the Treaty
of Rome, 'in the course of the operation of the common market'
imposed little or no constraint on the use of the Article and
was not intended to do so. Since then, the Community has extended
its objectives to include much that is not primarily concerned
with the operation of the economic community. But the purpose
[our emphasis] of Article 308 remains unchanged: to provide a
necessary power, when none is available elsewhere in the Treaty,
to attain any Community objective."[14]
The ECJ's usual approach to the interpretation of the Treaty is
to give effect to what it understands to be the Treaty's purpose.
24. We note that the Government shares the Commission's
and the Council Legal Service's understanding of the interpretation
of Article 308; and that other Member States appear to be of the
same view.[15]
25. We have also taken account of Professor Dashwood's
view that "A fairly convincing case can be made that Article
308 ought to be interpreted in an 'evolutionary' way, reflecting
the change in the nature of the Community."[16]
He refers to this as "the whole Treaty thesis" and notes
that the findings of the Court of First Instance in two recent
cases, like the ECJ Opinion, suggest the European judicature's
acceptance of that thesis.
26. In the light of these findings, we draw the
following conclusions:
i. ultimately, only the European Court of
Justice can give a definitive ruling on the application of the
reference in Article 308 to "in the course of the operation
of the common market";
ii. while the ECJ Opinion 2/94 and the judgements
in the Yusuf and Kadi cases may be indicative
of the Court's likely view, the interpretation is still open to
argument;
iii. so it would be premature, in our view,
to dismiss the literal approach to the interpretation of Article
308;
iv. we shall continue, therefore, to examine
proposals for which Article 308 is cited as the legal base to
see if they have a connection with the operation of the common
market and, if they do not, we shall draw the absence to the attention
of the House;
v. on the other hand, we recognise the weight
of opinion in support of the purposive interpretation of Article
308 and accept that the purposive approach is not unreasonable.
27. Having fully set out in this Report the arguments
for and against the various approaches to interpretation, we shall
not need to rehearse them at length in reports on new proposals
which have Article 308 as their legal base unless there are exceptional
reasons to do so in any particular case.
12 See also Article 31 of the Vienna Convention on
the Law of Treaties: "A Treaty shall be interpreted in good
faith in accordance with ordinary meaning to be given to the terms
of the Treaty in the context and in the light of its object and
effect". Back
13
Opinion 2/94 [1996] ECR I-1759. Back
14
See Chapter 2, paragraph 11, subparagraph (e) of the note of our
meeting with representatives of the Commission and the Council
Legal Service. Back
15
All or most constitutional courts in the EU - expressly or implicitly
- contest the exclusive competence of the ECJ to define the scope
of Article 308. The German Constitutional Court in particular
has emphasised in its Maastricht judgment that it retains a jurisdiction
of last report over all questions involving the outer limits of
EU competence, a position echoed by the highest courts of several
other Member States. The basis for this purported "national"
prerogative on competence issues is the argument that all transfers
of national sovereignty to the EC, and later EU, by national parliaments
were impliedly subject to the requirements laid down by the national
constitutions in these States, as no law may be made and no treaties
entered into by the national parliament that are unconstitutional.
On this view, if the ECJ were ever to interpret any part of the
EC Treaty so expansively as to assert a Community power which
exceeds those authorised under national constitutional law, the
national constitutional court would have to challenge the ECJ's
decision.
The disagreement over which court is
competent to define the limits of the Community's powers has its
origin in the fact that each type of court approaches the question
of Kompetenz-Kompetenz (i.e. which court has the competence to
decide competence) from the perspective of the highest norm within
its own legal system: the ECJ decides on the basis of the EC Treaty,
and national courts in accordance with their constitutions. At
a theoretical level, the problem of Kompetenz-Kompetenz is insoluble
as there is no further supreme norm which is common to and accepted
as supreme by both systems. At a practical level, both the ECJ
and national constitutional courts, while stating their respective
positions, have carefully avoided open conflict. For this reason
it is unlikely that national constitutional courts would challenge
the ECJ's right to interpret the scope of Article 308. Back
16
See Chapter 2, paragraph 16. Back
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