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European Union: Legal Identity

Page history last edited by Christopher Kirkland 13 years ago

 Restrictions on Member States

Member states (MS’s), on joining the European Union (EU), are obliged to abide by the rules and regulations set out by the European Parliament (EP) and also the decisions made by the European Court of Justice (ECJ) and the European Court for Human Rights (ECtHR) concurrently. This affects the way in which each MS acts when legislating, as national legislation must be compatible with the already executed EU legislation (see The Council of the European Union for legislative procedure).


This restriction of action can be said to cause a common effect on all MS’s and the laws they can produce whilst still being part of the EU, creating a united legal identity. The main Treaties and decisions will be discussed below to show the effect on all member states.

From Rome to Lisbon

When looking at the legal background of the modern EU it is best to begin with the Treaties of Rome 1957 which established the European Economic Community (EEC) and the European Atomic Energy Community (EAEC/Euratom) (see Treaty of Rome page for more details). Combined with the European Coal and Steel Community (ECSC) previously established, trade, agriculture and transport were standardised for all member states. This began the transition of individual states to a supranational organisation. With this, rules and regulations had to be applied, meaning all members were to become equal in these areas.


An example within the EEC Treaty of its aims is shown in Article 2, which specifies that: "The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of member states, to promote throughout the community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the states belonging to it"[1]. This clearly shows through law a strong aim to link all states, making them as close as each other as possible.


By 1986 and the Single European Act, there was an aim to create a full single market by 1992. This would bind all member states further towards a united legal front when it came to trade by abolishing border tariffs for EU nationals. The idea was to enable the four freedoms (freedom of movement of goods, capital, services and persons) to literally be free between MS’s. One case demonstrating the challenges in enacting this is Crotty v An Taoiseach[2], which shows a need for change in the Irish constitution before ratification of the Act could be completed. This illustrates the huge amount of control EU law has over its nationals, withdrawing from their sovereignty.


On ratification of the Maastricht Treaty (the Treaty on European Union (TEU)), more policy areas were beginning to become involved in the EU such as inflation rates, exchange rates and a Common Foreign Security Policy (see External Relations and Foreign Affairs). It also created a “3 pillar structure” to the EU, using old and new ideas to form these pillars. All these changes can again be shown to reduce sovereignty and increase a common legal identity.


This was all changed when the Lisbon Treaty came into force in 2009: the TEU created in Maastricht was reformed and the Treaty on the Functioning of the European Union (TFEU) was created using the previous clauses from parts of the TEU and the TEC (Treaty establishing the European Community, created in Rome). It also made the EU’s own “bill of rights” (the Charter of Fundamental Rights) legally binding, showing a big step for the legislature as striking down incompatible laws will be a lot quicker and easier than ever before.

The New Treaties – the TEU and the TFEU

Together these treaties create a strong legal basis for the four freedoms, meaning the chances of a fair, reliable internal market are greatly increased. The EU now has much more control over many more areas which Nation States would originally have full control over such as immigrants, imports and exports and also things like social security. Legally this means that each MS has become linked to one another through the main EU body, showing a tighter grip than America has on its own states. This is an obvious example of the beginnings of a great political and economic power.

Human Rights

In the European Union, one main Act sets out the main requirements of member states when it comes to Human Rights issues: the European Convention on Human Rights. This act was to be implemented into existing member states “as soon as possible”, but this was not necessarily accurately followed – for example, the UK did not create the Human Rights Act until 1998, which clearly shows a huge time gap between legislation. Although this shows a certain standard has tried to be set by the EU, the member states may not have necessarily done all they can to follow procedure. Never the less, this is still a way of creating an equal identity within the EU.


The ECtHR was created in 1959 but didn’t become a permanent entity until 1998 with the amendment of the ECHR by Protocol 11, when full-time judges began to sit. It is also shown in an article by Wolfgang Weiss that the Human Rights background of the EU is not necessarily certain. He says:

“The Treaty of Lisbon changed the picture regarding human-rights protection in the European Union. Not only does it provide in art.6 (2) TEU for a (future) accession to the European Convention on Human Rights (“ECHR”) but it materially incorporates from its entry into force (December 1, 2009) core norms of the ECHR which requires a rethinking of the relationship between human rights in the European Union and the exercise of public authority by EU and Member State institutions.”[3]


This is relevant here as it shows although the Acts are there for MS’s to follow to begin this united front for legislation, the EU themselves are not very sure as to how they should be acting in certain policy areas. This is very worrying for its members.



  1. http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_eec_en.htm.
  2. Crotty v An Taoiseach [1987] 2 C.M.L.R. P666.
  3. Weiss, W; Human Rights and antitrust enforcement: news from Lisbon; E.C.L.R. 2011, 32(4), P186-195.

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