Much confusion is being sown by claims that the new EU constitution will take precedence over our own, writes Eugene Regan.
The primacy of EU law has become the focus of criticism of those opposed to the new constitution for Europe. Dana Rosemary Scallon began her Opinion piece in The Irish Times of November 1st on this issue. In recent public statements Mary Lou McDonald of Sinn Féin also questioned the primacy of EU law, reflecting Sinn Féin's policy document that this would firmly establish EU law as superior to national law. As a former and current MEP respectively, they should know better.
EU law has always prevailed over national law but the important point is that it is limited to areas where member-states have conferred powers on Brussels. The fact that the constitution expressly provides for the primacy of EU does not mean that it is a new concept. Such primacy was established by the European Court of Justice long before Ireland ever joined the European Community.
In two landmark judgments - that of Van Gend en Loos, in 1963, and Costa vs Enel in 1964 - the principle was clearly articulated by the court and has been accepted by all member-states since that time.
The principle reflects the fact that the European Union is based on the rule of law and not power politics. It is self-evident that there can be no effective European law if such law were not to prevail over that of member-states. If it were otherwise, no useful purpose would be served by ever adopting any EU legislation. The court in its judgments, confirming the primacy of EU law, was merely pointing out the obvious.
In the Van Gend en Loos case of 1963 the court held that EU law had direct effect in national legal systems. This enables every citizen of Europe to rely on his or her rights, established under EU law, before their national courts. The Court of Justice held that independently of the legislation of member-states, community law not only imposed obligations on individuals but was also intended to confer upon them rights which become part of their legal heritage. A year later, in the case of Costa vs Enel, the court said the law stemming from the Treaty of Rome could not be overridden by national law without the legal basis of the community itself being called into question.
The fact that the individual citizen can invoke his or her EU rights before national courts is why the European Court on many occasions has referred to the original EC Treaty as a constitutional charter of a community based on the rule of law. Thus the notion of a constitutional treaty for Europe is nothing new.
This is the community which Ireland signed up to in 1973. In doing so it signed up not only to the Treaty of Rome and also to that body of European law and precedent which established the principle of primacy. It is implausible, if not disingenuous, to call into question that principle 40 years later.
The primacy issue must also be put in its proper context. The EU only exercises powers which have been given to it by member-states. The original Treaty of Rome provides that the community must act within the limits of the powers conferred upon it by the treaty and of the objectives assigned to it. In the Maastricht, Amsterdam and Nice treaties member-states sought to define more clearly the scope of union powers and introduced the principle of subsidiarity to ensure that the union would not adopt any new laws unless strictly necessary.
The Treaty on the Constitution for Europe goes further in providing a clearer dividing line between the respective powers of the union and member-states by specifying and limiting the extent of the union's powers.
Furthermore, it gives national parliaments a key role in vetting the need for and appropriateness of new EU legislation.
The primacy of EU law is of fundamental importance if member-states are to be held accountable for the proper implementation of EU policies. It is by virtue of the primacy of EU law that Ireland is being brought before the European Court of Justice for failing to implement properly measures on the protection of the environment.
It is the primacy of EU law which has obliged national governments, including the Irish Government, to respect workers' rights created by EU legislation in such areas of equal pay, equal opportunity and health and safety.
The primacy of EU law, therefore, far from involving a diminution of rights, is essential to the effective protection of citizens' rights enshrined in EU treaties and legislation.
The constitutional treaty merely sets out in express terms the legal position which has prevailed for over 40 years.
Eugene Regan BL is chairman of the European lawyers group of the Institute of European Affairs, and a Fine Gael councillor