THE CONSTITUTION AND THE COMMON MARKET: A TENTATIVE APPRAISAL
| Author | S. A. Smith |
| Published date | 01 November 1971 |
| Date | 01 November 1971 |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb01307.x |
THE
MODERN
LAW
REVIEW
~
Volume
34
November
1971
NO.
6
'YI-IE CONSTITUTION AND
THE
COMMON
MARKET
:
A TENTATIVE APPRAISAL
I
THE
following comments presuppose that the United Kingdom
will become a member
of
the Common Market in
1973,
having signed
and ratified the treaty of accession. After signature and before
ratification, legislation to give effect in municipal law to the treaty
and certain otmher provisions
of
Community Itaw will have been
enacted by the United Kingdom Parliament. At the time of
writing, the form and content of this legislation are largely
unrevealed. Some of my remarks on methods of implementing
Community law
will
therefore be speculative.
Even at the present stage, the area of speculation about the con-
stitutional implications
of
British accession would be substantially
diminished if the European Communities could be persuasively
described by reference to familiar analogies. The difficulty is not
so
much that the
EEC
is
sui
generis;
so
is the Commonwealth. But
unlike the gossamer Commonwealth, the
EEC
is a legal entity with
identifiable legislative, executive and judicial organs
;
and it could
never have been conceived in a
fit
of absent-mindedness.
It
is at
once a supranational and an international organisation. In one
aspect
it
is
an inchoate functional federation. But it
is
not and does
not purport
to
be a federal state,
or
indeed a confederation. There
is no sure means
of
predicting the constitutional impact on the
United Kingdom
of
admission
to
such an association. Perhaps the
problem can be emphasised by a hypothetical case. Suppose that
the Commonwealth had retained the Imperial Cabinet
of
the First
World War, that a Commonwealth Secretariat endowed with limited
executive and legislative powers had been installed, that the
Judicial Committee of the Privy Council had maintained its status
as
an appellate court and had extended its jurisdiction to matters of
1
I
am
partioularly grateful to Professor
0.
Kahn-Freund,
Dr.
K.
Lipstein,
and
Dr.
G.
Bebr
for
their observations
on
earlier provisional
drafts.
None
of
them must be assumed
to
agree with the points made
in
the present article.
Professor ICalin-Freund also commented
at
short notice
on
the later draft.
597
Vor..
36
21
598
THE MODERN
LAW
REVIEW
VaL.
34
constitutional law in the United Kingdom, and that the
inter
se
doctrine of Commonwealth relations had emerged as a credible
body of legal principle, detached both from customary international
law and from the municipal law
of
the United Kingdom. What
impact would
such
developments have made on fundamental legal
concepts in
khis
country
?
The constitutional structure of the Communities is, moreover,
intrinsically complex. The peculiar relationship between the Com-
mission and the Council of Ministers
is
a puzzling phenomenon
;
and
the substance of that relationship is not deducible merely from its
form. The formulation of the jurisdiction of the Court of the
Communities in the Rome Treaty is far from self-explanatory; the
nature and scope of that jurisdiction have to be considered in the
light not only of the jurisprudence of the Court but also of the
practice of courts
in
member States, and practice has not been
uniform. Primary Community law
as
laid down in the Treaties has
been supplemented by a massive body of secondary Community law
-regulations, decisions, directives and opinions. Yet there remains
a
variety of reasonable but divergent interpretations of the proper
relationship between Community law and municipal law.
In
short,
the implications of the statement that Community law, within its
own sphere, prevails over inconsistent municipal law
do
not point
unambiguously
to
the road which
a
new applicant must follow.
The applicant State has a choice of routes, albeit a limited choice
if
it
is
to
be an acceptable member of a working Community.
Broadly, a member State must accept and adopt Community
law and Community policies and must abstain from taking measures
likely to jeopardise the attainment of Community objectives
3;
it
must, when
so
required by the competent Community organs, bring
its own laws into harmony with those
of
other member States
for
the purposes of the Community
";
and
it
must participate in the
institutions of the Community. Since Community law already
extends
to
customs duties, and aspects
of
the law relating to agri-
culture and fisheries, transport, restrictive practices and monopolies,
state aid
to
industry, regulation of the coal, steel and nuclear
energy industries, social security and freedom
of
movement of
labour, services and capital, members undertake a large number of
specific obligations
;
though modifications of common policies and
rules
(e.g.
in respect of agriculture)
to
meet the needs of individual
member Stakes may be agreed on
a
transitional
or
long-term basis.
A
new applicant
for
membership cannot expect 'to be admitted
unless it is prepared to accept the main features of ,the Treaties of
Rome and Park6 From the terms of admission agreed between
the United Kingdom Government and the Communities, and pub-
2
Cf.
J.
E.
s.
Famcett,
The
British
Cornmionwealth.
in
International
Law,
Chap.
3
EEC Treaty,
art.
5.
4
Ibid.,
ark.
100-102.
5
Establishing the European Economic Community and Eur8atom.
6
Establishing the European
Coal
and Steel Community.
15.
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