Law Offices of David G. Arganian, Seattle, WA

Talk of repatriating power from Europe is unrealistic - for now

There has been much talk in domestic political circles recently, much of it from Conservative backbenchers and sympathetic commentators, about the need to "repatriate" powers from Brussels. What they seem to be talking about is removing certain law-making powers from the EU institutions or repealing particular laws which they take particular objection to, such as the so-called Working Time Directive (WTD). Some see such measures as impacting on competitiveness and adding further layers of red tape; others have more ideologically-driven objections.

Putting the merits of these calls to one side, such talk is curious from the perspective of EU law. First of all, if the UK wished to see the law-making powers of the EU institutions reduced, that would require a treaty amendment. And that, of course, would require the agreement of all 27 member states. Given that many member states are likely to be supportive of the current labour law position, it is unrealistic to think that there will be any general narrowing of EU competence in this respect. So the question is whether the UK should be placed in a special position – and here, too, it is unlikely that the UK will get its way, no matter how much horse-trading the UK is willing to engage in. Whilst it appears that there will need to be a treaty amendment to help deal with the eurozone crisis, many member states would be intensely uncomfortable with the idea of allowing the UK to roll back on its current treaty commitments: if the UK could do it, others would likely wish to do likewise, discarding the bits of EU law which they least liked. And there is the separate question of how radical the eurozone-related Treaty amendment would be in any event: would the UK have the chutzpah to demand a re-opening of old issues in return for its support for the bailout measures, which are arguably in its interests as much as other member states'? There is surely a good argument that engaging in political opportunism here would be deleterious to the UK's longer term negotiating position in Europe.

So if the limitation of competences is unrealistic, how about amending or limiting the impact of the WTD itself? Well, there is little chance of the WTD itself being repealed, and, as any EU lawyer knows, directives are applicable across the board – there is no option to seek an opt-out from it. So this looks like a blind alley, too.

In fact, the UK has 'form' as far as the WTD is concerned. In 1992 it strongly opposed its introduction, with the then-PM John Major arguing that the WTD "would hurt British industry and destroy jobs". The UK tried to get the directive declared invalid by the European Court of Justice shortly after its adoption, arguing that it was not a health and safety measure as claimed by the institutions and that its adoption was a breach of the principle of proportionality, a misuse of powers and an infringement of essential procedural requirements. These arguments were roundly rejected by the court both in its judgment and in the opinion of Advocate General Leger.

All in all, an EU law perspective suggests that all this talk of repatriation is unrealistic, at least at the moment – as the government almost certainly appreciates.

Interestingly, one form of 'repatriation' was provided for expressly by the Lisbon Treaty – that of democratic control over the legislative process in the EU. Articles 5(3) and 12(b) TEU and the Protocol on the application of the principles of subsidiarity and proportionality allow for greater involvement by national parliaments in the law-making process, and stresses the importance of the principle of subsidiarity – that law-making should only happen at EU level where necessary. Article 6 of the protocol allows national parliaments to make their feelings known on the subsidiarity question within six weeks of the draft law being transmitted to them; the law-making institution must then "take account" of such sentiments if they decide to proceed further. This innovation, although only a small step, was certainly better than nothing, and ought to make the institutions think carefully before proposing further legislation. In practice, however, it appears that the six-week period has proved nowhere near long enough for most national parliaments to get their act together and comment formally on draft laws (thankfully, Westminster is rather better at this than others). The member states would therefore do well to extend this period and allow national parliaments a genuine say in the EU law-making process.

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