Editorial Committee of the Cambridge Law Journal

Constitutional Reform in the EECAuthor(s): Christopher GreenwoodSource: The Cambridge Law Journal, Vol. 46, No. 1 (Mar., 1987), pp. 1-4Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506957 .

Accessed: 17/06/2014 15:00

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 188.72.126.108 on Tue, 17 Jun 2014 15:00:32 PMAll use subject to JSTOR Terms and Conditions

THE

CAMBRIDGE LAW JOURNAL

Volume 46, Part 1 March 1987

CASE AND COMMENT

constitutional reform in the EEC

The Single European Act ("SEA"), implemented in the United

Kingdom by the European Communities (Amendment) Act 1986, sets out first to reform the institutions of the European Communities and

secondly to achieve a genuine common market by the end of 1992. Condemned by Lord Denning as a federalist measure which will overthrow national sovereignty and by European federalists as a nationalist sop to the ideal of European union, it is in reality an

unhappy, and very untidy, compromise. This note considers only the institutional provisions of the SEA.

1. The Veto

Opponents of the SEA have argued that it will remove the "essential safeguard" of the veto with which each member State

protects its own interests. Whether or not the abolition of the veto would be a good thing, the SEA certainly does not achieve it. Prior to the SEA, a State enjoyed a veto in the Council of Ministers in two cases. First, certain provisions ofthe Treaties (including EEC Article 100 (harmonisation of laws) and EEC Article 235 (general power of

legislation in cases where no specific legislative power is conferred)) required unanimity. Secondly, even in cases where the Treaties did not

require unanimity, the Luxembourg Compromise allowed a State a de

facto veto if that State considered that its own vital interests were affected. The SEA substitutes a requirement of a qualified majority for one of unanimity in five provisions of the EEC Treaty (Articles 28, 57(2), 59(2), 70 and 84). The member States could not agree upon a similar change in Articles 100 and 235 but the SEA adds a new Article 100A under which a power to legislate by qualified majority is introduced covering much ofthe scope of Article 11, while the addition of new powers in respect of several Community activities will probably diminish the importance of Article 235 in the future.

This content downloaded from 188.72.126.108 on Tue, 17 Jun 2014 15:00:32 PMAll use subject to JSTOR Terms and Conditions

2 The Cambridge Law Journal [1987]

These changes are so limited that they are scarcely an attack on

national sovereignty. First, the Treaties still require unanimity in

several important areas. In particular, Article 100A does not apply to

harmonisation measures concerning fiscal provisions, the free

movement of persons or the rights of employees (100A (2)), which

remain subject to Article 100 and thus require unanimity.

Secondly, the switch to majority voting in Article 100A was bought at a high price. Under Article 100A (4), where a harmonisation

directive has been adopted by majority vote, a member State may "opt out" and apply its own national provisions (even, apparently, if it

voted for the measure in question) if it determines that to do so is

necessary "on grounds of major needs referred to in Article 36, or

relating to the protection of the environment or the working environment," provided that the Commission is satisfied that the

national provisions are not a means of arbitrary discrimination or a

disguised restriction on trade. No crystal bail is needed to foresee the

difficulties to which Article 100A(4) will give rise. Majority voting under Article 100A is made palatable by the sacrifice of the hitherto

sacrosanct principle that harmonisation legislation applied uniformly

throughout the Community. The referenee to Article 36 is ill

conceived. That provision permits derogation from the general

principle of free movement of goods on grounds such as health and

public morality. Hitherto, however, no such derogation was permitted where harmonisation measures had been adopted. Now, Article

100A (4) allows States to derogate on Article 36 grounds from any harmonisation measure adopted by majority, whether it concerns free

movement of goods or not. The addition of the two environmental

grounds adds to the confusion. There are now three different sets of

grounds on which States may derogate from the general laws regarding free movement of goods: the Article 36 grounds, the Article 36

grounds plus the two environmental grounds in Article 100A (4), and

the unwritten mandatory requirements of the Cassis de Dijon case

(120/78 [1979] E.C.R. 649). Determining which set of grounds may be

relied upon in a given case will be quite a challenge.

Finally, the SEA does not expressly deal with the Luxembourg

Compromise. The Foreign Secretary made clear to the House of

Commons that, in the last resort, the United Kingdom could still rely

upon the Compromise to veto legislation which threatened its vital

interests. Nevertheless, the whole tone ofthe SEA (especially Article 3 which provides that the institutions "shall exercise their powers . . . under the conditions and for the purposes provided for by the

Treaties. . .") runs counterto the Compromise and it is likely that, as a matter of practical politics, reliance upon the Luxembourg

Compromise will become increasingly more difficult.

This content downloaded from 188.72.126.108 on Tue, 17 Jun 2014 15:00:32 PMAll use subject to JSTOR Terms and Conditions

C.L.J. Case and Comment 3

2. The Powers of the European Parliament

The SEA seeks to increase the powers of the European Parliament

by introducing a "co-operation procedure" of Byzantine complexity. The essence of this procedure is that certain Community legislation will require a "second reading" in the Parliament before it can be

adopted by the Council. At present, the Commission submits a

proposal to the Council which then obtains the Parliament's opinion. Under the co-operation procedure, this stage will constitute the first

reading, at the end of which the Council will adopt a "common

position" which may or may not reflect the views of the Parliament.

The common position is then communicated to the Parliament which

has three months in which to accept, reject or propose amendments to

it. If it accepts, the measure must be enacted by the Council. If it

rejects, the Council must act unanimously if it is to adopt the measure.

If Parliament seeks to amend the common position, the Commission

must consider the amendments and submit a proposal (which need not

embody those amendments) to the Council, which can adopt it by a

qualified majority but must be unanimous if it wishes to amend the

Commission proposal. The improvement in the Parliament's position is more apparent

than real. The new procedure does not apply to all legislation. Some

provisions of the Treaty permit legislation to be adopted without any

participation by the Parliament, others require only the more limited

consultation which existed prior to the SEA. Even where the

co-operation procedure does apply, the final word remains with the

Council, although the Parliament's political leverage has been

increased, especially in those matters where it has the support of some

of the States or of the Commission. The main ground for criticism of

the new procedure, apart from its complexity, is that it is essentially

negative in character. Parliament's power is strengthened by making it

easier for Parliament to block or delay measures. The main effect of

the new procedure is likely to be further delay in a legislative process which is already too slow, especially since no time limit is set for the

Council to respond to the Parliament's opinion on the first reading. While Parliament may be able to secure Council acceptance of some of

its amendments as the price of expeditious passage of a measure, to a

large extent it already enjoyed such a power as a result of the Court's

decision in Roquette Freres v. E.C. Council (Case 139/79 [1980] E.C.R. 3333). It is unlikely that Charles I could have bought off Pym and Hampden so lightly.

3. Other Institutional Changes

The remaining institutional changes are mainly useful pieces of

housekeeping. The European Council (the regular meetings of the

This content downloaded from 188.72.126.108 on Tue, 17 Jun 2014 15:00:32 PMAll use subject to JSTOR Terms and Conditions

The Cambridge Law Journal The Cambridge Law Journal

heads of government of the member States) is brought within the formal structure of the Treaties. Similarly, the practice of co-operation in the sphere of foreign policy is given a more formal status by Title III of the SEA embodying a loose framework for European Political Co-operation which takes on some of the attributes of a fourth community. A secretariat is established to service this framework but otherwise there are few changes of any substance. States are merely required to take account of one another's foreign policy positions and to "endeavour to avoid any action . . . which impairs their effectiveness as a cohesive force in international relations." Ironically, it is these rather bland provisions which have given rise to a challenge in the Irish courts on the ground that they may compromise Ireland's neutrality. Finally, provision is made for the creation in the future of a subsidiary tribunal of first instance to ease the pressure on the Court of Justice-a change which is long overdue and may turn out to be the most valuable product of this muddled attempt at reform.

CHRISTOPHER GREENWOOD.

SUNDAY TRADING IN CANADA

CONSIDERABLE debate resulted in England recently from the introduction and eventual defeat of the Shops Bill which would have removed certain restrictions on Sunday trading. The Government argued that the existing restrictions on Sunday trading were too inflexible to accommodate the needs of modern business and that employers and employees-not the State-ought to decide upon working hours. On the other hand it was argued that, given the inequality in bargaining power between shop workers and their employers, the Shops Bill would inevitably result in the loss of Sunday as a day of rest. Beneath the surface of the ostensibly secular rationale for allowing Sunday trading lay the more perplexing question of whether there should be enforced observance of the Christian Sabbath in a multicultural society. In Britain such questions are within the exclusive domain of Parliament. In Canada, under the Charter of Rights and Freedoms, the courts have an important role to play in making this overtly political decision.

The very issue was considered by the Supreme Court of Canada in Big M Drug Mart Ltd. (1985) 18 D.L.R. (4th) 321. The owners of a Calgary drug store were charged with violating the prohibition against Sunday trading contained in the Lord's Day Act, a statute of the Federal Parliament. Big M's defence consisted of an attack on the constitutional validity of the prohibition on the ground that the law infringed section 2(a) of the Charter which seeks to guarantee as a

heads of government of the member States) is brought within the formal structure of the Treaties. Similarly, the practice of co-operation in the sphere of foreign policy is given a more formal status by Title III of the SEA embodying a loose framework for European Political Co-operation which takes on some of the attributes of a fourth community. A secretariat is established to service this framework but otherwise there are few changes of any substance. States are merely required to take account of one another's foreign policy positions and to "endeavour to avoid any action . . . which impairs their effectiveness as a cohesive force in international relations." Ironically, it is these rather bland provisions which have given rise to a challenge in the Irish courts on the ground that they may compromise Ireland's neutrality. Finally, provision is made for the creation in the future of a subsidiary tribunal of first instance to ease the pressure on the Court of Justice-a change which is long overdue and may turn out to be the most valuable product of this muddled attempt at reform.

CHRISTOPHER GREENWOOD.

SUNDAY TRADING IN CANADA

CONSIDERABLE debate resulted in England recently from the introduction and eventual defeat of the Shops Bill which would have removed certain restrictions on Sunday trading. The Government argued that the existing restrictions on Sunday trading were too inflexible to accommodate the needs of modern business and that employers and employees-not the State-ought to decide upon working hours. On the other hand it was argued that, given the inequality in bargaining power between shop workers and their employers, the Shops Bill would inevitably result in the loss of Sunday as a day of rest. Beneath the surface of the ostensibly secular rationale for allowing Sunday trading lay the more perplexing question of whether there should be enforced observance of the Christian Sabbath in a multicultural society. In Britain such questions are within the exclusive domain of Parliament. In Canada, under the Charter of Rights and Freedoms, the courts have an important role to play in making this overtly political decision.

The very issue was considered by the Supreme Court of Canada in Big M Drug Mart Ltd. (1985) 18 D.L.R. (4th) 321. The owners of a Calgary drug store were charged with violating the prohibition against Sunday trading contained in the Lord's Day Act, a statute of the Federal Parliament. Big M's defence consisted of an attack on the constitutional validity of the prohibition on the ground that the law infringed section 2(a) of the Charter which seeks to guarantee as a

4 4 [19871 [19871

This content downloaded from 188.72.126.108 on Tue, 17 Jun 2014 15:00:32 PMAll use subject to JSTOR Terms and Conditions