TNAG-1297-FCO40-1652-Visit-by-Sir-Geoffrey-Howe--Secretary-of-State-for-Foreign-a-1984 — Page 212

Legal and Constitutional Implications of United Kingdom Membership of the European Communities

PRELIMINARY

1. The purpose of this paper is to assess the implications for the laws and the legal systems of this country and for the legislative functions of Parliament if we became a member of the European Communities. The assessment is based on a study of the terms of the three European Treaties, their subordinate instruments, and other Community documents. The paper is concerned with the general legal questions that would arise for the United Kingdom and does not attempt to give an account of the provisions governing the various economic, social and commercial matters dealt with by the Treaties. Any study of those provisions would have to take account of numerous exceptions relating to individual Member States which are contained in the Treaties and their subordinate instruments, and also of derogations by individual Member States from the strict application of various obligations which have taken place in practice. These exceptions and derogations indicate that the principles of the Treaties are applied pragmati- cally, and that allowances are made for the particular circumstances of Member States.

2. The Treaties contain provisions of two kinds. Some provisions describe the objectives which are agreed upon between the Member States, leaving it to them to achieve those objectives by legislative or administrative action- a method followed, for example, in the field of customs duties. Other provisions are intended to take effect directly as law in each of the Member States, e.g., the provisions relating to restrictive practices.

3. Treaty provisions of the former kind have hitherto been more usual, but provisions resembling the latter kind are by no means unknown to the law of the United Kingdom. They occur, for example, in various Conventions relating to carriage by air or by sea and to the regulation of sea fisheries, and are embodied in our domestic law by a series of Acts passed for the purpose.

4. The novel features of the European Treaties lie first in the powers conferred on the Community institutions to issue subordinate instruments which themselves may impose obligations on the Member States or may take effect directly as law within them; and secondly in the powers of those institutions to administer and enforce (subject to the control of the European Court) much of the law deriving from the Treaties and the instruments made under them.

THE COMMUNITY INSTITUTIONS AND THEIR FUNCTIONS 5. The Community institutions consist of the following:--

(a) A single Assembly, now known as the European Parliament, which exercises functions under all three Treaties. It has 142 Members at present nominated by the Parliaments of the Member States from among their members (EEC Treaty, Articles 137 to 144, EURATOM Treaty, Articles 107 to 114, ECSC Treaty, Articles 20 to 25).

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