How does the EU actually work? (Part 1 – Powers)

I like to think I am a calm person, but like 99.25% of London commuters, I am guilty of having silent tube rage, especially in the mornings (or more precisely, before my first coffee). For things that annoy me on the underground – see here.

My most recent source of tube rage comes from reading stories in newspapers over people’s shoulders (I know, it’s annoying, and it’s entirely my own fault – I should probably be included in the list of people in the link above). What has annoyed me particularly is just how much of the reporting on the EU doesn’t seem to fully understand how it works, which results in suggestions such as we are being controlled by Brussels.

This is the inspiration for the first three posts on this blog. I am going to take on the task of explaining the basics of how the EU works with the aim of showing that the UK has important controls over the EU (start with something easy, they said…) Think of this as EU 101… Given that I couldn’t cover all of this in one post without sending you to sleep, I’m going to break it up into three parts:

Part 1 explains the basics of the EU and how it gains its powers. In particular, I will explain how the UK controls the powers given to the EU and therefore deal with the suggestion that we have no control over what goes on in the EU.

Part 2 explains the EU’s institutions and how they work [if you know about this – you can skip this one]. This post serves as the basis for…

Part 3 explains how the EU makes law, and identifies the often overlooked democratic elements of the EU. I also explain my thoughts on why discussion of the EU’s “democratic deficit” should not dominate the EU referendum debate.

What is the EU?

Let’s start at the beginning. The EU as it stands today is made up of 28 countries, known as Member States. In addition to that, three countries, Iceland, Liechtenstein, and Norway, participate partially in the EU via EFTA – the European Free Trade Association. These three countries participate in the trade and free movement aspects of the EU. Finally, there is Switzerland, who has agreed to join specific parts of the EU via a series of agreements.

What governs how the EU works?

The EU was formed by international agreements, known as treaties. There are currently two treaties that govern how the EU works: Treaty on European Union (TEU), and the Treaty on the Functioning of the European Union (TFEU). These treaties are written and agreed by every Member State of the EU, and can only be changed with the consent of all of the Member States.

These treaties are the main source of law within the EU. They set out, amongst many other things, the powers given to the EU, its institutions and their roles, and they explain how law is made within the EU.

How does the EU get its powers to act?

One really important point to know is that the EU only has the powers that all the Member States give to it.[i] These powers are written into the Treaties. So if the EU is given the power to act in a particular area (for example, protection of the environment) this a power that has been given to it by all of the Member States. This one of the reasons that I don’t agree with the argument that the EU inappropriately intervenes in a given policy area. Our government has taken the decision to give the EU the power to act in that area by agreeing to a Treaty that provides the EU with those powers. The EU cannot give itself powers.

Therefore, if the Member States do not want the EU to do something, they simply do not give it the power to do so, and without that power, it cannot act. Additionally, it is possible for Member States to “opt out” of certain powers given to the EU. For example, one of the EU’s powers concerns the abolition of border controls between certain Member States under the Schengen agreement. The UK has (in my view quite rightly) opted out of this area, and cannot be forced to join it.

What powers does the EU have?

Member States, via the Treaties, have conferred a number of powers to the EU to act in certain policy areas, and these are called competences. I won’t bore you with a list of them (unless you are particularly interested, in which case I would be delighted to show you where they are). But it is important to know that there is a clear list, which has been agreed by all Member States, as to the areas in which the EU may act (either instead of, or alongside the Member States).

Can the EU gain more powers?

I have read a lot of claims that if we don’t vote to leave the EU now, there is a risk that the EU will get bigger and bigger, and gain more and more powers (I have visions of some sort of superhero cartoon character when I read this). That claim is not accurate. Given what I have written above, the EU can only gain additional powers if the Member States (including the UK) agree to it in the Treaties. It is not something that can be “done” to us.

In addition, our government has passed a law (The European Union Act 2011) which requires it to hold another referendum in the vast majority of circumstances where further powers are transferred to the EU. In particular, a referendum would have to be held if[ii]:

  • The EU’s objectives were extended.
  • The EU obtained a new competence, or existing competences were extended.
  • The UK were ever to decide to join the euro (and I will explain in a future post why we could never be forced to join the euro)
  • The UK were to choose to participate in the Schengen border-free travel zone.

So if further powers are to be transferred to the EU, it is very likely that we would be given the opportunity to vote on this in a referendum, and we can decide whether we want this to happen.

Two final points

 Based on this, there are two final points to make:

  1. It is often argued that being a member of the EU entails a loss of control (or sovereignty) on the part of the UK in favour of the EU. I will write something more detailed on sovereignty in a later post – but it isn’t as simple as that. The UK has transferred certain powers to the EU through choice – they haven’t been taken away from us.To me, this is exactly what sovereignty is about – exercising the choice to give powers to another entity in a particular area because the government, or we as UK citizens, consider that an appropriate action. It’s a bit like allowing your partner to decide how to decorate the house because they claim to be a whiz at interior design (okay, it’s a bit of a stretched analogy, but bear with me… )Therefore, it isn’t enough to vote to leave just on the basis that we are concerned that the EU has powers over the UK, as the UK chose to give those powers to the EU – for example, you couldn’t break up with your partner for decorating the house because you said they could do it. Instead, we need to be satisfied that we don’t want the EU to exercise the powers that are given to it by the UK and other Member States. Following the above (and now rather tired) analogy, you’d have to break up with your partner because you think that they did a bad job of decorating the house (although that’s a pretty spurious reason to break up with someone!) This leads neatly to my second point…
  1. This is not a vote about what might happen to the EU in the future. No one can predict with certainty how the EU may develop. This referendum vote is a vote on the EU as it stands, and whether you want the UK to remain a part of it – further important transfers of power to the EU are likely to be the subject of another referendum, and we can debate and vote on those if they happen.

Footnotes (AKA things for the super keen)

[i] Article 5(2) TEU: “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”

[ii] s.4 and 6 European Union Act 2011.

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