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Ever Closer Union Clause—A Long-Cherished Dream?

Even before the foundation of the European Economic Community (EEC), the idea of strengthening the connections among European States had already emerged, like a dream for the future, symbolizing a stronger and united community. In 1946, Churchill expressed his opinion in his speech at the University of Zurich on what could be the future vision for Europe. He stated, “We must build a kind of United States of Europe.” Although this concept and the level of interdependence and surrender of sovereignty among Member States did not gain support at that time, 11 years later, the Treaty of Rome (1957) established the ever closer union clause as an objective. The Preamble of the Treaty of Rome (which established the EEC) states the fundamental objective of creating “ever closer union among the peoples of Europe.” While initially aimed at encouraging European States to cooperate primarily in the economic realm, over the years and with the renewal of the Founding Treaties, we can observe the evolution of the ever closer union clause—how it has remained in the Treaties, how it has developed within the Union, and simultaneously how the pursuit of economic unity has grown into a clause encompassing multiple domains, all in alignment with the dream of an ever closer union.

Treaty of RomePreamble: “Determined to lay the foundations of an ever closer union among the peoples of Europe” Article 2: “[…] closer relations between the States belonging to it”
Solemn Declaration on European UnionArticle 1.1: “[…] towards an ever closer union among the peoples and Member States of the European Community.”
Single European ActPreamble: “Moved by the will to […] transform relations as a whole among their States into a European Union”.
Maastricht TreatyPreamble: “Resolved to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity.” Article A: “This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen.”
Amsterdam TreatyArticle 1: “This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.”
Nice Treaty
Lisbon TreatyProtocol on the Euro Group: “Desiring to promote conditions for stronger economic growth in the European Union and, to that end, to develop ever-closer coordination of economic policies within the euro area”

The table reveals how the meaning and objectives of the ever closer union clause were expanded through treaty amendments. However, alongside this clause, a CJEU judgment also serves as a basis for the statement that the Union strives for unity through the establishment of a supranational level. The CJEU decision, specifically the Costa v. ENEL case, established the supremacy of EU law. It is already a concern that the principle of primacy was not incorporated into the Founding Treaties accepted by the Member States but was pronounced by one of the Union’s institutions for the Union itself. But what exactly did the CJEU state in this regard?

“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.”

All of this conveys the meaning that through the Founding Treaty, the Member States, by constraining their sovereignty and conferring certain competences to the Community, granted authorization to the Community, thereby subjecting themselves and their citizens to the provisions of Community law. This opens the way towards a kind of aspiration for unity, which can be realized in decision-making on a supranational level.

Despite the ever closer union clause and the supremacy of EU law as pronounced in the mentioned case, the dream of a unified position in this regard still remains a challenge. The sovereignty concerns of Member States complicate the attainment of the objectives set out in this context. The States’ positions are not uniform concerning the extent to which they recognize the primacy of EU law, thus hindering efforts towards State unity.

In light of the differences in perspectives mentioned, Member States can be divided into three distinct groups. The first group consists of countries that acknowledge the supremacy of EU law even in relation to their constitutional norms. Austria and the Netherlands can be classified within this group. Another category emerges where some Member States maintain principled reservations regarding the supremacy of EU law in order to protect certain constitutional principles, but these reservations are not explicitly stated. Italy and Germany fall under this category, for instance. The final group encompasses States like Hungary and Poland, among others, that accept the supremacy of EU law to a limited extent and retain the possibility of control.

Nevertheless, the EU is frequently criticized for extending its competence through CJEU judgments to areas not explicitly conferred by the Member States in the Treaties. These decisions result in the Union gaining control over a growing range of matters, establishing uniform standards among Member States, and bringing them closer together in alignment with the ever closer union clause, as a dream previously set for the future.

We can identify an increasing number of examples of the expansion of EU competences in the case law of the CJEU. One such was the Case C-38/06 against Portugal. In this instance, the issue revolved around the duty-free importation of military equipment conflicting with the common customs tariff. The factual background of the case was rooted in Portugal’s failure to fulfill its obligation under EU law by refusing to both identify and provide the resources to the Commission exclusively derived from the import of equipment and items intended for military use, along with the subsequent payment of late interest accruing thereon. Portugal grounded its argument on Article 346(1)(b) of the TFEU, which reserves to the Member States the production and trade of various arms and military equipment they deem necessary for the protection of their essential security interests. However, the Commission contended that the common customs tariff falls within the competence of the Union, based on Article 31 of the TFEU.

Portugal argued to substantiate its competence that the contractual provision it invoked allows general deviations for Member States, limited only by Article 348 of the TFEU. However, the Court did not even examine the possibility of the existence of the mentioned article recognized by Portugal, which grants competence to the Union, thereby neglecting a comprehensive analysis. The Court based this decision on the absence of an essential security interest justifying Portugal’s competence. Therefore, for the decision of the case, the crucial aspect is what the preceding judicial case law established regarding this concept.

During the proceedings, Portugal referred to Case T-26/01 (Fiocchi Munizioni v Commission), where the establishment of the general applicability of the invoked article in question was addressed. This implies that the determination of a State’s essential security interest falls within the realm of the country’s discretionary authority, as each Member State is always in the position to decide this issue based on its knowledge of its circumstances. However, in its decision, the Court did not follow the precedent set in the aforementioned case but rather relied on Case C-414/97. In this latter case, the Court had already given a restrictive interpretation of the same article. Therefore, two contradictory court decisions were at the Court’s disposal. While Case T-26/01 was issued in 2003, Case C-414/97 was issued in 1999. However, rather than aligning the decision with the later judgment, the Court relied on its earlier ruling, thereby siding with the Union in the competence dispute. The Court justified this discrepancy by referencing its general judicial practice. The mentioned case law had been developed in the context of deviations from fundamental freedoms, particularly focusing on deviations from the principle of free movement of persons. The parallel drawn between the duty-free import of military equipment and the free movement of individuals can only be made through an exceedingly extended and indirect interpretation. Therefore, in my view, the Court deviated unjustifiably from its prior case law, expanding its competence in this instance.

The above-mentioned points highlight the long-cherished dream of an ever closer union. However, the emphasis on its realization does not rest in how the Treaties formulate the ever closer union clause, but rather in the actions taken to achieve it. Since the establishment of the EEC, cooperation has significantly progressed among Member States, encompassing the EU’s four fundamental freedoms, the eurozone, and numerous other realms. Nonetheless, even with such a level of collaboration and shared objectives, the practice of the CJEU cannot infringe upon Member States’ sovereignty. In this context, it can be seen that some countries are beginning to challenge the CJEU’s practices. This raises the question of what the Member States intend in relation to the ever closer union. Could there possibly be a new dream for the future?

Dalma Medvegy is a fourth-year undergraduate law student at the University of Szeged, Hungary, Faculty of Law and Political Sciences, holding a talent scholarship from the Aurum Foundation. She is Vice President in charge of Academic Activities at ELSA Szeged in the academic year of 2022/2023 and a member of the International and EU Environmental Law Research Group at the University of Szeged, Faculty of Law and Political Sciences. Her research focuses on the revision of EU treaties and the future of Europe.

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