THE EXPERIENCE OF THE EEC WITH SUPRANATIONALITY The view is often held in certain quarters that the experiences

of the developed countries are in large measure irrelevant to the problems of developing countries given the differences in cultural and socio-economic conditions in these countries. Without attempting to enter into any polemics on this issue, it can be said that at least in the context of economic integration, there are certain basic realities which transcend geo-physical boundaries simply because they are inherent in the very concept of integration. One such reality is supranationality. Consequently, the experiences of the most advanced and successful post-war economic integration movement, the EEC,

uld f .r uS't'ful lcvvons to ot hcr asp ir a n ts to effective e onomi . duties d ircrtly on the citizens of the Community in the s.i rn c ,\.IY as dome tic I.IW. In other words, they have direct appl ic ability. The member State and their governing institutions and courts are hound dire ctly h) mmunity regulations and arc obliged to (oTllpl) with them in the s me W.1) as they comply with the domestic 1.1\\. Ar 'a s in which r rulati ns have been applied are:

a) Agr ir u l tu rc (agriculture and ^tr.ulc in .1 truu ltur.i l must he achieved within a staled period. The rnodalitie lor r '.lll\lI1 g this objective are left to the judgement of the individu I add r 'I "'I

who must there rc enact new dom ' til law or r as t or r peal o h -r existing law so as to hring them in n rmity \ith th nhj ^{'('li\ '} envisaged in the direet i . , t ki n g int r u n t I al ronduir nv, lhc area in which this kind of I gi I tion ft n u d i in th

IIharmonis tion" pro . ,often ref IT d to " p p r xirnati 1I1 of law ", in which inronslstenrt b tw n . rio u s national I I drninistrativ rules are eliminated or dif er n r on-i1 d. It is al ) u d f r

on Community citizens a they r ddr They acq u ir e such tig h t and dutie indir

by that state, a citizen of that state is entitled, after the expiry of the grace period for the enactment of the necessary domestic law, to invoke that dirertive and refuse to pay the tax.

Where a Treaty provision or Community regulation is addressed to a Community institution and that institution can implement it only by instituting measures which are binding on particular ind ivid uals, firms or member States, it does so by a decision which is thus akin to a statutory instrument in domestic law.

The Commission, which is the executive organ of the European Communities, is thus endowed with powers to take binding decisions (Article 155).

Closely bound with the power to enact binding decisions is the capacity to enforce compliance with those decisions. The Court of Justice of the European Communities has jurisdiction, inter alia, to entertain actions against member States or institutions of the Community that fail to fulfil their obligations under the Treaty or under Community law. Such actions may be initiated either by the Commission or by another state, but, in practice, it is usually the Commission that takes the initiative. The Court examines the case and decides whether there is an infringement of the Treaty. If it finds that there is an infringement, the State or institution concerned is bound to take immediate steps to comply with the Court's judgement.

Lastly, in cases of conflict between Community and national law, Community law is accorded primacy over national law and supersedes all national provisions that clash with it.

The above, in broad outline, is the theory and practice of supranationality in the European Economic Community. The member States have definitely transferred some sovereign rights to the Community. This transfer is a dynamic process. As the Community develops from one stage to another, more and more sovereign rights are surrendered, until the goal of complete integration, including financial, monetary and political union, is realised.

ECQWAS AND SUPRANATIQNALITY

It is proposed that the principle of supranationality should be introduced in the ECOWAS structure and operations. This would imply, inter alia, vesting in the highest organs of the Community, notably the Authority of Heads of State and Government, powers to take decisions which shall be binding not only on all subordinate institutions, but also on member States of the Community. Similar powers may be conferred on the Council of Ministers in matters within its competence. Consequential amendments would be required to Articles 5 and 6 of the Treaty. The effect of such a provision would be

th t the orn m unity would incline more and more toward - de isi ns

\\ hi h have immediate and dir t appli ahility in member rates an d I n I s on protocols and co n v en ti o ns \\ huh r quire ratificati on b) m rnb r . rates in ru.r o rdaruc with dorn st ir law bcf rc he .o m i ng I g. II) hin ing .

I S regards the forms of lcgivlmio n , it i~ not cons idcrcd nee . arv to 011 0\\ the EL:C model. What is important is the su bs ta nce f the legis la t io n . Normally, the substance would indicate to whom a parti ular Icgtsl u ti n is addressed, the scope of its application, wh nhcr it is nforc -ab lc directly or requires domestic legislati on to giv f en to its general obiccuve, whether it confers rights and imp o . duties directly on om m u n i ty citiz ns. etc Th rc or , it is ufficicru provide that de i ions or dir tiv 'of the Au hority and unci l h II b binding n n t only th institutions of the mrnunity hut n m .m bc r St, tcs : wcl l v: ev rthcle s, ~ i the c. s under the Trc: ty stahli hing the African I:eo n mir orn rn u n lty, acts of the uthority n a) e ref rrc d to as de is i ns, wh ile th s the C unril may b ,II d rcgu l: ins, t listingui sh b .twe n the tw .

E\' n tho u gh und r th ' I:C W . 'II' aty, "o m mu 1il) ns ar ub j e t l ratifi .uion h r rc acquiri ng ap Ii nb ility in member

tate, alma.t , II the irnr rtant d ' i-i 1 (in th ' I I'm of r to 01 .in d onven i n ) r quire in the in iti: t.ige f he in gruti n prore 'i

h, v be .n ( ratified and hav be on ' I " , II) binding. ^I nd ) -t th • pa co ' imp ierua u on i pai n f u lly I \\. ' r 'for', vhilc u IrrrncI provi ion in the I' vi.cd 'I r 'a y onf rring irnm Ii.u c .in I dir ^I t ap lir a ili ty 01 mmu nit. i ion in ^III .n b l.l ^'i i n ' ary , what is ev ^I m r im rtant i to n c impl m nt.uion of

h_ men be r

: La .

mrnunity not only with the

r \\

s noted ovc. in the 1- · initiativ Of invtituting cnforr crn nt m ^{:lIiU H.' 1i} iii, in pr: n ice , v stc d in the .om rn tvslo n . although member Stales ma_ also ex I' i ' that re p n ibility. ,i .n the en s itivitics of gov rnm nt , it is not on id I' d prud ru t t(

expose the E . WN.. .. creta r i t t su h a high ris], re pon ihili ty. n e ra IIs» 'nf )r e me n t m asu r h u Id b lh

the highe t organ of the mmu nity - the uth rity a II ad and Government. It i pro po d, in lhi r nn nion , th at ih ' he empow ered to refer an y mall r t th e urt of [u ti

confirrns that a mernb r St t or organ of" the ommu n i ty ha not honoured an) of i oh ligation or h.i t d h) nd th ' lim it ⁰ i authority r ha mi U\ 'd the p w r ronf IT d on it h_ th pr vi i n of the Tr ' tv, a d i ion of th - uth oritv or th ' ou n il. 1 mb r

-

-Sta te ma y al ( he \'''it d with \U h P wer . rl hi \"eould req u ir amend m nt to " nit Ie 5 of the Tr -a t) . rjh ' se m h l) of II ads of Sta t and ^{GO \'} 'r n me n t of the " frir n l:cono mi mmunit) h sU'h

authority (Article 8(k) of the AEC Treaty). ^It would also require an expansion of the competence of the Court of Justice to entertain such actions brought about by the Authority or by a member State. Under Article 9 of the Protocol of the Community Court of Justice, the Court's competence in actions brought by member States or the Authority is limited to "disputes" relating to "interpretation and application of the provisions of the Treaty" in accordance with the provisions of Article 56 of the Treaty. It does not cover decisions of the Authority or the Council. Article 9 of the Protocol therefore requires revision.

Legal proceedings against member States should however be a weapon of last resort, for obvious reasons. As a rule, the Community should seek accountability from member States through such subtle means as regular submission of status reports on implementation of Community decisions. An item to this end may be inscribed as a regular feature on the agenda of the annual meetings of the Authority.

The Executive Secretariat may also ·be authorised to invite status reports on implementation on a regular basis and also bring to the attention of Council or the Authority breaches of Community laws by member States. Appropriate provisions may be introduced in Chapter II of the Treaty.

To strengthen further the machinery for implementation, it is proposed that a provision be made in Chapter II concerning the establishment of "national focal points" in r:COWAS member States (Ministries responsible for ECOWAS affairs; technical units in member States, inter-ministerial committees, etc.) whose function would be to ensure effective follow-up and implementation of Community decisions at the national level.

Where, however, a Community citizen alleges a breach or denial of a right conferred on him by a Community legislation, a Treaty provision or Protocol, it should be possible for him to seek redress in the national court or the Community Court of Justice. This is particularly germane to the applications of the Community's Protocol on Free Movement of Persons, Right of Residence and Establishment.

This proposal would also require amendment to Article 9 of the Protocol (A/PI/7 191) on the Community Court of Justice. Under the present provisions, nationals do not have a locus standi in the Court of Justice. Member States have to act on their behalf, and even so, only in cases relating to the interpretation and application of the provisions of the Treaty, "after attempts to settle the dispute ^:1'-' ibly have failed."