The view of supremacy adopted by the ECJ has differed radically from that adopted by most of the member states. Explain with reference to the reaction in at least two of the member states to the ECJ’s interpretation of the principle of supremacy. - Justin Santiago
The concept of supremacy of EU law where EU law takes precedence over national law was never expressly stated in any of the treaties. The supremacy of Community law stems from the condition of membership of the EU that member states give priority to EU legislation over their own law. Additionally the creation and development of the supremacy of EU law was developed by the ECJ through a series of important rulings.
The concept of direct applicability states that certain provisions of EU law become national law without further enactment.
Directly applicable EC legislation overrides inconsistent domestic legislation – Factortame (No 2). Per Lord Denning in MacCarthy v Smith – we are entitled to look to the Treaty not only an aid but as an overriding force (Art 119). This principle was further developed in the case of Costa v Enel in which the case set out that community law had been integrated into the member states’ legal systems and was binding on them. It also declared the effect of unlimited duration of the application of EC law meaning, in the words of the ECJ “…it is impossible for a member state to set up a subsequent unilateral measure against a legal order they have accepted on a reciprocal basis.”
The ECJ touched on supremacy in the case of Van Gend en Loos v Netherlands ‘…the community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights…that member states have voluntarily transferred sovereignty to the institutions of the community.” The ECJ also laid down conditions of justiciability (capable of being applied by a national court) namely that articles of the treaty could be pleaded in the national court provided the provision was clear and precise, it must be unconditional, its operation must not depend on further action by national or EC authorities and it must lay down a negative prohibition rather than a positive obligation has been whittled down .
The ECJ deployed a number of arguments to justify its conclusion that EU law should be accorded supremacy over national laws :-
1. The EC Treaty created its own legal order which immediately became an integral part of the legal systems of the member states.
2. The member states had transferred to the new community institutions real powers stemming from a limitation of sovereignty although this was not in reference to the constitution of any particular member state but simply by being a member of the EU.
3. The spirit of the community required that EU law was uniform and effective among all members in order to achieve the objectives of a common market
4. Obligations undertaken by member state in the Treaty would be merely contingent rather than unconditional if they were to be subject to later legislative acts on the part of member states
However members of the EU have varying levels of resistance towards this encroachment into national constitutional law and their courts have experienced particular difficulties in this respect. The question naturally arises whether there are areas in which the member states are no longer competent to legislate, and must defer to the EU. Areas of EU exclusive competence are generally held to exist, but it is by no means clear what they are
National courts have generally accorded supremacy to directly effective EC law, but frequently basing that supremacy on provision of national law rather than on the ECJ’s rulings and have expressed particular reservations in relation to fundamental rights recognised in national constitutions. Most of the courts of the member states regard themselves as possessing the ultimate Kompetenz-Kompetenz.
The German response to supremacy of EU Law has developed from one of outright rejection to one of acceptance based on the sovereignty of the German constitution. In the case of International Handelsgessellschaft GmbH v EVGF (Solange I) the Federal Constitutional Court held that although Article 24 (now Article 25) of the constitution allowed for the transfer of legislative power to international organizations but the question raised was whether Article 24 permitted the transfer to an organization such as the EC, of a power to contravene certain basic principles protected under the constitution itself. It was held that so long as the Community had not removed the possible conflict of norms between EC law and national constitutional rights the German court would ensure that those rights took precedence.
The rational was that in this present case, the constitution provided sufficient protection of fundamental human rights and that these rights were insufficiently protected under Community law as it was felt the Community lacked a democratically legitimated and directly elected parliament as well as a codified catalogue of human rights. As long as the recognition of human rights in the community had not progressed as far as those provided by the constitution, Community law could be ignored. There was therefor no redress for parties wronged to see whether Community law would have affected the outcome of the case.
This position was revised in Application of Wunsche Handelsgesellschaft (Solange II) in which the FCC would no longer exercise its jurisdiction to decide on the applicability of EU law as the legal basis for any acts of German courts or authorities and it will no longer review such legislation by the standard of the fundamental rights contained in the constitution.
However Solange II did not surrender jurisdiction over fundamental rights but only stated that the FCC would not exercise that jurisdiction as long as the present conditions as to the protection of fundamental rights by the ECJ prevailed. The FCC still preserved its final authority to intervene if real problems concerning the protection of fundamental rights in Community laws arose.
In the Brunner case it was decided that Germany’s acceptance of the supremacy of EU law was conditional and the FCC asserted its jurisdiction to review the actions of European institutions and agencies which included the ECJ to ensure that they remained within the limits of their powers and did not transgress the basic constitutional rights of German inhabitants.
Article 11 of the Italian Constitution permits limitations of sovereignty as are necessary to an organization which ensures peace and justice between nations. This has formed the basis of the Italian courts’ acceptance of the supremacy of EU law although this acceptance has not been unconditional. In Frontini v Minisetero dell Finanze the Constitutional Court stated that it reserved the right to hold fundamental rights protected by the Italian constitution to be supreme over EU law. The case of Fragd considered that a Community measure would not be applied in Italy if it contravened a fundamental principle of the Italian constitution concerning human rights protection.
The central obstacle to acceptance by the UK of the supremacy of EU law is the constitutional principle of parliamentary sovereignty which in its traditional formulation holds that Parliament has the power to do anything other than to bind itself for the future.
Membership of the EU has not pushed parliamentary sovereignty of its pedestal. There is an increasing trend of the ECJ having a bigger bark in judicial decisions but whether that translates into a bigger bite is questionable. Supremacy of EU law over the domestic law of the UK is questionable.
The dualist approach taken by the UK to incorporating extra territorial legislation means that EU law had to be incorporated by the European Communities Act 1972 (ECA 1972). The extension of the interpretation of the supremacy of EU law by the ECJ has been thwarted by the following provisions and is aptly demonstrated in case law:-
S1(4) states that Parliament would enact all future legislation in conformance with EU policies
S2(1) states that all provisions of EU law which are intended to be directly applicable in the UK are given the force of law.
S2(4) states that Acts of Parliament passed after 1972 shall be construed and have effect subject to the provisions of the ECA 1972.
Per Lord Denning in Macarthys v Smith– we are entitled to look to the Treaty not only an aid but as an overriding force. However there was some pulling back in the case of Duke v GEC Reliance Systems where Macharthy is not applicable to domestic legislation which pre-dates the incompatible provision of EU law. It was felt in Duke that the Van Colson principle which required domestic law to be interpreted as far as possible in the light of EU law was no authority for the proposition that a court of a member state must distort the meaning of a domestic statute so as to conform with EU law.
The later cases of Lister v Forth Dry Dock, Pickstone v Freeman and Webb all point to the courts treading gently on domestic legislation and using the purposive approach to ensure compatibility with EU law. In Pickstone v Freeman the direct applicability rule was softened to accommodate domestic laws which was specifically designed to implement EC law. Lister v Forth Dry Dock took this further in that an extra clause was read in in order for domestic regulation to comply with the directive if a literal reading would not achieve the purpose. This is an example of the UK courts adopting a purposive approach, recognizing that Parliament’s specific purpose in passing a particular measure was to implement a provision of EC law.
There was a further acceptance of EU law in the case of Factortame II which culminated in the House of Lords granting interim relief the effect which would suspend the operation of an Act of Parliament. The acceptance by UK courts of the supremacy of EU law was further evidenced by the EOC Case where the HOL stated that there was no constitutional barrier to an applicant before any UK court and not only the HOL seeking judicial review of primary legislation which was alleged to be in breach of EU law.
The effect of these cases was that the courts would not actually invalidate the act which went to show that UK law was still supreme.
The case of Thoburn v Sunderland City Council and Others introduced the element of ECA being a constitutional statute that could be expressly repealed. In other words parliamentary sovereignty had created the ECA 1972 and parliamentary sovereignty dictated that parliament be the one to expressly repeal it. Purists have also have argued that the doctrine of parliamentary sovereignty has been untouched since the UK needed Parliament to pass the ECA 1972 before EU law became law in the UK. And it will be within the sovereignty of Parliament to repeal the ECA 1972 and prevent the continued operation of Community law within the UK.
All of these cases point to UK parliamentary sovereignty being firmly in the drivers seat nothwithstanding the ECJ notions of supremacy of EU law.
- Justin Santiago
- Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.
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