Doctrine of Supremacy of EU Law

In a series of important rulings the European Court of Justice (ECJ) has developed the doctrine of supremacy of European Union (EU) over national law.

According to the European Community law, where there is conflict between European law and the law of Member States, European law highly prevails. ‘This has been evident since the case Van Gend en Loos in 1963 where the ECJ clearly stated that ‘the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited field’. [1] New legal procedures are demanded by the new legal order to protect the new legal benefit it created. The doctrine of supremacy of Community law had no formal basis in the European Community Treaty, but was developed by the ECJ on the basis of its conception of the ‘new legal order’. [2] Even though the main emphasis of the judgement links to the terminology of direct applicability and direct effect, it is also significant because, by referring to the ‘new legal order’, the ECJ asserted that the Community was not just a ‘normal’ international law organisation. In detail, the Community had a more independent status as well as greater impact on the national legal systems of the Member States.’ [3]

In Costa v ENEL [4] the ECJ emphatically established the doctrine of supremacy of European Community law over national law. There are two important observations regarding the relationship between Community law and national law being made by the ECJ. ‘The Member States have definitely transferred sovereign rights to a Community created by them. This process cannot be reversed by means of subsequent unilateral measures which are incompatible to the concept of the Community. In other words, the autonomy of the Member States to act as they wish has been limited by virtue of their membership of the Community. Furthermore, as accordance to the principle of the Treaty, no Member States may call into question the status of Community law as a system to be applied uniformly and generally throughout the Community.’ [5]

EU law is absolutely supreme even over provisions of national constitutions. In the case of Internationale Handelsgesellschaft mbH [6] , the conflict was not about Treaty provision nor domestic statute, but between an European Community regulation and provisions of the German constitution. ‘The claimant here argued that the regulation infringed, inter alia, the principle of proportionality enshrined in the German constitution and sought to nullify regulations on those grounds. The constitution is superior in the hierarchy of legal rules to statute law and this is the reason why any ordinary law in breach of the constitution is invalid. However, the European Community law had been incorporated into German law by statute, the Act of Ratification. There was no provision in the constitution that the constitution could be overridden by European Community law. Article 24 GG merely provided for ‘the transfer of sovereign powers to intergovernmental institution’. Therefore, the question before the German administrative court was: If there were a conflict between the regulation and German constitution, which law should prevail? As in Costa, the German judge referred the question to the ECJ and his own federal constitutional court.’ [7]

In Simmenthal case [8] , the ECJ emphasised that supremacy of European Union law affects both prior and future legislation. ‘The fact of the case is that Simmenthal was made to pay a fee for a public health inspection when importing some beef from France to Italy. This was laid down by an Italian law passed in 1970. It was then contrary to the European Community Treaty and two Community regulations passed in 1968 respectively. The Italian authorities have raised two significant points when the case began. First, that the Italian law must prevail because it was passed after the two Community regulations. Secondly, Italian law had to be applied by the Italian courts until such time as it had been declared unconstitutional by the Italian Constitutional Court even if the Italian courts conflicted with Italy’s treaty obligations. Eventually, it was held that the national courts have to comply to the Community provisions and not to apply any conflicting provision of national legislation, even if it had been practiced consequently.’ [9]

Apparently, the obligation to ignore conflicting national law was demonstrated more pointedly in Factortame case [10] . ‘The conflict here arose between a few provisions of the European Community Treaty which prevent discrimination on the grounds of nationality and Part Two of the provided that fishing boats registered in the United Kingdom (UK) which were fishing for the quotes allocated to the UK by European Community must be owned and managed by UK citizens. It was later held that parts of the Merchant Shipping Act 1988 were incompatible with the relevant provisions of the European Community Treaty. Here, the outcome was that any legislation passed or to be passed in the UK must be interpreted with applicable European law in mind.’ [11]

‘There are some States such as Belgium, handled the doctrine of supremacy of European Union law with relative ease. However, some other States like the UK, France and Italy have started to accept the supremacy gradually, after a lengthy process.’ [12] After the acceptance of Community Supremacy in the UK, the judges approach conflicts between European Community law and Parliamentary legislation in a particular way. They are given considerable guidance by the European Community Act 1972 which was passed by Parliament to make provision for Britain’s membership of the Community. Section 2(4) of the Act indicates that any legislation ‘passed or to be passed…shall be construed and take effect subject to’ the preceding terms of the section, one of which enforces directly effective rules of Community law in the UK. [13]

In the past, the absence of written constitution in the UK which declares the sovereignty of the people and also the sovereignty of the constitution is filled by the doctrine of parliamentary sovereignty, or known as supremacy. Sovereignty is the fundamental rule of the common law, for it is the judges who uphold parliament’s sovereignty. Sovereignty will remain the ultimate rule of the constitution for as long as the judges accept the sovereignty. [14] ‘On the other hand where a written constitution exists, it will have come into being either by a grant of independence from a formerly sovereign power or through a revolution. It is known as ‘autochthonous’ [15] when the constitution arises from the native authority of the people. The citizens entrusted power to the government. It is firmly held belief that government holds its power on ‘trust’ for the people.’ [16]

Albert Venn Dicey, who was a British jurist and constitutional law theorist, stated that ‘The principle of sovereignty means neither more nor less than this: namely, that Parliamentary thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’ [17] In brief, three basic rules can be deduced from this description. First, parliament is the supreme law making body and is allowed to enact law in any subject matter. It means that there is no limit on the subject matter on which parliament may legislate. Thus parliament may legislate to alter its term of office. Second, no parliament may be bound by a predecessor or bind a successor. ‘The rationale for this aspect of Dicey’s definition of sovereignty lies in the recognition that for a body to be sovereign it must be, in Austin’s word, illimitable. It follows, therefore, that each parliament must enjoy the same unlimited power as any parliament before it. No parliament can enact rules which limit future parliaments. [18] It is this aspect of Dicey’s definition which give rise to the most argument and which requires the most careful analysis.’ [19] Lastly, no one may question the validity of parliament’s enactment. True it is, that what the Parliament doth, no authority on earth can undo. [20] ‘As has been seen, an Act will be accepted as valid by the courts provided that it has passed through the requisite legislative stages and received royal assent. Regardless of the subject matter of the Act, it will be upheld by the judges. However, in the time before the 1688 settlement, it was not uncommon for judges to proclaim that an Act of Parliament could be held to be invalid because it conflicted with some higher form of divine law.’ [21]

At a conceptual level, the manner in which international law, of which Community law may be regarded as a sui generis ( that is to say, unique) example, is dependent upon whether a particular state adopts monist or dualist approach to international law. [22] ‘When international law and national law form a single whole, or part of the same conceptual structure, in which international law takes precedence, it is known as monism.

In contrast, dualism regards the systems of international law and national law as separate. Some domestic legislation must be enacted by the national parliament in order for international law to enter into national law. UK had adopted this view and remains consistent with the sovereignty of parliament.’ [23] ‘The UK’s dualist approach to international law indicates that international treaties ratified by the UK are not part of the UK domestic law. If it is to be enforced at the domestic level, they must be incorporated by an Act of Parliament. Theoretically, the sovereignty principle makes it very difficult for the supremacy of Community law over later Parliamentary legislation to be guaranteed. It seems vulnerable to any later Act of Parliament which contravenes or contradicts it, expressly or impliedly, since the Act of Parliament which incorporates European Community law makes it domestically binding.’ [24] In short, it is said that Treaties are part of international law, and can have no effect in domestic law unless and until a statute of the sovereign UK Parliament is enacted to enforce them. ‘In 1972, Lord Denning MR confirmed this view in the case of Blackburn v Attorney General [25] by asserting that ‘Even if a Treaty is signed, it is elementary that these courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted by Parliament, and then only to the extent that Parliament tells us.’ For that reason, the signing of the European Community treaties had no effect in English law without any further parliamentary action. In order to have effect, it was necessary for parliament to pass the European Communities Act 1972.’ [26]

‘The manner in which, and extent to which, the UK courts have accommodated Community obligations requires consideration. First, it should be noted that nothing in the European Communities Act 1972 represents an attempt to entrench its provisions, that is to say, to make them immune from amendment or repeal. Likewise, there is no statement in the Act purporting that European Community law is a ‘higher form of law’, or that the Act cannot be repealed, or could be repealed but only by some specified ‘manner and form’. It is evident that the doctrine of implied repeal does not operate in relation to the European Communities Act 1972.’ [27]

‘As a dualist state without a written constitution the status of Community law in the UK derives from the European Communities Act 1972. To what extent does that Act enable the British courts to give effect to the principle of supremacy of EC law?’ [28] The most significant provisions here are ss. 2 and 3. ‘Section 2(1) of the European Communities Act 1972 makes the concept of direct effect a part of the UK legal system. It reckons law which under the EC Treaties is to be given immediate legal effect to be directly enforceable in the UK. The English courts are directed by section 2(1) to enforce any directly effective European Community measures. There is no need for a fresh act of incorporation to enable UK courts to bring into effect each European Community Treaty provision, regulation, or directive which according to the European Community law has direct effect.’ [29]

Subsequently, section 2(2) provides for the implementation of Community obligations, even when they are intended to replace national legislation and Acts of Parliament, by means of Order in Council or statutory instrument rather than by primary legislation only. [30] This is subject to Sch. 2. Schedule 2 lists the ‘forbidden’ areas, such as the power to increase taxation, to introduce retrospective measures or to create new criminal offences. These area apart, s2(2) thus allows for ongoing domestic legislation over the whole field of objectives of the Treaty. [31]

Section 2(4) is the section relevant to the question of primacy. It does not expressly say EC law is supreme. Under this section, any enactment passed or to be passed, other than one contained in this part of this Act, such as an enactment of a non-Community nature, shall be construed and have effect subject to the foregoing provisions of this section, such as obligations of a Community nature. [32] The Schedule to which the provision refers sets out a number of powers, such as increasing taxation or legislating retroactively, which cannot be exercised by Order in Council or by delegated legislation, even if they are necessary to comply with a Community obligation. [33] It seems an Act of Parliament will be needed for these powers.

Under Section 3(1) any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law and, if not referred to the ECJ, be determined in accordance with the principles laid down by the ECJ. [34] The provision makes the decision of the ECJ on the meaning and effect of European Community law authoritative in UK courts, giving them, to use domestic legal language, the force of precedent.

With regard to the effect of the European Communities Act 1972, s. 2(1) and (4), the first question to arise is whether the combination of these two provisions is sufficient to enable the British courts to give priority to European Community law, on Simmenthal principles, as the ECJ would require. The very traditional constitutional view is that the doctrine of parliamentary sovereignty, and particularly the principle of implied repeal, makes entrenchment of European Community law impossible. Parliament is not free to bind its successors. Hence, priority for European community law cannot be guaranteed, and s. 2(4) can only provide a rule of construction.

The leading decision on the relationship between Community law and the UK law is Factortame, which has been discussed early. Prior to that decision the judicial approach varied. The predominant approach, despite early judicial comments to the contrary, [35] was to use principles of construction to assume that when Parliament enacted the 1972 European Communities Act it intended any ambiguity or inconsistency with European Community law to be resolved by giving primacy to European Community law, [36] provided that there was no indication that Parliament expressly intended to depart from a provision of Community law, the assumption being that if the latter were to exist then the courts would follow the will of Parliament. [37] Therefore, where an apparently conflicting provision of English law was capable of being read in conformity with Community law, this was the proper approach to take. [38] oIn

In some cases the courts assumed that this approach would only apply where the provision of Community law was directly effective. [39]

Then again, there are limits of primacy on the enforcement of European Community law. The British Courts have been willing to accord supremacy to directly effective Community law, either by a fictional ‘construction’ of domestic law, or, where necessary, by applying European Community law directly, in priority over national law. ‘Lord Bridge suggested in Factortame case that this appears to rest on the implied intentions of Parliament. However, both Lord Denning in Macarthys case and Lord Diplock in Garland case have made it clear that should Parliament expressly attempt to repudiate its European Community obligations the courts would be obliged to give effect to wishes. While this is unlikely to happen as long as the UK remains a member of the Community, it was perhaps as important that it should remain a theoretical possibility.’ [40]

‘In Macarthys v Smith, Mrs Smith was employed by Macarthys as a stockroom manageress. The man who had previously held the position had been paid a higher wage than Mrs Smith. The applicable domestic legislation here was the Equal Pay Act 1970, as amended by the Sex Discrimination Act 1975, which provided, inter alia, that men and women employed in the same job should be paid equals amounts. The relevant point of interpretation, therefore, was whether men and women, employed at differing times for the same job, were required to be paid equally. The ECJ held that Article 119 of the EC Treaty required equal pay for men and women whether they were employed contemporaneously or in succession. On receiving the judgement of the ECJ, the Court of Appeal ruled in favour of Mrs Smith.’ [41]

‘Article 119 fell for further consideration in Garland v British Rail Engineering Ltd in 1983, this time is by House of Lords. British Rail made concessionary travel facilities available to the children of male employees reaching retirement, but not to the children of women reaching retirement. The question was whether this policy amounted to discrimination contrary to Article 119, as it then was, of the Treaty, and whether the courts in England should construe the Sex Discrimination Act 1975 in a manner so as to make it compatible with the requirements of Article 119. The House of Lords referred the matter to the ECJ, which ruled that the policy amounted to discriminations contrary to Article 119, and that Article 119 must prevail.’ [42]

In Factortame, their Lordship’s views on the European Community Act 1974, s. 2(4), were expressed in the context of a conflict between domestic law and directly effective Community law. In Duke v GEC Reliance Ltd [43] the House of Lords thought that s. 2(4) of the Act does not enable the British courts to follow von Colson case and Marleasing case and interpret domestic law to comply with European Union law, even when it is not directly effective. In Lister, [44] Pickstone, [45] and Webb [46] the House of Lords was prepared to construe domestic statutes in conformity with European Community law which was not directly effective, even where that construction was not in accordance with the literal or prima facie meaning of the statutes. This was so even where the national statute was introduced to implement a non-directly effective directive. [47]

After the Factortame case, the acceptance by UK courts of the supremacy of Community law was further evidenced by the Equal Opportunities Commission (EOC) [48] case, where the House of Lords stated that there was no constitutional barrier to an applicant before any UK court, and not only the House of Lords, seeking judicial review of primary legislation which was alleged to be in breach of Community law. ‘The EOC considered that the Employment Protection (Consolidation) Act of 1978 on part-time workers was contrary to Community law. The Secretary refused to accept that the UK was in breach of EC law in a letter from the Secretary of a State for Employment to the EOC. The EOC then sought judicial review of the Secretary of State’s decision. The Secretary of State argued that the English court had no jurisdiction to declare that the UK or the Secretary of State was in breach of any obligations under Community law. Lord Keith stated in this case about the question whether judicial review is available for the purpose of securing a declaration that certain UK primary legislation is incompatible with Community law. In here, the Factortame case is a precedent in favour of the EOC’s recourse to judicial review for the purpose of challenging as incompatible with Community law the relevant provision of the 1978 Act.’ [49]

‘Two early challenges were made to the signing of the treaty on the basis of the potential or actual loss of parliamentary sovereignty. In Blackburn v Attorney General in 1971, the plaintiff sought a declaration that the government, by signing the Treaty of Rome, would surrender part of Parliament’s sovereignty which it could not lawfully do, as no parliament could bind another. In R v Home Secretary ex parte McWhirter [50] , the plaintiff adduced that joining the EC was contrary to the Bill of Rights 1689, which declared that all powers of government are vested in the Crown and parliament could not, therefore, by means of a Treaty, transfer those rights.’ [51]

In both cases, the arguments were disposed of with speed. As in the case of Blackburn, Lord Denning MR stated that ‘even of the Treaty is signed, it is elementary that the courts take no notice of it until embodied in an Act of Parliament’. Further, in McWhirter, Lord Denning stated that ‘even though the Treaty of Rome has been signed, it has no effect as far as the courts are concerned until implemented by Act of Parliament. Until that day, we take no notice of it’. [52]

The case of R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg [53] had also brought about a challenge to the government’s Treaty making power. Lord Rees-Mogg sought a declaration from the court to the effect that the government could not lawfully ratify the Treaty on European Union 1992, the Maastricht Treaty, without the consent of parliament. The Court of Appeal gave short shrift to the argument, relying on the earlier precedents, and no appeal was made to the House of Lords.

‘At the same time as the primacy of Community law is accepted by the UK courts, the conceptual foundation for their decision has varied. In Factortame (No 2) Lord Bridge adverted to reasoning used by the ECJ in justifying according primacy to EC law, as exemplified by his reference to supremacy being inherited in the nature of the European Community Treaty. However, Lord Bridge did premise the UK’s acceptance of supremacy on a UK statute, which is the 1972 European Communities Act.’ [54]

The case of Thoburn [55] emphasized the domestic acceptance of supremacy. Law LJ held that the constitutional relationship between the UK and the European Union was not to be decided by the ECJ’s jurisprudence, that case law could not itself entrench European Union law within national law. [56] The common law decided the constitutional relationship between the European Union and the UK, including the impact of membership of the European Union on sovereignty, in the light of any statutes that Parliament had enacted. [57] In accordance to Laws LJ, the common law had modified the traditional concept of sovereignty by creating exceptions to the doctrine of implied repeal. Ordinary statutes were subject to the doctrine of implied repeal. What Laws LJ referred to as ‘constitutional statutes’. Which conditioned the legal relationship between citizen and State in some overarching manner, or which dealt with fundamental constitutional rights, were not subject to doctrine of implied repeal. [58] The repeal of such as statute, or its disapplication in a particular instance, could only occur if there were some ‘express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. [59] The European Communities Act 1972 contained provisions that ensured the supremacy of substantive Community law in the event of a clash with national law, and was not subject to implied repeal. Laws LJ nonetheless voiced a warning note reminiscent of that from the earlier German jurisprudence. This is when he stated that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the European Communities Act were sufficient to incorporate the measure and give it overriding effect in domestic law. [60]

The extract of ‘P. Craig, Britain in the European Union’ [61] draws together the preceding case law and considers its substantive impact and the way that it can be conceptualized.