Supremacy of EU Law

The supremacy of EU law was always seen as the one posing two specific problems for the United Kingdom (thereinafter referred to as ‘UK’). First of all, the doctrine of Parliamentary sovereignty is a cornerstone [1] of British constitutional law. Parliament possesses the power to do anything that would prevent it from binding itself for the future. [2] The principle of sovereignty makes it ‘easier said than done’ for supremacy of EU law over later Parliamentary legislation to be guaranteed. [3] Therefore, Acts of Parliament, instead of a Constitution, are the highest form of law. [4]

Furthermore, a dualist approach to the relationship between international treaties and national law has always been strictly followed by the UK. [5] The aforementioned treaties are not part of the national law even though they have been signed and ratified by the UK. [6] In order to make the treaties enforceable at the national level, a provision of an international Treaty must first have been enacted by the UK Parliament as an act of national legislation. [7] In McWither v Attorney General case [8] Lord Denning made it clear by stating that ‘[e]ven though the Treaty of Rome has been signed, it has no effect … until it is made an Act of Parliament.’

Since the British Constitution is composed of written and unwritten elements, [9] there is no form or concept of entrenchment of certain parts of the Constitution. Thus, it is unattainable to modify the aforementioned document with any certainty. [10] Under traditional constitutional thinking any transfer of powers to the Community could not be observed as permanent. [11] Hence, the Act of Parliament, that would incorporate Community law and make it nationally binding, does seem vulnerable [12] to any subsequent Act of Parliament which contradicts to it in express or implied way. [13]

Nevertheless, the doctrine of Parliamentary sovereignty has come under reconsideration in the light of the Human Rights Act 1998. [14] The Act allows UK declarations of incompatibility to be made in the situation where an Act Parliament is found to violate the European Convention on Human Rights. [15] An extensive understanding that there can be a hierarchy of law and that some Acts are challengeable has been thus introduced. [16] The expression of the sovereignty of Parliament has been nuanced [17] by UK courts in the case of Jackson, [18] where willingness of the courts to question Acts of Parliament from the perspective of other principles of UK law was indicated. [19]

It was the European Communities Act 1972 that incorporated European Union law into domestic law. The entry to the EU and implementation of its law in the United Kingdom does originally focus on the way that the 1972 Act observes and takes account of well-established Community law concepts of direct effect and supremacy. [20] In the case of Thoburn v. Sunderland City Council [21] it was held that the Act impliedly recognises the unique new legal system and is regarded now as a special form of UK legislation. [22] The ruling in the aforesaid case does undeniably encourage rethinking of the conception of Parliamentary sovereignty for the reason of EU law supremacy. [23]

Section 2(1) of the EC Act recognises the direct applicability and, therefore, validity of Community Treaty provisions and regulations. [24] It does provide that both Community obligations and rights will be enforced and recognised. [25] Consequently, there will not be a need for a ‘fresh’ act of incorporation that would enable British courts to enforce each one of the Treaty provisions, regulations, or directives. [26]

A central provision of the discussed Act is section 2(4) that provides for the supremacy of Community law in the UK through specifying that ‘any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section.’ It makes, thus, the reference back to section 2(1) and also means that any Act of Parliament must be interpreted in a way that would give effect to the enforceable Community rights. [27]

Then, section 3 of the Act makes the decisions of the ECJ on the meaning and effect of European Community law authoritative in UK courts what gives them the force of precedent. [28] Further, section 3(1) is the instruction to the courts as to refer questions on the interpretation and supremacy of Community law to the ECJ in the situation where the UK courts cannot solve the problem themselves by reference to previous Court of Justice rulings. [29] Importantly, it does follow the ruling in Costa v ENEL and is supported by subsequent section 3(2) that requires the court to follow decisions of the ECJ on any query on Community law. [30]

In the early case of Macarthys Ltd v. Smith [31] Lord Denning MR did state that under sections 2(1) and 2(4) of the EC Act 1972 it was the court’s bounden duty to give priority to Community law in cases of ‘deficient or inconsistent’ [32] national law. The Court of Appeal followed a reference made to the ECJ [33] and confirmed that Community law is part of UK law and in case of any inconsistency EU law has priority. [34]

In Shields v E. Coomes (Holding) Ltd. case [35] it was assumed that when Parliament did enact the 1972 EC Act then it intended any ambiguity or inconsistency with European Union law to be resolved by giving supremacy to Community law. The case of Felixstowe Dock and Railway Company v British Transport and Docks Board [36] is the early judicial comment that opposed the abovementioned assumption.

Lord Diplock in Garland v British Rail Engineering [37] stated that ‘the words of a statute passed after the treaty has been signed and dealing with the subject matter of the international obligation … are to be construed … as intended to carry out the obligation and not to be inconsistent with it.’ [38] Thus, the House of Lords did regard themselves bound to interpret national law in a way that would not be inconsistent with the UK’s obligations under European Union law. In the obiter note, they gave a conclusion that the interpretation should be consistent no matter how wide a ‘departure from the words’ [39] of the United Kingdom Act would be. Nevertheless, Craig and de Búrca pointed out that the Garland’s idea of ‘harmonious construction’ of national law instead of the direct application of Union law does lead to struggle in the situation of national courts being required to apply directly effective law. [40]

On the other hand, Lord Templeman in the case of Duke v Reliance [41] observed that the requirement in section 2(4) of the 1972 Act as to interpret domestic law in accordance with EU obligations did not particularly apply where Union law was not directly effective. At the time this judgment was considered to be a very backward step made by a UK court and seemed to uphold the supremacy of the UK Parliament over Community law. [42]

However, in Lister v Forth Dry Dock, [43] Pickstone v Freeman’s [44] and Webb v Emo Air Cargo [45] cases the House of Lords was prepared to interpret domestic statutes in conformity with European Union law which was not directly effective, even where that construction was not in accordance with the literal or prima facie meaning of the statutes. [46]

In the case of Litster, the EEC Council Directive 187/77 was considered to be ambiguous since a private employee was involved. The House of Lords could not hence achieve a satisfactory result in keeping with the European Directive and case law of the ECJ by a literal attempt. It concluded that under section 2(4) it may use the Community legislation to interpret the later UK legislation and imply additional words. [47]

In the case of Pickstone the House of Lords did follow the advice of the ECJ from the Von Colson case [48] as to interpret and apply national legislation adopted for implementation of a Community Directive in conformity with the requirements of EU law. [49] Section 2(4) was used to justify the Court’s interpretation of national law but only in so far as it was reasonably possible. [50] Duke case was then distinguished on the basis that the Sex Discrimination Act 1975 was not intended to give effect to the later Community law or capable of doing so. [51]

In Webb case, the House of Lords interpreted the Sex Discrimination Act so as to comply with the ECJ’s interpretation of the 1976 Equal Treatment Directive, despite the fact that the Court of Appeal had considered that such an interpretation would amount to a alteration. [52] Previous UK case of Roberts v Cleveland Area Health Authority [53] has ruled that section 6(4) of the Sex Discrimination Act 1975 was given a wide interpretation as to ‘discount anything to do with or connected to retirement therefore discriminate in such circumstance was lawful.’ [54]

The domestic acceptance of supremacy was emphasised in the Thoburn v Sunderland City Council case. [55] It was held by Laws LJ that the constitutional relationship between the UK and the EU was not to be decided by the ECJ’s jurisprudence. The aforesaid relationship was to be decided by the common law in the light of any enacted by Parliament statutes. [56] The EC Act from 1972 was regarded as just a constitutional statute since it contained provision ensuring supremacy of Community law in the event of a clash with domestic law. Laws LJ nonetheless sounded a warning note stating that there might arise a question ‘whether the general words of the ECA were sufficient to incorporate the measure and give an overriding effect on domestic law.’ [57]

Another case stating the UK court’s duty was to interpret a statute in conformity with EU law was the CR Smith Glaziers (Dunfermline) Limited v Commissioners of Customs and Excise case. [58] Accordingly, the ECJ held that it was necessary to adopt an alternative interpretation which did actually conform with it. [59]

Worth bearing in mind is the case of Pigs Marketing Board (Northern Ireland) v Redmond [60] stating that when there is a conflict between an earlier UK law with succeeding Community law, then there is no difficulty since both doctrines of Parliamentary supremacy and Union law supremacy will produce the same result. [61]

The acceptance of the principle of supremacy of Community law by UK courts was further seen in the R v Secretary of State for Employment, ex p. Equal Opportunities Commission case. [62] It was ruled by the House of Lords that there was no constitutional barrier as to seek judicial review of primary legislation by an applicant who claimed this legislation to be in breach of EU law. [63] In the Marleasing SA v La Comercial Internacionale de Alimentacion SA case [64] the ECJ expounded a standard for purposive elucidation since it held that national statutes should indisputably be interpreted in the light of EU law despite them being passed before or after EU law. [65]

The series of Factortame cases is extremely important in Community law for a number of reasons, in particular from the point of view of supremacy over national law and constitutional doctrine. [66] In these cases, both the supremacy of Community law and ‘the corresponding overriding of conflicting provisions of Acts of Parliament’ were confirmed. [67]

The Factortame saga [68] has its beginning in the complaint made by Spanish fishermen [69] who sought an interim injunction against the Crown as not to apply a regulation that has been issued under the British Act. [70] Important to bear in mind is that the merits of the discussed case were then being referred to the ECJ. Factortame company brought its case by way of judicial review against the UK government. It particularly emphasised Community law rights as well as alleged a breach of Community law, [71] by citing Article 18 of the TFEU (ex Article 12 of the EC Treaty) which concerns non-discrimination on grounds of nationality and the right of establishment. [72] It was requested by the Factortame to suspend the operation of the Merchant Shipping Act 1988 for the reason that it was threatened with bankruptcy before the ECJ had time to rule on the main case. [73]

The idea of setting aside British [74] law and actually disapplying an Act of Parliament was something not previously acceptable, if not unthinkable. [75] Lord Donaldson MR expressed this view in the early stages of the Factortame litigation by stating that ‘[a]ny attempt to interfere with primary legislation would be unconstitutional.’ [76] Significantly, the House of Lords did follow a preliminary ruling by the ECJ [77] and for the first time did grant interim relief against the operation of the 1988 Act ‘by way of an order suspending that statute.’ [78]

It was considered by the House of Lords that in the event of EU law rights being found directly enforceable in favour of the appellants, [79] then the abovementioned rights will undeniably prevail over the incoherent national legislation. Importantly, it will occur even if the legislation has been passed later. [80] Lord Bridge expressed his view in the Factortame litigation by saying that section 2(4) has exactly the same effect ‘as if a section were incorporated into [the national statute] which in terms enacted that the provisions [of an Act] were to be without prejudice to the directly enforceable Community rights of nationals of any Member State of the EEC.’ [81]

ECJ held that if a rule or regulation of domestic law could prevent a court ‘seised of a dispute’ [82] of EU law from granting interim relief, [83] then the full effectiveness of Union law would be inevitably weakened. [84] As a consequence of the decision, national courts gained jurisdiction temporarily to suspend any provisions of national law which may be in breach of EU law. [85]

In Factortame (No 5) [86] Lord Bridge unambiguously stated that, under the terms of the ECA 1972, ‘it was the duty of a United Kingdom court … to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.’ [87] Hence, national courts must not be repressed by rules of domestic law from granting interim relief in adequate cases, since it is ‘no more than a logical recognition of supremacy.’ [88]

Pepper v Hart [89] case is perceived as an example of the ‘spill-over’ effect [90] of EU law into domestic law since its reference to parliamentary materials has been considered tolerable for questions concerning interpretation in law other than EU law. [91] In another case of M v Home Office [92] the similar abovementioned effect can be recognised as an injunction against the Crown in domestic proceedings was granted by the House of Lords. [93] This remedy was previously deemed to be unavailable under the Crown Proceedings Act 1947. One can thus say that Factortame cases made the lack of remedy in UK law seem ‘ripe for rethinking’ [94]

The case of Stoke-on-Trent v B&Q plc [95] brings a further proof of acceptance of the supremacy of EU law. It was stated by Hoffman J that the EC treaty became the supreme law of the UK what involved prevailing over an Act of Parliament. He continued that the entry of the UK into the EU meant surrender of Parliament’s sovereign rights as to ‘legislate contrary to the provisions of the Treaty.’ [96]

It can be noticed that the supremacy of European Union law over British Acts of Parliament has been ‘clearly and unambiguously’ [97] accepted by the United Kingdom. The UK had to accept all the previous passed legislation of the EU, what included both the Treaties, Regulations, Directives and also the judicial legal developments. [98] Irrefutably, the UK legal system faced difficulties in accommodating EU membership as well as EU law. These can be found in the unwritten Constitution, the dualist approach towards international law along with the doctrine of Parliamentary sovereignty. [99]