Aspects of the Doctrine of Supremacy

Introduction

This work will look at four cases that considered aspects of the doctrine of supremacy. This work has particular emphasis on internet resources and the ability to use the internet as a tool of research and as such there is a bias on electronic sources although some books were consulted:

Part A

I) The full case name is Amministrazione delle Finanze dello Stato v. Simmenthal SpA Case No 106 / 77 [1978] EUECJ R-106/77 (9 March 1978^[1] or [1978] 3 CMLR 255^[2]

II) The European Court of Justice was faced by a referral for a preliminary ruling under Article 177 of the European Economic Community Treaty^[3] which gives the court jurisdiction on receiving a referral from the national court to give a ruling on an aspect of Treaty Interpretation or any other legislation from the European Community Institutions. In Amministrazione the first question of interpretation that was asked was regarding the then Article 189 (now 249) which states that Regulations adopted by the Institutions of the European Community shall ‘be binding in its entirety and have direct effect in the Member States’^[4]. In 1978 the EEC was only 21 years old and the jurisprudence concerning the subsequently named doctrine of supremacy was less articulated, there were a number of issues that the jurisprudence of the ECJ was yet to answer and one such one was concerning whether the Judiciary branch of the member state had the right, or perhaps the obligation, to disregard national legislation that conflicted with EEC Regulations before either the Legislature or a higher Constitutional body had the opportunity to repeal or pass judgement on the particular piece of national law, in this case particular provisions, Law 1239, of the consolidated Italian Veterinary and Public Health Laws concerning levies on the import of Beef and Veal.

III) The ruling in this case was very important for the establishment of one of the crucial dimensions of the operation of direct effect, whether it gave constitutional powers to members of the national judiciaries or merely required him to defer to a higher constitutional power such as the legislature^[5]. The judges left no room for misinterpretation when articulating the fact that a judge sitting in a national court need not consult any higher body than himself:

‘Every national court must… apply Community Law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of National Law which may conflict with it , whether prior or subsequent to the Community rule’^[6]

In researching the above I used the British and Irish branch of the growing Legal Information Institute websites^[7] as it is encyclopaedic as far as case law goes. I found the directory that listed the cases by year^[8] and as I knew the case reference number referred to a case that occurred in 1978 (given that it is always the following year after the year number in the 106 / 77) and I looked for Case No 106 which I found under March 1978. Having found the name I also read surrounding materials from Weatherill (2000) and Arnull et al. (2000) to make sure that I understood the case law. I then found through Bailii that I could link into resources from the Worldlii site which gave me information on European treaties^[9] and that directed me to the Eur-Lex site which gave me a .pdf copy of the current EC Treaty after the Treaty of Amsterdam.

Part B

Subsection A

I) & II) The full name of the case under issue in this section is Felixstowe Dock & Railway Company & European Ferries Limited v. British Transport Dock Boards [1976] 2 Lloyd’s Rep 656 and was heard in the Court of Appeal by Lord Denning, Lord Justice Scarman and Lord Justice Lane between the 26^th & 29^th July 1976^[10]

III) Lord Denning made an obiter dicta remark at the end of his judgement regarding the relationship between the bill and the Treaty of Rome that was then in force when he said:

‘It seems to me that once the Bill is passed by Parliament and becomes a Statute, that will dispose of all this discussion about the Treaty. These Courts will then have to abide by the Statute without regard to the Treaty at all’^[11]

He later on makes it cleat that ‘as a matter of law’ there is nothing inconsistent between the Act of Parliament and the Treaty of Rome and in the final paragraphs he certainly seems to be deferring to parliamentary sovereignty when he states ‘the question of possible abuse of a dominant position or infringement of the Treaty of Rome must be for Parliament to consider’. This is in stark contrast to Amministrazione and there statement that a national judge has the ‘task’ of making sure of the direct effect of EC Law. The obvious undertone to be taken from the dicta is that it is not the place of judges to determine questions of validity as regards incompatibility between EC and Member State Law.

Subsection B

I) The name of the case in this subsection is Macarthys Limited v. Smith [1979] 3 All ER 325 / [1979] 1 WLR 1189 / [1979] ICR 785 and was heard between 23^rd and 25^th July 1979 by Lord Denning, Lord Justice Lawton and Lord Justice Cumming-Bruce^[12].

II) In this latter case Lord Denning argues a diametrically opposed line of logic that seems to be influenced by the events of the intervening few years. Lord Denning argues the Equal Pay Act 1970 is deficient as regards the requirements of Article 119 (now Art.141) because of the time-bar provisions that are contained in the EPA. He states categorically that Article 119 ‘takes priority even over our own statute’^[13], however not only does he explicitly pay lip service to the supremacy of EU law but he flatly reverses his position in Felixstowe, where he argued that it was Parliament’s prerogative and that when the statute was passed it would supersede the Treaty of Rome, but he alienates the prerogative to override primary legislation to himself as a Judge in a member state court.

He acknowledged that the ECJ could and would take action against the UK as regards this issue but he then goes on to re-state at a national level what the Amministrazione case said:

‘In construing our statute, we are entitled to look to the Treaty… not only as an aid but as an overriding force. If on close investigation it should appear that our legislation is deficient or is inconsistent with Community law … it is our bounden duty to give priority to Community law’

This about-turn in policy seems to be premised on case-law that has occurred between 1976 and the Felixstowe case and mid-1979. In particular Lord Denning cites Shields v E Coomes (Holdings) Ltd^[14], and Snoxell v Vauxhall Motors Ltd, Charles Early & Marriott (Witney) Ltd v Smith^[15] and at a European level Lord Denning explicitly acknowledges the importance of Defrenne v. SABENA^[16] which would’ve exerted particular influence on Lord Denning due to the fact that it was specifically concerned with the direct effect of the principle of Equal pay in Article 119 in a national court, the court’s answer was clear:

‘The principle of equal pay contained in Article 119 may be relied upon before the national courts and…these courts have a duty to ensure the protection of the rights’^[17]

III) However, Lord Denning did make one reservation to the supremacy of European Union Law, he argued that the only case where a national court would not be able to override the provisions of national legislation that they interpreted as at odds with obligations under the then EEC Treaty would be where parliament explicitly stated an intention to repudiate the European Communities Act 1972 or to ignore one of its provisions. Lord Denning’s interpretation of the constitutional situation seemed to be that the ECA 1972 represented an assumption that all legislation was supposed to be passed in accordance with Treaty obligations, an assumption however that could be overridden with parliament’s explicit declaration that they wished to override the provisions.

Subsection C

I) The full name of the case in this subsection is Regina v. Secretary of State for Employment ex parte Equal Opportunities Commission & Another [1995] 1 AC 1^[18]. It was heard in November 1993, the judgement was delivered on the 3^rd march 1994 and the Judges involved in the judicial review were Lord Kinkel, Lord Lowry, Lord Browne-Wilkinson, Lord Slynn and Lord Jauncey^[19].

II) Lord Keith of Kinkel delivered the majority judgement in the case, the judgement covered a large breadth of issues such as whether Mrs Day ought to be party to the proceedings, whether the appeal was correctly allowed, the jurisdiction of the divisional court to make certain declarations and many other technical issues but the main thrust was concerning substantive issues as to whether certain provisions of the Employment Protection (Consolidation) Act 1978 namely those on the qualifying thresholds for protection of part-time workers against unfair dismissal and redundancy payment. This was premised on the number of hours worked a week over a continuous period of time. Lord Keith of Kinkel delivered the majority verdict and held that in both the issues of unfair dismissal and redundancy the distinction between workers that work less than 16 hours and those that work over 16 hours was incompatible with Article 119 (now 141) as regards unfair dismissal and with Council Directive 76/207 as regards redundancy.

This decision was very much premised on the authority of Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. (No. 3)^[20] which was the first case in UK law to disregard primary legislation in favour of a Treaty provision and import the notion of EC Law Supremacy into our jurisprudence. Lord Keith of Kinkel drew on a number of European Court of Justice Cases as regards the operation of the Equality Principle in Article 119 and in particular the notion that indirect discrimination had to have an objective economic justification. He read the authorities and argued there was no economic justification.

III) Lord Jauncey of Tullichettle dissented from the majority judgement, he believed that Part VI of the Sex Discrimination Act 1975 that set-up the Equal Opportunities Commission had been on the premise as an advisory body to the Secretary of State and that it was not supposed to operate as a quasi-ombudsman in instituting proceedings where it didn’t agree with the Secretary. He believed the wording of the duties in the statute precluded the EOC having locus standi to challenge the decision of the Secretary of State.

Bibliography

Books

Arnull, A M, European Union Law Sweet & Maxwell / 2000 /

Dashwood, MG,4^th Ed.

Ross, M G &

Wyatt, D A

Weatherill, StephenCases & Materials on EC LawBlackstone / 2000 / 5^th Ed.

Internet Resources

British & Irish Legal Information Institutewww.bailii.org

Eur-Lexhttp://europa.eu.int/eur-lex/

HMSO UK Statuteshttp://www.opsi.gov.uk/acts.htm

LexisNexis Professionalhttp://web.lexis-nexis.com

World Legal Information Institutewww.worldlii.org

^[1] This is the reference from www.bailii.org

^[2] This is the reference form Weatherill (2000)

^[3] As it was then before the EC Treaty was enacted and is now Article 234 and that text as it appears on europa.eu.int

^[4] Taken from the Treaty Establishing the European Community Document on the Eur-Lex website

^[5] A situation that is pertinent in the UK where the separation of powers has excessive bias on the legislature and save nebulous concepts such as judicial review the judiciary had very little control.

^[6] http://www.bailii.org/eu/cases/EUECJ/1978/R10677.html Paragraph 21(Emphasis Added)

^[7] See N1

^[8] http://www.bailii.org/eu/cases/EUECJ/

^[9] http://www.bailii.org/worldlii/links/228.html

^[10] Information from http://web.lexis-nexis.com

^[11] This and proceeding quotes are taken from the LexisNexis copy (http://web.lexis-nexis.com/professional/?ut=1121884886984)

^[12] I found this case by cross referencing the pursuer, Mrs Smith, with mentions of the Equal Pay Act 1970 using the LexisNexis Case locator and went through the short list until I found the court of appeal decision in July 1979. I confirmed the case by noting Lord Denning was the judge and that Mr McCullough was the name of the comparator.

^[13] From LexisNexis Copy http://web.lexis-nexis.com/professional/?ut=1008147365270

^[14] [1979] 1 All ER 456

^[15] [1977] 3 All ER 770

^[16] [1978] EUECJ R-149/77 (citation from www.bailii.org) I traced this just by doing a case name search.

^[17] Quoted from the copy in Weatherill (2000) p.97

^[18] http://web.lexis-nexis.com/professional/?ut=1008147365270

^[19] This case was difficult to track down; I used LexisNexis as it has the most advanced search engine to cross-reference. I tried a number of things which were hindered by the fact that the legislation name was mis-spelt; finally I searched for all of Lord Kinkel’s cases in 1994 and then searched within those results for any reference to ‘Hertfordshire’ as I knew Hertfordshire County Council would be mentioned as the employer of Mrs Day.

^[20] (Case C-221/89) [1992] Q.B. 680