The Supremacy of European Community Law

Critique the impact of the principle of the supremacy of European Community law on the principle of parliamentary sovereignty in the constitution of the United Kingdom.

In essence what the question is asking is how the doctrine of supremacy of EC law really affects the constitution of the United Kingdom in terms of parliamentary sovereignty. How has the judiciary and the Parliament of the UK been altered since the introduction of the principle of supremacy of the EU. With the introduction of the Treaty of Maastricht in 1993, the European Community (EC) legally comprised three pillars, however on the 1 December 2009 this structure was abandoned with the entry into force of the Treaty of Lisbon. This happened when the European Union (EU) gained a consolidated legal personality. Although the EC is the only pillar that has a legal personality, it also concerns with economic, environmental and social policies.

The principle of supremacy of the EU law is by which any laws of the EU member states that may conflict with the EU must be ignored by national courts so the EU law may go forth and take effect over the other law. This particular principle emerged from the European Court of Justice through a number of decisions. The principle of supremacy of EC law means EC labour law has the ranking to overrule domestic labour law. Due to new legal order the EC law and the principle of supremacy, this allows the EU institutions to create rules affecting employment and industrial relations. Even where some Member States oppose such rules and vote against them in those EU institutions, provided that a voting procedure based on a majority rule applies to that specific field. These rules must be enforced where ever adopted in the national courts, even where this involves overriding rules produced by domestic law making. Over time many national constitutional courts have accepted the doctrine of supremacy of the EC law affirmed by the European Court of Justice, however they have also foreseen at the same time a limit to it in the fundamental principle of each constitution.

Parliamentary sovereignty is a principle of the UK constitution, making parliament the supreme legal authority in the UK, which can create or end any law. The courts do not have the authority to overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.

A.V. Dicey, a constitutional scholar and a lawyer wrote a book named An Introduction to the Study of the Law of the Constitution (1885). In this book Dicey stated that there are two main pillars that hold up the constitution of the United Kingdom, they are the principle of Parliamentary sovereignty and Rule of law. In this essay I will be addressing the former, in essence the former is the principle that Parliament is the supreme law making body and it alone has the authority to make legislation nationally. This particular principle is very important in the constitution and is also known for being an ancient principle, and can be traced clearly from the Restoration, and before. However Dicey’s definition of Parliamentary Sovereignty has come under scrutiny and has conflicted with the doctrine of supremacy of EC law. His interpretation is a legalistic interpretation and many political commentators have scrutinized his theory when talking about how parliament is becoming increasingly less dependent and how the executive is becoming increasingly dominated when it comes to policy making. Many scholars have argued that the UK doesn’t even have a constitution as there is no written source and relies much on unwritten convention. Political commentators have also scrutinized Dicey’s interpretation by stating that it is outdated and that as there is no written form of the constitution, it has changed and Dicey’s definition is invalid. Dicey also stated himself that “the electorate are politically sovereign”, whereas Parliament is legally sovereign.

The United Kingdom constitution is made up of a number of conventions and rules; however the Bill of Rights 1689 is seen to have provided powers for the legislature and common law for the powers for the Monarch. Dicey argued that although the UK constitution wasn’t in written format but rather based on some very important principles of Parliamentary sovereignty. But there is a major debate in weather an unwritten form of the constitution can actually be classed as a constitution being without legal enforceable guarantees.

Whereas countries such as the United States of America and France have a codified constitution, the UK has an uncodified constitution; the reason for this goes back centuries. As came the near end of the eighteenth century and throughout the nineteenth century, many people felt that limits were required upon the absolute power of government; this was a gradual push towards constitutionalism. There was also the concern that it may have cause major problems if gone unchecked, there were also some major examples of the wave that was occurring, in and around that time such as the revolution going on in France in the years of 1789 and 1830, there was also appointment of the monarch in Spain 1812. Looking at these examples indicate that it was the correct time to create some sort of system and some order to create a stable government.

However many are very critical of Dicey’s theory, W. Ivor Jennings believes that his political theory is ‘Whig’ resisting , Jennings expresses this in “the LAW and the Constitution”. The main concern with Dicey’s theory is that its not broad enough to actually cover and associate with the modern principles of democracy of the UK, and due to individual freedoms introduced by Human Rights Act (HRA) 1998 set out in the European Convention in Human Rights, Dicey’s theory has been devalued to the point where it can only supply a vague picture of democracy.

Constitutional law in the UK clearly states that Parliament is supreme and most powerful; this principle is very important and is seen as ultimate doctrine of constitutional law in the UK. As I mentioned earlier in the essay, the main point of the introduction of the constitution is to keep a limitation in government in terms of power. Also within the constitution it states that powers of government must be divided amongst different bodies of the government, this is known as separation of powers. It can be argued that even though powers have been transferred from Parliament to Scotland, the UK Parliament retains full sovereignty and supremacy; this is due to the fact that The UK legislature has devolved the Scottish Parliament. Like it states in the Scottish Act 1998, section 28 which states “This section does not affect the power of Parliament of the United Kingdom to make laws for Scotland”. It also states in the Scotland Act 1998 that implies that there are certain limitations the Scottish Parliament’s power to create or pass any legislation. As stated in section 29, “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”.

The UK government’s move to the EU and by the admirable quality of the monarch’s right in foreign affairs, the power to enter into Treaties that cannot necessarily change the rights of the UK citizens but bind the UK in internal obligations. However now that the UK are a part of the European Community, back when they joined it was formally known as the European Economic Community and they joined it by the virtues of the EC Act 1972. Being a part of the EC means that all the powers are vested in the legislative and executive, mostly centrally in the EC, not the states themselves.

It can be argued to an extent that the parliamentary supremacy of Parliament has not been affected, and therefore we can also speculate that the devolution will not affect the UK constitution. I can also speculate that the place of parliamentary sovereignty has changed; from shifting from member states of the EC to the EC itself and I can predict that there may be some further changes to parliamentary sovereignty in the UK. I believe that in terms of sovereignty, the House of Lords will be being subject to reform and modernisation.

However on the other hand the principle of supremacy in the EC law which is the principle that where ever a conflict between the provisions of EU law and the provisions of the domestic law of a member state, then EU law will prevail. The principle has been further developed by the European Court of Justice because the relationship between domestic and EU law is not clarified by treaty provisions. As the principle ensures the proper functioning of the EU, let’s say for instance that an EU member state had the power to make EU law invalid by adopting new domestic law which was in conflict with EU primary or secondary legislation, or the member states could simply give precedence to domestic law, however then the policies set out by the EU would be impossible to pursue. The doctrine of supremacy became ever so deeper and well defined in European Court of Justice in a number of progressive stages.

The principle of supremacy first came about when the case of Costa v. ENEL emerged. “Mr Costa was an Italian citizen opposed to nationalising the Italian energy company ENEL, because he had shares in it. He refused to pay his electricity bill in protest, and argued that nationalisation infringed EC law on the State distorting the market. The Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make. The Court ruled in favour of the government, because the relevant Treaty rule on an undistorted market was one on which the Commission alone could challenge the Italian government. As an individual, Mr Costa had no standing to challenge the decision, because that Treaty provision had no direct effect. But on the logically prior issue of Mr Costa’s ability to raise a point of EC law against a national government in legal preceding before the courts in that Member State the ECJ disagreed with the Italian government. It ruled that EC law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatibility with EC law”.(Wikipedia) This was the first case which led to the doctrine of supremacy being created and implemented in the EU.

There is a major conflict between the principle of supremacy and parliamentary sovereignty in the UK, the case that consisted of a number of lank mark decisions was the Factortame case. This particular case played a very important role in the debate between the supremacy of the EU and the parliamentary sovereignty of the UK constitution. The case confirmed that the supremacy of the European Union law over the Member State’s own law in the areas where the EU has competence. There were a number of decisions in the litigation battle, which were made over the spread of more than ten years. The litigation battle raised numerous issues which are of importance, constitutionally, especially significant in the over the parliamentary supremacy debate. Between 1990 and 1991, the decisions of greatest importance were made in the case, these judgements are known as Factortame I and Factortame II. The decisions in the second appeal before the House of Lords are part of the UK’s un-codified body of constitutional law.

The facts of the case are: a Spanish fishing company called Factortame appealed against restrictions imposed on them by the UK government by the Merchant Shipping Act 1988 in the UK courts. A section of the Act prevented companies using foreign ships registered as British vessels from fishing in UK waters. Factortame’s argument was that they were permitted to fish under the law of the European Economic Community (which became the EU in 1992). The case reached the High Court, which obtained an injunction from the European Court of Justice (ECJ) to temporarily suspend the Secretary of State for Transport from enforcing the particular part of the Act. However, on 22 March, 1989, this was overturned by the Court of Appeal on the basis that the constitution did not give any court the right to suspend Acts of Parliament, and this was confirmed by the House of Lords, the highest court in the UK. (Wikipedia)

In 1970 the EU created that Common Fisheries Policy which they aimed at creating a common market for all fisheries products; they intended to do this by authorising free entry of all waters of all the member states and also wanted to introduce funds for structural purposes so this may lead to modernisation. It was agreed upon in 1976 that on the 1 January the following year, that Member States would extend their fishing zone’s coastlines to a distance of 200 nautical miles. Due to the fact that there were worries over allowing too many people access to the water because of the effect it may have on the fishing stocks, this lead to the EU setting up certain controls, notably the concept of “total allowable catches”, this was simply a system for which there was a limit on the amount of fish each Member State was allowed.

The year of 1980 was when Spanish fisherman started to enter British waters for fishing purposes to take full advantage of lenient registration requirements of the fishing vessels which were contained in the Merchant Shipping Act 1894. However this act did prohibit the ownership of vessels by non UK nationals, however did allow UK registered companies.

A Spanish Fishing company named Factortame were one of main Spanish infiltrators on the 1984, the company was made up of directors Joseph J L Couceiro, Ken L Couceiro and John A Couceiro, and also with other shareholders who were mostly Spanish nationals. Factortame Limited re-registered 53 vessels however they formally flew their Spanish flag as British fishing vessels under the Merchant Shipping Act 1984. They also had 42 British vessels with the intention of using them in the UK fishing zone. Although most of the fish caught by Factortame were landed and sold in Spain, they were originally caught in UK waters thus breaching the British fishing quota, this was also widely known as ‘quota hopping’.

In order to stop these practices, the British government created a number of laws and Acts to contain and hopefully put an end to non UK nationals fishing in British waters, however these measures proves inadequate and ineffective. The UK Parliament introduced the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations, replacing the previous system of registration, whereas with the new system it states that fishing vessel may only be registered only under the circumstances that it has “a genuine and substantial connection” with the UK. By this the Act meant that the following three requirements had to be fulfilled: “(i) the vessel must be British-owned; (ii) the vessel had to be managed and its operations had to be directed and controlled from the UK; and (iii) any charterer, manager or operator had to be a qualified person or company”. By “qualified person or company” the Act meant that the person had to be a British citizen and a resident of the UK or a business that was incorporated in the UK. Even then the company the company had requirements such as it had to have a minimum of 75% of its shares owned and the directors also had to be 75% made up of “qualified persons”.

Due to fishing vessels registrations under the 1894 Act lapsing as of 31 March 1989, owners would be therefore be forced to register again under the 1988 Act. However because none of the Factortame Limited’s vessels could satisfy the new requirements and this lead to action for judicial review was brought in the Divisional Court in December 1988.

The ruling by the House of Lords that they themselves did not have the power to suspend Acts of Parliament was then referred to the ECJ by the House of Lords in 1990, this was required legally. The ECJ in June 1990 ruled that national courts could strike down laws which contradicted with EU law. The House of Lords kept ruling in favour of the Factortame, meaning that in effect the Merchant Fishing Act 1988 was struck down. In essence what the decisions of the case appear to show is the defiant breach of parliamentary sovereignty, which is the principle of parliament being a supreme law making body and no one can override its legislation. The Factortame case is a great example of how law courts not acting by the law created by Parliament. After this case effectively the House of Lords have been give the authority to ignore Acts of Parliament which may conflict with EU law.

In terms of parliamentary sovereignty, this particular case can be interpreted in a number of ways. It can be stated from one point of view that the case is not necessarily being an erosion of Parliament’s sovereignty, because the UK Parliament do have the option to repeal the EC Act with a majority vote. However, this is unlikely to happen either now or in the near future, so it can be interpreted as a permanent loss of sovereignty. Standing at a politically view point leaving the EU would be a very damaging for the UK’s reputation; it would also be economically damaging and overall would be a very complex process for the UK to dissemble from the EU. Although the UK still is legally sovereign, but due to ruling it was been reduced in terms of political sovereignty. The Factortame litigation is seen as evidence of the gradual breaking down of Parliamentary sovereignty of the UK constitution.

Following the public criticism after the ECJ’s judgements and the apparent gradual breaking down of the principle of sovereignty of the UK Parliament, Lord Nigel Bridge argued that such public comments were based around a false perception and in fact, under the EC Act 1972, the UK Membership of the EU stated that it had “always been clear that it was the duty of the UK courts to override any rule of national law found to be in direct conflict with Community law when it came down to the final judgements”(Wikipedia).

However we can also make the statement that in the same manner that Parliament had introduced legislation in order to remedy these areas and meet the standards and requirements of EU directives, the House of Lords was just accomplishing the same task with the decisions made in the Factortame case. The word ‘revolutionary’ was used by Sir William Wade when describing these comments in that Lord Bridge argued that Parliament has accomplished in binding it’s successors from repealing the Act by actually making it understood in an indirect manner. Many political pundits always speculated Parliament could never be able to bind its successors in such way. However normally with two statutes conflicting like they have done with the Factortame case; it would be the most logically option and also a most traditional to opt for the later statute over the earlier one as this would allow them to iron out any inconsistency with the first statute.

Cases such as the Hunt v Hackney Borough Council case and the Thoburn v Sunderland City Council case support the interpretations like the one of the Factortame case, to which it has led to the following theory of two main types of Acts of Parliament: “ordinary acts which can be repealed impliedly, and ‘statutory’ or ‘constitutional’ acts which can only be repealed expressly” (Wikipedia). However there is nothing stopping parliament from repealing the EC Act 1972 in a direct way.

It can also be validly argued that under strict reading of the case, it doesn’t really constitute as a breach of Parliamentary sovereignty. The UK Parliament’s attempt to contain and eventually put an end to the Spanish fisherman entering British water through the introduction of the Merchant Shipping Act 1988 was seem to be ineffective as it was not in direct conflict with EC law, but instead became an attempt of trying to have some sort of effect on the fishing quotas legally required under EC law. Thus we can speculate that the judiciary aren’t really attempting to conflict and in sense fight an Act of Parliament but to rather interpret it in a way that is compatible with Treaty obligations under the EC Act 1972, as proposed by Lord William Diplock in the case of Garland v British Rail Engineering. Although a precedent has never been set of an Act of Parliament being created so that it may intentionally contradict EC Law. But as said by Lord Alfred Denning in the case of McCarthy’s v Smith, if ever in the event of this ever occurring then the judiciary would have to obey domestic law over the EU law. So it could well be said that there is still a strong principle of Parliamentary sovereignty in the judiciary of the UK.

The importance of the Factortame case cannot be underestimated in the conflict between the principle of supremacy and the parliamentary sovereignty of the UK constitution. This case is not just simply about Spanish fisherman not being allowed in British waters, but rather the first time that the UK court had not applied an Act of Parliament. For the case to be fully appreciated it must be read when being compared to the constitution of the UK. Where it clearly states in the UK constitution that Parliament is supreme and judiciary is of less importance. Whereas the Factortame case plainly contradicts with this philosophy and clearly promotes the EU law above the UK constitution, providing the judiciary with powers which have never been seen in the courts before. The EU has the power therefore to make changes to the constitutions of any states joining the EU. This has been demonstrated with the Factortame case, even when the draft constitution proposed by the EU (at the Treaty of Nice) was not formally approved in the states which considered doing so.

When it comes down to Community law in general, The ECJ plays a very crucial and significant role. Where many may be under the assumption that the most important principles of EC law comes from Treaties or can be found in secondary EC legislation are misunderstood as it comes from case law of the ECJ.

Although in the Treaty on European Union (TEU) it may not contain an express term regulating the very important doctrine of supremacy between the Community itself and its Member State’s national legislation. There is only one particular article within the TEU where it makes it a requirement for all the Member States of the EC to take certain action so obligations of the Treaty are observed and to abstain from any act that may jeopardize the aims of the Treaty. It clearly states in Article 10 that: “Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.” The role of the ECJ when it comes to the principle of supremacy of Community is very important because as it states in the TEU, it was the first to establish the principle, Article 220 of TEU states: “The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed.” This particular article allows us to understand the significance of the ECJ when it comes to Community law and how important of a part it does play in the application of the principle of supremacy.

The case was Costa v. ENEL (1964) and the facts were as follows:

An individual was claiming before his local court that the law nationalising production and distribution of electricity was incompatible with the EC Treaty. The local court referred the question to the ECJ for a preliminary ruling.

The judgement of the ECJ of this case after it was referred from the local court highlighted the timelessness of the Community, it also showed the Community’s power, internally and externally and it emphasised the poor efficiency and transfer of power from the Member states to the EC.

The wording of Article 189 of the EC Treaty confirmed the importance of EC law to the ECJ, under which regulations have “binding” force and are “directly applicable in all Member States”.

The ECJ could then reach a judgement in the Costa case, which thus led to the case being used as an example and is referred to very frequently: “It follows from all these observations that the law stemming from the Treaty, an independent source of law could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the states from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail”.

The Court’s practical application of the principle was emphasised and thus became clearer later on in the Costa v ENEL case. Having the opportunity to judge this case allowed the ECJ to emphasise the importance of the supremacy of Community law and the Court was also very eager to point out that supremacy of the Community was not just simply a matter of principle or pure theory alone but in fact it should used and applied practically to cases they are to judge. The Court simply believes that all Member states have a duty to give full effect to Community law even in the cases where there may be conflicting laws and legislation, they expect the Member state national courts to decide and abide by the Community law with waiting for their own higher court to rule on the matter. The ECJ believes that: “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”.

The ECJ believes that even if the only national court that actually has the power and authority to pronounce the constitutionality of a national law is the Constitutional Court. However, if in a situation whereby this type of case ever does come up and has to be judged by the national court, that court is bound to give immediate effect to Community law and doesn’t have to wait for a Constitutional Court hearing.

We can see that through Community law, many of the domestic courts are required to exercise power and jurisdiction which they did not have under national law. Under these decisions, there is a key emphasis on the principle of effectiveness.

The judgement of the Factortame case by the ECJ was required in order for useful and hopefully successful implementation of Community law: “…..the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court……granting interim relief in order to ensure the full effectiveness of…Community law”.

According to Lord Bridge of the House of Lords, “If the supremacy within the European Community of Community law over the national law of Member States were not always inherent in the EEC Treaty, it was certainly well established in the jurisprudence of the ECJ”.(Wikipedia)

By the 1990, the ECJ were conceived that the principle was cemented amongst the Member States and the full practical effectiveness was going to be implemented in the future.