Precedence of European Community Law over the UK Law - Essay Example

Introduction The European Court of Justice (ECJ) performs a significant role in the promulgation of European Community law. A number of fundamental principles of the European community law are not included in the treaties passed, or secondary EC laws, rather they are found in case laws of the European court. As noted by Bernitz et al., the Treaty on European Union (TEU) does not contain any provision with an express statement that regulates the question of the supremacy between the European community and the varying national laws passed by member states1. However, Article 10 of the TEU refers to this issue, by imposing a responsibility on all member states to implement suitable measures to ensure that the Treatys requirements are followed and, that member states have a responsibility to refrain from all activities that may compromise the attainment of the goals of the treaty.2 Accordingly, the doctrine of the supremacy of community law against national law of member states was initial founded by the European Court of Justice (ECJ), which is give the duty to ensure that the community law is followed as expressed in Article 220 of the TEU. Still there has been varying arguments about the precedence of European community law over national law. This paper examines this issue in relation to the UK. Discussion Since the early community days, the European institutions have assumed the common outlook. The Court of Justice of the European Union case, Costa v ENEL, in its formative cases, turned out to be an essential component of the member states integral part that their courts could apply. This happens regardless of the constitution of every member state, since the European Court of Justice pronounced the Van Gend en loos case those treaties established a “new legal order of global law: that attained paramount autonomously without the member state legislation. Thus, the perception in Strasbourg is that European law surpasses the national provision as the acquired legislation nature and accomplishes this with no enactment by the states. Such incompatible inconsistencies in legal theory were implicitly neglected by all parties the time UK coupled the European community.3 Essentially, the Roman treaty was earlier designed similar, to all other international contract that created obligations and regulations like the European convention of rights or NATO. They were approved by the present government about the time practicing its royal entitlement to sign international contracts. Moreover, the rights, provisions and laws involved in the roman treaty were considered by 1972, European Community Act judicially enforceable. This act maintains that all the provisions of the treaty are without enforcement to be accorded legal impacts or used in the UK shall be realized and accessible in law, and be enacted, followed and allowed accordingly. Also, the section 2(4) asserts that all laws in UK shall be interpreted and have impact, based on the directly effective law of EU.4 The courts in the UK have suggested that, via this statute, the parliament freely decided to control its power, thus, autonomy to legislate commandingly in EU jurisdiction spheres. F or instance in the Factortame case, the House of Lords, realized that the 1988 Merchant Shipping Act, mainly opposed the EU provisions and that EU law thus required the merchants to be appended. Further, the Diceyan formulation of principle of parliamentary superiority does not permit anybody to outdo legislation by the parliament, even the Supreme Court.5 Lord Bridge’s remedy was to interpret that European Communities Act section 2(4) had similar impact as if it was integrated into all statutes enacted after 1972 indicating that this legislation was to remain free of prejudice to directly implementable European law.6 As a result, it was easy to derogate after the traditional sovereignty principle as Parliament had construed to control use of the practical principle. In theory, then, even though, the courts did not impose Parliamentary legislation contrary to the EU law, they were encouraging the Parliamentary Sovereignty doctrine as they were imposing Parliament’s intention concerning the superiority if EU law as revealed in 1972 European Communities Act. “The critical legal basis of the UK’s correlation with the European Union”, LJ Laws construed in Thoburn v Sunderland City Council, “reposes with the domestic and legal powers of the European”. Clause 18 of the current bill is excellently summarizing the assertions by the Judiciary in cases like Thoburn and Factortame by suggesting that it is only via the means of Parliamentary act, the 1972 European Communities Act, that EU law is acknowledged and accessible in the UK.7 It persistently rejects the legal theory exercised by EU and ‘monist’ states and reinforces the supremacy of Parliament in regarding the EU law. This is the Clause 18s explanation as suggested by several academics offering evident to the Scrutiny Committee in Europe, by the government and commentators. Based on the interpretation by the Bills Explanatory Notes, Clause 18 is declaratory provision, which does not change the interrelationship between the UK domestic law and EU law.8 In the UK, the acceptance of community law supremacy has not been without challenges. The fact that the British constitution is highly unwritten it is impossible to think of modifying it. The main hindrance to acceptance of EC law by UK is the essential constitutional doctrine of parliament sovereignty. Based on this doctrine, parliament has the authority to everything other than confine itself for future. According to some scholars, the English Constitution mandated parliament to unmake or make all the laws whatsoever, and nobody has the power to supersede or overthrow parliament legislations.9 However, the principle of inferred repeal indicates that no Parliament has the power can bind its beneficiary, the same way no Parliament can be controlled by precursor. Any Act is therefore, susceptible to modify by a Parliament to come. Bearing in mind, these shortcomings, it was however, chosen to provide legal impact to community laws in terms of parliament Act. The 1972, European Communities Act section 2(1) enacts a legal basis in domestic law. 10 Section 2(1) establishes a lawful basis in domestic law for precisely pertinent EC laws, as in line with the treaties, also without more legal “as in accordance with the Treaties and without further legal legislation to be coded legal use or impact in the United Kingdom, and will be acknowledged and accessible in law. The aim of the section is to make the notion of direct impact a part of United Kingdom legal system. It suggests that law which is not accorded immediate effects under the Treaties by the EC is to be accorded quick legal effect and is being precisely amendable by United Kingdoms section 2(4) of the existing accords and future consideration by EC law. All the enactment approved or to be approved, shall be added and have influence subject previous provision in this section11. In addition, section 3 suggest that for the sake of all lawful sessions, any concern has to be the effect or meaning of any of such Treaties, or regarding the validity, effect or meaning any community tool shall be regarded as an interrogation of law, and send to European court or scrutinized in accordance with laid down principles by law by any appropriate European court decision or any court assigned thereto. It is thus evident that the EC laws supremacy is acknowledged in the United Kingdom by virtue of legal theory and domestic legal processes. Regardless of the former judicial comments in the contrary, Lord Denning, the Rolls Master in England, in the incident of Shields v. Coomes (1979) showed an inclination to admit the principle of autonomy of Community law. Bulmer v. Bollinger (1974), suggested that “The Treaty acts like an inbound ride. English laws should not be considered as a thing of its own. People must consider the Community law, as Community obligations and rights and accorded some effects to them. Similarly, this did not stop the judicial hardships from occurring after a critical recognition of the EC law supremacy over national law. The court of appeal asserted that primacy should be accorded to Community Law in accordance with the1972 European Communities Act section 4 and 2 (1).12 In this section, the judicial appeasement EC supremacy law with the parliamentary sovereignty occurs. But the overruling of the parliamentary act and is to be understood as a satisfaction of parliamentary interests, (the interests of abiding by precisely efficient community law) and if it is declared that the legislative flouting of community law was deliberate, therefore, the domestic laws has to triumph. The EC supremacy of law is guaranteed in the United Kingdom only in as much as Parliament plans it to be, similarly, the courts do not have the mandate to challenge the intended will of Parliament whatsoever, whether or not the will infringes the Community law. Even though, a balance may have been achieved by now in terms of relationships between the ECJ and the UKs courts as per EC supremacy law requirements; the UK courts obligations anchors on the parliaments express will, and not precisely from the Treaties.13 Whatever challenges of its supremacy Parliament agreed when it implemented the 1972 European Communities Act, was sorely voluntary. Therefore, in conclusion we realize that the dimensional Community Law supremacy picture prevails, even in contemporary times, for even though all state Members currently consent the rational demand to accord primacy to EC law, some, if any, should be designed to escape its supervision, to make sure that the Community would not try to expand its given powers. Conclusion It is evident, “the Treaty guardian”, the ECJ in devising the supremacy principle, reasserted the development and the nature of EC law. Similarly, the EC supremacy law is natural within the spirit and nature of the TEU. Also, the original and special nature of Community law demands that its supremacy above national law is recognized and obeyed. The ECJ shall accommodate the prospect of any national laws provision, even of the validity of the constitution, overriding the Community law inconsistent provision. The accomplishment of this development is highly profound, particularly when one considers that the Court in establishing the principle, accredited to it force and characteristics which it termed as essential to push through a series of deeply changing and potentially diverse common goals and objectives within a number of geographically and politically distinct countries and historically autonomous states. References Bernitz, U., Nergelius, J., Cardner, C., and Groussot, X. (2008). General principles of EC law in a process of development: reports from a conference in Stockholm, 23-24 March 2007, organised by the Swedish Network for European Legal Studies . Austin, Wolters Kluwer Law & Business. Craig, P. P., and De búrca, G. (1999). The evolution of EU law. Oxford, Oxford University Press. Fairhurst, J. (2007). Law of the European Union . Harlow, England, Pearson/Longman. Foster, N. G. (2003). EC law. Oxford, Oxford University Press. Jarvis, M. A. (1998). The application of EC law by national courts: the free movement of goods. Oxford, Clarendon Press. Read More