The European Union Law - Essay Example

?EUROPEAN UNION LAW Is European Union undermining the sovereignty of its individual member s? The issue in this question requires an analysis ofhow the sovereignty of the member states of the European Union has been undermined by such membership. The Court of Justice has developed the concept of primacy of EC law. This can be clearly illustrated from the case of Case 26/62 Van Gand en Loos1 whereby the doctrine of direct effect was established whereby direct effect was given to an Article of the EC Treaty. Furthermore, in the case of Case 6/64 Costa v ENEL2 it was stated by the courts that by agreeing to enter into the EC Treaty, the Member States had by express consent limited their sovereignty and therefore Community law ‘could not…be overridden by domestic legal provisions’. The next case that further emphasized upon the sovereignty principle was Case 11/70 Internanationale Handelsgesellschaft GmbH3, whereby it was stated that even where the case was in respect of fundamental rules that had been established by way of the German Constitution, Community law would prevail over such national laws and rules. Another important case which can be cited in respect of the powers of the courts of the member states to respect the sovereignty of Community Law is Case 106/77 Simmenthal SpA (No.2)4 whereby it was stated that even a court of first instance were under a duty to set aside provisions of national law which were incompatible with Community law. Furthermore, there was no need to wait for the national law to be amended in accordance with the EC law and so the national law could be set aside where it was in conflict with a directly applicable or effective provision of the EC law. The duty to respect sovereignty of EC law was extended to administrative agency which was dealing with a national insurance scheme who were said to have powers to set aside conflicting provision. (Case C-118/00 Larsy v. INASTI)5. It is important to mention here that even thought by virtue of the powers being given to courts and administrative agencies the national measure is held to be inapplicable, the Member State is still held to be under a continuing obligation to repeal the conflicting provisions. The Courts in Case 167/73 Commission v. France (French Merchant Seamen)6 for the sake of legal certainty expressly stated the Member States are under an obligation to repeal the offending or contradicting national provision or rule. A step forward in respect of this can be seen from the fact that even if there is not sufficient certainty as to whether a person has a Community law claim, the supremacy doctrine specifies that the national court should set aside the provisions that may prevent anyone from acquiring the full benefit of Community law, even if this is established later in time. The concept can be seen to have been applied in Case C-213/89 R v. Secretary of State for Transport, ex parte Factortame Ltd and others7 which was a case on Spanish fishermen who claimed that the UK Act prevented them from fishing in British water and therefore was in contradiction and breach of EC Treaty Articles. The fishermen sought interim relief in this respect; however, the problem that arose in this respect was that the courts in UK were not empowered to grant an injunction against the State, thereby suspending an Act of Parliament. The problem in this case was the if interim relief was not provided the Spanish fishermen would have been driven out of business and might have suffered huge losses and therefore a subsequent judgment would not in any way serve their purpose. The ECJ held that the act of Parliament must be set aside and subsequently the House of Lords granted an injunction. There has been a strong reaction by the national courts in respect of the concept of direct effect and supremacy which has been developed by the Court of Justice. The important point that needs to be looked into when determining the way how the EC law enters the Member State is dependent on the fact as to whether the member state is monist or a dualist state. The monist state, on the one hand, allows for direct entry of international law into domestic law without the requirement of transposition by the State. On the other hand a dualist state requires the state to implement national measures so as to incorporate the internationally law, as is evident from UK implementing the European Communities Act 1972 which was subsequently amended. Furthermore, in respect of UK and on the doctrine of indirect effect it is clear as to how the English judiciary has based its implementation on the basis of Parliament’s incorporation by way of an Act of the specific European measure. However, as pointed earlier, in the case of ex parte Factortame the House of Lords did accept that the English courts could set aside national law so as to protect putative EC law rights. The case is said to have wide impact on UK law as it is now evident that an Act of Parliament must be read in line with the EC which has attained direct enforceability. Furthermore, in the case of Thoburn v. Sunderland County Council, Hunt v. London Borough of Hackney, Harman and Dove v. Cornwall County Council and Collins v. London Borough of Sutton8 Sir John laws held that the European Communities Act 1972 was a constitutional statute and so could not be impliedly repealed by a later inconsistent statute. He also commented that ‘In the event, which no doubt would never happen in the real world, that 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 ECA were sufficient to incorporate the measure and give it overriding effect in domestic law.’ In respect of Germany, as pointed out earlier in the case of Internationale Handelsgesellschaft, the ECJ found that the validity of Community measures could be construed and based upon Community criteria and not on the basis of the German constitution. This was not accepted by the German Federal Constitutional Court based on the fact that the Community did not have a codified catalogue of human rights and so was subject to the fundamental rights that had been granted by the German Constitution. However, it was later accepted in Winsche v Handelsgesellschaft (Solange II)9 that there was now an equivalent standard of human right protection. Finally, in Brunner v. The European Union Treaty 10 the court reiterated that sovereignty of German constitution and the right to review Community competence. As far as France is concerned there are two court systems that is the judicial and administrative courts. The Cour de Casssation., the highest civil court, accepted direct effect of EC Law as per Article 55 of the French Constitution. However the administrative court, that is Conseil d’Etat, has been reluctance to accept the supremacy of EC law, in particular the direct effect of Directives. However, in Boisdet11 the court found that EC Regulations would prevail over subsequent conflicting French regulations. The damages as awarded in Factortame were also awarded in Rothmans and Arizona Tobacco12 for losses due to Ministerial order which was found to be contradicting EC Directive. Finally, it is important to mention that supremacy of EC law by French courts is accepted by way of Article 55 of the French Constitution. Thus stating that it is not the EC which declares supremacy, but it is the French Constitution which provides for such supremacy. Finally, the Italian Constitutional Court by virtue of Article 11 of the Italian Constitution has accepted the primacy of EC law. The right that has been reserved in this respect is that Community law should not infringe the fundamental principles of the French Constitution. This was reaffirmed in Fragd13 whereby it was stated that if it is found that there is a Community measure which is existent and is in direct infringement of the fundamental rights of the Italian Constitution, then it would be held to be inapplicable and so precedence would be given to the Italian Constitution. Thus even though the principles of EC law have been to declare it sovereign, the courts of the Member States have as yet by one reason or the other reiterated the supremacy of their Parliament. What is to happen to such sovereignty and how the EC and the ECJ will approach such issues is a matter which is as yet to be resolved. References FOSTER, N. G. (2008). Blackstone's statutes on EU treaties & legislation: 2008-2009. Oxford, Oxford University Press CRAIG, P. (2003). The evolution of EU law. Oxford, Oxford Univ. Press HORSPOOL, M., & HUMPHREYS, M. (2008). European Union law. Oxford [u.a.], Oxford Univ. Press STEINER, J., WOODS, L., & TWIGG-FLESNER, C. (2003). Textbook on EC law. Oxford, Oxford University Press TILLOTSON, J., & FOSTER, N. G. (2003). Text, cases, and materials on European Union law. London, Cavendish Pub HANLON, J. (2003). European community law. London, Sweet & Maxwell. BERRY, E., & HARGREAVES, S. (2004). European Union law: learning text. Oxford [etc.], Oxford University Press FAIRHURST, J., & VINCENZI, C. (2003). Law of the European Community. Harlow, Pearson/Longman Read More