Foundation of European Union Law - Case Study Example

Foundation of European Union Law Within parties, Europe is a source of division. The European Union formed with the aim of binding the European countries together, making them a large power, caused conflicts between the national laws of the Member States. United Kingdom that lies in Europe has been truly European when it comes to language, norms, culture, politics and religion however; its identity first as England then Britain and then United Kingdom was formed against Europe itself. (Jones. Pp 171. 2007) United Kingdom is a reluctant partner of European Union as EC law contradicts the parliamentary sovereignty. When it joined the European Community, many of the sovereign rights were transferred to the Union. The treaties of European Community and European Union do not have a specific legal base, require or order supremacy of Community Law, but some articles of Community Law clearly imply supremacy. For some specific articles and areas of its treaties and policies, the European Community required transfer or limiting of the sovereignty rights of its Member States to the Community. Some legal matters were completely controlled by the states themselves were no more under their control. (Cuthbert. pp 36-37. 2003) The transfer of supremacy unavoidably led to the clashes between European Community law and the national law. (Cuthbert. pp 36-37. 2003) The sources of European Community law, which are its treaties, do not contain any mention of any relationship or prioritizing between the European Union and the national laws. For Monists states this was not a problem as for them all law is equal. One such Monist State is the France where there was no discrimination between the European Community law and the national law. As long as the procedures of constitution are followed, the national courts can make use of the international treaties. On the other hand, for a dualist state like UK there is difference between the national law and international law. For such countries, the national courts cannot apply the international law and treaty but only through domestic legislation. (Cuthbert. pp 36-37. 2003) For the EC treaty to be applied it has to be first made a part of the domestic law. In United Kingdom the EC treaty was incorporated by the European Communities Act 1972 especially ss 2 and 3. The incorporation still does not mean that the issue of prioritizing has been resolved. (Cuthbert. pp 36-37. 2003) The main problem for accepting the required supremacy of European Community law in the United Kingdom is the doctrine of parliamentary sovereignty. (Craig and Búrca. Pp 365. 2008) The parliamentary sovereignty is the long-established formulation according to which the parliament has the right to make or unmake any law and power to do anything than to bind itself for the future. In case there is a clash between a present and a past custom then the present one has to be cancelled or has to be dis-applied. (Craig and Búrca. Pp 365. 2008) The Dual nature of United Kingdom implies that if United Kingdom enters a treaty then it does not become a part of the domestic law until and unless incorporated at the domestic level by an Act of parliament. Therefore, in theory the doctrine of sovereignty of Parliament makes it very difficult for any Community law to become supreme over any previous Parliamentary legislation, as any Act of Parliament introduced would be defenseless any other contradicting Act of Parliament introduced later. (Craig and Búrca. Pp 365. 2008). Because of strictly dualist attitude of the UK towards the international law and because its constitution was mainly unwritten there was need for a special act. The Community treaties to be effective required an act that did not affect the doctrine of sovereignty of parliament. For this reason the European Communities Act 1972 was passed. The European Communities Act 1972 was very cleverly drafted, as it reproduces neither any of the treaties nor any secondary subsequent Acts of parliament. If it had not been so, the future Act could take precedence over the prior Treaty. This Act impliedly recognized a new unique legal system, considered as a special UK legislation that aimed at binding any future Parliaments. However, the Act did make sure that it declared the supremacy for Community law against the doctrine of Parliament sovereignty. In 1972, by becoming a member of European Communities and according to the European Communities Act, UK contracted to follow regulations and provisions of Treaty of Rome as well as the European law.(Mitchell. 119-110. 2008) There are as such no provisions in the Treaty on European Union that address the supremacy issue between the national and Community laws in the Member States. However, Article 10 of the Treaty on European Union gives an indirect address to the issue of supremacy in the Member States. According to the Article 10, it is the duty of the Member States to impose and adopt a suitable measure to make sure that obligations of the Treaty practiced and observed. The Article 10 of the Treaty is “Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty …. They shall facilitate the achievement of the Community’s tasks…They shall abstain from any measure that could jeopardize the attainment of the objectives of this Treaty.” (Ott and Inglis. 2002).Another provision that declares supremacy of EU is Article 1(6). According to Article 1(6), .the Union law is superior to the law of Member States. (Nergelius. pp 123. 2006). Then there are Article 249 and 292 that requires the Union law to be superior. According to Art 249, the provisions and regulations of the Treaty require direct applicability. Direct applicability means here that a provision in the Treaty or regulation does not need any action by the Member States in order to be effective. (Davies. Pp 50. 2003). Article 292 confirms the exclusive jurisdiction of its Court in which the Member States cannot dispute the application of Treaty. (Craig. And. Búrca. Pp 203. 2008) To sum up the community view; the Community law does not allow the Member States to resolve conflicts of law using their own constitutional provisions. Community law becomes supreme and sovereign because of the transfer of sovereignty and state powers from the Member states to the Community. This completely contradicts with the doctrine of sovereignty of Parliament of UK. Sovereignty is given different meanings in UK law system. The doctrine of Parliamentary sovereignty states that the Parliament has no legal limitations to abide by. The Parliament has the right to make, unmake, implement or reverse any law. Furthermore, it recognizes no institution, person or body who can set aside or override the Parliament legislation. The doctrine of Parliamentary sovereignty also entails that making any future Parliaments is impossible as “Any subsequent Act expressly or impliedly overrides a prior”. For the courts in UK, there is no constitutional role because they cannot review or question the validity of any Acts by the parliament all the acts and laws given by the Parliament have to be implemented and enforced equally and there is no point for raising any questions against it. The limitations to this doctrine however are also there. One such limitation to the Parliamentary sovereignty is the devolvement of power externally. Dicey, when he expressed on the Parliamentary sovereignty also confessed that there are political limits to Parliamentary sovereignty. Parliament can renounce or divest itself from the sovereign powers to another institute or body. This change will be permanent as once surrendered, it will be politically impossible for the Parliament to regain the powers through any Amending Acts. Besides the complete abdication, the same implies for even partial transfer of sovereignty rights and state powers. (Peele. Pp 48-50. 2004) In the section (2)1 of the Act of European Communities1972, direct effect principle or Van gend en Loos is given according to which EC law is directly applicable when precise and clear.(Mitchell. Pp 95. 2008). Therefore, the any Treaty that produces direct effects cannot be held in the constitutional law of United Kingdom. In a law system like that of UK where ratification and signing of Treaties is only the right of the Crown, a treaty cannot be enforced or accepted without letting the Crown to legislate and not referring to parliament (Furmston, Kerridge and Sufrin. pp 41. 1983). The Van Gend En Loos confirmed the exclusive jurisdiction of court by interpreting legal provisions of the Community to make sure that the Member States also interpret it the same way. In the other case of Costa v ENEL the independent and self-directed nature of the Community was stressed. If one refers to the provision 2(1) in particular then it implies that any Act of Parliament introduced in the future has to made in a way that enforces and makes the Community rights effective. This is only possible by making any national legislation ineffective that contradicts the Community law. In addition, in the provision s 2(4) it is given that all Acts of Parliament in UK except the 1972 European Communities Act have to be framed according to the EC treaty provisions. This section suggests that for any legislation to be passed and effective, it has to be according to the EC law. This does not allow for any later inconsistent amendment or legislation so 1972 Act is deep-rooted and cannot be retreated from. It is correct to say therefore by entering the treaties of European Union and becoming a Member State, it has damaged sovereignty of United Kingdom. (Mitchell. Pp 95-96. 2008). Because of its several provisions and its nature, the Act of European Communities1972 claims to negate the doctrine of sovereignty of the parliamentary and binding of future parliaments. However, the UK courts can negate the effect of this and many other expertly made legislation or amending Acts as the judicial reception given to any Act of law in the courts of UK is according to the Parliament and law of UK. (Hartley. Pp 256-262. 2007) In two of the cases of Van Gend En Loos and in Costa, the courts regulated for Members states to have limited sovereign rights and transfer some of the powers and rights to the Community. This was not applicable in UK, as it did not distinguish permanent limitations of sovereignty as stated in the doctrine of sovereignty of Parliament. (Furmston, Kerridge and Sufrin. 1983). The supremacy of EC law was confirmed by many of the decision made and taken by the ECJ, which further confirmed the erosion of the parliamentary sovereignty in UK. In 1964, the case of Costa v ENEL was held because of a conflict between the European Community law and the national law and the EC law succeeded. Furthermore, in 1979 Simmenthal took it further by asserting that any of the national courts in the Member States must use the European Community law entirety and protects the rights of European community. For this, any provisions or legislations used by the national law that contradicts the EC law should be set aside. An example of this was the Factortame case in which the Merchant Shipping Act of 1988 in UK national courts was not considered and instead the EC law was given priority and thus the Simmenthal principle was directly applied. (Mitchell. 119-110. 2008) The argument therefore that the biggest obstacle to the acceptance of supremacy of EC LAW in UK was and is the doctrine of parliamentary sovereignty seems to be valid. For the functioning and existence of the European Community, there is a prerequisite of consistent and uniform application of the legal order and law of the Community in each of its Member States. The Community law to be applicable and effective inevitably takes precedence over the domestic law of Member states. It implies that any national law that conflicts the law of Community be just declared invalid. However, this is not simple in English system of governance. At many points, the Community law and the constitutional law of UK are incompatible. The doctrine of Parliamentary sovereignty does no allow such a provision to be applicable in UK constitution system. (Furmston, Kerridge and Sufrin. pp 41. 1983) References Craig, Paul P. And Búrca, Gráinne De. 2008. EU law: text, cases, and materials. Oxford University Press Cuthbert, Mike. 2003. European Union law, Q & A Series. Routledge Cavendish Davies, Karen. 2003. Understanding European Union law . Routledge Furmston, M. P., Kerridge, Roger. And Sufrin, B. E. 1983. The Effect on English domestic law of membership of the European Communities and of ratification of the European Convention on Human Rights. BRILL Hartley, Trevor C. 2007. The foundations of European Community law: an introduction to the constitutional and administrative law of the European Community. Oxford University Press Jones, Alistair. 2007. Britain and the European Union, Politics study guides. Edinburgh University Press Mitchell, Andrew. 2008. AS Law. Taylor & Francis Nergelius, Joakim. 2006. Nordic and other European constitutional traditions. Martinus Nijhoff Publishers Ott, Andrea. And Inglis, Kirstyn. 2002. Handbook on European enlargement: a commentary on the enlargement process . Cambridge University Press Peele, Gillian. 2004. Governing the UK: British politics in the 21st century . Wiley-Blackwell Read More