The European Court of Justice Concept of Supremacy of EC Law - Essay Example

Critically examine the European Court of Justice (ECJ)’s concept of ‘supremacy of EC Law’ with the aid of case examples The supremacy of EC Law was established by the European Court of Justice (ECJ) for ensuring certainty and uniformity of Community law (Albi, 2007, p. 25). This means that primary sources of EC law (treaties) and secondary sources (regulations, directives and judicial decisions) are binding on member states (Albi, 2007). Consequentially, EC law has direct effect which can be horizontal (binding states to individuals) or vertical (binding private parties) (Craig & De Burca, 2008). There are no express provisions in the EC Treaties. EC supremacy can be inferred by an interpretation of various articles contained the EC Treaty (2008, p. 7). For example, Member States are required to ensure that all of their Treaty commitments are fulfilled and must not “jeopardise the attainment of the objectives of this Treaty” (TFEU, art. 10). The EC Treaty also confers responsibility on the ECJ to ensure that the Treaty is interpreted and applied for the enforcement of Community law (TFEU, art. 220). The ECJ established the concept of supremacy in Van Gend en Loos v Netherlands (1963) by enunciating two main principles of Community law: direct effect of Community Law in Member States and supremacy of Community law over the national laws of Member States. The ECJ stated that Community law has establishing a new “legal order” under which Member States have voluntarily surrendered their sovereignty (Van Gend en Loos v Netherlands, 1963, see also Costa, 1964). The UK does not acknowledge the surrender of sovereignty, but instead adheres to a dualist constitutional system. Monalism states automatically incorporate international law into national systems (Schutze, 2012). EC supremacy in the UK is only acknowledged via an Act of Parliament and thus firmly establishes and reinforces Parliamentary sovereignty in the UK. For instance, Lord Denning MR, in anticipation of signing the EC Treaty noted that the UK did not specifically take notice of treaties. It would only take notice of treaties that are embodied in a statute enacted by Parliament (Blackburn v AG 1971). Thus, the UK acknowledges that treaty law is only applied by an act of Parliament not by the direct application of treaty law (Aust, 2008). For example, the European Community Act 1972 (ECA) provides that the EC Treaty will be given “legal effect” in the UK “without further enactment” and all national laws must be interpreted in such a way as to give effect to Community law (ECA ss. 2(1) and 2(4)). Even so, when applying Community law, the UK will not apply its own law to the interpretation and application of Community law and will be bound by decisions of the ECJ (Aust, 2008). In Thoburn (2002) Laws LJ ruled that the authority for the application of Community law is derived from the ECA and not from Community law. Thus the ECA is a constitutional statute and just as Parliament ceded sovereignty to Community law by virtue of the ECA, Parliament could also legislate to derogate from Community law (Thoburn, 2002). EC Supremacy is implied by the ECJ as a necessary consequence of Member states joining the EC and adhering to treaty obligations. The language and aims of the Treaty require that member states are particularly conscientious of giving full effect to Community law something they accept pursuant to the notion of state reciprocity. In other words, all Member States are equally required to adhere to the Treaty and the laws passed under the Treaty. All Member States by signing the Treaty agree that they will each conform to the Treaty and will not derogate from it. Laws LJ however denies this contention and states that Parliament is at liberty to derogate from Community law (Thoburn, 2002). In Factortame (1990) the ECJ ruled that national courts must provide interim relief if that meant disregarding domestic law and giving effect to Community law. The fact is, national courts are required to give full effect to Community law. Therefore Lord Bridge’s comments in the House of Lords are particularly enlightening with respect to the ECJ’s interpretation of the supremacy of Community law. Lord Bridge, observed that if the supremacy of Community law was not established or implied by virtue of the EC Treaty, “it was certainly well established in the jurisprudence of the ECJ” (R v. Secretary of State, ex parte Factortame (No 1) (1989)). In Factortame (No 1) a question of Community law relative to the effect of the Merchant Shipping Act 1988 on the registration of ships owned by Spanish firms was referred to the ECJ for a preliminary ruling. In the meantime, Factortame sought interim relief. The issue of interim relief was appealed to the House of Lords and the main question was whether or not granting interim relief would contravene an Act of Parliament which did not permit interim relief against the Crown. Lord Bridge referred that question to the ECJ for resolution and directed by the ECJ allowed interim relief. However, Lord Bridge added that although permitting interim relief is a “logical recognition” of the supremacy of Community law, that supremacy was ceded by a “voluntary” act of Parliament (Factortame, No. 2). There is no doubt that the supremacy of Community law is firmly established by the ECJ and whenever Community law arises before a national courts, national courts are bound by Community law regardless of tensions between the application and Community law and national procedural obligations and substantive law. Again in Macarthys Ltd v Smith Lord Denning acknowledged that having signed the EC Treaty and having enacted it into UK law by virtue of an act of Parliament, Community law was binding on the UK courts until such time as Parliament legislates against its supremacy over UK law. The duty of the UK’s courts was to adhere to Acts of Parliament. In other words, the UK courts have not acknowledged the authority of Community law over UK law. Instead, UK courts acknowledge the authority of Parliamentary sovereignty which establishes the supremacy of Community law. It is only by virtue of an Act of Parliament that Community law has direct effect in the UK. Bibliography Textbooks Aust, A. Modern Treaty Law and Practice. (Cambridge, UK: Cambridge University Press, 2008). Craig, P. P. and De Burca, G. EU Law: Text, Cases, and Materials. (Oxford, UK: Oxford University Press, 2008). Foster, N. EU Law. (Oxford, UK: Oxford University Press, 2008). Schutze, R. European Constitutional Law. (Cambridge, UK: Cambridge University Press, 2012). Articles/Journals Albi, A. ‘Supremacy of EC Law in the New Member States.’ (2007)3 European Constitutional Law Review, 25-67. Statutes European Community Act 1972. Treaty of the Functioning of the European Union (as Amended by the Treaty of Lisbon 2007). Cases Blackburn v AG [1971] EWCA Civ 7. Costa v ENEL Case 6/64 (1964) ECR 585. Factortame (No 2) Case C213/89 (1990) ECR 2433. Macarthys Ltd v Smith [1979] ICR 785. R v. Secretary of State, ex parte Factortame (No 1) (1989)2 WLR 999. Thoburn v Sunderland City Council[2002] EWHC 195. Van Gend en Loos v Netherlands Case 26/62 (1963) ECR 1. Read More