Supremacy of Community Law - Essay Example

Topic: Supremacy of Community Law Style: Harvard Language Style: English UK Answer: Notwithstanding, that there are no express provisions regulating the issue of the supremacy between the community law and national law. The principle of supremacy or primacy of EC law has been developed by the Court of Justice. It is implicit in Case 26/62 Van Gend en Loos,1 which founded the doctrine of direct effect. It was stated explicitly in (Case 6/64) Costa v ENEL2 where the Court said that, by entering into the EC Treaty, Member States had limited their sovereign rights and that Community law 'could notbe overridden by domestic legal provisions'3. However, as we will see, in practical field National Courts did not accept supremacy of European law unconditionally endorsing the monist view. The doctrine of pre-emption differs from the Supremacy clause of EC law ruled in Costa v. ENEL4 in that the latter is a guide when two existing norms regulating the same thing are in conflict,5 whereas pre-emption consists in determining whether there is a conflict between a national measure, be it in application or decision, and a rule of Community law. In a further step, in (Case 11/70) Internationale Handelsgesellschaft GmbH6, the Court held that Community law took precedence even over a fundamental rule in the German national constitution. The clearest statement of the implications of the supremacy of Community law came in (Case 106/77) Simmenthal SpA (No. 2)7 where the Court held that national courts, even a lowly court of first instance, have a duty to set aside provisions of national law, which are incompatible with EC law. There was no need to wait for the national law to be amended in line with national constitutional procedures: the national rule had to be set aside immediately if it conflicted with a directly applicable or directly effective Community provision. Nor does the obligation to set aside conflicting national rules only apply to national courts: even an administrative agency dealing with a national social insurance scheme was held to be required to do so in Case C-118/00 Larsy v INASTI8. Although the national measure is rendered 'inapplicable', this does not absolve the Member State from the need formally to repeal it. In [Case 22-70] the ERTA case (European Road Transport Agreement) the ECJ decided that where the EC concludes a treaty in pursuance of a common policy (Transport, in this case), the possibility of concurrent authority on the part of MS towards non-member states is excluded: and any other purported exercise of concurrently authority will be over ridden to the extent that it conflicts with Community law. However, the ECJ develop pre-emption legal principle. The Court first formulated a principle of pre-emption in the ERTA case where the Court held that "once a Community common policy has been initiated,9 Community competence pre-empts Member State competence". Subsequently in Costa v. ENEL10, the principle of pre-emption has been made pragmatic and more flexible. In the interests of legal certainty, the Court said that Member States must also repeal the offending national rule: (Case 167/73) Commission v France (French Merchant Seamen)11. Even if it is not yet clear whether a person actually has a right which they claim under community law (i.e. it is a 'putative' right, not a definite one), the doctrine of supremacy requires a national court to set aside any national procedural rules which might prevent them from getting the full benefit of the Community right if it IS eventually found that they have it! This was laid down in the case (C-213/89) R v Secretary of State for Transport, ex parte Factortame Ltd and others12. Spanish fishermen claimed that the UK's Merchant Shipping Act breached a number of EC Treaty articles and wrongly prevented them from fishing in British waters. They asked for interim relief (an injunction setting aside the offending clauses of the Act pending the full hearing of the case). The problem was that under English law, courts could not grant an injunction 'against the crown', that is, they could not order the suspension of an Act of Parliament. On the other hand, if the Act continued to be applied, the Spanish fishermen would probably be driven out of business and any subsequent judgment in their favour in the main proceedings would be useless - their Community law right would be rendered 'ineffective'. The ECJ ruled that, in order to ensure the 'full effectiveness' of Community law, the English rule preventing suspension of the Act must be set aside. The House of Lords went on to grant the injunction. EC law from the member states' perspective: The concepts of direct effect and supremacy, as developed by the Court of Justice, have sometimes provoked a strong reaction from national courts. The way in which EC law enters into the legal systems of the Member States depends, from a constitutional point of view, on whether the Member State is monist or dualist in its approach to international law. In monist states, the constitution provides for international law to enter into domestic law without the need for further national measures of incorporation or transposition. France is an example of a monist state. In dualist states, such as the UK, international law does not become part of domestic law until a domestic statute incorporates it. So when the UK joined the EC, the European Communities Act 1972 had to be adopted to give effect to directly effective provisions of Community law within the UK. It has been amended, following the adoption of the SEA, by the European Communities (Amendment) Act 1986, and again after the ratification of the Maastricht Treaty, by the European Communities (Amendment) Act 1993. The cases on the application of the principle of indirect effect in the UK courts show how the English judiciary has traditionally based its application of EC law on the rules laid down in this English statute, expressing the will of Parliament, rather than on any abstract notion of supremacy stemming from the EC Treaty. However, the House of Lords accepted the ECJ's ruling in the landmark case: (Case C-213/89) Regina v Secretary of State for Transport, ex parte Factortame Ltd and Others (No. 1)13, that an English court could be obliged to set aside a rule of national law in order to safeguard putative EC law rights. This meant that the application of an English Act of Parliament had to be suspended pending the outcome of a claim that its provisions infringed Community law. Under English rules, courts could not grant an injunction 'against the crown' (i.e. suspend an Act of Parliament) but the House of Lords accepted, following a reference to the ECJ, that such national rules had to be set aside if they interfered with the protection of Community rights. This case has far-reaching constitutional implications in the United Kingdom. It makes it clear that any Act of Parliament must be read as subject to directly enforceable rights under EC law. Factortame Ltd v Secretary of State for Transport (No. 2)14, and R v Secretary of State for Employment, ex parte Equal Opportunities Commission, HL15. The cases Thoburn v Sunderland County Council, Hunt v London Borough of Hackney, Harman and Dove v Cornwall County Council and Collins v London Borough of Sutton (QBD 18 February 2002) are also interesting on this issue. They concerned the so-called 'metric martyrs' who refused to use metric weights as well as imperial weights as required under EC law. They were convicted under the Weights and Measures Act 1985 and a number of other statutory instruments and appealed to the High Court. The case was heard by Sir John Laws, who dismissed the appeals. He reiterated the traditional view about the basis of the supremacy of EC law in the UK, basing it on the constitutional law of the UK rather than principles of EU law. He stated that the European Communities Act 1972 is a constitutional statute which means that it cannot be impliedly repealed by a later inconsistent statute. Hence it would prevail over later statutes which were inconsistent. However, he went on to comment 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.'16 It is instructive to compare the attitude towards EC law in other Member States. Germany: In Case 11/70 Internationale Handelsgesellschaft17, the ECJ had stated that the validity of Community measures could only be judged according to Community criteria, not according toprinciples enshrined in the German constitution. This ruling was not accepted by the German Federal Constitutional Court, however. It noted that the Community did not have a codified catalogue of human rights, and held that Community measures would, therefore, be subject to the fundamental human rights contained in the German constitution: see Solange I18. In Wnsche Handelsgesellschaft (Solange II)19, however, the Federal Constitutional Court acknowledged that Community law now had its own equivalent standard of human rights protection. Nonetheless, in Brunner v The European Union Treaty20, the Federal Constitutional Court again re-affirmed German constitutional sovereignty and its right to review the scope of Community competence. France: France's legal order has two court systems: the judicial and the administrative courts. The Cour de Cassation (highest civil court) accepted the primacy of directly effective EC law, on the basis of Article 55 of the French constitution; Vabre & Weigel (Cour de Cassation)21. The Conseil d'Etat, the supreme administrative court, has shown reluctance to accept the primacy of EC law, and in particular has refused to accept that Directives can have direct effect (in the French Court's view, only a French implementing measure can give effect to a Directive according to Article 249 EC): see Minister of the Interior v Cohn-Bendit22. However, in Boisdet23, it held that an EC Regulation took precedence over subsequent French regulations, which conflicted with it, on the basis of the ECJ's case law. In Rothmans and Arizona Tobacco24, it awarded damages under the Factortame principle, for loss caused by a Ministerial order which conflicted with an EC Directive. While, in practice, therefore, the French courts accept the primacy of directly effective EC law, their reasoning is frequently based on Article 55 of the French constitution, rather than on the ECJ's doctrine of supremacy. This approach was confirmed in the recent ruling of the French Conseil Constitutionel, on the compatibility with the French constitution of the new Treaty that was due to establish a Constitution for Europe (Dec no. 2004-505 DC, Journal Officiel Nov 24, 2004). It found that a number of aspects of the proposed EU Constitution would require amendment to the French Constitution - such as provisions involving transfer of new powers to the EU, but it concluded that the Treaty Article 1-6 on supremacy of EC law was of no constitutional significance because it would not alter the existing position - namely, that the supremacy of EC law resulted from Article 55 of the French Constitution. This re-iterates the view as seen in Germany and the UK, that it is the national constitution which is at the head of the national legal order and that EC law supremacy exists only in so far as it is provided for under national law! Italy: The Italian Constitutional Court has accepted the supremacy of EC law, based on Article 11 of the Italian Constitution, see Frontini v Ministero dell Finanze25. However it reserved the right to ensure that the fundamental principles of the Italian Constitution were not infringed by Community law. It reaffirmed this position in Fragd26, stating that if it found that a Community measure infringed those fundamental rights, it would declare it inapplicable - thereby giving precedence to the Italian Constitution. Article: The relationship between the European Convention on Human Rights and EC law provides an interesting view as might be observed from the article 'KOMPETENZ KOMPETENZ' by Richard Gordon QC (Counsel, March 2007). The rationale for the European Convention on Human Rights is, as might be expected, rather different from that in EC law. The Convention was largely designed to guarantee rights that had been trampled on during the holocaust. It is a moral as opposed to an economic foundation that is required to provide continuing and effective protection for fundamental rights. Historically, the ECJ was resistant to the idea that human rights were either intrinsic to the treaty or part of the general principles of EC law. This position reflected the tension, as between domestic law, inherent in the then developing concept of EC law supremacy. If a Member State were of free to depart from uniform provisions of EC law then, axiomatically, EC law could not be supreme. Conclusion: The supremacy of EC law over national laws of the Member States is not explicitly stated in the EC Treaty but the ECJ has held that it is implicit in Articles 10 and 249 EC and, on this basis, has developed the principle through a line of cases. It was explicitly stated in the proposed Treaty Establishing the Constitution for Europe but, following its rejection in the referenda in France in May and the Netherlands in June 2005, this Treaty has not been ratified by the Member States. National courts have generally accorded supremacy to directly effective EC law, but frequently basing that supremacy on provisions of national law rather than on the ECJ's rulings. They have expressed particular reservations in relation to fundamental rights recognised in national constitutions, and pledged to uphold these in the face of conflicting Community provisions, although, as yet, there has not been an instance where a Community provision has actually been struck down on this ground. A proviso has also been expressed by German and UK courts, that they would not give precedence to an EC measure which went beyond the scope of Community competence. At the moment this, too, is a hypothetical scenario. Bibliography: 1. Josephine Steiner, Lorna Woods, and Christian Twigg-Flesner, EU Law 9th edition 10 Aug 2006, Pg. 115-124 2. Craig, P., and De Burca, G., EU law: text, cases and materials 3rd edition (Oxford University Press, 2002) Pg. 214-272 3. Alston, P., Bustelo, M., and Heenan, J. (edition.), The EU and Human Rights (Oxford University Press, 1999) Pg. 77-79 4. Jacqueline Martin. & Chris Turner, Unlocking EU Law, ISSN0 340 88759 1, September 2005 Pg. 78-93 5. Schutze, R (2006), 'Supremacy without Pre-emption The very slowly emergent Doctrine of Community Pre-emption', Common Market Law Review 43(4): 1023-1048, Academic Journal, ISBN: 0165-0750. Read More