A Supra-National Constitution - Assignment Example

Topic:(English legal system). Lord Denning, MR: 'If on close investigation it should appear that our legislation is deficient or inconsistent with community law by some oversight of our draftsmen, then it is our bounden duty to give priority to community law'. Discuss. Essay: The establishment of a supra-national constitution in the form of the European unification treaty gives rise to issues of relationships between European Community law and National law. These issues have been answered in the various cases decided by the European Court of Justice and done so in a manner that is based on implied powers and principles deduced from the treaty rather than from express provision thereof. The European Union presupposes an effective system of implementation and enforcement embedded in the member-states governmental structures. The impact, effect and influence of Community law on domestic law is dependent on the principle of supremacy of the former over the latter. The concept of supremacy of EC law is directly related to the principle of direct effect, direct applicability and self-execution. The first is pertinent to implementation while the others are to enforcement. It would certainly be impossible to achieve the objective of the Community if its laws cannot be implemented consistently among its members. In traditional international law, the determination of whether a certain provision is directly effective is decided by domestic law. It is also domestic law that will determine what are the conditions under which such effectiveness applies. This traditional mechanism was short-circuited by the European Community due its supra-national status and evolved the Community into a legal order sui generis. The principle of supremacy is implied in the very creation of the Community, this is the gist of several decisions of the European court justifying compliance with Community law. Its articulation was necessary for the enforcement of Community law through national authorities and courts.1 The determination of supremacy, direct effectiveness, direct applicability and self-execution of the provisions of Community law is done under the procedures and precepts of Community law. These doctrines are actually described as constitutionalizing; implementing supra-national effect of the treaty in its member states. As stated in Les Verts2, "The EEC is a Community based on the rule of law, inasmuch as neither its Member States not its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty." These same doctrines also point to an umbrella principle, which their operation imply - that of supremacy of EC law over national law. Indeed, in case of conflict, Community law overrules national law in order for Community law to be effective and for the same purpose, the European Court of Justice is given the final pronouncement with regard to Community law. In the words of Costa v ENEL3: By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and spirit of the Treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of Community law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardizing the attainment of the Treaty set out in Article 5(2) and giving rise to the discrimination prohibited by Article 7. The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories. In this case, The more emphatic expression of the doctrine was stated by Internationale Handelsgesellschaft4: The law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called in question. Therefore, the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either, fundamental rights as formulated by the constitution of the state or the principles of a national constitutional structure. The principle of supremacy affects not only national law conflicting with it but also those which encroach upon the field of Community jurisdiction. Without the ECJ case law on supremacy and direct effect, Community citizens would have no mechanism to enforce the rights granted by Community law against their own national authorities. Furthermore, the advantages in bringing about economic and other changes in the member countries would have been difficult or even impossible without the said doctrines. The present topic statement is made by Lord Denning in the case of McCarthy Ltd v Smith5. In this case, he reserved the right of UK to repudiate Community law and membership but only in the case of express repudiation and until then will UK avoid implementing Community law and measures. The reception of international law among the Community member states may be classified between monist and dualist, but Community law reception is significantly monist as expressed in Haegeman6, which stated that an international agreement is an act of the institutions for the purposes of being interpreted by the Court in accordance with Article 234 EC Treaty and that the provisions of such agreement forms an integral part of the Community legal order. It is not surprising that correlative to this principle, it will always be asked whether it will necessarily entail a claim of sovereignty on the part of the Commission or Union and a corresponding loss or abandonment of sovereignty on the part of the member states, which is correct within the context of pale of Community jurisdiction. The cooler heads describe the issue as one merely of constitutional tolerance, which reserves a sense of space and pride on the part of the member states. Within matters over which Community law has authority, there is absolute supremacy; supremacy even over national constitutional provisions. Community law cannot be overridden by domestic law, however framed.7 The case of Simmenthal8 which introduced the concept of structural supremacy of Community law and also imposed the duty to apply the same: "The rules of Community law must be fully and uniformly applied in all Member States from the date of their entry into force and for so long as they continue in force." In fact, it is the breach of the superior Community law, in the case in which it grants a right to an individual and a causal link exists between the breach and the damage suffered that serve as the conditions for triggering liability.9 This doctrine is analogous to Francovich10, less the existence of direct effect to justify the award of damages. The Community legal order is founded on its autonomy and its guarantees will not be frittered away by its interactions with domestic law, which further guarantees its universal application among its member states. The conceptual autonomy is different from the structural complementariness of the domestic legal order for the implementation of the Community law; Community law is self-sufficient but not self-contained. Without the cooperation of the domestic national legal order, Community law cannot fully realize its goals because it cannot be implemented within the jurisdiction of the local milieu such as when the legislature does not enact the corresponding statute and the rights that it conferred cannot be protected where the domestic courts does not give its (Community law) subjects. In Kupferber11, compliance with obligations created in the name of the Community with non Community member states are also ensured: "In ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfil an obligation not only in relation to the non-member country concerned but also and above all in relation to the Community which has assumed responsibility for the performance of the agreement. That is why the provisions of such an agreement as the Court has already stated in its judgement of 30 April 1974 in cases 181/73 Haegeman (1974) ECR 449, form an integral part of the Community legal system." The principle of supremacy has degrees of effect depending on the kind of source of Community law. Community law comes in the forms of regulation, directive and decisions of European Community institutions. Regulations have direct effect in the domestic jurisdiction without need for further legislation and the national institutions are duty bound to protect the rights which it has given rise of because regulations are "binding in their entirety and directly applicable"12 and the member states cannot implement them piecemeal.13 On the part of directives, there is direct effect if they are precise, unconditional and confers rights and is "binding as to the result to be achieved."14 ECJ decision(s) is "binding in its entirety upon those to whom it is addressed."15 Community law helped enforce customary international law in its member states, which is not effectively possible with traditional international organizations. Significant leaps in human rights and environment law would not be possible if law would rely solely on domestic legislation especially if the government is rather conservative. The unlimited primacy of parliamentary sovereignty16 in UK was tempered by the supranational influence of the European Community membership. The Diceyan formulation is no longer absolute. English courts are now empowered to grant protection over rights conferred by Community law even irrespective of the spirit of existing statutes. The intentional application of statutes contrary to Community law could give rise to state liability for breach of Community law. The ECJ has no power to invalidate national legislation, only national constitutional courts can do so, as spelled out in Simmenthal17. Without national sovereignty self-limitation, Community law cannot ever achieve its goals and it is this self-limitation that Community legal supremacy really means. It is the assumption of the national legislator of self-proscription not to adopt laws that are inconsistent with the binding Community rules. For the national court, it is the assumption of responsibility to disapply national law which comes in conflict with Community law, an idea first broached by Costa18 and developed in Simmenthal19 which further declared that it is unnecessary for the national court to request or await the prior setting aside of national provisions that are inconsistent with EC law. This is declared as inherent in the system of Community law in Factortame.20 On absolute supremacy, the European court stated that neither constitutional rights nor rules of institutional nature are allowed to hamper the full effect of Community law.21 The duty to eliminate conflicting national norms is different from the duty to disapply the conflicting norms by the courts.22 This has the effect of the imposition of the duty to eliminate conflicting norms upon the state members themselves over and above the duty of courts to disapply enacted statutes. Structural or procedural supremacy which was first tackled in Simmenthal23 and in Factortame24 was further developed in van Schinjdel25 and Peterbroeck26 in which latter cases, the need for uniform procedural rules in the legal systems of member states was pointed out as the essential precondition to the remedies ensured under Community law. In the case of Costanzo,27 the obligation of the state to apply directly effective Community law provisions is extended to include administrative authorities. The relationship between Community law provisions and directly applicable Community measures vis--vis national law of member states, according with the principle of precedence of Community law, is such that those provisions and measures not only by their entry into force automatically renders inapplicable any conflicting provisions of existing national law but also takes precedence over by preventing the valid adoption of new national statutory measures which would tend to be incompatible with the said Community provisions. This effect of the principle of supremacy is absolute because Community law overrides even provisions of the member states' constitutions when the latter do conflict the former. Because the ECJ has monopoly of construing the provisions of the EC treaty and secondary EC law, uniformity of interpretation is ensured. Because the national legal system is regarded as ancillary to the Community legal system, the effective and consistent application of Community law is ensured. The attitude of national authorities is not without resistance but there has been steadily growing acceptance of the Community order that comes with the experience and appreciation of its benefits among the Community citizens. The surrounding matrix within which Community and National law exist is the concept of complementariness of both laws to each other, as expressed by Article 10 of the treaty. This general principle breathes life into the Community, keeping within each member the awareness that the Community and its law is not self-contained and on its own will not achieve its objectives but relies upon the support of the national systems for its operation. The Community legal system is not foreign to each national legal system; their complementing interactions ensure the achievement of Community goals. This complementariness was already expressed in the White Paper28 submitted for British accession to the European Community: "what is proposed is a sharing and an enlargement of individual national sovereignties in the general interest." The European Treaty is supra-national and national laws are indeed superseded by Community law common to all member states. A common market cannot operate except in the context of the common Community legislation which member states observe. Indeed, European law is instrumental in readjusting relationships between member states and between member states and their citizens. The Community and its legal order survives and continues to do so only because of compliance and safeguarding pursuant to the guarantees of the cornerstone doctrines of direct Community law applicability and its primacy over national laws. There remains reluctance among member states to alter the established deference to national authorities and national sovereignty and this will continue to stand in the way of European integration. The constitutional or supreme courts of member states helped in establishing the actual duties imposed on by Costa and this helps in allowing domestic force of international treaty law to take root in the respective member states' domestic legal soils. The example set by the European Community will be absorbed by the states of the world and pave the way to a world state or union. BIBLIOGRAPHY Treaty establishing the European Commission. Case 106/77 Amministrazione del Finanze dello Stato v Simmenthal [1978] ECR 629. Case 5/71 Aktien-Zuckerfabrik Shoppenstdt v Council [1971] ECR 975. Case C-197/96 Commission v France [1997] ECR-I-1489. Case 473/93 Commission v Luxembourg [1996] ECR-I-32Case 128/78 Commission v UK [1979] ECR 1. Case 6/64 Costa v ENEL [1965] ECR 585. Case 103/88 Fratelli Costanzo v Milano [1989] ECR 1839. Case 6/90 Fracovich and others v Italian Republic [1991] ECR-I-5357. Case 104/81 Hauptzollamt Mainz v Kuferberg [1982] ECR 3641. Case 181/173 Haegeman v Belgium [1973] ECR 449. Case 11/70 Internationale Handelsgesellschaft [1974] ECR 1125. Case 249/83 Les Verts v European Parliament [1986] ECR 1339. McCarthy Ltd v Smith [1981] 1 QB 180 [1979] 3 All ER 325. Case C-312/93 Peterbroeck [1995] ECR-I-4599. Case C-213/89 R v Secretary of State of Transport, ex parte Factortame Ltd. [1990] ECR-I-3313. 07, 3259. Joined Case C-430, 431/93 van Schinjdel [1995] ECR-I-4705. Home Office. The United Kingdom and the European Communities [1971] Cmnd 4715. Lang, John Temple [1998]. The Duties of National Authorities under Constitutional Law, 23 ELR 109. Dicey, AV [1959]. An introduction to the Study of the Law of the Constitution, MacMillan. Read More