Discuss the Importance of the Doctrine of Supremacy

Under article 24 of the German Constitution, certain legislative powers can be transferred. Its constitution is written, and does bind all succeeding parliaments. Part of the constitution provides for certain fundamental rights. These rights are protected by the German Constitutional Court, and this is where their concern lies.  However, supremacy was further established in the German case of, Internationale Handlesgellschaft v Einfur-und Vorratsstelle, which concerned the supremacy of Community law over the written constitution of a Member State and the conflict between Community law and fundamental human rights embodied in such instruments.  Certain Community Regulations specified that undertakings, generally juristic persons and corporations, would lose deposits lodged with Community authorities if full use was not made of export licences; and lodging a deposit was a precondition of obtaining an export licence. Internationale Handlesgellschaft, a German undertaking, challenged this as being inconsistent with German constitutional law.  It was claimed that this infringed the principle of proportionality because it was a fundamental principle of German law that compulsory payment of money could not be imposed in the absence of fault on the part of the person in question.

The ECJ held that in a conflict between Community law and fundamental principles of the constitutional law of Member States, the former prevailed. A conflict did not arise in this particular case, however, because the deposit system did not constitute a particularly serious encroachment on personal freedom. Nevertheless:

 ... 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 into question. 

The Court concluded that:

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.

        Nevertheless the case of Brunner v The European Union Treaty opposes the previous judgement as, “The Constitutional Court made it clear that it would not relinquish its power to decide on the compatibility of Community Law with the fundamentals of the German constitution and would continue to exercise a power of review over the scope of Community competence.” .  Paragraph 48 of the judgement states that;

a breach of Article 38 of the Constitution if an Act that opens up the German legal system to the direct validity and application of the law of the (supranational) European Communities does not establish with sufficient certainty the intended programme of integration. If it is not clear to what extent and degree the German legislature has assented to the transfer of the exercise of sovereign powers, then it will be possible for the European Community to claim functions and powers which were not specified. That would be equivalent to a general enablement and would therefore be a surrender of powers, something against which Article 38 of the constitution provides protection.

Therefore it would seem apparent that Germany cannot submit control of its fundamental rights to Community law and this is not what the ECJ would have intended.  It appears that he German Constitutional Court and the ECJ are of equal superiority in Germany.  This raises the question of whether the doctrine of supremacy has been implemented properly, however, it simply shows that Germany, as a member state will not necessarily be willing to allow such drastic changes in jurisdiction over its Constitutional laws.        

Since the 1st January 1973, the UK has been bound to follow law emanating from the European Community, of which the UK is a member. S.2(4) of the European Communities Act 1972 obliges national courts to interpret national law so as to be compatible with the EC law. The courts have been slow to accept this apparent usurpation of Parliament's supremacy: in 1976, in Felixtowe Dock and Railway Co v British Transport Docks Board, Lord Denning commented that he felt that an Act of Parliament was superior to EC law, when he said:

It seems to me that the Bill is passed by Parliament and becomes a statute that will dispose of all this discussion about the Treaty. These courts will then have to abide by the statute without regard to the Treaty at all.

However, 1990 brought undoubtedly, the most important series of cases to reach the House of Lords concerning supremacy of EC law and the related issues of effective judicial remedies is that emanating from, Factortame v. Secretary of State for Transport.  This series of cases started with R v Secretary of State for Transport, ex parte Factortame.  The UK Government enacted the Merchant Shipping Act 1988 to protect UK fishermen by limiting the number of fishing vessels that could be registered against the UK quota (the quotas were set by the EC).  The UK issued rules that to register a boat, the owner had to be British, or live in Britain.  There were some boats who owners were Spanish and so they were not allowed to register their vessels.  The Spanish owners contended that the UK law breached Article 52, now Art 43 EC, of the EC treaty, which allows EC nationals the right of establishing a business in another EC state.

The Spanish fishermen sought, by judicial review, a temporary injunction "freezing" the effect of the Merchant Shipping Act, while the opinion of the European Court of Justice was sought by a reference under Article 177, now Art 234 EC.   The Divisional court granted the injunction and made the Art 177 reference.  The secretary of state appealed to the Court of Appeal, on the basis that the Divisional Court did not have the power to suspend an Act of Parliament as such a course of action had never happened before.  The Court of Appeal rejected the Secretary of State's appeal, and he appealed to the House of Lords.  They agreed with the secretary of state, thereby dispelling any myth that their Lordships are more legally aware than the lower courts, and stated that domestic courts had no power to suspend an Act of Parliament, unless there were some overriding principle of EC law that stated that member states must provide such relief, such as Art 12 which prohibits discrimination based on nationality. So the House of Lords made a reference under Art 177 to the ECJ to determine if there was such a rule.

The ECJ held that the law required member states to give effect to any directly applicable EC law, in this case Article 52 of the treaty, and any conflicting national law was inapplicable.  The House of Lords held that damages would not be awarded against a body that was acting in good faith.  Lord Bridge, in the House of Lords (~ [1990] 3 CMLR 59), observed:

Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of EC law. Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments.  Thus there is nothing in any way novel in according supremacy to rules of EC law in those areas to which they apply and to insist that, in the protection of rights under EC law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.

However, there is a counter argument that in the United Kingdom there is still parliamentary supremacy, because the UK was enrolled into the EU by a Parliamentary Act, and no Act of Parliament may bind future Parliaments in the UK, therefore the act can be overturned at the Parliaments digression.

        Despite this Community law is still the most supreme law in the UK, even if this is against the best wishes of the UK Parliament. The UK is not alone in its unconditional acceptance of Community law, other member states also share this opinion as shown in the judgment of Brunner v European Union treaty.  The decision in Factortame illustrates that national courts are required to grant interim relief to parties, irrespective of their national laws.  This does not mean however that national laws will cease to apply in situations where Community law does not conflict with national law.  The doctrine of supremacy was vital to Community law, without it member states would not share similar legal ideals thus rendering the idea of community in Europe less of an instrumental element.

Word Count: 1995

Bibliography

EU Law, Text, Cases and Materials 3rd Ed. Craig and De Burca

Hilaire Barnett-Britain Unwrapped-Government and Constitution Explained.

Constitutional and Administrative Law, 13th Ed., 2003, Bradley and Ewing

“Direct Effect, Supremacy and the Nature of the Legal Order”, in P. Craig and G. De Burca (eds.), the Evolution of EU Law

Lexis Nexis Professional

Westlaw UK

Europa

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