Critically analyse the development of he doctrine by the ECJ, and consider the extent to which this doctrine has been received by the UK as a cornerstone of the new legal order.
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"The doctrine of supremacy of community law has been one of the notable achievements of the ECJ. It has been a corner stone in the building of a Community legal order." Critically analyse the development of he doctrine by the ECJ, and consider the extent to which this doctrine has been received by the UK as a cornerstone of the new legal order. EC law automatically forms part of our own National Law and has done since the European Communities Act of 1972. The EU functions through four main bodies; The Council (of Ministers), The Commission, The European Parliament and most importantly The European Court of Justice (ECJ), which primarily deals with matters of EC law, referred to it by the courts of member states. The ECJ is the ultimate arbiter and enforcer of EC law, as set out in article 1641 of the Treaty of Rome. There are two aspects of the courts jurisdiction, which have been particularly significant in the development of UK national law. The first is the power of the European commission to bring proceedings against a member state for failing to fulfil its community law obligations. The second is the power of national courts to refer a point of community law, which arises in domestic proceedings for a preliminary ruling. Here the courts use the principle of direct effect, which allows individuals to rely upon Community law rights before national courts. There have also been instances where the British courts have applied the principle of indirect effect, where member states are required to construe national law to comply with Community obligations. The Development of the ECJ principles has been progressive in its principles, although certain strands have emerged over time, such as, respect for fundamental rights (i.e. indirectly the ECHR) principles of proportionality, of equality, respect for procedural rights, etc. two main points however have dramatically shaped the EU and its member states.
The doctrine of supremacy of parliament, entrenched in the English legal system for hundreds of years was not to be so easier removed as that of the Italian constitution. However the European Communities Act 1972, with particularly reference to s2 (1) of the ECA 197214 and s2 (4)15, gave legal effect within the UK to those provisions of Community law, which were according to the European treaties intended to have direct effect within member states. It meant, that a specific part of the EC law would become part of the U.K. law. It was that part, which by virtue of the EC law itself, was considered to have direct effect. This did raise disputes over the doctrine of the sovereignty of parliament, with relation to how one parliament could not bind its successors, however at any point a future parliament could repeal the legislation which gave legal effect to the ECA 1972. The result of the ECA could clearly be seen in the case of McCarthy's Ltd v Wendy Smith16. It showed that the English courts could refer to the ECJ for guidance and take effect of judgements from it17. The fundamental case that integrated the UK fully under the ECJ was R v Secretary of state for Transport ex parte Factortame18. It has been recognised as the most constitutionally significant British case highlighting the relationship between Community Law and domestic law. The House of Lords held that under common law the court had no power to make an order postponing the coming into force of a statute pending a reference to the European Court to determine its validity. However, the House of Lords referred to the European Court for a preliminary ruling19. On that basic the Hose of Lords exercised its discretion according to the balance of convenience, since in its opinion; it was doubtful whether an adequate remedy in damages to either side would be available.
However, it was silent on whether an employer should have to pay the same wage to a woman who came into the employment after the male had left the job. The matter was referred by the Court of Appeal to the ECJ under Article 177. 17 Per Lord Denning "if the time should come when parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it... then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. I do not however envisage any such situation... unless there is such an intentional and express repudiation of that treaty, it is our duty to give priority to the treaty" 18 R v Secretary of State for Transport, ex p factortame ltd (no3) C-221/89. In 1988 the United Kingdom Parliament passed the Merchant Shipping Act and enacted Merchant Shipping Regulations, which prevented some Spanish fisherman from fishing in British waters. As a result, Factortame challenged these domestic requirements as incompatible with EC law, on the grounds of discrimination on the grounds of nationality contrary to Article 14 of the Treaty and the rights of companies to establishment under Articles 43-48 19 A national court was required to set aside a rule of national law which it considered was the sole obstacle preventing it from granting interim relief in a case before that court concerning Community law, if to do otherwise would impair the full effectiveness of the subsequent judgment to be given on the substantive issue of the existence of the rights claimed under Community law. 20 Javell and Oliver (2000); "the court had no choice but to employ this approach, for it couldn't invalidate the act of parliament due to the doctrine of Parliamentary sovereignty, nor could it grant interim relief... the only approach to not invalidating the statute was to reinterpret the statute to conform to EC law, thereby satisfying both." 1 Mark Roberts
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