The earliest definition of supremacy is in case Van Gend en Loos v Nederlandse Tariefcommissie. ECJ expressed the view that, by signing the treaty, the member states had created a new legal order, in which individual states had limited their sovereign rights. However this did not take into account the diversity of the national constitutions in the Community. Member states have adopted either a monist or dualist approach. Monism is the doctrine whereby international law and national law form a single whole. In this system international law takes precedence without national legislation needed to enact it.
Lasok (2001);
Both international law and municipal law are only parts of the same structure and their rules interrelated. Consequently, Monism cuts across sovereignty, bringing the individual face to face with international law and relieving the state of… transforming it into rules of domestic law.
Dualism, on the other hand, regards the systems of international law and national law as separate: in this instance the national parliament would have to pass legislation enacting the relevant for the international.
Taking the dualist approach the ECJ would have no jurisdiction if that country had not given legislation to that effect, in essence that country could pick and choose which international laws it wanted to follow and which ones it didn’t.
This issue was raised again in the case of Costa v ENEL, the ECJ held that the Treaty of Rome created its own European legal order which was directly applicable to member States and their nationals. A partial transfer of sovereignty had occurred from member States to the Community. Subsequent national laws passed in conflict with international laws of the Community could therefore not prevail.
What the ECJ failed to do was examine the Constitution of any member state. It was simple for the courts to give effect in this case as the Italians had a monist constitution; it was a matter of Community law, not of national law. However in the case of the Italian finance Administration v Simmenthal the ECJ answered this question. The Italian constitutional court was in a dilemma where a ruling from the ECJ meant that a court would have to go against its own legislation written into its constitution. The court was of the opinion that since the national law continues to be fully effective pending such declaration, it was impossible to apply the community provisions and, in consequence, to ensure that they fully, completely and uniformly applied and to protect the legal rights created in favour of individuals.
The ECJ held;
That any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community Rules from having full force and effect are incompatible with those requirements which are the very essence of Community law
A national court, thus, whatever it’s position or role in the national judicial hierarchy, must set aside any prevision which conflicts with Community law and apply Community Law in its entirety, without waiting until the domestic legislation or a ruling of a higher court.
Dickens (1990) stipulates;
“When a country joins the Community it is obliged to reconcile its constitution, whether written or unwritten, with Community membership. It has to provide for the application of Community law in its territory…”
However the relevance of these cases were diminished by the fact of Italy having a monist constitution. To what extent did these cases (sited above) have on a dualist constitution such as the UK?
Lasok, in referring to dualism stated;
“The doctrine presupposes the existence of two separate systems of law the international and national, co-existing side by side as it were in watertight compartments. Though international law is the universal law of mankind, it stops at the door of the state. It means that international law…has…no binding force in the territory of the state unless transformed…into rules of municipal law.”
An example of the dualist approach was clearly seen in the case of Blackburn v Attorney General in which it was held that The Crown's treaty-making powers were immune from judicial interference.
Lord Denning citing;
“Even if a treaty id signed, it elementary that these courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted y parliament, and then only to the extent that parliament tells us”
The case of Mc Whirter v Attorney General reaffirmed the judgement in Blackburn. 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 1972 and s2 (4), 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 Smith. It showed that the English courts could refer to the ECJ for guidance and take effect of judgements from it.
The fundamental case that integrated the UK fully under the ECJ was R v Secretary of state for Transport ex parte Factortame. 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 ruling. 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. In doing so, the court took into account, in particular, the importance of upholding the law of the land in the public interest. The court did not restrain an apparently authentic law, as it was unsatisfied, having regard to all the circumstances, that the challenge to its validity was prima facie so firmly based as to justify such an exceptional course being taken.
In applying those principles, the H of L’s was of the opinion that the applicants had a strong case to present to the ECJ and that the evidence presented by the Secretary of State was not sufficient to outweigh the obvious and immediate damage which would continue to be caused to them if they were to be granted no interim relief, and therefore the balance of convenience favoured the granting of interim relief to the applicants. The appeal was therefore allowed.
The court was faced with a complex decision, how could it decree an act of parliament invalid (Merchant Shipping Act 1988) or, in omitting to act, disregard another act of parliament (European Communities Act 1972), which in either case would contradict the doctrine of the supremacy of Parliament.
The ECJ has developed into ‘one of the cornerstones’ of Community law, its two most significant achievements have been: firstly the way in which the ECJ has established its legitimacy and authority; and secondly the cooperation between the ECJ and the national courts of Member States and the success of the preliminary procedure. In establishing itself as the highest court in the land the ECJ has been able to expand the doctrine of Supremacy of Community law over national law in both monist and dualist constitutions, although this has been a long process.
The UK is part of the Community because it is beneficial for National Law to work alongside European Law, the introduction of the ECJ and enabled the courts to assess the validity of a piece of legislation enacted by parliament and if need be find it invalid. This has had the effect of pieces of legislature being far more effective and precise. However other institutions, such as, the European Court of Human Rights have also been cornerstones in developing national law and that of the new legal order. However it should be relevant that if Parliament expressed a wish to no longer be part of the Community, all it would have to do is repeal certain pieces of legislature.
Article ex220 (164) Treaty of Rome; set up to ensure that in the application and interpretation of the Treaty, the law is observed.
Lasok, Law and institutions of the EU (1994)
Article ex 234 (177) European Communities Act
‘the English legal system page’
Case 6/64 Flaminio Costa v ENEL [1964] ECR 1, An executive act of the Italian government, nationalising the production and distribution of electricity, was challenged in the Italian courts on the basis that the Italian legislation, by which the nationalisation was carried out, did not comply with the provisions of the Treaty of Rome. A reference was made to the European Court
Lex posteriori derogat leget; “in the law stemming from the treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, without being deprived of its character as community law and without the legal basis of the community itself being called into question. The transfer by the states of the rights and obligations arising under the treaty carries with it the permanent limitation of their sovereign rights…(and)… subsequent unilateral acts incompatible with the concept of community cannot prevail.
Noted by P Craig and G de Burca, EU Law 2nd Edition, OUP, 1998 at 259
Italian Finance Administration v Simmenthal ECR 269 [1978], referred to the ECJ for a ruling pursuant to article 177of the EEC, the question relating to the principle of the direct applicability of Community Law as set out in article 189 of the treaty for the purpose of determining the effects of that principle when a rule of Community law conflicts with a subsequent provision of National law.
Reference for a preliminary ruling: Pretura di Susa - Italy. Discarding by the national court of a law contrary to Community law. Case 106/77.
Law of the European Union workbook page 50
Blackburn v Attorney General (1971) 1 WLR, sought declarations that on entry into the Common Market, by signing the Treaty of Rome there would be a breach of the law because the government would be surrendering, in part, the sovereignty of the Crown in Parliament for ever.
Mc Whirter v Attorney General [1972] per lord Denning; 2even though the Treaty of Rome has been signed, it has no effect, so far as these courts are concerned, until it is made as Act of Parliament. Once it is implemented as an Act of parliament, these courts must go by the act of parliament.
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right‘ and similar expressions shall be read as referring to one to which this subsection applies
That the enactments passed or to be passed shall be construed and have effect subject to the provisions of s 2. Regardless of whether the relevant Community law provision came into operation before, at the same time, or after coming into operation of the relevant UK enactment and provided that the latter can be construed in accordance with the former without distorting its meaning, it will be construed in the light of Community provision.
McCarthy’s Ltd v Wendy Smith [1979] 3 All ER 325, Mrs Smith was employed by McCarthy’s, however she was being paid less than her male predecessor for carrying out exactly the same job. The applicable domestic legislation was the Equal Pay Act 1970 as amended by the Sex Discrimination Act 1975, which provided, inter alia, that men and woman employed in the same job should be paid equal amounts. 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.
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”
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
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.
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.”
