EU Law - Albatros Pool problem case. Mark and Sunita must be advised that directives, unlike regulations, do not typically establish legal rights and duties automatically on entering into force.

The European Court thus established a tripartite test to determine whether member states should be compelled to compensate individuals for breach of improperly implemented EC law in Francovich. The test is set out below for Sunita's perusal:

• A) the objective of the directive must include the conferring of individual rights;
• B) the content and scope of those rights must be clearly identifiable from the text of the Directive; and
• C) there must be a casual link between the breach and the damage caused.

If one invokes Francovich in Sunita's situation it is submitted that she has a clear cut case for compensation, although it would be helpful to receive further information as to the circumstances of her claim to confirm this advice.

Sunita should be reassured by the fact that the Court has developed the Francovich doctrine of state liability in more recent cases. In Brasserie du Pêcheur and Factortame III, the ECJ built on its earlier jurisprudence, confirming that member states would be liable to pay damages in the context of claims for loss suffered as a result of legislation adopted in contravention of directly effective Treaty provisions. Moreover, it should be of interest to Sunita that in Dillenkofer v Germany this principle was applied to incorporate improperly implemented Directives.

These authorities also clarify that for state liability to be found the breach of Community obligations at issue must be sufficiently serious (alternatively this is defined as manifest and grave). Bayerische HNL GmbH confirms this observation.

ADVICE TO SUNITA

Sunita will be required to pursue a different route to Mark in her attempt to secure redress and compensation in this matter, but the foregoing analysis indicates that she should be successful by one means or another. Horizontal direct effect is unlikely to found a reliable cause of action so Dove Ltd should not be the target of her claim. Sunita is advised instead to sue the United Kingdom under the Harz and Francovich doctrines. Given the information provided, it seems likely she will be successful in obtaining redress under one or other of these legal causes of action.

PART B SUPERSTORE LTD

Assume the following events take place Superstore Ltd requests your legal advice on a number of problems it has been encountering recently with two UK Government measures. The first one is a recent decision by the UK Government to introduce a plastic bag tax on non-reusable plastic bags that are provided or sold in shops. The purpose of the measure is to encourage consumers to use reusable carrier bags for shopping. The revenue from the tax is to be channelled into supporting research and development initiatives of UK firms promoting more environmentally responsible alternatives to disposable plastic bags. The other one is a recent piece of UK legislation that prohibits the sale of any products made from hard wood materials unless the retailer is able to prove to the satisfaction of the Department of Environment that the finished product has been manufactured from trees that have not been felled from endangered tropical forests. Superstore Ltd objects to the plastic bag tax and the restriction imposed on hard wood products. Advise Superstore as to its rights (if any) under EU law with respect to the tax and hard wood sales prohibition. (1500 words max)

ANSWER B)

PLASTIC BAG TAX

Superstore Ltd is concerned that the UK Government is to introduce a plastic bag tax on non-reusable plastic bags that are used in its retail outlets. It is noted that the purpose of the measure is purportedly to encourage consumers to use reusable carrier bags for shopping and it is manifest that this is a laudable endeavour in itself given that it is of benefit to the environment to encourage the preservation of scarce resources, in particular those which require materials derived from the petro-chemical industry. That said, it is further noted that it is intended that the revenue from the tax will be channelled into supporting the research and development initiatives of UK firms promoting more environmentally responsible alternatives to disposable plastic bags.

This will inevitably subject the tax to the scrutiny of the European Commission given that it will confer a direct financial benefit on domestic producers in such a way as to exclude other producers of similar products based in other member states in the Single Market. The tax will thus operate to grant a competitive advantage to domestic production and it is submitted that this is directly and indisputably offensive to the fundamental aims and objectives of the Customs Union.

It is entirely possible for example that a tax may be imposed on non-reusable plastic bags which are produced by non-British manufacturers and then paid over to British manufacturers engaged in research to produce environmentally friendly bags. This is contrary to Community law.

Article 23 EC provides that a Customs Union will be achieved by, inter alia:

(b) the prohibition between member states of customs duties on imports and exports and of all charges having equivalent effect.

It is argued that the plastic bag tax proposed constitutes a charge having equivalent effect in this context. Genuine taxes are defined in the case Commission v France (Re Levy on Reprographic Machines) as measures "relating to a system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products".

The case Fratelli Cucchi v Avez SpA confirms that a domestic tax may be treated as an incompatible charge if the proceeds of the tax are earmarked to confer a benefit on domestic producers which are subject to the tax. Furthermore, the case Ianelli & Volpi v Meroni settles the point that it is irrelevant that the tax is designed for a specific purpose (which may be ostensibly laudable) and that this will not serve to defend the measure against a ruling of incompatibility in the context of the member state's obligations to the Single Market.

Article 90 EC provides that:

No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.

It is clear that that the proposed tax affords direct protection to domestic producers in such a way as to discriminate against non-domestic EU producers.

The fact that it is aimed to benefit a technically different product is irrelevant in the eyes of EC law. This may indeed be a peripheral point in the context of the scenario under review. In terms of the question of similarity, a broad view is taken by the European Court of Justice. The key issue according to the case Commission v Denmark is whether the products: 'have similar characteristics and meet the same needs from the point of view of consumers... not according to whether they are strictly identical but whether their use is similar or comparable.' [emphasis added]

It is clear that from the point of view of the shopper, a reusable carrier bag performs the same use as a non-reusable carrier bag.

It is submitted that any aspect of a domestic taxation system which purported to distinguish between domestic and extra-EU products and as in this context favour domestic producers would be treated as blatant protectionism by the European Court. It is trite law that internal taxation is contrary to Article 90 EC if it affords protection to domestic products.

From another perspective, according to the celebrated Dassonville formula:

'All trade measures or trading rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra- community trade are to be considered as measures having an effect equivalent to quantitative restrictions.'

Therefore it is not necessary to demonstrate that the proposed UK tax actually hinders trade between member states. It is possible to show that the measure is capable of such effects and that will be enough for an effective challenge by Superstore Ltd.

In addition to the above, it may be possible to argue that the redistribution of the tax among domestic producers constitutes an unwarranted state aid, which is contrary to the competition law provisions of the Treaty. Article 87(1) EC prohibits the granting of state aid which:

'...distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods.'

This rule is applicable in so far as the measure affects trade between member states, which inevitably would be the case in regards to the measure under review in this context, given the benefit that will be received exclusively by domestic producers.

State aid is very broadly construed by the Commission and the European Court and has been defined as any advantage granted directly or indirectly through State resources: Syndicat Francais de l'Express International v La Poste. There is little doubt that the proposed measure would therefore also fall foul of the jealously guarded and assiduously maintained EU competition law regime.

In summary, Superstore Ltd is advised that the proposed tax can be challenged on various grounds under EU law and that success is likely given, in particular, the manifestly discriminatory and protectionist effect of redistributing the proceeds of the tax exclusively to domestic producers. The environmentally-friendly objective behind the tax will not protect it from Community action.

BAN ON PRODUCTS MADE FROM HARD WOOD MATERIALS

Superstore Ltd is also concerned about a recent piece of UK legislation that prohibits the sale of any products made from hard wood materials unless the retailer is able to prove to the satisfaction of the Department of Environment that the finished product has been manufactured from trees that have not been felled from endangered tropical forests.

Article 28 of the Treaty of Rome provides that:

"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States."

It could be argued that the effect of the new legislation is to block, without justification, imports of hard wood products manufactured in other member states. This would be in direct contravention of fundamental Treaty provisions relating to the free movement of goods. However, it is noted that the measure effects both Community and domestic UK producers equally - although this conclusion could be refuted on evidence that for some reason domestic producers could accommodate the provision more easily than their EU competitors.

Of course, the EU enforcement authorities are well aware that rules which do not discriminate between goods on grounds of country of origin may nevertheless constitute real and effective barriers to the trade in those goods between member states in a variety of circumstances.

Directive 70/50 specifically prohibits measures governing, inter alia, the composition of products where those measures are equally applicable to domestic and imported products (such as the new United Kingdom rule in this context) where the restrictive effect on trade is disproportionate.

Again the Dassonville case, as cited above, is relevant in this context. It is not reproduced for the sake of word economy. The Cassis de Dijon line of authority, which indicates that such indistinctly applicable rules may fall subject to challenge where goods are lawfully manufactured in other member states is also applicable.

There are several derogations from the general Article 28 prohibition set out in Article 30. One of them, namely the provision which permits measures justified on grounds of the protection of health and life of humans, animals or plants is possibly applicable in this context, given the ostensible motive of environmental protection. However it should be noted that because Article 30 derogates from a central principle of the Single Market, the exceptions it contains are all narrowly construed and restrictively defined and applied. As a consequence the United Kingdom Government would need to establish a cogent argument in order to persuade the EU enforcement authorities that exemption was justified on the facts. An example of the restrictive attitude to the protection of health and life of humans, animals or plants derogation can be found in the case Commission v United Kingdom.

Further particulars regarding the profile of the market and other conditions are needed in order to arrive at cogent advice on this matter.

BIBLIOGRAPHY

• The Treaty of Rome (1957 as amended)
• Textbook on EC Law, Steiner and Woods, (2003) Blackstone
• Text, Cases and Materials on European Union Law, Tillotson and Foster, (2003) Cavendish
• EU Law- Text Cases and Materials, Craig and de Burca, (2003), Oxford University Press
• Law of the European Union, Kent, P., (2001) Longman
• Basic Community Cases, Rudden and Phelan, (1997) Oxford University Press
• Cases and Materials on EU Law, Weatherill, (2005) Oxford University Press
• Europa: Gateway to the European Union: http://europa.eu.int/index_en.htm.
• EC Legislation 2005-2006, Foster (2005) Blackstones Statutes
• From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law, Steiner, 18 E.L.Rev. 3 (1993)

SEPARTE

The UK government has recently become increasingly sceptical in its attitude towards the European Union. Its seeks your advice upon the following. A European Community directive, which was due to have been implemented by 30th June 2005, provides that water authorities may not take water from rivers between May and September, in order to protect the aquatic environment. The UK water authorities, of which some are private companies and some are public bodies, have asked the government not to implement the directive and the government is sympathetic to their case.

The government wishes to know:

• (a) whether, if it fails to implement the directive, any action may be taken against it by the European Union;
• (b) Whether, in the absence of implementation, the directive could nevertheless be enforced against the water authorities in a UK court, and;
• (c) whether legislation could be passed by the UK parliament to prevent the directive having any legal effect in the UK. Advise the government.

This discussion is going to focus on the basics of state liability and EU law and then will highlight the problems for the citizen's rights in respect to non-state companies when they have been discriminated against in employment. Yet this discussion is equally applicable to state liability and citizen's rights of action in a breach of any directive. The discussion concerning standing and citizen's rights of actions will illustrate this and finally this legal discussion will be applied to the case of the UK

The two main aspects that EU law deals with are; the possibility that the member state is contravening the regulations that regulate interactions with other member states, such as tariffs; and whether a member state is contravening the laws in relation to individuals, such as free movement of persons and deportation. The court has recognized that there is a direct effect of directives, acts and regulations. Therefore there must be an adherence to these laws in the nation states, to be in contravention of these laws indicates a breach of the key precepts of the EU and the national law is subject to EU law. This has caused much concern whether this means that in fact member states are not sovereign states However the Court of Justice has introduced the proportionality principle that allows the member state some leeway within the interpretation of EU laws as long as it is in respect to the protection of national culture. This is an important principle because it recognises there are different cultures, religions and languages within the EU, which must be respected. However principles of equality and justice cannot be contravened on the grounds of non-compliance

Direct Effect/Indirect Effect& Proportionality:

The Concept of Direct Effect within EU Law:

This discussion will consider the type of law that the ECJ follows. This central system essentially follow a codified type of law; where the ECJ follows a much codified approach to the law where the regulations and directives set out the duties of each member state, where the laws are directly binding on each state. One of the best areas to consider to illustrate the power that the EU has to enforce their directives is environmental law, because throughout many EU states this law was much neglected and treated in a lax manner, until the introduction of EU articles and directives, as the following discussion will illustrate without the EU's 'green law' the environment would be much neglected in the UK. EU law is essential to the law of the environment because it is the source of a lot of 'Green' law within the UK, as with the decision in the Lappel Bank case. EU law has passed down a lot of 'Green' law within the UK; however this law is only directly applicable to the government and domestic laws (Van Gen en Loos) and indirectly applicable to government organisations (Foster v British Gas) However when it comes to individuals and persons not attached to the government there is no recourse to the ECJ, therefore one has to wait for a case which involves an individual and the government. This restriction within EU law therefore reduces the impact of 'Green' European law within the UK. Therefore the main limitation to the power of EU law is that it only directly applies to Member-States or organizations that are monitored by the government of the Member-State.

Direct Effect:

The principle of direct effect has been approved in respect to vertical direct effect whereby a directive can be enforced against a defaulting Member State as set by the Van Duyn Case:

It would be incompatible with the binding effect attributed to a directive by Article 189 (now 249) to exclude in principle the possibility that the obligation which it imposes may be invoked by those concerned. 

As already mentioned the cases of Van Gend en Loos and Foster v British Gas have been important in determining the extent that vertical direct effect being applicable. The Foster v British Gas case extended the definition of what a state consists of to the organizations and organs of the state, which includes state regulated monopolies. Yet the case of Marshall stemmed the possibility that there may be the possibility of horizontal direct effect, i.e. the ability for individuals to enforce their EU rights directly:

Where a person involved in legal proceedings is able to rely upon a Directive as against the State, he may do so regardless of the capacity in which the latter is acting, whether employer or public authorityIt follows that a Directive may not of itself impose obligations on an individual and that a provision of a Directive may not be relied upon as such against such a person.

Principle of Proportionality:

One final question must be asked in relation to the Principle of Proportionality, which allows for some national leeway in deciding certain elements of EU Law. This question is whether the UK can apply this principle to this case, therefore making it a domestic not EU matter of law? In response the Principle of Proportionality cannot be applied in relation to basic rights and freedoms and EU Law must be strictly applied. Article 49 is one such freedom and if there is a breach then it is not a matter for Domestic Law. Therefore EU Law and principles must be applied, which has been illustrated in the case R v Pieck (Case 157/79) In short if there is a breach of Articles or Directives; in addition to breaching the Principle of Non-Discrimination; then the UK cannot use the Principle of Proportionality This is also true if there is a breach of any of the articles that have been discussed previously, as they relate to the core structure of the EU. As this is a directive then there is no avenue for the UK to plead leeway by not implementing it, rather there is avenue for judicial and state interpretation but non-compliance is not excusable.

State Liability:

The doctrine of state liability was established under Articles 226 to 228 was defined in the Francovich Case. These articles illustrate the limitations of the citizen accessing justice whereby article 226 allows the commission to bring an action against a member state for not fulfilling its obligations. Article 227 along the same line of argument allows another member state to bring an action against a member state for not fulfilling its obligations. Finally article 228 forces the state to take all steps to comply with the ECJ's decision in respect to the possible breach of obligation. Also article 234 governs the jurisdiction of the court which surrounds the interpretation and validity of the legal question and EU law in the case. It is this article that stresses that the law is and decision is only binding on signatories and not third parties, i.e. corporation completely independent of the government. Also this article points out a very undemocratic principle where member states cannot question why the EU did not act in a situation of possible breach; therefore allowing the EU an out from acting in the case of political influence and/or tenuous situations. It is this approach that it has been argued protects the rights of EU citizens:

It can be argued that it is largely due to problems concerning the enforcement of directives, that state liability rules were developed. Member States were failing to implement directives on time, thus a damages remedy was needed in order to stop them from neglecting their duties. State liability rules did not only ensure and strengthen individuals' rights; they also closed a long-existing gap in the area of efficient sanctioning of breaches of Community law.

Francovich cemented the notion of state liability by enforcing payment by state's that allowed private companies to breach of the EU citizen's rights, which used the rights under Articles 226 to 228 to cement this payment; as well as backing this argument up with Article 10:

Member States are required to take all appropriate measures to ensure fulfilment of their obligation under Community law, [i.a.] to nullify the unlawful consequences of a breach of Community law.

This approach was expanded in the case of Brasserie du Pêcheur which included state liability when there was an act of omission on behalf of the legislature, therefore including not only positive but also negative acts that breached the EU citizen's rights. In the case of Rechberger and Others v Austria this approach was held to include incorrectly implementing a directive. The case of Dillenkofer held that even a mere infringement was a breach and the state was order to pay reparation to the offended individuals:

Failure to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury if the result prescribed by the directive entails the grant to individuals of rights whose contents are identifiable and a causal link exists between the breach of the State's obligation and the loss and damage suffered.

Therefore the EU and other Member States could find the UK in breach and bring an action against it and if any citizen's rights had been breached by the state's actions it may be found liable and has to pay reparation to the citizen. In addition the Courts under the European Communities Act 1972 could uphold the directive because through this act it gave precedent to the EU in certain dealings. The fundamental concept of parliamentary supremacy is that parliament cannot bind its successors has been undermined by the European Community Act 1972, which came into force after the admission of the United Kingdom into the EU. The European Court of Justice argues that EU law takes priority over member states domestic laws; whereby:

"The Member States have limited their sovereign rights, albeit it within limited fields, and have thus created a body of law that binds both their nationals and themselves, articulating a comprehensive principle of EU law supremacy that bites even on domestic constitutional laws.

The rationale for this principle is self-evident: the raison d'être of EU law is to create (within certain fields) a pan-European system of regulation and body of rights, a goal that would be unattainable if member states were able to opt out simply by adopting contrary domestic provisions. The difficulty, though, is that if EU law is supreme, then this appears to conflict with the English law's orthodox position concerning the role of parliament in constitutional law, i.e. parliamentary sovereignty. It is wholly possible for the UK to enforce legislation in opposition to the directive under the principle of parliamentary sovereignty; however the reality is far different as seen in the Factortame Case where legislation in opposition to EU law was changed and brought in line with EU legislation. Therefore the power to legislate against an EU directive is only applicable in theory.

Bibliography:

• Angelica M. Bernal, 2004, On the Paradox of Constitutionalism And Democracy in the EU: The Case of the Convention on the Future of Europe, Paper prepared for the Yale University Contemporary Politics Workshop
• Paul Craig & Grainne De Burca, The Evolution of EU Law, (Oxford University Press, Oxford, 1999)
• Mark Elliott, 2004, United Kingdom: Parliamentary Sovereignty Under Pressure, International Journal Of Constitutional Law, July 2004, ICon 2.3(545)
• The European Union at a Glance, EUROPA: Gateway to the European Union, Van Gend en Loos v Nederlandse Administrie der Berlastingen (Case 26/62) [1963] ECR1 ; Costa v ENEL (Case 6/64) [1964] ECR 585

SEPARTE

Supremacy of EC Law over National Law

The view of supremacy adopted by the ECJ has differed radically from that adopted by most of the member states. Explain with reference to the reaction in at least two of the member states to the ECJ’s interpretation of the principle of supremacy. - Justin Santiago

The concept of supremacy of EU law where EU law takes precedence over national law was never expressly stated in any of the treaties. The supremacy of Community law stems from the condition of membership of the EU that member states give priority to EU legislation over their own law. Additionally the creation and development of the supremacy of EU law was developed by the ECJ through a series of important rulings.

The concept of direct applicability states that certain provisions of EU law become national law without further enactment.
Directly applicable EC legislation overrides inconsistent domestic legislation – Factortame (No 2). Per Lord Denning in MacCarthy v Smith – we are entitled to look to the Treaty not only an aid but as an overriding force (Art 119). This principle was further developed in the case of Costa v Enel in which the case set out that community law had been integrated into the member states’ legal systems and was binding on them. It also declared the effect of unlimited duration of the application of EC law meaning, in the words of the ECJ “…it is impossible for a member state to set up a subsequent unilateral measure against a legal order they have accepted on a reciprocal basis.”


The ECJ touched on supremacy in the case of Van Gend en Loos v Netherlands ‘…the community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights…that member states have voluntarily transferred sovereignty to the institutions of the community.” The ECJ also laid down conditions of justiciability (capable of being applied by a national court) namely that articles of the treaty could be pleaded in the national court provided the provision was clear and precise, it must be unconditional, its operation must not depend on further action by national or EC authorities and it must lay down a negative prohibition rather than a positive obligation has been whittled down .



The ECJ deployed a number of arguments to justify its conclusion that EU law should be accorded supremacy over national laws :-

1. The EC Treaty created its own legal order which immediately became an integral part of the legal systems of the member states.

2. The member states had transferred to the new community institutions real powers stemming from a limitation of sovereignty although this was not in reference to the constitution of any particular member state but simply by being a member of the EU.

3. The spirit of the community required that EU law was uniform and effective among all members in order to achieve the objectives of a common market

4. Obligations undertaken by member state in the Treaty would be merely contingent rather than unconditional if they were to be subject to later legislative acts on the part of member states

However members of the EU have varying levels of resistance towards this encroachment into national constitutional law and their courts have experienced particular difficulties in this respect. The question naturally arises whether there are areas in which the member states are no longer competent to legislate, and must defer to the EU. Areas of EU exclusive competence are generally held to exist, but it is by no means clear what they are

National courts have generally accorded supremacy to directly effective EC law, but frequently basing that supremacy on provision of national law rather than on the ECJ’s rulings and have expressed particular reservations in relation to fundamental rights recognised in national constitutions. Most of the courts of the member states regard themselves as possessing the ultimate Kompetenz-Kompetenz.

Germany

The German response to supremacy of EU Law has developed from one of outright rejection to one of acceptance based on the sovereignty of the German constitution. In the case of International Handelsgessellschaft GmbH v EVGF (Solange I) the Federal Constitutional Court held that although Article 24 (now Article 25) of the constitution allowed for the transfer of legislative power to international organizations but the question raised was whether Article 24 permitted the transfer to an organization such as the EC, of a power to contravene certain basic principles protected under the constitution itself. It was held that so long as the Community had not removed the possible conflict of norms between EC law and national constitutional rights the German court would ensure that those rights took precedence.

The rational was that in this present case, the constitution provided sufficient protection of fundamental human rights and that these rights were insufficiently protected under Community law as it was felt the Community lacked a democratically legitimated and directly elected parliament as well as a codified catalogue of human rights. As long as the recognition of human rights in the community had not progressed as far as those provided by the constitution, Community law could be ignored. There was therefor no redress for parties wronged to see whether Community law would have affected the outcome of the case.

This position was revised in Application of Wunsche Handelsgesellschaft (Solange II) in which the FCC would no longer exercise its jurisdiction to decide on the applicability of EU law as the legal basis for any acts of German courts or authorities and it will no longer review such legislation by the standard of the fundamental rights contained in the constitution.

However Solange II did not surrender jurisdiction over fundamental rights but only stated that the FCC would not exercise that jurisdiction as long as the present conditions as to the protection of fundamental rights by the ECJ prevailed. The FCC still preserved its final authority to intervene if real problems concerning the protection of fundamental rights in Community laws arose.

In the Brunner case it was decided that Germany’s acceptance of the supremacy of EU law was conditional and the FCC asserted its jurisdiction to review the actions of European institutions and agencies which included the ECJ to ensure that they remained within the limits of their powers and did not transgress the basic constitutional rights of German inhabitants.

Italy

Article 11 of the Italian Constitution permits limitations of sovereignty as are necessary to an organization which ensures peace and justice between nations. This has formed the basis of the Italian courts’ acceptance of the supremacy of EU law although this acceptance has not been unconditional. In Frontini v Minisetero dell Finanze the Constitutional Court stated that it reserved the right to hold fundamental rights protected by the Italian constitution to be supreme over EU law. The case of Fragd considered that a Community measure would not be applied in Italy if it contravened a fundamental principle of the Italian constitution concerning human rights protection.

UK

The central obstacle to acceptance by the UK of the supremacy of EU law is the constitutional principle of parliamentary sovereignty which in its traditional formulation holds that Parliament has the power to do anything other than to bind itself for the future.

Membership of the EU has not pushed parliamentary sovereignty of its pedestal. There is an increasing trend of the ECJ having a bigger bark in judicial decisions but whether that translates into a bigger bite is questionable. Supremacy of EU law over the domestic law of the UK is questionable.

The dualist approach taken by the UK to incorporating extra territorial legislation means that EU law had to be incorporated by the European Communities Act 1972 (ECA 1972). The extension of the interpretation of the supremacy of EU law by the ECJ has been thwarted by the following provisions and is aptly demonstrated in case law:-

S1(4) states that Parliament would enact all future legislation in conformance with EU policies

S2(1) states that all provisions of EU law which are intended to be directly applicable in the UK are given the force of law.

S2(4) states that Acts of Parliament passed after 1972 shall be construed and have effect subject to the provisions of the ECA 1972.

Per Lord Denning in Macarthys v Smith– we are entitled to look to the Treaty not only an aid but as an overriding force. However there was some pulling back in the case of Duke v GEC Reliance Systems where Macharthy is not applicable to domestic legislation which pre-dates the incompatible provision of EU law. It was felt in Duke that the Van Colson principle which required domestic law to be interpreted as far as possible in the light of EU law was no authority for the proposition that a court of a member state must distort the meaning of a domestic statute so as to conform with EU law.

The later cases of Lister v Forth Dry Dock, Pickstone v Freeman and Webb all point to the courts treading gently on domestic legislation and using the purposive approach to ensure compatibility with EU law. In Pickstone v Freeman the direct applicability rule was softened to accommodate domestic laws which was specifically designed to implement EC law. Lister v Forth Dry Dock took this further in that an extra clause was read in in order for domestic regulation to comply with the directive if a literal reading would not achieve the purpose. This is an example of the UK courts adopting a purposive approach, recognizing that Parliament’s specific purpose in passing a particular measure was to implement a provision of EC law.

There was a further acceptance of EU law in the case of Factortame II which culminated in the House of Lords granting interim relief the effect which would suspend the operation of an Act of Parliament. The acceptance by UK courts of the supremacy of EU law was further evidenced by the EOC Case where the HOL stated that there was no constitutional barrier to an applicant before any UK court and not only the HOL seeking judicial review of primary legislation which was alleged to be in breach of EU law.

The effect of these cases was that the courts would not actually invalidate the act which went to show that UK law was still supreme.

The case of Thoburn v Sunderland City Council and Others introduced the element of ECA being a constitutional statute that could be expressly repealed. In other words parliamentary sovereignty had created the ECA 1972 and parliamentary sovereignty dictated that parliament be the one to expressly repeal it. Purists have also have argued that the doctrine of parliamentary sovereignty has been untouched since the UK needed Parliament to pass the ECA 1972 before EU law became law in the UK. And it will be within the sovereignty of Parliament to repeal the ECA 1972 and prevent the continued operation of Community law within the UK.

All of these cases point to UK parliamentary sovereignty being firmly in the drivers seat nothwithstanding the ECJ notions of supremacy of