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"In developing the doctrine of supremacy of European law, the European Court of Justice acted in a manner that was not only justified, but moreover indispensable to reach the fundamental objectives the Member States had agreed upon in the Treaty of Rome"

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Introduction

"In developing the doctrine of supremacy of European law, the European Court of Justice acted in a manner that was not only justified, but moreover indispensable to reach the fundamental objectives the Member States had agreed upon in the Treaty of Rome" Do you agree? The European Court of Justice has asserted that "the essential characteristic of Community [law is] its primacy over the law of the Member States"1, and has justified this statement in terms of its obligation to give effect to the intention of the Member States and the objectives of the Treaty2. This paper will use technical and theoretical analysis to determine whether or not the Court was justified in proclaiming its jurisprudence supreme. It will then examine the models of consent-based legitimacy which make the doctrine of supremacy allegedly 'essential' to the objectives of the Treaty, drawing a theoretical analogy to suggest where the doctrine of supremacy will lead us. I Intention, Consent and Reasoning: Was the Court Justified in Creating the Doctrine of Supremacy? Laws created by institutions of the European Community have primacy over the national laws of its member states. This is the doctrine of supremacy. This fundamental doctrine is not written in any of the founding treaties: it was invented by the European Court of Justice in the van Gend en Loos3 case, and has been expanded ever since by the same court. The court in this case looked to the creation, by the member states, of Community institutions with sovereign powers to conclude that "the Community constitutes a new legal order, ...

Middle

To think in such terms requires a distinction to be made between internal and external relations (domestic and foreign affairs). This distinction is untenable because the behaviour of states (external affairs) is reducible to the behaviour of individuals representing the state (internal affairs), so the dualist perception is a tautology. Kelsen's positivist Pure Theory of Law conceives the legal system as a single, hierarchical structure of superordinate and subordinate legal norms, the higher of which define the scope, structure and sometimes the substance of the lower. At the apex of this construction lies the Basic Norm (Kelsen's 'grundnorm'), from which all other norms derive their validity. Pavlos Eleftheiatis suggests that the grundnorm is a constitutional fundamental, and cannot be changed or shifted by a body representing a lower norm (the ECJ). Furthermore it may be argued that Community law lacks the basic characteristics of a grundnorm in that it fails to limit the scope of all subordinate norms and confers direct substantive law to the lowest normative level. The ramifications of these perspectives raise issues for Community law. If sovereignty lies at domestic level along the Hartian model, member states should be able to repudiate their obligations and assert their own national sovereignty. One of the facets of the UK's doctrine of Parliamentary sovereignty is the notion of implied repeal. If a later Act of Parliament contradicts an earlier one, the earlier conflicting provisions will be held to be repealed insofar as they conflict. This was not the case in the Factortame litigation, where it was held that Community law entering UK law through the European Communities Act 1972 (ECA)

Conclusion

III Concluding Thoughts: Where Will the Story End? The objectives of the Community mandate supremacy. While members of the Community, states must subscribe to its supremacy doctrine so as to ensure the efficacy of its objectives. They retain the ultimate choice of withdrawing their consent, unilaterally revoking their membership of the Community and reasserting their national sovereignty, but this is the 'nuclear option' that is unlikely ever to be pursued in practice. Like all laws, Community law is supreme so long as it is backed by consent. But the question is: how valid is this consent? It would not be pragmatic or even likely that the UK could withdraw from the Union. The economic effects of withdrawal would be disastrous. It is held, therefore, in some form of self-inflicted duress. And yet this is no unique theoretical occurrence, no sui generis: it has been seen before, at least on the theoretical plane. The transfer of natural sovereignty from the individual to the collective in the formation of civil society was a transfer legitimated by consent for the provision of a higher purpose. The same principle may be observed, albeit featuring vastly different actors, on the European scene. In such a light it may be seen that the thin allegory elucidated earlier was in fact no such thing, but the shadow of history repeating itself. If we follow the story to its inevitable conclusion we shall see that the natural sovereignty of the individual is today no more than antediluvian heresy. Analogy dictates that the doctrine of supremacy will consign national sovereignty to the same fate.

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