The European Court of Justice

The Council of Ministers, is a legislative body of the communities. Under article 145 it is responsible for the general co –ordination of the economic policies of the member states and has power to take decisions and legislate for the communities. It represents the interest of individual member states.

The Council is the principle decision making body of the union. The European council consists of heads of states of government and foreign ministers of member states. They discuss community matters and have the same powers as the council of ministers. A member state under article 173 can challenge in the Court of Justice any community act adopted by the council that is not valid. On the contrary, if it is considered that a member state is not fulfilling obligations under the Treaty, the Commission can bring an action under art 169 or by another Member State under art 170.

The original role of the Parliament was stated in article 137 as  “advisory and supervisory”, but now has a greater role in the legislative process, in the approval of the community budget and in the scrutiny of the actions of other community institutions.

The European Parliaments main function is to discuss proposals put forward by the Commission, but has no direct law making authority. As well as taking part in legislative process it exercises a supervisory power over the Commission and has a right of veto over the appointment of the Commission as a whole. It can also dismiss the Commission by a vote of censure. The Commission must make an annual report to the Parliament and Parliament can also require Commissioners to answer written or oral questions. The Council is not accountable to Parliament in the same way. The Parliament can bring an action against other EC institutions for failure to implement EC law. The European Parliament and, council of ministers all play a role in making EC legislation.

The European Court of Justice plays a pivotal role in the community.

The Court of Justice consists of judges who sit either in plenary sessions or in chambers. A Court of 1st Instance was created in 1996 to ease the problems of workload and delay which had made it difficult for the Court of Justice. The court of 1st Instance deals with disputes between the community and its servants.

The role of the Court of Justice is fundamental in ensuring legal enforcement of community obligations and in ensuring unvarying interpretations of European law throughout the community. This is illustrated in the case of Van gend loos v Nederlandse Administrate de belastingen case 26/62 (1963), it was decided that if a Treaty provision is unconditional, clear and precise as to the rights or obligations it creates, and leaves member states no discretion In implementing it, it can be use by individuals in their own national courts, just as if it come from statute passed by national Parliament. 

Cases reach the court either through reference on points of community law by national courts, or through direct actions.

Under article 177 European law imposes an obligation to apply the principles of European law. The fulfilment of this requirement is expressly achieved through s3 of the 1972 act.

Questions of European law should be treated as questions of law and by s3 “ if not referred to the European court for determination as such in accordance with the principles laid down by and any relevant decisions of the European court or any court attached to that. 

Sources of community law are through legislation and case law. Treaties are primary source of legislation, creating a framework of powers, duties and sometimes, individual rights. The Court of Justice frames the Treaty provisions in broad terms requiring further legislative action, following the interpretation.

 Article 189 empowers the council and Commission to make regulations, issue directives, make recommendations and convey opinions. These are instruments through which the policy was essential in the traits, and those adopted by the council in fulfilment of the treaties are achieved. Regulations, directives and decisions may be classed as community legislation, since they are made under the authority of the Treaty, they are to be regarded as delegated legislation. Their legality maybe challenged by the Court of Justice, but not directly in national courts, which have no power to declare community measures invalid.

The differences between the various types of measures are identifiable by article 189.

Case law, alongside community legislation of the Court of Justice is an important source of law.

The doctrine that established the supremacy of community law over national law, and of direct effects, both owe their basis to the judicial creativity of the court.

 Important decisions of the Court of Justice have developed the doctrine of supremacy of community law over national law. In Van gen en loos V Nedelande Administrate Der Berlastingen case 26/62 1963 ECR 1. The Court of Justice stated that member states has ‘limited their sovereign rights, albeit within limited fields’.

In Costa V Enel case 6/64 1964 ECR 585 it stated: “the transfer by the states from their domestic legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the community cannot prevail”.

This concept of supremacy of community law has been extended to the enforcement of community rights even if national courts are required to override national legislation. In Amministrazione Delle Finanze Dello Stato v Simmenthal case 106/77 (1978) ECR 629. The court ruled that the Treaty and directly applicable measures made there under: “ not only by their entry into force render automatically inapplicable any conflicting provision of current law, but also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions”

The national court if necessary may refuse to apply any conflicting national measure, without waiting for it to be set aside by legislative or other constitutional means. A similar approach is taken even in the case of inconsistent national constitution provisions.

Directly applicable community law will therefore prevail in any situation of conflict. In addition, member states are under a duty to take action necessary to implement community law. Article 5 states:

“ Member states shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from actions taken by the institutions of the community ‘s task. They shall abstain from any measure which could jeopardise the accomplishment of the objections of this Treaty”

The effect of this had been held by the Court of Justice in R V Secretary of state for transport, Ex Parte factortame c- 213/89

The insistence of community law that it shall prevail over conflicting national law maybe necessary if community law is developed as a coherent whole throughout member states. This is illustrated in the case of Blackburn v A-G 1971 2 ALL ER 1380.

Therefore, in cases of community obligations, which are directly applicable by virtue of section 2(1), they take precedence over conflicting national provisions. By these means Parliament has ensured that most case law, are between English law whether statute or case law, are resolved in favour of European law.

The authority granted by the 1972 to act apply European law has enabled courts both to revise executive actions and to declare invalid delegated legislation. More fundamentally, the courts have now accepted that this principle extends to declaring provisions of an act of Parliament inoperative. In factortame v secretary of state for transport 1990 2 ac 85. The House of Lords ruled that English common law did not permit such temporary injunctions to be granted. The court then referred to the Court of Justice the question as to whether community law required such interim relief to be available. The Court of Justice rule that national courts were under a duty to give effective remedies for the interim injunction to suspend the operation of the merchant shipping act 1988 pending a ruling of the substantive issues.

The obligations to implement community law in the United Kingdom falls primarily on the government and the various agencies, which it has chosen, to carryout functions of public administration.

Nowhere in the Treaty is there a reference to the supremacy of community law. However the Court of Justice has consistently held that this principle of supremacy is implied into the Treaty. In flamingo Costa V Enel case 6/64 1964 ECR 585.

Therefore we can establish from case law and acts of Parliament that the current statement concerning “community law should applied in its entirety” is a realistic recommendation in order for the community to thrive.

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