This parliament is elected every five years and there are currently 626 MEPs.
The European parliament advises on proposals for laws put forward by the Commission, gives opinion on laws to be adopted by the Council of Ministers and supervises the work of the Commission.
In conclusion, the Commission proposes legislation, the Council makes the law having consulted Parliament and amendments proposed by Parliament. It is a complex procedure but essentially the Council has the final say on legislation. Thus the Council is the main legislative body, not Parliament.
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The European Parliament represents, in the words of the 1957 Treaty of Rome; 'the peoples of the States brought together in the European Community'. Some 375 million European citizens in 15 countries are now involved in the process of European integration through their 626 representatives in the European Parliament. This means that UK membership of the European Union is bound to have a huge impact on English law.
In the situation of conflict between national and EU law, which law is to prevail? The EU Treaty does not contain any guidance on the question of priorities. The matter has been left to be decided by the courts of Member States, assisted by the ECJ.
The question of priorities will primarily depend on how EU law has been incorporated into domestic law:
· If the Member State is monist in its approach to EU law, it will become binding and part of national law from the moment of its formal approval, without the need for further measures of incorporation, e.g. as in France.
· If the Member State is duelist, EU law will not become binding internally, as part of domestic law, until it is turned into a domestic statute, e.g. as in the UK, Germany, Belgium and Italy.
However, this does not settle the question of priorities. This will depend on the extent to which the Member State has provided for this, either in its constitution or in its statute of incorporation. Because of the wide variation in the way Member States have provided for this question of priorities, and to ensure uniformity of application, the ECJ developed its own constitutional rules to deal with the problem of the principle of supremacy or primacy of EU law.
In a series of important rulings the ECJ has developed the doctrine of supremacy of EU over national law.
1. The first case established the EU as an independent legal order from the Member States: Van Gend en Loos [1963]
2. However, it was the case of Costa v ENEL [1964], that introduced the doctrine of supremacy.
3. EU law is supreme even over provisions of national constitutions: Internationale Handelsgesellschaft [1970]
4. The ECJ emphasized that supremacy of EU law affects both prior and future legislation, in Simmenthal [1978]
5. The obligation to ignore conflicting national law was demonstrated more pointedly in Factortame [1990]
6. Governments will be liable for financial loss suffered as a result of their breach of EU law. See: Brassiere du Pechier and Factortame (No 4) [1996].
The Response of the UK
Some States, such as Belgium, managed the doctrine of supremacy of EU law with relative ease. Other States, including the UK, France and Italy have accepted supremacy gradually, after a long process.
For the UK, the stumbling block has been the sovereignty of Parliament. As a result, for most of the period of British membership of the Community, the courts have derived the right to apply Community law from the European Communities Act 1972 rather than from Community law itself (Macarthys Ltd v Smith [1980]). The courts have treated the 1972 Act as permission by Parliament to apply Community law. However, under the usual rules of statutory interpretation, legislation, which is subsequent to the European Communities Act 1972, would prevail over it. The courts nonetheless have been able largely to avoid the problem of absolute conflict of Community and British law.
The European Communities Act 1972
The status of EU law derives from the ECA 1972. The most important provisions are sections 2 and 3:
· Under s2 (1) all rights, powers, liabilities, obligations and restrictions created or arising under the Treaties and all such remedies and procedures provided by or under the Treaties are without further enactment to be given legal effect in the UK.
· Under s2 (2) Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision for the purpose of implementing any Community obligation.
· Under s2 (4) any enactment passed or to be passed, shall be construed and have effect subject to the foregoing provisions of this section [i.e., obligations of a Community nature].
· Under s3 (1) any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law and, if not referred to the ECJ, be determined in accordance with the principles laid down by the ECJ.
The Approach of the UK Courts
The UK courts, led by the House of Lords, have shown a clear willingness to accord supremacy to directly effective Community law, either by a (fictional) 'construction' of domestic law, or, where necessary, by applying EC law directly, in priority over national law. However there is the possibility of Express Repeal.
It has been made clear that if Parliament were expressly to attempt to repudiate its EU obligations, our courts would be obliged to give effect to Parliament's wishes. Whilst this is unlikely to happen as long as we remain members of the EU, it is a theoretical possibility and the principle of Parliamentary Sovereignty remains intact.
