The European court of justice is set up to interpret European Community law. So any questions on the interpretation by national courts however important must give way to European Community law. Their major heads of jurisdiction are, to rule upon allegations that member state has not fulfilled treaty obligations, to supervise appeals against decisions, to rule upon compensations for damages caused by the institutions, to rule upon disputes between the European Community and its servants,
There are two main sources of European Community law, firstly there is the primary law, which are the treaties creating the union, which establish their institutions, their powers also creating powers and duties to each member. The basic source is the Treaty of Rome 1957 then this was followed by the Treaty of Maastricht and then the Treaty of Amsterdam. These treaties lay down the framework and the objectives of the European Community and also lay down a timetable within all the objectives must be achieved.
The other major source of European Community law is secondary legislation. The purpose is secondary legislations is to fill in the gaps left out on the framework of the treaties, article 189 of the Treaty for Rome 1957, which states “ the council and the commission …make regulations issue directives and take decisions”. A regulation has a general application which is binding in its entirety and is directly applicable to all members straightaway. The case of the commission v UK re: Tachographs 1979. Regulations can bring swift an immediate law reform amongst member states.
Directives are addressed to member states, but unlike regulations, directives have to be incorporated into national legislation, meaning that directives are binding in policy but the form and method of incorporation into national law are left top the member to choose, but they have to incorporate these laws within a time limit. In the United Kingdom we may do this through an act of parliament or through statutory interpretation. Examples of this include Product Liability Act 1985, which was fused into The Consumer Protection Act 1987. Directives are useful in the sense they allow member time to fuse the European Community law into their own legislation, it also allows other members to observe and educate themselves with problems that a certain member may have, this may lead to reform of that certain law.
The final source in second legislations is decisions, which are binding in its entirety, it may jus be binding in one state or jus a certain individual e.g. the commission orders a company to stop an anti-competitive practice.
One of the criteria’s when members join the European Union, was that that European Community law would be superior to any national law. So for example in the United Kingdom, the parliament passed the European Communities Act 1972 to put European Community law in effect. This meant the parliamentary sovereignty was lost. So if any case did arise on a topic of law where there was a conflict between national law and European Community law then European Community would prevail. An example of this would be in the case of R v Secretary of state for transport ex part Factortame 1990, this concerned whether the Merchant Shipping Act 1988 contradicted with the article 7 of the Treaty of Rome 1957. The case went to the European court of justice who held, that national courts can be misapply an act even where it has not yet been proved that community rights have been infringed….”
The majority of treaties are agreements between governments; therefore they don’t give rights to citizens which are enforceable before their national courts. This is known as direct effect, this ideology was introduced in the case of Van Gend en Loss v Nederlandse Admintstarei de Belastingen 1963 where a private firm bought action against the Dutch excise and customs department, the Dutch courts held that a breach in the treaty did not give a individual any rights to bring the case to the courts and that actions can only be against two countries. The Van Gend Loss case is a example of what is known as vertical direct effect case this is where the obligation rested on a organ of the state and there was a corresponding right on individuals. In addition to this we have the principle of direct applicability-meaning a provision become law in member state without additional law being passed. So both these principle of direct effect and direct applicability can be interchangeable meaning a provision can be directly applicable and yet not be sufficiently precise to have direct effect. Conversely concerning the direct applicability of regulations. All the regulations are directly applicable they do not need national implementing legislation.
As directives need national implementing legislation to be effective, it is down to the member to decide on the method and form of implementing this. The Treaty of Rome 1957 does not state whether a directive is directly applicable as they require implementing by national law but the treaty does recognise that it should be directly applicable where the commencement is within a certain date. The main reason for this is to make this more effective also to stop a member state from relying on it own wrong doing.
Due to the limitations of direct effect, this has led to the effect of directives of being undermined. So the European court of justice has created an interpretative obligation on national courts when interpreting national legislation.
European Community legal order is said to have been built up on two pillars one is primacy and the other s direct effect. The case of Van Loos laid down the foundation of stating the principle of supremacy when it held a treaty would take priority over conflicting piece of national legislation. The other pillar of direct effect was laid down in the case of Costa v Enel 1964 where the European court of justice held that European Community law cannot be overridden be domestic law regardless of whether European Community law provisions came after or earlier than community law.
There are many principles that need to be followed for European Community law to maintain its supremacy. These principles include that European Community law overrides provision of national constitution meaning community law cannot be tested in municipal courts for compliance with constitutions of member states. Another principle is that the principle of supremacy must be applied immediately, so all national courts must apply community law in its entirety and must set aside any national law which may conflict with it.
Member states cannot say that they tried to comply with European Community law but they have been prevented from doing so because of national legislative matters. An example, of this is in case of Commission v Italy 1988, where a tax levy on export was still in place even though European Community law sated this should be abolished. The European court of justice held that Italy government was responsible this led to the tax being abolished and the exporters refunded.
There are other principles that need following like supremacy applies regardless of nature of the rules of law also supremacy applies regardless of the source of law.
European Community law may come in various forms like in a treaty article, a community act or an agreement but regardless of what forms it is in it needs to be followed. Also member state must repeal conflict legislation.
Many loopholes have been created by the European Community law as member states had authorisation ruling on the interpretation on community law. This was a weapon that member used to undermine a treaty but this was taken away by the European court of justice leaving the European court of justice in a monopolist position as this would arise many conflicts.
The European Union was developed so that there was a”united states of Europe” as stated by Winston Churchill. This was just after World War Two and its main purpose of a single governing state was to overcome any conflicts between member states and to eventually lead to a single member- Europe. To blossom this idea certain guideline and principles need to be in place this included the ideology that European Community law supremacy over national law. Even though supremacy was in place many conflict did crop up like the famous cases of Factotame, Marleasing and Frankovich but they all to come to the conclusion that European Community law is superior and only national law would be overridden. The pillars of European Community law- primacy and direct effect are very essential in delivering maintenance on European Community law supremacy, as without these pillars it would not be possible to keep this supremacy. So overall I would say European Community law is supreme in member states in a significant way.