"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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The European Court of Justice has asserted that “the essential characteristic of Community [law is] its primacy over the law of the Member States”, 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 Treaty. 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.

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 Loos 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, … the subjects of which comprise not only Member States but also their nationals.”

The Court followed up its bold assertion two years later in Costa v ENEL, but this time offered detailed justifications for its decision. Firstly it inferred that, by establishing sovereign Community institutions, the member states had intended them to be supreme. Without such a doctrine, unilateral derogation would defeat the ‘spirit and aims’ of the Treaty. This implied intention argument is purposive and pragmatic, and while it may be sound in theory, it is quickly defeated by empirical evidence of states’ unequivocal opposition to the supremacy doctrine. In its only textual argument, the Court points out that Article 249 of the Treaty would be redundant without a doctrine of supremacy, yet even this point is weak: Article 249 applies only to regulations, yet here the Court sought to apply it to all Community legislation.

In the absence of firm pragmatic or textual justifications, we must look to the consent of member states for the crucial legitimating factor for supremacy. Here lies a paradox. The Treaty is silent on the supremacy of Community law, and the abhorrence of the member states following the van Gend en Loos judgment implies a lack of consent to such a legal order. Furthermore, JHH Weiler points to the intention of the member states, in creating the European Union pillar structure at Maastrict, to expressly exclude the Court from these fundamentally intergovernmental pillars. All this points to a lack of consent at the time of the van Gend en Loos judgment. The actions of member states since, however, demonstrate a slow acceptance of, and adherence to, the doctrine of supremacy. The French Cour de Cassation in 1975 and its administrative counterpart the Conseil d’Etat in 1989 both accepted the supremacy of Community law, justifying their actions under the French constitution rather than that of any external power source. In the Factortame litigation, Lord Bridge acknowledged the supremacy of Community law, and pointed out that the doctrine was well established before the UK joined. Like the French courts, the English courts claim to be acting under internal laws – the will of the Parliament that enacted the European Communities Act 1972 – rather than an obligation to follow an international treaty. With slow acceptance at national judicial level slowly setting in, we are also seeing acceptance of the doctrine at intergovernmental level. Article 10 of the Draft Constitution states that “the Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States”. If signed and ratified, this will be an unequivocal endorsement of the doctrine and a full statement of consent. In terms of consent, therefore, the ECJ was not justified in creating the doctrine of supremacy when it did, but the consent which has subsequently been affirmed has legitimised its actions.

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In addition to consent, the validity of the Court’s action depends on the position of sovereignty in the international legal order. This position has been disputed by two doctrinal extremes represented by the monist and dualist schools of thought. The dualist conception, advocated by Neil MacCormick and based on HLA Hart’s Rule of Recognition thesis, conceives the international and domestic legal orders as entirely separate systems. International law may form part of domestic law, but does so by virtue of a domestic incorporating law - an example of which is the UK European Communities Act 1972. Hans Kelsen, conversely advocating the monist school of thought, argues that two mutually independent legal orders cannot simultaneously exist in the same space at the same time. 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) overruled the intention of Parliament in the Merchant Shipping Act 1988. The English courts were forced to accord some unprecedented form of constitutional status to the 1972 to protect it from implied repeal. This begs the question: whom will the courts follow if the UK Parliament enacts legislation expressly prevailing over ECA 1972? To follow the Hartian model would return sovereignty to Parliament, whereas a Kelsenian hierarchy would rule this assertion ultra vires.

The ECJ therefore lacked the consent of its subjects at the time it created the doctrine of supremacy (albeit now granted) and can only justify its position along one of two potential normative conceptions. We shall now examine whether the doctrine can be justified as essential to the objectives of the treaty and intentions of its founders.

Telling Stories: Is the Doctrine

Indispensable to the Treaty Objectives?

For the purpose of illustration, let us indulge briefly in a fiction. Many years ago, on the Island of Europa, lived six men. They knew no civilisation and their barbarous lifestyles were nasty, brutish and short. Each roamed free on the island seeking to expand his own personal territory, a practice which frequently led to skirmishes and violence. Finally, after two particularly bloody disputes, all came together and agreed to put an end to their squabbles. They appointed a king to govern the whole island, and surrendered the freedoms which nature had endowed upon them to his command. This new-found co-operation quickly brought untold prosperity and all discovered that by limiting their sovereign rights they gained far more in return. Such a happy situation existed for many years until, one day, one of the tribesmen disobeyed the king, and asserted his natural freedom to roam over the land of his fellows. The outrage which ensued from the islanders caused all to disregard the king, and anarchy descended on Europa once again.

This crude allegory serves to illustrate the clear importance of supremacy of a single authority, and the near inevitable breakdown of purpose that would result without it. It is a notion that finds favour with a plethora of political theorists including Thomas Hobbes, Jean-Jacques Rousseau and John Locke. These contract theorists suggested that by transferring natural sovereignty to a supreme collective body, the state of nature could be transformed into political society and from chaos would rise order.

The same principles may be applied to Europe. On creating the European Coal and Steel Community in 1952, the founding states relinquished their control over the tools of war and gained peace and prosperity from the single supranational sovereign authority that governed these areas. On the accession of the UK to the European Communities, Harold Wilson proclaimed that sovereignty had not been lost, but had been “pooled for effectiveness”. The transfer was deliberate and essential. It is the very nature of a supreme body that gives effect to the objectives of the founding and acceding parties, so supremacy is inseparable from the objectives. The European Court of Justice evidently agrees: in Hauler v Land Rheinland-Pfalz (1979), it ruled that making Community law subordinate to domestic laws would “lead inevitably to the destruction of the unity of the Common Market”.

This paper has shown that, without the consent and arguably without the legitimacy, the European Court of Justice acted in a manner essential to the objectives of the treaty to create a single, unified and hierarchical legal order through the doctrine of supremacy, and the essential nature of this act demonstrated by analogy to the work of contract theorists.

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.

Bibliography

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Draft Treaty Establishing a Constitution for Europe (2003) 2003/C 169/01.

The Treaty Establishing the European Community (1958), as amended.

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Administration des Douanes v Société ‘Cafés Jacques Vabre’ et SARL Weigel et Cie [1975] 2 CMLR 336.

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Case 6/64, Flaminio Costa v ENEL [1964] ECR 585.

Factortame Ltd. V Secretary of State for Transport (No. 2) [1991] 1 AC 603.

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Hartley, T. ‘The Constitutional Foundations of the European Union’ (2001) 117 LQR 225.

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Craig, P. & De Búrca, G. EU Law: Text, Cases and Materials. Oxford: OUP, 2003.

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Hobbes, Thomas. Leviathan. Cambridge: Cambridge University Press, 1996.

Kelsen, H. Principles of International Law. New York: Rinehart, 1952.

Locke, J. Two Treatises of Government. London: Everyman, 1994.

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Rousseau, J.J. The Social Contract. Harmondsworth: Penguin Books, 1968.

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Case 26/62, NV. Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

Case 6/64, Flaminio Costa v ENEL [1964] ECR 585.

Weiler, J.H.H. ‘The Reformation of European Constitutionalism’ (1997) 35 JCMS 97.

The Treaty on European Union (1992), as amended.

Administration des Douanes v Société ‘Cafés Jacques Vabre’ et SARL Weigel et Cie [1975] 2 CMLR 336.

Raoul Georges Nicolo [1990] 1 CMLR 173.

Factortame Ltd. V Secretary of State for Transport (No. 2) [1991] 1 AC 603.

Draft Treaty Establishing a Constitution for Europe (2003) 2003/C 169/01, Article 10(1).

MacCormick, N. ‘Beyond the Sovereign State’ (1993) 56 MLR 1.

Hart, H.L.A. The Concept of Law. Oxford: Clarendon Press, 1994.

Kelsen, H. Principles of International Law. New York: Rinehart, 1952.

Hobbes, Thomas. Leviathan. Cambridge: Cambridge University Press, 1996.

Rousseau, Jean-Jacques. The Social Contract. Harmondsworth: Penguin Books, 1968.

Locke, John. Two Treatises of Government. London: Everyman, 1994.

Case 44/79, Hauler v Land Rheinland-Pfalz [1979] ECR 3727

"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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