the european court of justice and the supremacy of ec law

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THE EUROPEAN COURT OF JUSTICE AND

THE SUPREMACY OF EC LAW

I. INTRODUCTION

In the making and promulgation of Community law, the European Court of

Justice (ECJ) plays a crucial role. Many of the fundamental doctrines of EC law are

not to be found in the Treaties, or secondary EC legislation, but in the case law of the

European Court.

No provision of the Treaty on European Union (TEU) contains an express term

regulating the issue of the supremacy between the Community and the various

national laws of the Member States. The only implied reference to the issue of

supremacy is Article 101 of the TEU which imposes a duty on all Member States to

adopt appropriate measures to ensure that the obligations of the Treaty are

observed, together with an additional duty to abstain from all acts which might

jeopardise the achievement of the objectives of the Treaty.

Article 10 states that:

“Member States shall take all appropriate measures, whether general or

particular, to ensure fulfillment of the obligations arising out of this Treaty or

resulting from action taken by the institutions of the Community. They shall

facilitate the achievement of the Community’s tasks.

They shall abstain from any measure which could jeopardise the attainment of

the objectives of this Treaty.”.

Thus, the principle of the supremacy of Community law over national law was

first established by the European Court of Justice whose role is explicitly stated in

Article 2202 of the TEU:

1

ex art. 5 of the EC Treaty2 ex Art. 164 of the EC Treaty



“The Court of Justice shall ensure that in the interpretation and application of

this Treaty the law is observed.”

Prior to an analysis of the doctrine of supremacy and the relevant case law

and implementation of the doctrine, an introduction into the composition, structure

and practices of the European Court of Justice (ECJ) will be followed.

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I. THE EUROPEAN COURT OF JUSTICE

• Composition and Structure

The ECJ, to which the Court of First Instance (CFI) is attached, is the judicial

branch of the Community. It has been described by Shaw as “a heroin figure in the

development of the EU ”. The ECJ, which sits in Luxembourg, now has 15 judges who

are assisted by 9 Advocate-Generals (AGs). Each Member State (MS) is entitled to

appoint a judge of its own nationality.

The appointment of all judges is required by Article 223 TEU3 to be:

“by common accord of the Governments of the Member States”.

The term of office is six years and the appointment of new judges or

reappointment (for another term) of the existing judges is staggered so that there will

be a partial replacement of judges every 3 years.

The judges select one of their number to be President of the Court for a

renewable term of 3 years. The President directs the work of the Court and presides

at hearings and deliberations.

The ECJ is assisted by 9 AGs. Five of the 9 AGs should be appointed by the 5

largest Member States, the remaining to be appointed by the other Member States

on a system of rotation. Their duty, which is set out in Art. 222 TEU4 is,

“to make, in open court, reasoned submissions on cases brought before the

ECJ” with complete impartiality and independence.5

3 ex Art. 167 – EC Treaty

4 ex. Art. 166 – EC Treaty5 Their duties should not be confused with those of a prosecutor or similar official – that is the role of the Commission, as guardian of the Community´s interests.

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The qualifications for selection, method of appointment and conditions of office

of the Attorney Generals are the same as for the judges of the Court.

The qualifications for selection as a judge of the ECJ are stated in Article 223

TEU6 and require:

“persons whose independence is beyond doubt and who possess the

qualifications required for appointment to the highest judicial offices in their

respective countries or who are jurisconsults of recognised competence.”

Furthermore, judges may not hold any other political or administrative office

while they are members of the Court.

In accordance with their respective traditions, certain Member States have

appointed academics to sit as judges, whereas others – such as the U.K. – have

nominated existing national judges or practicing advocates.

Although states tend to select their own nationals, the Treaty clearly requires

that the judges be entirely independent of their national governments. Judging from

the nature of the ECJ´s jurisprudence, the wishes of individual Member States have

had little influence on its decisions-making.

Under Article 221 TEU7 the ECJ is permitted to sit in Chambers of 3 or 5 as

well as in plenary session. The court will, however sit in plenary session when a

Member State or a Community Institution which is party to the proceedings so

requests, or in particularly complex or important cases.

The organisation of the Court is regulated by a separate Protocol to the EC

Treaty – Protocol on the Statute of the Court of Justice.

Matters of procedure are regulated by this Protocol, including the content of

oral and written pleadings, citation of witnesses, costs and expenses etc.

6 ex Art. 167 – EC Treaty.7 ex Art. 165 – EC Treaty.

4



The problem of over burdening the Court apparently continues to grow8

despite the temporary easing of the caseload which the establishment of the CFI, in

1988 initially brought about.

Other than the appeal on a point of law from the decisions of the CFI to the

ECJ, there is no further appeal from the judgments of the ECJ, which is the ultimate

or supreme Court of the EC.

The Court of First Instance (CFI)

• Composition

The Single European Act, (1988) authorised the Council of Ministers to create

a CFI to alleviate the volume of work before the ECJ.

The aim of the creation of the CFI in 1989 was to strengthen the judicial

safeguards available to individuals by introducing a second tier of judicial authority

and enabling the ECJ to concentrate on its essential task, the uniform interpretation

of Community law.

The CFI consists of 15 judges who are appointed by agreement between

Member States for periods of 6 years. There are no permanent AGs. The duties of an

AG are performed by one of the judges.

• Jurisdiction

The CFI does not extend the jurisdiction of the ECJ, but rather, it exercises

certain aspects of the Court’s functions.

The jurisdiction extends to the following classes of cases:

-staff cases

8 Since it was set up in 1952, more than 8,600 cases have been brought before the Court.

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- competition cases

- cases under the ECSC Treaty

- anti-dumping cases

It has no jurisdiction to hear preliminary rulings.

Furthermore, according to Art. 225 TEU, decisions of the CFI are subject to an

appeal to the ECJ on points of law only.

Enforcement of EC Law in Domestic Courts

Like any true legal system, the Community legal system needs an effective

system of judicial safeguards when Community law is challenged or must be applied.

The ECJ, as the judicial institution of the Community, is the backbone of that

system of safeguards. It is responsible for interpreting questions of EC law and

provision is made in the Treaty for references to the ECJ by national courts.

Decisions of the ECJ, upon a reference, are reached by majority vote and are binding

on all domestic courts of all Member States. Under Article 234 TEU9 it is provided

that:

“The Court of Justice shall have jurisdiction to give preliminary rulings

concerning

(a) The interpretation of the Treaty;

(b) The validity and interpretation of acts of the institutions of the

Community…

where such a question is raised before any court …of a Member State that

court…..may, if it considers that a decision on the question is necessary to

enable it to give judgment, request the ECJ to give a ruling……..Where any

such question is raised……before a court of a Member State against whose

9 Ex Art.177 EC Treaty

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decisions there is no judicial remedy under national law, the court……shall

bring the matter before the Court.”

It is through this Article that the ECJ has achieved the principle of supremacy

and its uniform application in all Member States when Community law may be in

conflict with domestic legislation. In CILFIT (1983) the ECJ emphasised that the

purpose of the then Art. 177 was to ensure the proper application and uniform

interpretation of EC law in all Member States.

However, preliminary references procedure depends on the effectiveness of

cooperation between the ECJ and national courts. The power to ask for a preliminary

ruling rests solely with the national court and the power of the ECJ is limited to an

interpretation of EC law10.

In procedural terms, individuals still have no right of appeal to the ECJ and the

national court can decide whether a reference is necessary; the Court´s judgements

are still, in theory, at least, only given on points of interpretation and validity.

However, following the many changes that the Community has gone under,

the ECJ΄s role has been evolutionary, siting at the apex of the Community judicial

hierarchy. The increasing emphasis which the ECJ places on Article 10 TEU,

rendering Community law applicable to national courts as well as to the political arm

of Member States, is merely one important manifestation of this process in operation.

The Community as a whole is in a state of transition, and it would be

surprising if the relationship between the ECJ and the national courts were to remain

immune from the wider changes. As the Community moves towards a closer social

and political union, one could well expect the ECJ to cement its position at the apex

of the judicial hierarchy.

II. THE DOCTRINE OF SUPREMACY – PRINCIPLE

10 See also case 104/79, Pasquale Foglia v. Mariella Novello (1980)1 ECR 745, (1981) CMLR 45 andCase 244/80, Pasquale Foglia v. Mariella Movello (N°2) (1981) ECR 3045, (1982) CMLR585.

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The ECJ, as the guardian of legality and instrument of cohesion within the

Community, has, from the start been in a strong position to define the status of

Community law and to give it precedence when in conflict with the national legal

systems of the various Member States.

The first case where the Court made a statement on the nature of European

law is the famous case of Van Gend en Loos v. Netherlands (1963)11 dealing with the

principle of direct effect of EC Treaty provisions and the degree to which individuals

can rely on such terms to challenge measures of national law.

In that case, which will be dealt with in detail later on, the ECJ stated that:

“The objective of the EEC Treaty, which is to establish a Common Market, the

functioning of which is of direct concern to interested parties in the Community,

implies that this Treaty is more than an agreement which merely creates mutual

obligations between the contracting states…

The Community constitutes a new legal order of international law for the

benefit of which the states have limited their sovereign rights, albeit within limited

fields, and the subjects of which comprise not only Member States but also their

nationals”.

The reasoning of the Court in the case is brief and apart from its elaboration

on the concept of direct effect, where it stressed the need for direct enforcement by

national courts of Community norms, little more was said about the need for national

courts to accord primacy to EC law over conflicting national law. The Court’s focus in

Van Gend was on whether Article 12 (customs duties on imports from Member

States to other Member States) could give rise to so-called direct effects - the

immediate enforceability in national courts by individual applicants of Treaty

provisions - so that an individual could rely on and have that Article enforced before

domestic courts.

11 Case 26/62 (1963) ECR 1, (1963) CMLR 105.

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The approach of the Court was based on the Court’s vision of the kind of

Community which those Treaties had set out to create, and the kind of legal system

which the effective creation of such a Community would necessitate.

It was in a second important case, two years later, however, that the ECJ

expanded on its constitutional theory of the Community, declaring again that the

states had created a sovereign Community by limiting their own sovereign rights.

The case was Costa v. ENEL (1964)12 and the facts were as follows:

An individual was claiming before his local court that the law nationalising

production and distribution of electricity was incompatible with the EC Treaty. The

local court referred the question to the ECJ for a preliminary ruling.

The ECJ in its judgment emphasised the unlimited duration of the Community,

the autonomy of Community power, both internally and externally, and especially the

limitation of competence or transfer of powers from the states to the EC.

The Court was determined to show that the “words and spirit of the treaty”

necessarily implied that:

“It is impossible for the states to set up a subsequent unilateral measure

against a legal order which they have accepted on a reciprocal basis”.

The Court found the primacy of EC law confirmed by the wording of Article

189 EC Treaty13 under which regulations have “binding ” force and are “directly

applicable in all Member States”.

The Court pointed out that this provision which is not qualified by any

reservation “would be meaningless if a state would unilaterally nullify its effect by

means of legislative measures which could prevail over EC law”.

12 Case 6/64 (1964) ECR 585; (1964) CMLR 425.13 now Art. 249 TEU.

9



The Court was thus able to reach a conclusion in Costa in words which have

become classic and have had considerable influence in national decisions:

“It follows from all these observations that the law stemming from the Treaty,

an independent source of law could not, because of its special and original nature,

be overridden by domestic legal provisions, however framed, without being deprived

of its character as Community law and without the legal basis of the Community itself

being called into question.

The transfer by the states from their domestic legal system to the Community

legal system of 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”.

• As in the case of Van Gend , the Court made no reference to the constitution of

any particular Member State to see whether such a transfer or limitation of

sovereignty was contemplated or even was possible in accordance with that

constitution.

• Furthermore, the Court drew on the “spirit and the aims” of the Treaty to conclude

that it was “impossible” for the Member States to accord primacy to domestic

laws.

The spirit of the Treaty required that they all act with equal diligence to give full

effect to Community laws which they had accepted on the basis of state

“reciprocity” – meaning presumably that since each state was equally bound by

laws passed for the Community as a whole, they had all agreed that no one of

them would unilaterally derogate from Treaty obligations. And since the “aims” of

the Treaty were those of integration and co-operation, their achievement would be

undermined by one Member State refusing to give effect to a Community law

which, should bind all.

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In Van Gend and Costa v. Enel the Court set out its theorical basis for the

principle of supremacy of Community law. The force and practical application of the

principle became clearer still in its later decisions.

In the following case, the Court made clear that the legal status of a conflicting

national measure was not relevant to the question whether Community law should

take precedence: not even a fundamental rule of national constitutional law could, of

itself, be invoked to challenge the supremacy of a directly applicable EC law:

Internationale Handelsgesellschaft v. Einfuhr (1970)14

“Recourse to the legal rules or concepts of national law in order to judge the

validity of measures adopted by the institutions of the Community would have an

adverse effect on the uniformity and efficacy of Community law. The validity of such

measures can only be judged in the light of Community law…….

The validity of a Community measure or its effect within a Member State cannot

be affected by allegations that it runs counter to either fundamental rights as

formulated by the constitution of that state or the principles of a national

constitutional structure”.

This decision gave rise for some time to a potentially serious deadlock in relations

between the German Constitutional Court, which held that the Community deposit

system breached a fundamental provision of the national legal order, and the ECJ,

which denied that national constitutional principles could have any effect on the

domestic applicability of Community law.

But far from backing off from its claims, the Court continued to emphasise the

importance of ensuring that the supremacy of Community law was not simply a

matter of principle or of theory only, but was given practical effect by all national

courts in cases arising before them.

14 Case 11/70 (1970) ECR 1125; (1970) CMLR 255.

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It is however, interesting to note that following this case, the ECJ evolved the

concept of EU fundamental rights declaring them to be general principles of law that

the Court will apply within the framework of Community law

In Simmenthal SPA (1978)15 an Italian judge was faced with a conflict between a

Council Regulation on the common organisations of the market in beef and veal and

the Italian veterinary and public health laws.

Under Italian law, domestic legislation contrary to EC Regulations may be held to

be unconstitutional but only by such declaration from the Constitutional Court and not

by the ordinary courts.

Should the Italian judge of First Instance disregard inconsistent national

legislation without waiting for its repeal from the Constitutional Court?

In a reference to the ECJ on the question, the latter held that the national court

was under a duty to give full effect to Community law even where there was a

conflicting provision of national law and without waiting for a higher court to rule on

the matter.

“Every national court must…….apply Community law in its entirety and protect

rights which the latter confers on individuals and must accordingly set aside any

provision of national law which may conflict with it, whether prior or subsequent to the

Community rule”.

Simmenthal is an interesting case, since it spells out the practical implications

for the Community legal order of the principles of supremacy and direct effect.

The facts of it highlighted a further problem for national courts: what if the national

court was one which had no jurisdiction in the domestic legal system to question or to

set aside national legislative acts?

15 Case 106/77 (1978) ECR 629; (1978) 3 CMLR 263

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The clear implication of the Court’s response was that, even if the only national

court empowered to pronounce on the constitutionality of a national law is the

Constitutional Court, nevertheless, if such a case arises before any other national

court, that court is bound to give immediate effect to Community law without awaiting

for the ruling of the Constitutional Court.

We therefore see how Community law has “conferred” on domestic courts –

indeed how it has required them to exercise – powers and jurisdiction which they did

not have under national law. The key emphasis in these decisions is on the principle

of effectiveness.

This certainly became clear in the U.K. after the ruling in the well-known

Factortame litigation (1990)16, on the question of interim relief against a provision of

national law which appeared to conflict with one of Community law.

The facts of the case were as follows:

The U.K. Merchant Shipping Act 1988 operated to exclude from registration

for purposes of fishing permits 95 fishing vessels owned by Spanish nationals who

challenged the Act on the basis of breach of the EC Treaty – (discrimination by

nationality). The U.K. Court asked the ECJ for a preliminary ruling. In the meantime,

interim relief was granted and then lifted on the basis that that remedy did not lie

against the Crown in English law.

The ECJ ruled that interim relief must be available and that this obligation

overrode conflicting domestic principles. The domestic court was required to set

aside national law, if that would have prevented the grant of interim relief giving effect

to EC law.

This was required to enable effective enforcement of Community law:

“…..the full effectiveness of Community law would be just as much impaired if

a rule of national law could prevent a court……granting interim relief in order to

ensure the full effectiveness of…Community law”.16 (No 2) Case C213/89 (1990) ECR 2433; (1990)3 CMLR 867

13



According to Lord Bridge of the House of Lords17,

“If the supremacy within the European Community of Community law over the

national law of Member States were not always inherent in the EEC Treaty, it was

certainly well established in the jurisprudence of the ECJ”.

Thus, in so far as the Court was concerned, by 1990, the principle of

supremacy of Community law and its practical effectiveness amongst Member States

were established beyond question.

However, the theory’s practical application is ultimately dependent on the

internal acceptance and adaptation of the constitutional orders of the Member States.

And as AG Roemer noted in Van Gend en Loos the constitutional orders of some of

the Member States do not easily accommodate the principle of supremacy.

The accommodation so far reached by the courts of various Member States

on this issue will now be examined. For reasons of time, only some Member States

will be discussed, although every state has its own interesting constitutional

perspective to offer.

17 R v. Secretary of State, ex parte Factortame (No 1) (1989)2 WLR 999

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III. THE PRINCIPLE OF SUPREMACY – IMPLEMENTATION

• MEMBER STATES

Under Public International Law (PIL), there are 2 conceptions regarding the

transfer or delegation of sovereign powers to international organisations:

Monism Dualism

PIL+ national law → part of one single

system with PIL taking precedence.

ie Dutch + French constitutions provide

that duly ratified international obligations

preside over municipal law.

Also, Belgian courts achieved the same

result in absence of explicit constitutional

provision by proclaiming that international

obligations have effect superior to

domestic law.

↓

directly speak of transfer powers.

PIL + national law → separate systems,

each supreme within its own spheres.

ie UK → here you need incorporation of

PIL into national law by national Act of

Parliament in the form of a statute

BA v. Laker and Blackburn case →

European Communities Act, 1972.

↓

always seeking statutes to conform to EC

law.

In practice, there is little difference in the application of EC law.

In France, there was not any particular constitutional problem since the

constitution provides that international treaties have a direct effect and are accorded

supremacy.

In accordance, Article 55 of the French Constitution of 1958 states that:

“Treaties or agreements duly ratified or approved shall…..have an authority

superior to that of Laws.”

15



However, the Conseil dÉtat, the supreme administrative court had difficulties

in accepting the supremacy of Community law.

In the case of Semoules (1970)18, the problem was expressed as a

jurisdictional one: The Conseil dÉtat ruled that, since it had no jurisdiction to review

the validity of French legislation, it could not find such legislation to be incompatible

with Community law, nor could it accord priority to the latter. Decisions on the

constitutionality were matters for the Conseil Constitutionnel – the Constitutional

Council.

However, in the Jacques Vabres19 case in 1975, the Court of Cessation – Cour

de Cassation – the highest of the ordinary judicial Courts – took a different view and

ruled that when a conflict exists between an internal law and a duly ratified

“international act” which has thus entered the internal legal order (Art. 55 of the

Constitution) the Constitution itself accorded priority to the latter.

It was not until 1989 in Nicolo case20, however, that the Conseil dÉtat finally

abandoned its so-called “splendid isolation” and decided to adopt the same position

as the Conseil Constitutionnel and the Cour de Cassation.

The caution displayed by the French Conseil dÉtat in its approach to the

supremacy of Community law is evident in the case law of many other Member

States. The Court of Justice´s view that national law can never take precedence over

directly effective EC law on account of a transfer of sovereignty by the Member

States and “the spirit of the EC Treaty” is not unconditionally accepted by the courts

of Member States. In France, the main obstacle to the recognition of supremacy of

EC law was the jurisdictional limitation of the French courts. In other Member States,

in particular in Germany, the difficulties which arose related to the fundamental

constitutional nature of the national legislation which appeared to contravene

Community law.

18 Decision of 1 March, 1968 in Syndicat Général de Fabricants de Semoules de France (1970) CMLR395

19 Decision of 24 March 1975 in Administration des Douanes v. Société « Cafés-Jacques Vabre » et SARL Weigel et Cie (1975) 2 CMLR 33620 Decision of 20 Oct., 1989 in Nicolo (1990)I CMLR 173

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Article 24 of the German Constitution allows for the transfer of legislative

power to international organisations, but in litigation which arose over apparent

conflicts between Community legislation and provisions of the German Constitution,

the extent of power which would be transferred in accordance with this Article was

questioned.

In particular, the focus of the case law was on whether Article 24 permitted the

transfer, to an organisation outside the German constitutional structure of a power to

contravene certain basic principles protected under the Constitution itself.

Following the ECJ´s ruling in Internationale Handelsgesellschaft 21, the German

Administrative Court ruled that the compulsory scheme regarding the Community

deposit system breached basic principles of German constitutional law (compulsory

payment of money cannot be imposed in the absence of fault) and it requested a

ruling from the Federal Constitutional Court.

The latter refused to recognise the unconditional supremacy of Community

law. The major objection was a concern over the possible impact on basic rights

enshrined in the German Constitution of conflicting measures of Community law. For

this reason, it held that the clause in the German Constitution which allowed for the

transfer of legislative power to international organisations would not cover a transfer

of power to alter or amend an “inalienable essential feature” of the German

constitutional structure, such as its express protection for fundamental rights. It

concluded by saying that the protection for fundamental rights in the German

Constitution would have to prevail in the event of any conflict.

Having considered various changes in Community law since the time of the

1974 decision, including the development by the ECJ of a doctrine of protection for

fundamental rights, and the fact that all Member States by this stage acceded to the

European Convention of Human Rights, the German Court in Solange II (1987)22 held

that:

21 (1972) CMLR 177, at 18422 Re Wunsche Handelsgesellschat , Decision of 22 Oct. 1986 (1987)3 CMRL 225 at 265

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“So long as the European Communities, and in particular the case law of the

European Court, generally ensure an effective protection of fundamental rights…the

Court will no longer exercise its jurisdiction……”

More recently, in Brunner v. the European Union Treaty (1994) the Court had

to consider the constitutional relationship between EC law and German law, on the

occasion of the ratification of the TEU. It ruled that ratification was compatible with

the Constitution.

The judgment shows that the constitutional court asserts and clearly intends to

exercise a power of review over the scope of Community competence. Even if the

German courts have accepted that Community law should be given precedence over

national law, the constitutional court has made clear that it will continue to review the

actions of European institutions and agencies to ensure that they remain within the

proper limits of their acquired powers.

In the United Kingdom, the acceptance of the supremacy of Community law

has certainly not been unproblematic. Since the British Constitution is largely

unwritten, it is difficult to speak of “amending” it. The central obstacle to acceptance

by the U.K. of supremacy of EC law is the fundamental constitutional principle of the

sovereignty of Parliament. According to this principle, Parliament has the power to

do anything other than to bind itself for the future. According to Dicey,

“Parliament has, under the English Constitution, the right to make or unmake

any law whatever and no person or body….has the right to override or set aside the

legislation of Parliament”.

Furthermore, the doctrine of implied repeal means that no Parliament can bind

its successor, and no Parliament can be bound by its predecessor. Any Act is thus

vulnerable to change by a future Parliament.

With those problems in mind, it was nevertheless decided to give internal legal

effect to Community law by means of an Act of Parliament (dualist state): theEuropean Communities Act, 1972.

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Section 2(1) establishes a legal basis within domestic law for directly

applicable EC laws

“as in accordance with the Treaties and without further legal enactment to be

given legal effect or use in the U.K… and… shall be recognised and available in law”.

The section aims to make the concept of direct effect a part of the U.K. legal

system. It states that law which under the EC Treaties is to be given immediate legal

effect, is to be directly enforceable in the UK.

Section 2(4) accords existing and future priority to EC laws.

“Any enactment passed or to be passed….shall be construed and shall have

effect subject to the foregoing provisions of this section”.

Furthermore, section 3 states that:

“For the purposes of all legal proceedings any question as to the meaning or

effect of any of the Treaties, or as to the validity, meaning or effect any Community

instrument, shall be treated as a question of law and, if not referred to the European

Court, be for determination as such in accordance with the principles laid down by

and any relevant decision of the European Court or any Court attached thereto”.

It is therefore apparent that the supremacy of EC law is recognised in the U.K.

by virtue of domestic legal processes and legal theory.

The principle of supremacy was in theory recognised by English judges.

Despite earlier judicial comments to the contrary23, the English Master of the

Rolls, Lord Denning, in the case of Shields v. Coomes (Holdings) Ltd 24(1979)

demonstrated a willingness to accept the principle of supremacy of Community law.

In Bulmer v. Bollinger (1974)25 he furthermore held that:

23 Felixstone Dock and Railway Company v. British Transport and Docks Board (1976) 2 CLR 655.24 (1979)1 All ER 456.25 (1974) Ch 401

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“The Treaty is like an incoming ride. We must no longer speak or think of

English law, as something of its own. We must speak and think of Community law, of

Community rights and obligations and we must give effect to them”.

But again, this did not prevent judicial difficulties from arising over the practical

recognition of the supremacy of EC law over national law.

In Macarthys v. Smith26 , a genuine conflict appeared to arise between Article

119 of the EC Treaty concerning equal pay and section 1 of the Equal Pay Act 1970

in the U.K.

It was held by the Court of Appeal that priority should be given to Community

law following section 2(1) and (4) of the European Communities Act, 1972.

Here, then, is the judicial reconciliation of Parliamentary Sovereignty with the

supremacy of EC law. But the overriding of the Act of Parliament is to be seen as a

fulfillment of the Parliamentary intention – the intention to comply with directly

effective Community law – and if it is made clear that the legislative contravention of

Community law was intentional, then domestic law must prevail.

In other words, the supremacy of EC law is assured in the U.K. only in so far

as Parliament intends it to be, and the courts have no power to undermine the clear

will of Parliament, whether or not it presents a breach of Community law27.

The Factortame Litigation 28 earlier discussed, shows that, although an

equilibrium may now have been reached in the relationships between U.K. courts

and the ECJ as to the requirements of supremacy of EC law, the obligations of the

U.K. courts stem from the express will of Parliament, and not directly from the

Treaties:

26 (1979) 3 All ER 32527 see T. Allan, “Parliamentary Sovereignty: Lord Denning´s Dexterous Revolution” (1983)3 6 OLS 2228 (1990)2 AC85 and (1991)1 AC 603.

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“Whatever limitation of its sovereignty Parliament accepted when it enacted the

European Communities Act 1972,…was entirely voluntary”.

Thus, in conclusion we see that the bidimensional picture of the supremacy of

Community law exists, even today, for although all Member States by now accept the

practical requirement to give priority to EC law, few, if any, would be prepared to

abandon their supervision of it, to ensure that the Community does not attempt to

extend the powers it has been given.

• Individuals

The principle of supremacy has implications for individuals. The principle of

direct effect gives the right to individuals to plead before the national court the

provisions of EC legislation.

As a doctrine which principally protects individuals and often gives them rights

which they can rely upon as against Member States, it sets up a mechanism for

individual or indirect enforcement of EC law making thus Community law a reality for

the citizens of Europe.

Van Gend en Loos provides a clear example of the approach of the Court. The

Court pointed to the fact that individuals were envisaged as being able to plead and

rely on points of EC law through the preliminary ruling procedure.

The Court set out certain criteria for the direct effect of a Treaty provision.

There must be:

1. a clear, negative, unconditional obligation on a Member State,

2. containing no reservation on the part of the MS,

3. and not dependent on any national implementing measure. (MS-no real

discretion whether to apply measure).

The Court held that Art. 12 of the EC Treaty was directly effective.

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This process establishes private rights for individuals which are enforceable in

municipal courts.

The principle applies most frequently in the relationship between private

individuals and national authorities. This is called vertical effect. Some provisions,

however, because of their nature, have been recognised by the Court as having a

wider effect in that they can be invoked against other individuals. This is called

horizontal effect i.e. they impose obligations on other individuals. eg. the Treaty

provisions regarding the competition rules applicable to undertakings, for example,

can clearly be invoked before the national courts by one undertaking against another.

Furthermore, a Regulation, as described in Article 189(2) EC Treaty, now 249

– TEU

“shall have general application. It shall be binding in its entirety and directly

applicable in all Member States”.

A Regulation is defined as a general legislative instrument which is binding in

its entirety and which is directly applicable within the legal orders of the Member

States without the need of intervention on the part of legislative bodies. Thus it has

horizontal and vertical effect.

In contrast, a Directive which is defined in Art. 249 TEU too,

“shall be binding, as to the result to be achieved, upon each Member State to

which it is addressed, but shall leave to the national authorities the choice of form

and methods”.

Therefore, directives are not automatically applicable within Member States.

Since directives are given legal force through national measures, rights and

duties are conferred on individuals only after incorporation into national law.

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The conditions to be satisfied before direct effect can be pleaded are the 3

ones mentioned earlier. However, 2 important limitations are placed on the

application of this principle:

(a) The principle only applies to directives which are unimplemented after the

date set for implementation.

(b) The Court has only been prepared to apply this doctrine to the relationship

between individuals and the state (vertical direct effect) as opposed to the

relationship amongst individuals themselves (horizontal direct effect). The

recent case of Dori (1992) reiterats this refusal.29

In Marshall (1986)30 and in Van Duyn31 (1974) the Court confirmed that while a

directive might be upheld against defaulting Member States, it cannot be invoked

directly against other individuals.

However, the Court has sought to achieve the same result though the

process of interpretation. For example, where the Court is interpreting the terms of

an unimplemented directive as it applies between private individuals, the Court has

observed that:

“In applying national law, whether the provisions in question were adopted

before or after the directive, a national court called upon to interpret it is required to

do so, as far as possible, in light of the wording and purpose of the directive in order

to achieve the result pursued by the latter ”32: Marleasing SA (1992).

Furthermore, the principle of construction requires national courts, in

conformity with Art. 10 TEU, to give full effect to EC law, to interpret all national

legislation in the light of all relevant EC law, regardless of whether the particular

29 Dori C-91/92 Dori v. RecrebSrl (1994) ECR I – 332530 Case 152/84 Marshall v. Southampton and South – West Area Health Authority (1986) ECR 723,(1988)1 CMLR 688

31 Case 41/74l, Van Duyn v. Home Office (1974) ECR 1337, (1975)1 CMLR 132 Case C-106/89, Marleasing SA v. La Comercial de Alimentacion SA (1990) ECR 1-4135 (1992)1CMLR 305, at p. 4146

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provision is of direct effect: EC law does not have to be directly effective in order for it

to benefit from the general doctrine of supremacy – Van Colson (1984)33.

Furthermore, the ECJ has broadly defined the notion of the state to include

anything that provides public service,

“with sufficient statutory powers beyond those which result from normal rules

applicable between individuals”. Foster (1991)34

Regional policy, health, tax and local authorities may be included.

Furthermore, the state may be held to be responsible in respect of breaches of

EC law, and liable in damages for the non-implementation of a directive, following

the decision in Francovich35 (1991) which held that:

“The full effectiveness of Community rules would be impaired and the

protection of the rights which they grant would be weakened if individuals were

unable to obtain compensation when their rights are infringed by a breach of

Community law for which a Member State can be held responsible.”.

However, 3 conditions must be satisfied:

- Implementation of the directive would confer rights on individuals.

- Its terms should be sufficiently precise and unconditional to determine

rights.

-There should be a causal link between the breach and the loss.

The development by the Court of strong legal requirements in the area of

national remedies for breach of Community law has generally been welcomed as a

significant contribution to the effectiveness of Community law, at least through the

medium of judicial intervention by national courts. However, the welcome has not

33 Case 14/83,l Von Colson and Kamann v. Land Nordrhein –Westfalen (1984) ECR 1891, (1986)2

CMLR43034 Case C-188/89, A. Foster and others v. British Gas …(1990) ECR 1-3313, (1990) 2 CMLR83335 Case C-6/90 and C-9/90, Francovich v. Italy (1991) ECR 1 – 5357, (1993)2

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been unconditional, and many commentators have called on the legislative

institutions and political players in the Community legal process, to take appropriate

action, rather than to leave this area of law for the Court to develop through the

haphazard process of litigation.

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Conclusion

It is clear that the ECJ “the guardian of the Treaty” in formulating the principle

of supremacy, reaffirmed the nature and development of EC law. The supremacy of

EC law is inherent within the nature and spirit of the TEU. The special and original

nature of Community law requires that its supremacy over national law is

acknowledged and followed. The ECJ will not entertain the prospect of any provision

of national law, even of constitutional validity, prevailing over an inconsistent

provision of Community law.

The success of this development is well profound, especially when one has in

mind that the Court in developing the principle, attributed to it characteristics and

force which it considered necessary to carry through a set of profoundly altering and

potentially far reaching common goals within a group of politically and geographically

distinct nations and historically sovereign states.

Elena Papageorgiou

Law Officer of Community Law

The Law Office of the Republic of Cyprus

ΕΠ/ΠΠ

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the european court of justice and the supremacy of ec law

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