This Essay will consider the reasoning used by the European Court of Justice to justify the Supremacy of Community law and consequently the reaction of national courts to this assertion of supremacy.
The European Court of Justice (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) 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 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 communautaire 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.
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, 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) and the facts were as follows:
An individual was claiming before his local court that the law nationalizing 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 emphasized 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 Treaty 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”.
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.
In Van Gend and Costa v. Enel the Court set out its theoretical 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)
“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 emphasize 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.
It is 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) an Italian judge was faced with a conflict between a Council Regulation on the common organizations 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?
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 and pragmatism.
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”.
According to Lord Bridge of the House of Lords,
“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.
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.”
However, Le Conseil d´Etat, the supreme administrative court had difficulties in accepting the supremacy of Community law.
In the case of Semoules (1970), the problem was expressed as a jurisdictional one: The Conseil d´Etat 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 Vabres case in 1975 Le 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 case, however, that the Conseil d´Etat 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 d´Etat 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. Article 24 of the German Constitution allows for the transfer of legislative power to international organizations, 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 organization outside the German constitutional structure of a power to contravene certain basic principles and fundamental rights protected under the Constitution itself.
Following the ECJ´s ruling in Internationale Handelsgesellschaft, the German Administrative Court ruled that the compulsory format 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 recognize 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 organizations 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) held that:
“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): the European Communities Act, 1972.
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”.
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 recognized in the U.K. by virtue of domestic legal processes and legal theory.
The principle of supremacy was in theory recognized by English judges. But again, this did not prevent judicial difficulties from arising over the practical recognition of the supremacy of EC law over national law.
The Factortame Litigation earlier discussed, shows that, although 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:
“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 (Kompetenz-Kompetenz) 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 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.