OU Law Homework, By Popular(ish) Demand

[major_clanger]

green_amber asked the other day if I could post my recently-submitted OU Law Course assignments. So, at the risk of boring everyone rigid, here goes:

TMA 3 Part 1:

Q)

"It follows from the foregoing that every national court must ... set aside any provisions of national law which conflict with it [i.e. a provision of EC law] whether prior to or subsequent to the community rule."

(The European Court of Justice in paragraph 21 of its ruling in Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629)

(a) Explain how the European Court of Justice developed the view of supremacy of EC law expressed in the above quotation, and briefly outline why you think it developed that view.

(b) Describe how the courts in the UK have reacted over the years to the doctrine of supremacy of EC law, and explain why courts in the UK have found this doctrine difficult to accept.

A)

The European Community (then the European Economic Community) was founded in 1957 via the EC Treaty. International treaties are generally accepted as agreements between states creating mutual obligations under international law not directly binding the citizens of signatory nations. Where it is important for such a treaty to bind such citizens, this is usually achieved by signatories legislating to read the treaty provisions directly into law. A recent example is the agreement founding the International Criminal Court that was applied to UK citizens via the International Criminal Court Act 2001.

This interpretation appeared to be supported by Articles 226 and 227 (ex 169 and 170) of the EC Treaty, which provided a mechanism for resolution of disputes arising from Treaty issues between member states. No direct provision was made for private citizens to rely on Treaty provisions under law. However, this view was challenged in the landmark Van Gend case (Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1). This case arose from a claim by a Dutch chemical firm that an import tax imposed by the Netherlands contravened Article 12 of the Treaty. The Dutch courts made a reference under Article 234 (ex 177) to the European Court of Justice for advice on whether the claimant could rely directly on Treaty provisions. The ECJ, in a strongly purposive interpretation, concluded that in view of the Treaty’s stated aim to provided a common market for European citizens, rather than just nations, individuals could rely on its provisions in a dispute with a state body (so-called vertical direct effect). However, for such direct effect to apply, a set of circumstances (the Van Gend criteria) had to apply: the relevant provisions must be clear, precise and unconditional, with no room for discretion.

It is notable that this decision, which greatly extended the remit and power of the ECJ, was made by the ECJ itself. However, it has been accepted by EC member states and has been followed by a number of further ECJ judgments that have extended the boundaries of EC law:

• Costa v ENEL (Case 6/64) [1964] ECR 585. The ECJ concluded that Treaty obligations of member states would be of little value if they could be nullified by national legislation, thus existing national law could not overturn EC law.



• Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (Case 11/70) [1970] ECR 1125. The ECJ extended the Costa judgment to cover entrenched constitutional law:
  
  “Therefore 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.”



• Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629. Again, the Costa judgment was further extended to preclude EC law being overturned by subsequently-enacted national law.



• R v Secretary of State for Transport, ex parte Factortame [1990] ECR I-2433. Here, the House of Lords had made an Article 234 reference to the ECJ regarding the Merchant Shipping Act 1988 and the question arose as to whether it could suspend the Act pending final ECJ judgment. The ECJ decided affirmatively, establishing the principle that a national court can strike down legislation if it is necessary to do so to give relief to a claimant under EC law.

Other ECJ decisions extended the principle of direct effect:

• Defrenne v SABENA (Case 43/75) [1976] ECR 455. The ECJ decided that, subject to the Van Gend criteria, Treaty articles could be relied on by parties in a national court. This gave rise to the principle of horizontal direct effect.



• Leonesio v Italian Ministry of Agriculture and Forestry (Case 93/71) [1973] CMLR 343. The ECJ extended Van Gend and Defrenne by deciding that EC Regulations also had direct effect.



• Van Duyn v Home Office (Case 41/74) [1974] ECR 1337. The ECJ decided that EC directives have direct vertical effect, provided that they are unconditional and unambiguous.



• Francovich v Italian State (Case C6-90 and C9-90) [1992] IRLR 84. Further to Van Duyn, the ECJ decided that member states were liable to individuals for damages arising from the failure to implement a directive.

The UK joined the (then) ECC via the European Community Act 1972. s2(4) of the Act provides that UK legislation shall be interpreted so as to comply with EC law. The initial view of the judiciary was that this did not affect Parliamentary Supremacy; this was certainly the view of Lord Denning MR:

• “It seems to me that once the Bill is passed by Parliament and becomes a Statute, that will dispose of all this discussion about the Treaty. These Courts will then have to abide by the Statute without regard to the Treaty at all.”
  (Felixstowe Dock and Railway Co. and European Ferries Ltd v British Transport Docks Board [1976] 2 CMLR 656)



• “If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.”
  (Macarthys Ltd v Smith [1979] 3 All ER 325)

However, there has since been a growing acceptance by UK courts that EC law has supremacy, arguably due to wider understanding of the implications of cases such as Costa, which impacts upon Parliamentary supremacy, and Simmenthal, which calls into doubt the doctrine of implied repeal. Furthermore, Van Gend, Defrenne and similar cases have pushed the issue of EC law well into the remit of domestic litigation. The most significant decisions though have been those arising from Factortame and associated cases, which went well beyond Costa by providing a mechanism for the UK courts to prevent the Executive from legislating against the provisions of EC law.

In context of Lord Denning’s second quote, it has recently been argued by Friel [Friel 2004] that UK could not lawfully withdraw from the EU as there is no provision in the EC Treaty for it to do so, thus any legislation enacted for this purpose would be unlawful under Costa and could be overturned by the courts in accordance with Factortame. This is a controversial argument (Harris does not agree) [Harris 2002] but it is safe to say that any such course of action would result in a constitutional crisis.

The doctrines of Parliamentary supremacy and implied repeal are deeply embedded within UK law and it is not surprising that for many years the UK courts approached EC law in this light. However, the implications of s2(4) ECA 1972 have progressively permeated UK law to the extent that EC legal supremacy is widely – if not always happily – accepted.


References and Sources:

Frield, R. J. (2004) ‘Providing A Constitutional Framework For Withdrawal From The EU: Article 59 Of The Draft European Constitution’, International and Comparative Law Quarterly, 53.2, April 2004, p 407.

Harris, P. (2002), An Introduction to Law, (6th edition) Butterworths, London.
Open University (2003) W200 Understanding Law, Unit 12, Introduction to the European Union and European Community Law: Institutions and Sources, Milton Keynes, The Open University.

Open University (2003) W200 Understanding Law, Unit 13, Introduction to the European Union and European Community Law: How EC Law Works, Milton Keynes, The Open University.

Weatherill, S. (2003) Cases and Materials on EC Law, (6th edition) OUP, Oxford.

Comments

[major-clanger.livejournal.com]

Some explanatory notes:

Parliamentary Supremacy is the traditional position in UK law that an Act of Parliament overrules judicial decisions. Judges can interpret and refine the law, but if Parliament passes an Act that conflicts with prior case law, the statute prevails.

Implied Repeal is the principle that if an Act of Parliament conflicts with any existing statute, the older law is considered to be automatically repealed. This has traditionally been taken to mean that Parliament cannot bind its successors, as no law is beyond subsequent repeal.

As I hope I've explained clearly, various ECJ decisions have rather seriously undermined both principles in terms of EC law.

The abbreviated gibberish after case names is the legal report citation, e.g. '[1976] 2 CMLR 656' means that the case report starts on p656 of the 2nd volume of the Common Market Law Reports for 1976.

MC