Supremacy Limits: EU Law

[Flash Card 1 of 5]

Treaty obligations:

• committed to common objectives / process of creating an ever closer union among the people of Europe (Maastricht Treaty 1992)
• non-compliance / breach of international law / action against UK in European Court of Justice (ECJ)
• Lisbon Treaty: national parliaments powers in formulation EU law / President of European Council appointed by national Governments / but also increases policy areas covered / incorporates EU Charter of Fundamental Freedoms
• UK: Protocol that Charter not create any additional rights / not empower courts to strike down UK legislation
• Government accepts treaty obligations / not affect Parliamentary supremacy / may restrict national sovereignty / no legal limit as Parliament can override
• if treaty requires change in law Parliament must authorise / courts only enforce if enacted in law (Blackburn v Attorney-General)

Direct effect:

• Doctrine: EU law / enforceable in domestic courts / if give rise to individual rights or obligations
• Van Gend en Loos: requires national courts to give effect to EU law / if clear, precise & unconditional
• Directives: vertical direct effect (against State or State bodies) / not horizontal (against individuals)
• Treaties: bind Member States to apply provisions
• directly effective EU law is supreme if conflict with national law
• EU law must be same in all Member States / necessarily prevail over national law / legal basis of Community would be questioned if national law could override / Member States have limited their sovereign rights, albeit within limited fields (Costa v ENEL)

bits of law

Supremacy Limits: EU Law

[Flash Card 2 of 5]

European Communities Act 1972 (ECA):

• Implemented Treaty of Accession 1972 / UK committed to EU

Section 2(1):

• broadly drafted incorporates all EU law into UK law / if in accordance with the Treaties without further enactment to be given effect in the UK / gives effect in UK to directly applicable & directly effective EU law
• gateway provision / Treaty provisions & regulations are directly applicable (Treaty on the Functioning of the European Union) / Directives if have direct effect / UK courts obliged to apply doctrine of direct effect

Section 2(2):

• enables UK Government to make delegated legislation to implement EU law

Section 2(4):

• deals with conflicts between directly effective EU law & UK statutes
• any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions of this section / pre & post 1972 legislation / UK courts give priority to directly effective EU law
• UK legislation implementing directive / legislation designed to give effect to UK's treaty obligations to the Community / read with purposive approach / even if contrary literal meaning Litster v Forth Dry Dock
• not if purposive approach creates distortion of national law Webb v EMO Air Cargo
• intention to be inconsistent with EU law / Act of Parliament prevails Macarthys v Smith

bits of law

Supremacy Limits: EU Law

[Flash Card 3 of 5]

European Communities Act 1972 (ECA):

Factortame Case:

• doctrine of implied repeal / not prevent EU law prevailing over post-1972 Acts / avoids accidental conflict
• Lord Bridge: s2(4) will prevail over later Act / s4(2) implied section in later Acts / Act is without prejudice to directly enforceable EU law right

Section 3:

• requires UK courts to apply EU law / according to principles laid down by ECJ

Courts:

• Courts have power to review compatibility UK legislation with EU law / contrary to principle courts cannot question Act of Parliament

Remedies:

• Interim injunction against Crown: prevents government from applying an Act / before final decision in litigation
• Declaration: declaration Act not apply so as to infringe directly effective EU law right / UK law is incompatible with EU law/ merely states the law (eg R v Secretary of State for Employment, ex parte Equal Opportunities Commission)
• No court nullified or quashed UK Acts / for incompatibility / maintains constitutional position / courts interpret on basis of ECA s2(4) / not question Parliament

bits of law

Supremacy Limits: EU Law

[Flash Card 4 of 5]

State liability:

• Individuals: can challenge UK law compatibility / may obtain damages for loss from State (Francovich) / applied in Factortame
• Liability may arise from failure to pass Act giving effect to EU law / or defective implementation / courts questioning Parliament's authority by awarding damages
• Constitutionally justified / Lord Bridge: whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972 was entirely voluntary (Factortame) / including developments such as Francovich damages

Democratic deficit:

• Directly effective EU legislation / transfers powers to EU institutions to legislate for UK / not democratically accountable like UK Government
• Deliberative procedure for EU law / usually considered by European Parliament / before decision of Council Ministers / UK MEPs & represented on Council

Legal certainty:

• Doctrine direct effect / rights under UK law uncertain / especially Treaty provision which place obligations on individuals / drafted as framework & teleological interpretation / can cause uncertainty
• Directives: Equal treatment directive / can be used against State (Marshall v Southampton & South West Health Authority) / failed against private body (Duke v GEC Reliance)

bits of law

Supremacy Limits: EU Law

[Flash Card 5 of 5]

Fundamental rights:

• Undermines Parliament's role as UK guardian of rights / German Basic Law overridden by EU law Handelsgesellschaft

European Union Act 2011:

• Requires referendum before UK agrees TFEU amendments / further transfer of power to EU / statutory principle of Parliamentary supremacy in respect directly applicable or directly effective EU law

Conclusion:

• arguably EU law provides most serous limit to Parliamentary supremacy / especially doctrine of dircet effect / rulings of ECJ placing obligations on doemstic courts interpretation
• although can be reversed by Parliament / ultimately ECA could be repealed / politically difficult

bits of law