To what extent does the European Community establish a new legal order?


The foundation of EC Law contains three sources which together form acquis communautaire which is the body of EU Law , the three fundamental basis are consistent of primary legislation which includes the Treaties and other agreements and is usually direct communication and negotiation between governing bodies of other member states. The remaining two sources are secondary legislation and case law.

In European Community law a new legal order is established via the treaty of Rome, this was then binding on all institutions of its member states and its citizens. The new legal order was first established in two landmark cases firstly consisting of Van Gend en Loos 1963 ; in this case the states limit their sovereign rights within limited field's thus constituting benefit for international law, the legal doctrine of supremacy emerged from the ECJ through a number of decisions.

The second case was Costa v Enel 1964 , It has been ruled a number of times that EC Law (the first pillar) is superior to national laws, where a situation should arise where conflict is inevitable between EC Law and another member state then EC law will take precedent, thus known as the supremacy of EC Law and was saw in the above case of Costa v Enel 1964, the following statements were made within this case “the treaty has created its own legal system which has become an integral part of the legal system of the member states which their individual courts are bound to apply” another statement was made which was “The force of community law cannot vary from state to state in defence to subsequent domestic laws, without jeopardising the attainment of the objectives of the treaty.” Therefore meaning the law set shall be followed by all member states.

Many of the highest courts in member countries have elected also stated that Community law takes precedent provided that it can continues to respect fundamental principles of the Member State, thus giving the impression that member states remain the “Master of the Treaties”, and the basis for EU law's effect.

The new order is set by the three Pillars, The first pillar can be conceived as the most critical due to it giving the EU institutions the right to “amass” legal instruments and possibly introduce legislation.  The EC Treaty is usually seen as the basic constitution of the European Union, consequently when the United Kingdom joined the European Union it had to follow court rulings from the European Union, thus using European rulings as precedent even if they contradict with the United Kingdom which would be inevitable due to the written constitution the EU has and our Legal rulings which we use as precedent to make and change law unlike Constitutional Law which can be described as “Law Set In Stone” this term describes the law as never changing, thus setting a type of clash between laws or possibly a new legal order over the whole of the United Kingdom due to it becoming a member.

The second pillar includes common foreign and security policy, the third pillar involves police co-operation and co-operation in the area of criminal law.

Van Gend en Loos 1963

Costa v Enel 1964

7 - The Supremacy of EC Law Authors: Sukhwinder Bajwa; Leonard Jason-Lloyd