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Published: Fri, 02 Feb 2018
Supremacy Of European Community Law
Critique The Impact Of The Principle Of Supremacy Of European Community Law On The Principle Of Parliamentary Sovereignty In The Constitution Of The United Kingdom.
The supremacy of Community law has most defiantly undermined the principle of Parliamentary sovereignty in the constitution of the United Kingdom. Parliamentary sovereignty is a fundamental principle in the British constitution. It is where Parliament is the supreme legal authorities, who have the power to create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass a law that a future Parliament cannot change.In a Parliamentary sovereign constitution, a statute is usually regarded as the highest form of law, therefore Parliament is the sovereign law maker. The principle of Parliamentary sovereignty in the UK can be drawn from two sources, the first the political events of the late seventeenth century when England experienced its last civil war. The second is the legal theory of a nineteenth century Oxford law professor, AV Dicey, found in the first edition of his textbook ‘An introduction to the study of the law of the constitution’. However the doctrine of Parliamentary sovereignty in the British constitution has been altered by the UK’s decision to become a member of the European Community in 1973 when the European Communities Act 1972 came into force. Parliament must now legislate consistently with European law. The terms of the European Treaties as interpreted by the European Court of Justice require member states to limit their sovereignty, by Parliament giving direct effect to European law. The European Court of Justice states that European Community law should be enforceable in the courts of the member states and that European law prevails the domestic law of the member state, which includes the United Kingdom. This has been clear since the position the European Court of Justice took in Van Gend en loos v. Nederlandse Tarief Commissie where it was decided:
“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 compromise not only Member States but also their nationals.”
The European Court of Justice’ position here and in other cases (Costa v ENEL) clearly illustrates that Parliamentary sovereignty has been restricted as a result of the UK joining the Community. However the acceptance of the supremacy that European laws hold over the UK was very problematic as it was difficult to accept by the British Courts. For instance in Macarthys v Smith and the Factortamewhere there was conflict between Community law and national law.
Dicey’s legal theory of Parliamentary sovereignty can be divided into two sections, the ‘positive limb’ and the ‘negative limb’. The principle of the ‘positive limb’ is that Parliament can create or abolish any law whatsoever whenever they wish to. So if the majority of the House of Commons vote in favour of a particular bill and it is then approved by the members of the House of Lords and then gains Royal assent the bill becomes an Act of Parliament irrespective of its contents. It does not matter how large the majority in both the House of Commons and the House of Lords was when voting for a particular bill, once it becomes an Act it carries the same authority as an Act passed with unanimous support. So legally Parliament can make any law it wishes. The principle of the ‘negative limb’ is that the legality of an Act created by Parliament cannot be challenged in any British court. Supporters of Dicey’s theory clearly reject the idea that the courts could invoke natural or divine law and say that an Act of Parliament was unconstitutional. Dicey’s theory of the constitution is that there is no superior law than the will of Parliament expressed in the words of an Act.
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly”
This section of the European Communities Act 1972 recognises the concept of directly applicable Community law. This in other words means that all directly applicable European law (European Law that automatically become part of the law of a member state without its Parliament having to enact any further legislation) becomes part of national law, whether Parliament agree with it or not. This illustrates that under the European Communities Act 1972 British courts are under an obligation to apply European law in the UK and to put an end to laws which are incompatible with particular provisions of European law. If for instance a directly applicable Community law, let’s say a Treaty Article, conflicts with an Act of Parliament the directly applicable law will automatically become part of the national law, therefore it will prevail the Act of Parliament. This unmistakably undermines Dicey’s view of Parliamentary sovereignty where he regarded the UK’s Parliament as being the supreme legislator. As directly applicable Community law becomes part of national law without the need for Parliament’s authorisation, Parliament no longer has the power to accept or reject a particular European law. This again goes against the ‘positive limb’ of Dicey’s theory that Parliament has the power to enact or reject any legislation. So to this extent the UK’s decision to be a member of the European Community has undermined Parliamentary sovereignty in the constitution, as Parliament can no longer be seen as the supreme law making authority.
“any enactment passed or to be passed, other than one contained in this part of the Act, shall be construed and have effect subject to the forgoing provisions of this section.”
This part of the European Communities Act 1972 provides that any Acts of Parliament or bills which are going to become an Act of Parliament have to be made accordingly with European law in mind. So in other words Parliament must legislate consistently with Community law or with Community law in mind. Again this illustrates the limitation on sovereignty in the UK as European law may challenge the validity of national law. Therefore this again undermines the fundamental principle in Dicey’s theory of Parliamentary sovereignty in the British constitution that Parliament has supreme authority to legislate. Parliament no longer has the power to legislate in any manner they wish to. In addition this section of the European Communities Act 1972 also highlights the supremacy and the influence that European Community law holds over the law making process in the British constitution. In a Parliamentary sovereign State no authority or institution can challenge law made by Parliament therefore to this extent Parliament no longer remains sovereign in the constitution of the United Kingdom.
European Community law can come in a number of forms and depending on the type it determines what effect it has on the domestic laws of the member states. European law can come as Treaties (primary law), or as secondary sources such as directives, regulations, and decisions of the Commission and case law of the European Court of Justice. There is a difference between laws which are directly applicable and those that are directly effective. Directly applicable laws as stated above are, are the laws that become part of the member state without the need for Parliament to enact further legislation. Whereas directly effective is defined as “A provision of European law is directly effective if (and only if) it creates rights upon which individuals may rely in their national courts and which are enforceable by those courts.”
This means that direct effect is concerned with the enforceability of directly applicable law in national courts by individuals. We must also be aware of that direct effect can be vertical or horizontal. Vertical direct effect is if the law can be imposed against a member state in its own courts but on the other hand horizontal direct effect is if the law can be imposed against another individual in the courts of a member state.
Certain provisions of a Treaty Article are generally directly applicable, even though it is up to the European Court of Justice to decide. So by virtue of s.2 (1) of the European Communities Act 1972 they require no further legislative action by the UK for the Treaty Article to become part of UK law. Lord Denning stated “Parliament has decreed that the treaty in henceforward to be part of our law. It is equal in force to any statute.”
This again highlights the supremacy that European law holds over national law and that Community law undermines the orthodox (Dicey’s) view of Parliamentary sovereignty. As mentioned earlier, one of the key features of Dicey’s theory of parliamentary sovereignty is that Parliament is the supreme legislator. So if European law becomes part of national law, even against Parliaments will, they no longer are the supreme law maker and no longer hold the highest legal authority. So to this extent Parliament is no longer sovereign. A Treaty Article will have ‘vertical’ direct effect therefore it will create rights for individuals which are enforceable against the state. This can lead to an individual challenging a statute if they feel their rights have been breached in British courts. Thus undermining the ‘negative limb’ of Dicey’s theory where it is understood that the legality of an Act of Parliament cannot be challenged in a British Court. When Treaties are amended or a new Treaty negotiated, each member state then takes steps required by it constitution before ratifying the Treaty. To make sure that the provision of the Treaty take effect in the UK’s constitution Parliament needs to pass an Act of Parliament.
“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states.”
Therefore they require no further implementation by Parliament as they are directly applicable. Regulations have both vertical and horizontal direct effect so they can be enforced against the state or individuals in the courts. Regulations clearly illustrate the supremacy of European Community law over national law as regulations replace existing domestic laws with Community laws. Regulations are arguably the most important legal Acts of the Community as they influence domestic law the most. They take effect on the day stated within the regulation, if there isn’t a date stated it takes effect on the twentieth day following their publication in the official journal. Governing institutions and the courts of member states are bound by regulations and have to follow them as they follow domestic law, whether they agree or disagree. This clearly takes away sovereignty from Parliament as they are bound by regulations. In a Parliamentary sovereign state no Parliament is bound to follow laws of an earlier Parliament. Regulations highlight the supremacy that parts of Community law has over national law and that parliamentary sovereignty has been limited since the UK joined the European Community in 1973.
Another source of European Community law is directives made by the Council. “A directive 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.”
So directives inform the member states about what needs to be done, however it gives them the freedom to decide what kind of domestic legislation needs to be enacted to implement the directive. This again shows the supremacy of Community law as the member states have to introduce new domestic legislation or change existing laws to satisfy a directive. Directives provide detail on a certain area which member states have to introduce new legislation on, or change existing law, this allows them flexibility in the type of law they introduce to satisfy the directive. In the United Kingdom this is usually done by secondary legislation, Orders in Council. This is essential as different member states need to implement a directive differently so that their national culture, customs or even identity don’t get changed. As long as the objective of a directive is met the European Community allows a member state to implement it however they wish to. This means that directives are not directly applicable as they require member states to introduce legislation. Some may argue that this can be seen as the British Government having authority to introduce legislation, however looking at the broader aspect they have to follow the objectives of the directive. So directives can be seen as being supreme even though the member state introduces the legislation. Examples of British legislation arising from the implementation of directives are the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Consumer Protection Act 1987. When implementing a directive the UK may have to change existing laws to satisfy the objectives of the directive. Directives clearly undermine Parliamentary sovereignty in the British constitution as a directive may make Parliament change laws it created to bring domestic legislation in line with the objectives set by the directive. So ultimately directives can be seen as a guideline that Parliament has to follow, this leads to the UK’s Parliament no longer being the supreme rule maker as it has to follow guidelines set by the directive. If the UK decide not to implement a directive they can be liable to compensate anyone who has suffered from the failure. This again shows that European Community law is superior to national law.
Decisions issued by the European Commission are also a source of European law. Decisions “shall be binding in every respect for the addressees named therein’.
So in other words decision issued by the Commission must be followed by member states, individuals, companies or institutions. Decisions are directly applicable to those whom they have been addressed to. Rulings made by the European Court of Justice can also be a source of European Community law. Case law include judgements made by the European Court of Justice, for instance the judgement in Van Gend en Loos, has to be followed by all member states as the decision made is binding.
Recommendations and opinions are not binding on member states therefore arguably they are not a source of European law. Recommendations are made by the Commission to the state concerned, to behave in a particular way. The state is under no legal obligation to follow the recommendation. Opinions are provided by the Community on the situation of Community law in a member state. Member states again are under no legal obligation to follow the opinions of institutions of the Community. Therefore recommendations and opinions do not limit sovereignty in the British constitution as they do not have to be followed, and have no legal authority. But arguably if the UK was to breach an obligation set by the Community, and the Commission offers an opinion, the UK’s Parliament would follow that opinion as it may be unwise not to. So opinions can be seen as being persuasive. But ultimately recommendations and opinions do not have to be followed so they do no limit Parliamentary sovereignty in the UK.
The primacy of Community law can be seen in the following cases. Whenever there is a disagreement between European law and the law of the member state, European law prevails. This has been made clear by the European Court of Justice since the decision made in Van Gend en Loos. As stated earlier, The European Court of Justice ruled:
“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.”
This means that sovereignty in member states has been surrendered by their voluntary decision to be part of the Community. The United Kingdom joined the Community ten years after the decision in Van Gend en Loos, so clearly they knew that their sovereign rights will be limited once they joined the Community. The decision in Van Gend en Loos, was followed in a case the following year by the European Court of Justice in Costa v ENEL where it was ruled that:
“By creating a Community of unlimited duration…the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.’
The European Court of Justice identified two important observations regarding the relationship between European law and national law. Firstly that when the member joined the Community they transferred their sovereign rights to the Community and that it is a principle of the Treaty that member states cannot question Community law, therefore they have to follow Community law. Furthermore Community law has priority even over any conflicting domestic law therefore a statute can be invalid if it is not meeting the requirements of a particular provision of a Community law. This clearly undermines Dicey’s theory of Parliamentary sovereignty especially the ‘negative limb’ which states that ‘there is no mechanism within the British constitution for declaring an Act of Parliament legally invalid.’
The Simmenthalcase was decided after the UK joined the European Community. At this stage the European Court of Justice maintained their view that every national court must apply Community law in its entirety and protect the rights of individuals (directly effective Community law) and set aside any provision of national law which may conflict with Community law.However at first, the UK courts gave priority to national law over European law as they viewed national law as supreme “It seems to me that once a Bill is passed by Parliament and becomes a statute that will dispose of all discussion about the Treaty. These courts will have to abide by the Statute without regard to the Treaty.”
One of the first major conflicts between UK law and Community law occurred in Macarthys v Smithwhere a stockroom manageress was paid twenty percent less than a stockroom manager, who had previously worked there. She left the job and sued the company for equal pay. She based her claim on the Equal Pay Act 1970 and won at the Employment Tribunal. However her employer contested this and appealed to the Court of Appeal. The Court of Appeal interpreted the words of the Equal Pay Act 1970 and said that the words were in the present tense so looked to the present and the future. So this meant that there could be no comparison between a male employee who had done a similar job to the female employee. This went against article 119 of the EEC, so the case was taken forward to the European Court of Justice. The European Court of Justice held that article 119 of the EEC treaty required that men and female should be paid equally. As the Treaty article was directly applicable it required it to be implemented into the law of the UK. When the case was brought back to the Court of Appeal it held that the European Communities Act 1972 made directly applicable Community law part of the English law and where there was a conflict between English law and Community law, the law of the Community prevailed. Therefore Article 119 of the EEC took priority over the Equal Pay Act 1970. So this led to the employer’s appeal being dismissed. Lord Denning stated “Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority….It is part of our law which overrides any other part which is inconsistent with it.”
The case of Macarthys v Smith illustrates the primacy that Community law has over domestic law and that the doctrine of Parliamentary sovereignty is clearly being undermined in the British constitution. The Macarthys v Smith case also undermines the ‘negative limb’ of Dicey’s theory that no person or institution can declare that an Act of Parliament to be legally invalid. In Dicey’s theory there is no higher form of law than the will of Parliament as expressed in the words of the statute.
Although Parliament knew that British membership to the European Community would limit the way Acts could be made, it was not until the landmark decision in R. V. Secretary of State for Transport, ex parte Factortame Ltdthat the supremacy of Community law was accepted. In this case a Spanish fishing company called Factortame Ltd claimed that the Merchant Shipping Act 1988 was contrary to certain provisions of EC law. Parliament had enacted the Merchant Shipping Act 1988 which allowed the Secretary of State for Transport to make regulations, for permission to fish in United Kingdom territorial waters. For Ships to qualify they must be at least seventy five percent British owned. This went against the EC Treaty which prevented discrimination on grounds of nationality. Factortame Ltd therefore did not qualify and were denied licences to fish in UK territorial water. Factortame Ltd brought the case forward to the British courts. At first the Court of Appeal and House of Lords held that no national court had the power to suspend the operation of an Act of Parliament. The European Court of Justice disagreed with the position of the Court of Appeal and House of Lords. The European Court of Justice held that an Act of Parliament may be declared invalid or ineffective if it is incompatible with any requirements of EC law. Consequently the House of Lords ruled in favour of Factortame Ltd, leading to the suspension of the Merchant Shipping Act 1988. This appears to breach the doctrine of Parliamentary sovereignty, which regards Parliament as supreme law making body and no institution or mechanism can override its legislation. The Factortame case is an example of British courts refusing to follow an Act of Parliament that conflicts with Community law and Community law coming out supreme.
The supremacy of Community law over the national law of the United Kingdom can also be shown through the actions the Community may take against the UK for failing to comply with European law.
“If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice… If the Member State concerned fails to take the necessary measures to comply with the Court’s judgment within the time limit laid down by the Commission, the latter may bring the case before the Court of Justice. In so doing it shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned…”
So this means that if the UK did not fulfil an obligation of a Treaty or ignored rulings made by the European Court of Justice they could face penalties for their failure to comply. This goes against the principle of sovereignty as Parliament no longer can be regarded as the highest law makers. In addition to this, Parliament must legislate accordingly with European law or else they will face a penalty. Surely in a Parliamentary sovereign state no institutions can impose penalties on the supreme legislator.
Membership to the European Community has without a doubt undermined the legislative sovereignty of Parliament. However it can be argued that Parliament still retains legislative supremacy as the British Government can legally, as far as the UK courts are concerned, withdraw the UK from the Community. If they did so Parliament no longer will need to legislate accordingly with European legislation. The British Parliament can at any time choose to abolish the European Communities Act 1972, meaning that they will no longer be required to follow this piece of legislation. This will lead the Parliament and the courts no longer being bound by European law and decisions of the European Court of Justice. To this extent Parliament still remains sovereign. So on this approach Parliamentary sovereignty has been surrendered voluntarily by the United Kingdom, and it can be regained at any time Parliament wants, if they wish to do so.However it is very unlikely that the British Government would attempt to withdraw the UK from the European Union because of the major problems it would create in the constitution of the UK. If they were to withdraw from the European Union huge problems would be created in economic areas such as; the common market, environment, agriculture, competition, employment, free movement of goods. Also they would no longer have a common foreign and security policy with the rest of the member of the European Union. This can have major effects on the security and welfare in the UK. For these reasons it is very unlikely that the British Government would withdraw the UK from the Community. But the Government has that option to withdraw the UK from the European Union and such a step would be effective in English law. The Government having the power to withdraw from the Community shows that legislative sovereignty of Parliament can be regained at any time.
In conclusion the principle of Parliamentary sovereignty has unquestionably been limited as a result of the United Kingdom’s membership to the European Community. As virtue of the European Communities Act 1972, British courts are now under an obligation to apply European law even if it means to replace domestic legislation which is incompatible with Community law.
Section 2(4) of the European Communities Act 1972 provides that any laws made by Parliament must be made without conflicting with European law. This clearly undermines, what Dicey regarded as a cornerstone of the British constitution, the legislative supremacy of Parliament. Even though, the supremacy of Community law was highlighted in early cases such as Van Gend en Loos and Costa v. ENELit did not become clear to the UK Parliament that they must legislate accordingly with European law until the Factortame case where the European Court of Justice ruled that the Merchant Shipping Act 1988 went against certain provisions of Community law, as a result the House of Lords suspended the Act. The decision in this case undermines the ‘negative limb’ of Dicey’s theory on Parliamentary sovereignty as the European Court of Justice ruled that the Merchant Shipping Act 1988 was legally invalid. According to Dicey’s theory no mechanism within the British constitution can declare an Act of parliament to be legally invalid.
Membership to the Community means that the UK must now accept directly applicable law and directly effective law, and must incorporate them into their constitution. Treaty Articles are normally directly applicable therefore by section 2(1) of the European Communities Act 1972 they do not require further legislative action for them to become part of domestic law. Regulations are also directly applicable in all member states therefore they become part of domestic law. Regulations clearly undermine Parliamentary sovereignty because if a UK law conflicts with a regulation the UK law needs to be changed. This shows that Parliament is no longer the highest legislator and law enforcer in the constitution of the United Kingdom. Parliament must legislate meeting the objectives of a directive, thus they are not sovereign as they cannot legislate however they want to. Decisions of the European Court of Justice are also binding on member states, consequently the UK courts has to follow the decisions so to this extent Parliament no longer is sovereign. On the other hand it can be argued that the Parliamentary sovereignty still exists in the British constitution as the British Government can legally withdraw the UK from the Community which would lead to Parliament having full legislative authority once more. However it is very unlikely that the Government would do this because of the political and economic effects it would have on the UK. So as long the UK remains part of the Community the legislative supremacy of Parliament will be restricted. As a result of membership to the Community Parliament must surrender their sovereignty to the Community and accept that Community law is superior.
European Communites Act 1972
Article 249 EC
Costa v. ENEL  ECR 585
Felixstowe Dock Railway Co v. British Transport Docks Board  CMLR 655
H.P. Bulmer Ltd v J. Bollinger SA  Ch 401
Macarthys v Smith  (Case 129/79) ECJ and CA
R. v. Secretary of State for Transport, ex parte Factortame Ltd (No. 1)  UKHL 1
Simmenthal  ECR 6290
Van Gend en loos v. Nederlandse Tarief Commissie  (Case 26/62) CMLR 105
Brazier, R, Smith, S.D, Constitutional and Administrative Law 7th edition (Penguin, 1994)
Burca, GD, Craig, P, EU LAW Text, Cases, And Materials 3rd edition (Oxford University Press, Oxford 2003)
Fafinski, S, Finch, E, Legal Skills 2nd edition (Oxford University Press, Oxford 2009)
Lewis, A, European Community Law new edition (Tudor Business Publishing 1997)
Oliver, D, Constitutional Reform in the UK (Oxford University Press, Oxford 2003)
Steiner, J, Textbook on EEC Law 3rd edition (Blackstone Press Limited, London 1992)
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