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Sample Undergraduate 2:2 EU Law Essay

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The Impact of the UK's Exit on the Supremacy of EU Law

The decision of the UK people to leave the European Union (‘EU’) in June 2016 has been described by some such as Craig as being momentous[1] whereas in other parts it has been noted as leading to a constitutional crisis.[2]  This impact can be seen as two-fold with the first impact being on the constitutionalism within the UK as it greatly affects the legal order of the UK considering that the European Communities Act 1972 had been described as a constitutional statute.[3]  However, the second impact that will arise will be on the institutions of the EU and whether they will be able to retain primacy of their laws as noted with Declaration 17 of the Treaty of Lisbon.[4]   Accordingly, this essay will examine how the supremacy of EU law has developed with a focus on the UK to determine what alteration will be made when the UK leaves the EU.  This will also allow for a discussion as to the effect that the UKs exit will have on the EU in terms of having supremacy over the other EU member states.

The Development of the Supremacy of EU Law

As noted above, the primacy of EU law is noted in Declaration 17 of the Treaty of Lisbon which states that there is primacy in accordance with the settled case law of the EU.  It was on this point that Professor Weiler stated there was ‘bi-dimensionalism’ meaning that the CJEU would establish the general rule then it was for the domestic courts to be cognisant of it and apply the general rule.[5]  In terms of how the CJEU has outlined supremacy, this was seen from the two foundational cases of Van Gend en Loos v Nederlandse Administratie der Berlastingen[6]and Costa v ENEL.[7]  In these two cases, it was held that the Member States had subjected themselves to a new legal order and that they had permanently limited their sovereign rights.[8]  This limitation on sovereign rights means there is ‘constitutional pluralism’[9] meaning that there are distinct systems each having their own constitutional authority, largely meaning the EU and then the domestic system having their own powers.[10]

This push for supremacy of EU law by the CJEU is clearly to fit in with the common goals of ever closer Union and having conformity with EU law.[11]  However, at a domestic level it can cause some consternation which can be seen with the UK considering that the fundamental premise of the UK constitution is that Parliament is sovereign as noted by AV Dicey.[12]  Indeed, in the early cases after the UKs accession there was a reluctance to apply EU law beyond that of an Act of Parliament with Lord Denning stating in Blackburn v Attorney General[13]that the national courts will not take heed of a Treaty unless it is passed through an Act of Parliament[14]  which was affirmed in McWhirter v Attorney General[15]when it was stated that the domestic courts are bound by Acts of Parliament, not international Treaties.[16]  However, this position could not continue with the growing list of enforcement mechanisms including state liability for failure to implement EU law.[17]  These enforcement mechanisms developed by the CJEU and codified in later statutes have reinforced the power that EU law has and ensures the conformity with EU law throughout the Member States.  This could be seen in the UK with the long-running saga seen in R (Factortame Ltd) v Secretary of State for Transport[18]where the House of Lords held that the EU regulations had greater authority than the Merchant Shipping Act that had been passed by Parliament.  This judgment had later been termed as the death of Parliamentary Sovereignty.[19]   It is against this backdrop that the decision to the leave the EU was made with Boris Johnson, leading the campaign to leave, repeatedly urging voters to ‘take back control’ and that the CJEU should not have jurisdiction over the UK.[20]  It this backdrop to the vote that must be examined to determine what effect the supremacy of EU law will have in the UK and conversely what effect the UK exit will have on the EU.

Exiting the EU: The Effect on the UK

It is clear that there is a long-running negotiation as to the way in which the UK will leave the EU and the relationship that the UK will retain with the EU when they have left.  This means that accurately stating what effect the supremacy of EU law will have on the UK is extremely difficult.  However, in terms of the effect that has already been seen, it could be through the revival of Parliamentary Sovereignty.  It was noted above that Parliamentary Sovereignty had died as a result of the decision in Factortame yet this was always questioned by Goldsworthy on the basis that the UK Parliament had given the powers away to the EU and could have them returned at any time.[21] This theory on sovereignty by Goldsworthy can be seen as coming to fruition with the decision to leave the EU, especially in light of the decision of the Supreme Court in R (On the Application of Miller) v Secretary of State for Exiting the European Union[22]where it was held that Article 50 of the TFEU could only be triggered by a vote passed in Parliament and not the Prime Minister using the Royal Prerogative.  It is clear that there is a greater emphasis on Parliament being sovereign, however, the negotiations between the UK Government and the EU will be integral in terms of whether there is to be supremacy of EU law still within the UK.

In terms of the last series of negotiations that had taken place, there was seemingly an agreement to have regulatory alignment between the UK and the EU for the purpose of ensuring that there would be no hard border between Northern Ireland and the Republic of Ireland.[23]  This has been regarded as ambiguous especially when taken in conjunction with the aim of the UK Government in leaving the single market as well as the customs union.[24]  More recently, the question of how the border between Northern Ireland and the Republic of Ireland will be dealt with has been questioned with the ‘backstop’ proposed by the UK being rejected.[25] Indeed, the most recent position from the UK Government seems to be to stay in the customs union until 2021 to allow for the border issue to be resolved.[26]  It is clear from these, albeit political, suggestions that it will be impossible for the UK to circumvent the jurisdiction of the CJEU when it comes to regulatory issues that would be important for the customs union and trade between the UK and the EU.  On this basis, it does not look likely that control will fully be taken back but rather there will be residues of supremacy retained by the EU with some elements of constitutional pluralism still remaining despite no longer being a member of the EU.

The Effect of the UK Leaving the EU

Whilst it is clear that the decision to leave the EU will have a profound effect on constitutionalism and rule-making within the UK, the question of how it will affect the EU is one that is still unanswered.  It must be noted that the UK is the first country to trigger Article 50 of the TFEU and decide to leave the EU.  However, with the rise of Euroscepticism in a number of other countries this may cause issues with the supremacy of EU law, which is a major sticking point between domestic politicians and the EU.  This has been seen in Italy where the President would not appoint a Government considering the proposed Finance Minister, Paolo Savona, had advocated for leaving the Eurozone and potentially the EU.[27]  Whilst this crisis has seemingly been averted by another, more EU friendly, Finance Minister being proposed it does not get away from the anti-EU sentiment that is growing in other EU countries.  With the supremacy of EU law being a political sticking point throughout a number of Member States, it may be an issue that the EU will have to address, especially if the UK begins to flourish on leaving the EU.  Therefore, on this point it should be noted that the decision of the UK to leave is unlikely to have an instant effect on supremacy but other countries may be viewing the UK with intrigue that could lead the EU to taking steps to appease other Member States.

Conclusion

This essay has examined the effect that the UK leaving the EU could have on the supremacy of EU law.  Whilst it is clearly subject to the negotiations that are currently ongoing, the current position that has transpired is in favour of greater power in favour of Parliament.  However, despite that being seen in the decision of Miller, the negotiations have talked of regulatory alignment and retaining some elements of the EU structures, such as the customs union.  On this basis, it would be impossible to be freed from the shackles of the CJEU meaning that there will still be some supremacy.  In terms of how it will affect the EU, it is unlikely to have an instant effect yet they will have to be cognisant of the effect it could have on other countries, such as Italy, where there has been a growth in Euroscepticism which may necessitate a change in how the EU passes and enforces its laws.

Bibliography

Legislation

European Communities Act 1972

Treaty of Lisbon

Treaty on the Functioning of the European Union

Cases

Blackburn v Attorney General [1971] 1 WLR 1037

Costa v ENEL [1964] ECR 585

Francovich & Bonifaci v Italy [1991] ECR I-5357

McWhirter v Attorney General [1972] CMLR 882

R (Factortame Ltd) v Secretary of State for Transport [1990] UKHL 7

R (On the Application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 4

Thorburn v Sunderland City Council [2002] EWHC 195

Van Gend en Loos v Nederlandse Administratie der Berlastingen [1963] ECR 1

Books

Chalmers D, Davies G & Monti G, European Union Law (3rd edn, CUP 2014)

Craig P & De Burca G, EU Law: Text, Cases and Materials (6th edn, OUP 2015)

Dicey AV, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915)

Goldsworthy J, Parliamentary Sovereignty: Contemporary Debates (CUP 2010)

MacCormick N, Questioning Sovereignty (OUP 1999)

Articles

Barber NW, ‘The Afterlife of Parliamentary Sovereignty’ (2011) 9 Int’l J Const L 144

Craig P, ‘Brexit: A Drama in Six Acts’ (2016) ELR 447

Gordon M, ‘The UK’s Sovereignty Situation: Brexit, Bewilderment and Beyond’ (2016) 27(3) King’s LJ 333

McKeever G, ‘Brexit, the Irish Border and Social Security Rights’ (2018) JSSL 34

Stein E, ‘Toward Supremacy of Treaty-Constitutional by Judicial Fiat: On the Margin of the Costa Case’ (1965) 63 Mich LR 491

Weiler JHH, ‘The Community System: The Dual Character of Supranationalism’ (1981) 1 Yearbook Eur L 267

Miscellaneous

Brunsden J, ‘Michel Barnier Rejects UK’s Irish Border ‘Backstop’ Proposal’ (Financial Times, London, 8th June 2018) <https://www.ft.com/content/48be169c-6b1e-11e8-b6eb-4acfcfb08c11> accessed 11th June 2018

Commission to EU 27, Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union (2017, European Union).

Hall M, ‘Boris Johnson Urges Brits to Vote Brexit to ‘Take Back Control’ (The Express, London, 20 June 2016) < https://www.express.co.uk/news/politics/681706/Boris-Johnson-vote-Brexit-take-back-control> accessed 11th June 2018

Lister T, ‘Italy’s Populists are Blocked as ‘Political Referee’ Waves the Red Card’ (CNN, Washington, 28 May 2018) < https://edition.cnn.com/2018/05/28/europe/italy-political-crisis-analysis-lister-intl/index.html> accessed 11th June 2018

Maidment J, ‘Theresa May Sets 2021 End Date for Customs Backstop After David Davis Threatens to Quit’ (The Telegraph, London, 7th June 2018) < https://www.telegraph.co.uk/politics/2018/06/07/theresa-mays-backstop-customs-plan-would-result-hotel-california/> accessed 11th June 2018


[1] P Craig, ‘Brexit: A Drama in Six Acts’ (2016) ELR 447, 448.

[2] M Gordon, ‘The UK’s Sovereignty Situation: Brexit, Bewilderment and Beyond’ (2016) 27(3) King’s LJ 333.

[3] Thorburn v Sunderland City Council [2002] EWHC 195.

[4] D Chalmers, G Davies & G Monti, European Union Law (3rd edn, CUP 2014) Ch. 4.

[5] JHH Weiler, ‘The Community System: The Dual Character of Supranationalism’ (1981) 1 Yearbook Eur L 267, 275.

[6] [1963] ECR 1.

[7] [1964] ECR 585.

[8] E Stein, ‘Toward Supremacy of Treaty-Constitutional by Judicial Fiat: On the Margin of the Costa Case’ (1965) 63 Mich LR 491, 493.

[9] N Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 MLR 317.

[10] N MacCormick, Questioning Sovereignty (OUP 1999) p. 117.

[11] P Craig & G De Burca, EU Law: Text, Cases and Materials (6th edn, OUP 2015) p. 266-268.

[12] AV Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) p. 39.

[13] [1971] 1 WLR 1037.

[14] Ibid p. 1039.

[15] [1972] CMLR 882.

[16] Ibid p. 886.

[17] Francovich & Bonifaci v Italy [1991] ECR I-5357.

[18] [1990] UKHL 7.

[19] NW Barber, ‘The Afterlife of Parliamentary Sovereignty’ (2011) 9 Int’l J Const L 144, 149.

[20] M Hall, ‘Boris Johnson Urges Brits to Vote Brexit to ‘Take Back Control’ (The Express, London, 20 June 2016) < https://www.express.co.uk/news/politics/681706/Boris-Johnson-vote-Brexit-take-back-control> accessed 11th June 2018.

[21] J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (CUP 2010) p. 299.

[22] [2017] UKSC 4.

[23] Commission to EU 27, Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union (2017, European Union).

[24] G McKeever, ‘Brexit, the Irish Border and Social Security Rights’ (2018) JSSL 34, 53.

[25] J Brunsden, ‘Michel Barnier Rejects UK’s Irish Border ‘Backstop’ Proposal’ (Financial Times, London, 8th June 2018) <https://www.ft.com/content/48be169c-6b1e-11e8-b6eb-4acfcfb08c11> accessed 11th June 2018.

[26] J Maidment, ‘Theresa May Sets 2021 End Date for Customs Backstop After David Davis Threatens to Quit’ (The Telegraph, London, 7th June 2018) < https://www.telegraph.co.uk/politics/2018/06/07/theresa-mays-backstop-customs-plan-would-result-hotel-california/> accessed 11th June 2018.

[27] T Lister, ‘Italy’s Populists are Blocked as ‘Political Referee’ Waves the Red Card’ (CNN, Washington, 28 May 2018) < https://edition.cnn.com/2018/05/28/europe/italy-political-crisis-analysis-lister-intl/index.html> accessed 11th June 2018.