Notes on primacy CP - THE PRINCIPLE OF SUPREMACY PDF

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THE PRINCIPLE OF SUPREMACY...

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PRINCIPLE OF SUPREMACY OVERVIEW: THE PRINCIPLE OF SUPREMACY 

According to the principle of Supremacy, EU law prevails over domestic law

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EU law prevails over any national rule (Costa), irrespective of its nature (Constitutional rule, Fundamental Rights: Internationale Handelsgesellschaft) and irrespective of whether it has been adopted before or after the EU rule with which it conflicts (Simmenthal)

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The effect of the principle of supremacy is to request judges to set aside any national rule incompatible with EU law and apply EU law instead (Simmenthal)

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Although the principle of Supremacy is widely respected today, it has been, at first, contested in various Member States such as France, Italy, Germany and the UK (in the UK, particularly because of the clash with the principle of Parliamentary sovereignty)

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In the UK, the issue has been provisionally resolved in the case of Factortame where the House of Lords ruled that in cases of inconsistencies, EU law must prevail and the judge should disapply the conflicting domestic legislation

What will be the implications of the Brexit vote for the principle of supremacy? One can imagine that insofar as the Brexit vote was all about ‘taking back control’, Brexit will have the effect of removing the principle of EU supremacy, at least in its current form and expression, i.e “EU law takes priority over UK law”. However, if the UK remains part of the single market – or retains a preferential access to that market, there may still be a legally defined expectation that the UK adheres to the rules of the single market. Consider the following

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Members of the European Economic Area (EEA), which retain full access to the EU single market, are obliged to adopt an important proportion of EU laws on the environment, energy, competition and gender equality. Non-EU EEA states are also expected to put in place a mechanism which grants precedence to EEA law over national law.

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Under the Switzerland model, the obligation to apply EU laws works in a slightly different way but Switzerland is also expected to implement some EU regulations to enable trade.

The principle of supremacy articulated by the Court of Justice is central to EU law. It relates to the relationship between EU law and national law: if there is a contradiction between EU and national law, EU law prevails over national law. The principle of supremacy reflects the ambitious nature of the goals to be achieved by the EC. It was dictated by the idea of effectiveness that was also central to the development of the principles of direct and indirect effect. 1.

SUPREMACY AS ESTABLISHED AND DEVELOPED BY THE COURT OF JUSTICE

1.1 Origin and raison d’être of the principle of supremacy: Costa v ENEL

The principle of supremacy, according to which EU law prevails over national law, is not expressly mentioned in the Treaty provisions but was laid down by the Court of Justice. Declaration 17 annexed to the Treaty of Lisbon reaffirms the fundamental character of the principle of supremacy for EU law The Court of Justice’s full reasoning for inferring supremacy was exposed in Costa v Enel (Case 6/64 [1964] ECR 585): “By contrast with ordinary international treaties, the EEC has created its own legal system which, on entry into force of the treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply. By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or transfer of powers from the States to the Community, the Member States have limited their sovereign rights, although in limited fields, and have thus created a body of law which binds both their nationals and themselves.

The integration into the laws of each member state of provisions which derive from the community, and more generally the terms and the spirit of the Treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on the basis of reciprocity. Such measure therefore cannot be inconsistent with that legal system. The executive force of community law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty set out in Article 5(2) and giving rise to discrimination prohibited by Art 7. The obligations undertaken under the treaty establishing the Community would not be unconditional, but merely contingent, if they could be called into question by subsequent legislative acts of the signatories. [...] It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the states from their domestic legal systems to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.” In Costa, the Court of Justice clearly adopts a teleological/purposive approach to treaty interpretation (as opposed to the more traditional textual approach). Supremacy is inferred from “the spirit and the aims of the Treaty” in order to secure the uniformity and effectiveness of EU law. (How can integration be achieved if some member states give duly effect to community law while some others refuse to give effect to community law and give priority to their conflicting national legislation?) Such teleological approach to ensure the effective achievement of the aims of the Treaty has, since then, been relentlessly adopted by the Court of Justice.

1.2 Scope of the principle of Supremacy 1.2.1 EU law prevails irrespective of the nature of the rule with which it conflicts: Internationale Handelsgesellschaft In Internationale Handelsgesellschaft (Case 11/70 [1970] ECR 1125), the Court of Justice ruled that Community law should take precedence over domestic law, whatever the nature and status of the national rule with which it conflicts. This is so whether the conflicting national rule is of constitutional nature or whether it concerns fundamental rights or principles. In particular, the Court of Justice stated as follows: “3. [...] the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. 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.”

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EU law prevails irrespective of the time of adoption of the conflicting national rule: Simmenthal

In Amministrazione delle Finanze v Simmenthal, (Case 106/77 [1978] ECR 629) the Court of Justice confirmed that EU law would take precedence whether the conflicting national rule pre-dated or post-dated the community provision: pre-existing domestic rules in conflict with newly adopted EU legislation are rendered inapplicable, and subsequent national rules conflicting with pre-existing EU provisions cannot have been validly adopted. “17 [...] in accordance with the principle of precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but – in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States – also preclude the valid adoption of new legislative measures to the extent to which they would be incompatible with Community provisions”

1.3 The consequences of the principle of Supremacy for the national judge The main consequence of the principle of Supremacy for the national judge is that it is under a duty to set aside any domestic provision which conflicts with EU law, as explained in Simmenthal: “21. It follows from the foregoing that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it. Whether prior or subsequent to the Community rule”

Furthermore, the national judge must set aside the incompatible domestic provision immediately, and must not wait for such provision to be declared invalid or being abrogated by the appropriate national authorities (be it a constitutional court or a domestic parliament). This ruling has been expanded in Factortame (Case C-213/89 [1990] ECR I-3433). The British judge has been required to suspend the application of a domestic legislation pending the determination of its compatibility with EU law (in order to provide prompt relief).

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RECEPTION OF THE PRINCIPLE OF SUPREMACY BY NATIONAL COURTS

The Court of Justice’s view that the principle of supremacy had to be inferred from the Treaty was contested by some Member States. Although it is mostly respected today, most Member States base this acceptance on their own constitutional arrangements rather than on the reasoning of the Court of Justice. Acceptance of the principle of supremacy, as construed by the Court of Justice, brought important changes to the Member States legal orders. Whilst the reception of the principle of supremacy caused no major problems in some Member States (Benelux), it was subject to reservations (Italy and Germany) or partially rejected in others (France and the UK). This diversity in attitudes towards the principle of supremacy is reflected in the original position of Member State supreme courts. Hostility towards the EU’s principle of supremacy principally lies with the fundamental constitutional principle of parliamentary sovereignty, according to which the Parliament has the power to do anything other than to bind itself for the future. This has traditionally been given effect through the legal doctrine of Implied Repeal: conflicts between rules are resolved by applying the latest legislation – and not necessarily EU derived legislation as required by the principle of EU supremacy. It needs to be recalled that the UK is a dualist state. This means that it considers international law and national law to be two distinct legal orders. Thus international law will have no effect in the domestic legal order unless it has been incorporated by an act of Parliament. This was done, with respect to EC law, through the European Communities Act 1972. Sections 2(1) and 2(4) of the 1972 Act, read together, suggest that that directly effective EU law should prevail over future Acts of Parliament in case of inconsistency between the two, thus potentially bypassing the doctrine of implied repeal. The principle of supremacy was eventually accepted by a UK court in Factortame Ltd v. Secretary of State for Transport (No.2) [1991] 1 AC 603. In this case Lord Bridge stated that: “If the supremacy within the European Community of Community law over the national law of member states was not inherent in the EC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.” According to this judgment, the British courts seem to be under a duty to disapply domestic legislation, even post dating EU law, in conflict with a provision of EU law. This, arguably, encroaches upon the principle of Parliamentary sovereignty. A more subtle relationship between EU primacy/supremacy and Parliamentary sovereignty seems to have emerged in Thoburn v Sunderland City Council [2002] 1 CMLR 1461. Laws LJ established a distinction between constitutional and ordinary statutes. According to this distinction, whereas ordinary statutes continued to be subject to the doctrine of implied repeal, constitutional statutes, because of their fundamental importance, could only be expressly repealed. For Laws LJ, the European

Communities Act counted amongst Constitutional Statutes and as such could not be impliedly repealed, hence giving effect to the principle of supremacy of EU law. This approach has now been endorsed by the UK Supreme Court in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3. The question was whether the legislative process used in relation to the construction of the “HS2” high-speed rail network was compliant with Directive 2011/92/EU. The directive called for various procedural requirements, for example, a degree of public participation when decisions have a serious impact on the environment. This was the opportunity for the Supreme Court to reassert that EU primacy is only accepted as a matter of UK domestic constitutional law: EU primacy flows from the ECA, which is a British statute albeit of a constitutional nature and which the UK Parliament remains free to amend, repeal or transform provided it makes its intention sufficiently clear. Thus for some, because EU primacy was overtly attributed to a British constitutional statute (rather than, say, the views of the CJEU), HS2 may be seen as a “ judgment that puts EU law in its proper constitutional place”1. There is more to this judgement. For the argument was that Directive 2011/92/EU was in conflict not just with any piece of domestic legislation but with a long-established constitutional principle enshrined in Article 9 of the British Bill of Rights 1689, namely the principle that precludes the questioning in court of debates or proceedings in Parliament. Yet Directive 2011/92/EU seemed precisely to require national courts to assess the adequacy of proceedings in Parliament. The Supreme Court did not think, on the fact, that this was what the directive required. However it also specified that, if it had been the case, a British Court could not have been required to set aside such a fundamental principle of the British Constitution.

1 M. Elliott, ‘Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified primacy of EU law’ U.K. at http://ukconstitutionallaw.org ).

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