Which Law should Take Priority?

Research Essay           APPENDIX A: RESEARCH ESSAY                       In situations of conflict between EU law and National law, which law is to prevail? The European Union treaty is mostly silent on which legal authority should be followed in situations of conflict between EU Law and National or Domestic Law. But it was held by the European Court of Justice (ECJ) that it is understood from Article 4(3) Treaty of European Union (TEU) which states that the requirement to ensure achievement of the intention of the treaty and also in Article 288 Treaty on the functioning of the European Union (TFEU) which states that regulations will be binding and have direct effect. However, this still does not settle the issue of which law should take priority, whether it is national law or EU law. But it all depends on the level to which member state has provided for this, either in its constitution or in its statute of incorporation.

Due to the extensive dissimilarities in the ways Member states have tried to solve this question of prime concern, and to make sure consistency of application is maintained, the ECJ produced its own constitutional rules to deal with the problem of the principle of supremacy of European Union Law. The creation of the doctrine of supremacy began after a series of important rulings by the European Court of Justice. The very first case which dealt with this issue of priority was that of Van Gend en Loos v Nederlandse Administratie der Belastingen[1]. In 1962 the Netherlands imposed a duty on the import of a chemical from Germany that was transported by a company named Van Gend en Loos.As customs duties were not allowed among member states, the logistics company addressed the Court to resolve the issue. The European Court of Justice ruled that the duty had to be removed. The main reason why the case is accepted and broadly referred to is the interpretation that the EC Treaty was more than just an international treaty, and the fact that it was signed by the member states meant that it provided for a direct effect on the member states’ citizens.Along with the main duties, the Treaty caters for certain rights applicable directly to the citizens of member states. This basically means that EU law can be considered in a way national law is and a member state citizen can directly invoke EU law before their domestic court. It was further held that union law constitutes a ‘new legal order for the benefit of which the states have limited their sovereign rights, albeit with limited fields.’ The court’s judgement resulted in the court applying the community law (now Art 34 of TFEU) and the conflicting Dutch law was set aside. It was the first case which established EU as an independent legal order from the member states.

However, the precise implementation of the doctrine of supremacy wasn’t developed until the case of Flaminio Costa v ENEL.[2] In this case, there was an alleged dispute between a few provisions of the treaty and an Italian statute nationalizing the electricity company. The applicant, Costa was a shareholder in that particular electricity company and refused to pay the electricity bill. He later claimed that the nationalization of the electricity company was against EC Law. The Italian government argued that the Italian statute nationalising the electricity company was later in time than the Italian Ratification Act which incorporated EC law in Italian law.

The Italian court was therefore under an obligation to apply the domestic law in predilection to EC law. This case was referred to the ECJ by the Italian courts. In an attempt to clarify the position regarding which law is to gain supremacy, the European Court of Justice referred to Van Gend (as explained above) and came to the conclusion that EU law will take precedent even if only subsequent EU law has been enacted and even when there is a latter law which contradicts with earlier EU law. A number of case law will explain the extent to which EU law is supreme and reasons why it should be given primacy over National laws. The first reason is that the European Union is entirely part of National law and member states had given up some of their power to EU. Furthermore, EU law should be given primacy in order to promote uniformity and effectiveness. In the case of Internationale Handelsgesellschaft[3] the German courts held that to follow the doctrine of supremacy would mean that they will need to converse with some of the laws in the German constitution. The ECJ states EU law takes precedent over ALL forms of law. In addition, in the case of Administrazione delle Finanze dello stato v Simenthal[4], where there is a conflict between the National law and the European law, the national court under the EU law is required to give immediate effect to EU law and not wait for a ruling from the constitutional court.

This decision confers on domestic courts jurisdictions that they may not have under domestic law. In R v SS for transport ex parte Factortame (No 2)[5] [1990] EUECJ C-213/89, it was held that the national law should be put aside if it prevents the courts from granting interim relief. It was also held that the Governments will be liable for any breach resulting a financial loss. All the above case law shows that EU law does in fact have supremacy over National/Domestic Law. However, the question now is, do all Member States accept this Supremacy with open arms? A few member states like Belgium have managed and accepted the doctrine of supremacy of EU law comfortably. However, other states, such as France, UK and Italy have accepted it more moderately over a period of time. According to research, for the UK, the main problem lies with the Sovereignty of Parliament. Member states assumed that the question of supremacy will depend on how European Union law has been incorporated into domestic law. So, for example if a country is monist in its approach, EU law will become binding and part of national law as soon as it gets approval without the need of any further incorporation for instance the Netherlands or France.

However, if the country is a dualist, then EU law will not become binding and part of domestic law unless and until it is incorporated into a domestic statute, for example: Germany, Italy, Belgium and UK. A prime example of this can be seen in the UK, where the main hurdle of acceptance of the principal of supremacy is because of the doctrine of parliamentary sovereignty. According to A.V Dicey’s[6], This means that the parliament can make and un-make laws. This was illustrated in the case of Burmah oil v Lord advocate[7]. As UK is a dualist state, international law does not become part of domestic law until it is incorporated into a domestic statute as I mentioned above. In the past, UK was hesitant to apply EU law but since the passing of European Communities Act 1972, the National courts in the UK have begun to accept EU law as primary law. However, under the normal rules of statutory interpretation, legislation which subsequent to the European Communities Act 1972 would prevail over it. The courts regardless have been able largely to avoid the problem of conflict of Community and British Law, mostly through interpretation as seen in the case of Garland v BR Engineering.[8] The status of EU law comes from the European Communities Act 1972 and the most significant provisions are listed under sections (2) and (3). According to section 2(1) of the above act, all rights, power, liabilities, obligations and restrictions created or arising under the treaties and all such remedies and procedures provided by or under the Treaties are without further enactment to be given legal effect in the UK. Section 2(2) holds that Her Majesty may by order in Council, and any designates Minister of department may by regulations, make provision for the purpose of implementing any community obligation.

Under section 2(4) any enactment passed or to be passed, shall be construed and have effect subject to the foregoing provisions of this section. Section 3(1) states that any question as to the meaning or effect of any treaties, or as to the validity, meaning or effect of any community instrument, shall be treated as a question of law and, if not referred to the ECJ, Be determined in accordance with the principles laid down by the ECJ. All the above sections prove that EU law nevertheless has supremacy over national law. However the approach which was adopted by the UK courts can be explained by referring to the following case law: In the case of McCarthy ltd v Smith[9] it was held that following to the European Communities Act 1972 Community law was part of English law and where English law was inconsistent with it, Community law prevailed. Reference should be made to Lord Denning, who said that said “Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it.” This shows that the Court of Appeal was prepared, under section 2(4) as mentioned above to give EU law priority. Furthermore in the case of Garland v BR Engineering (1983) 2 AC 751, HL(E), The House of Lords adopted the rule of construction’ approach to section 2(4). In the case of Pickstone v Freemans plc[10], The House of Lords chose to interpret the law literally (against their literal meaning), to the extent that they read certain words into the regulations in order to attain a result which would be more suitable with EC law.

Lord Keith[11] said the provisions must be interpreted deliberately so as to give effect to the obvious broad intentions of the Parliament. It was made clear in this case, from evidence from House of Commons debates on the matter, that the regulations had been introduced specifically in order to give effect to EC law. In addition to this, the case of Factortame (No. 2) [1990] EUECJ C-213/89 shows that the House of lords gave priority to EC law. All the above case law is evidence that the UK courts such as the House of Lords have sown a clear willingness to accord supremacy to directly effective community law, either by ‘construction’ of domestic law, or, where necessary by applying Ec law directly, in priority over national law.

However it should be noted that in the case of Macarthys ltd v smith [1981] QB 180, Lord Denning made it clear that if parliament were expressly to strive to renounce its EU obligations our courts would be obliged to give effect to Parliament’s wishes. Whilst this is unlikely to happen as long as we remain members of the EU, it is theoretical possibility and the principle of Parliamentary sovereignty remains intact. While on the other hand, A.V Dicey[12] has maintained that though the supremacy EU law is largely accepted by British courts, it is emphasized that the final decision makers still remain the member states. However, National courts are loyal towards the Community law and give precedence to it as long as the UK remains a member of the EU. Bibliography CASES: Case Van Gend en Loos v Nederlandse Administratie der Belastingen(1963)Case 26/62 Flaminio Costa v ENEL [1964] ECR 585 (6/64) Case Internationale Handelsgesellschaft (11/70) [1970] ECR 1125 Case Administrazione delle Finanze dello stato v Simenthal (106/77) [1978] ECR 629 Case Factortame (No 2) [1990] EUECJ C-213/89 Case Burmah oil v Lord advocate [1965] AC 75 Case Garland v BR Enineering (1983) 2 AC 751, HL(E) Case McCarthy ltd v Smith [1981] QB 180 Case Pickstone v Freemans plc [1988] 2 All ER 803 Case Rv Secretary of State for Employment C-167/97. [1999] 2 AC 554 TREATIES: Treaty of European Union (TEC) Treaty on the Functioning of the European Union SECONDARY SOUCES: Loveland,Ian,(1996;517),Parliamentary Sovereignty and the European Community: the Unfinished Revolution?, Parliamentary Affairs,vol.49-2,Oxford University Press De Witte, in: Craig/De Burca (eds.),The Evolution of EU Law Craig P.P De Burca, The Fifth Edition, EU Law: Texts, Cases and Materials.

1

---

[1] Case Van Gend en Loos v Nederlandse Administratie der Belastingen(1963)Case 26/62 [2] Case Flaminio Costa v ENEL [1964] ECR 585 (6/64) [3] Case Internationale Handelsgesellschaft (11/70) [1970] ECR 1125 [4] Case Administrazione delle Finanze dello stato v Simenthal (106/77) [1978] ECR 629 [5] Case Factortame (No 2) [1990] EUECJ C-213/89 [6] Loveland,Ian,(1996;517),Parliamentary Sovereignty and the European Community: the Unfinished Revolution?, Parliamentary Affairs,vol.49-2,Oxford University Press [7] Case Burmah oil v Lord advocate [1965] AC 75 [8] Case Garland v BR Enineering (1983) 2 AC 751, HL(E) [9]Case McCarthy ltd v Smith [1981] QB 180 [10] Case Pickstone v Freemans plc [1988] 2 All ER 803 [11] De Witte, in: Craig/De Burca (eds.),The Evolution of EU Law [12] Dicey,A.V.,(1915,3-8), The Law of Constitution, Oxford Press

Cite this page