Essay: Supremacy of EU law in the UK

11.01.2019
The concept of direct effect was established in the case of Van Gend en Loos. Direct effect can be defined as a legal remedy which guarantees rights of the individuals. The two types of direct effect that are available are horizontal direct effect and vertical direct effect. A horizontal direct effect means where an individual takes an action against non-state entities (Mangold). A vertical direct effect is where an individual takes an action against a member state (Defrenne).
The European Court of Justice established the principle of supremacy of the EU law, over all the member states in the EU, in the case of Costa v ENEL. It was held by the court that the entirety of the rights which the member states had had been transferred to the EU when each of them declares membership of the European Union. So, all the matters that fell within the EU were to be reasoned with EU law rather than the law of the individual member states. This was based on the presumption that the member states had voluntarily given up their powers over matters which fell within the domain of the EU. The reasoning given out in the Costa case was based on the presumption that the Treaty of Rome did not have direct effect which led the Europen Court of Justice to give a judgement which was rejected the Italian Constitutional Court’s argument. The claimant tried hard to make sure that the national law of Italy would prevail over the EU law but as seen above, this was not the case. Thus, the Treaty of Rome was not considered to be supreme over the EU law.
Moreover, in the case of Simmenthal, the decision given out in Costa v ENEL was reaffirmed by the European Court of Justice where it held that national legislation could be declared invalid by the Italian courts without having to wait for such a ruling to be delivered by the Italian Constitutional Court. In Simmenthal, the claimant wanted to abolish the tax on meat import in Italy but since it was in violation of the EU law but not the national law, EU law was held to be supreme over it.
It was declared by the European Court of Justice in the case of Internationale Handelgeselschafft that EU law would prevail even over the laws contained in the member state’s constitutions. It must be noted that even member states which have written constitutions, these particular member states deem their constitutions to be the supreme source of law and yet, the European Court of Justice did not hesitate to declare that despite such traditions, it would be the EU law that would still prevail over the written constitution of the member states.
Thus, the European Court of Justice set a precedent of the supremacy of EU law withhin the member states and made their presence felt within the domain of English law, since, as mentioned, the doctrine of parliamentary sovereignty had been followed very rigidly and strictly for years.
It was said by Lord Denning that EU law was to be accorded supremacy by the English Courts: McCarthys v Smith and Bulmer v Bollinger. This was, however, not because of the judgements given out by the European Court of Justice but because it had already been enunciated in the section 2 of the ECA 1972. The section 2 indicated that EU law was to be followed in its entirety by the English courts. Moreover, as supremacy of the EU law was a part of EU law itself, as per the ECA, which led the Court of Appeal to believe that it accorded primacy to EU law. Lord Denning, however, cleared out the fact that if someday the UK Parliament were to conciously enact the EU law and the ECA was to be repealed, in such an instance, it would be a UK statute that would be followed.
The House of Lords, however, was confronted with a difficult situation in the case of ex parte Factortame. Here, a UK Act of Parliament, the Merchant Shipping Act 1988, was claimed to be contrary to the EU Treaty’s provisions on free movement and freedom of establishment. While the substantiative issues of the case were being considered by the ECJ, the claimants argued for a suspension order to be ordered against the Merchant Shipping Act in the meanwhile. The response which the European Court of Justice gave to this was that if a court was stuck on whether to follow EU law or whether to follow national legislation and is bound by the rule of its own national law, the EU law would prevail. So, the House of Lords had to set aside the rule of Parliamentary sovereignty and use the Merchant Shipping Act’s application until the final judgement was given out by the European Court of Justice. The House of Lords then accordingly set aside the Merchant Shipping Act and this was a first of its kind since hitherto, the English courts never felt at licence to disobey Acts of domestic legislation, in accordance with the third limb of Dicey’s definition of Parliamentary sovereignty. The reasoning given by the House of Lords here was that whenever a statute would coincide with EC law, the statute would be disregarded. The case of Factortame showed that yes, EU law does prevail over national legislation of the UK. However, it needs to be seen whether or not this acceptance was unconditional.
EU law has definitely impacted on the way legislation is applied in individual cases in the English courts. An example of this is the case of Webb v EMO Cargo. Here, a UK statute (Sex Discrimination Act 1975) had to be used in a manner which treated termination on grounds of pregnancy like an act of discrimination so that it could be kept in accordance with the ETA. The European Court of Justice gave out this decision and based it on mutatis mutandis. This decision was applied by Lord Keith in the House of Lords. This means that the way the UK courts now interpret their own statutes has changed from a literal to a more purosive approach. Moreover, an Act of Parliament which was incompatible with the EU law was set aside in Ex Parte EOC. This shows how the English courts have adapted with the EU law and their willingness to uphold EU Law’s supremacy.
There have been cases where the UK courts themselves have decided that the EU legislation they were applying was uncertain or ambigous. In Garland v BREL, the House of Lords held that the particular EU legislation was considered to be inconsistent but the European Court of Justice gave out the judgement that the legislation was completely consistent and the UK felt bound by it. In CR Smith Glaziers (Dunfermline) Limited v Commissioners of Customs and Excise, it was said by the House of Lords “It was the duty….European Law.” Here, the House of Lords, once again, thought that a particular Directive was not in accordance and made the reasoning ambiguous but the European Court of Justice held that it was in accordance.
The European Court of Justice, once it gave out the judgement in Costa, established the supremacy of the EU law over any national legislation of any member state. It, therefore, set out a precedent for the future cases to follow. As seen above, EU law was considered to be supreme by national courts in the cases of Webb v EMO Cargo and Ex Parte EOC. However, it was the judgement in Factortame that set a precedent for the UK courts to follow. The question that whether or not this was unconditional can be answered in the cases presented above.
An attempt was made in order to not further deteriorate Parliamentary Soverignty when the EU Act 2011 was introduced. It, however, did not attempt to change the decisions of the past but rather focused on the future decisions. Section 18 of the EU Act 2011 does not only agree with the ECA 1972 as to just preserve the Parliamentary Sovereignty. Even though this was an attempt to re-establish sovereignty but this did not happen. EU law would still be considered supreme over national legislation.
In June 2016, however, Britain opted out of the EU after a referendum took place. So once the UK decides, if it does, that it will no longer be a part of the European Union and once the appropriate legislation is passed, the courts in the UK will no longer be bound to keep the EU law supreme. At this point in time, the UK is still bound by the supremacy of the EU law as stated by the Prime Minister in her first speech on Brexit. The impact of Brexit on the existing European Directives is going to be a rough one. Since Directives require UK law for implementation, much of the statutes will be in the need for amendment. Once the appropriate legislation is passed in the Parliament, only then it will be final of what is going to happen; it can not be foreseen.
In conclusion, the case of Costa was reasoned out by the European Court of Justice itself but the case of Factortame was reasoned out by the House of Lords. The European Court of Justice gave out a judgement that would favour its own law. The House of Lords, however, gave a judgement that disregarded parliamentary sovereignty completely. It was necessary for the House of Lords to give out a judgement so that there would be no uncertainty in the law. Another reason why the House of Lords gave out this judgement was that the UK courts are bound to give supremacy to EU law over domestic legislation due to the enactment of the ECA 1972. The similarity between both the cases was just that they both held that EU law was supreme over any other national legislation. Surely, a difference between the approaches on how these two cases were decided can be seen. Moreover, it can be concluded, as per the doctrine of direct effect, EU law should be supreme as powers have already been transferred by the member states and as it has its own legislation which binds the member states.