Britain in the European Union

The Community and the Nation State

• Horrors of WW2 were felt by many to be due to excessive nationalism and it was felt that the
states within Europe should b e organised so as to reduce the likelihood of further conflict
• European Coal and Steel Community (ECSC)
• Success led to plans for the European defence community and the European political
community. There was however much opposition
• This led to a less overtly political step, the European Economic Community (EEC); formed in
1957 with the Rome treaty
• Single European Act 1986
• The Treaty on European Union, (the Maastricht Treaty) in 1993 was more far-reaching and
introduced the 3 pillars idea. (with the first being more supranational and the other 2 more
intergovernmental)
• Treaty of Amsterdam 1999 blurred the line between decision making in the second and third
pillars, and that within the first
• Treaty of Nice 2000; to deal with the institutional consequences of enlargement
• Vienna
• The EEC originally established four major institutions (i) The Council of Ministers, (ii)The
Commission, (iii) The Assembly (renamed the European Parliament by Maastricht), and (iv)
The Court of Justice

The Legislative and Decision-Making Process

• For the first 30 years of the Community’s existence, decision making was dominated by the
Council and Commission.
• The commission has the right of legislative initiative
• Maastricht introduced the co-decision procedure and the Amsterdam treaty further
strengthened the EP’s position under the co-decision procedure. It also extended its sphere of
application, so that much important Community legislation is now subject to the procedure.
• The procedure accords the EP, in formal terms, coequal powers in the legislative process with
the Council (note the whole back and forth elaboration on 87)
• Though the procedure is complex, it works and serves to accommodate differing institutional
interests
• The bottom line is that an act will not be passed unless both the EP and the Council agree.

The Nature of the Community

• Complex, might be worth reading again

• The theme which appears repeatedly in papers emanating from the Community is that of
institutional balance, rather than separation of powers. This refers to the desirability of
preserving a proper balance of power between the Council, as representing the interests of
the member states, the EP as representing the people, and the Commission as guardian of
the overall aims of the Treaty. While classical ideas of separation of powers are not therefore
central to the institutional ordering within the EC, another constitutional principle, the Rule of
Law is of prime importance. Article 6 of the Treaty of European Union declares that the
Community is founded on the respect for human rights, democracy, and the Rule of Law.
Respect for these principles is made a condition of membership of the European Union.

The United Kingdom Parliament and Legislative Scrutiny

• Considering the machinery used to review Community legislation, there is the European
Scrutiny committee which goes through large amounts of EU documents such as draft
proposals for legislation, and reports on them
 • It recommends a number for further consideration by one of the European standing
committees
• There is also a House of Lords’ Select Committee on the European Union which functions
through a number of subject-matter based subcommittees and considers any proposals that it
believes show be drawn to the attention of the House.

Sovereignty

The Traditional Debate

• Sir William Wade “It follows therefore that there is one, and only one, limit to Parliament’s
legal power: it cannot detract from its own continuing sovereignty.”

The Judicial Response Prior to Factortame

• Idea of PS and implied repeal meant there could be tensions between Uk and EC law. The
Primacy of EC law over national law was asserted by the ECJ early on. (Costa v ENEL)
• Prior to Factortame there were three differing strands within the UK jurisprudence. (i)
traditional doctrine of PS. (ii) (dominant) these sought to blunt the edge of any conflict
between the two systems by using strong principles of construction, reading UK law,
whenever possible, to be compatible with community law. (iii) Here, courts accepted, in
principle, the idea of purposive construction, but felt unable to read the UK legislation in
conformity with the relevant EC norm.

Factortame, EOC, and Thoburn

• Note the result in Factortame

• The Dicta of Lord Bridge is particularly relevant. Three aspects of his reasoning should be
distinguished. One was essentially contractarian: the UK new when it joined the EC that
priority should be accorded to EC haw, and it must be taken to have contracted on those
terms. The second is functional: it was always inherent in a regime such as the Community
that it could only function adequately if EC law could take precedent in the event of a clash
with domestic legal norms. The third was the existence of the European Communities Act
1972, which was said to impose a duty on national courts to override national law in the event
of a clash with directly enforceable Community law.
• The impact of Factortame was made clear in the EOC case (R v Secretary of State for
Employment, ex parte Equal Opportunities Commission) The HL held that the national
legislation was in breach of EC law. Factortame was regarded as authority for the proposition
that it was open to a national court to declare provisions of a primary statute to be
incompatible with norms of Community law. The HL also made it clear that this power to
review primary legislation resided in national courts, not just the HL.
• In Thoburn, Laws LJ said that the common law had modified the traditional concept of
sovereignty in the sense that it had created exceptions to the doctrine of implied repeal.
Ordinary statutes were subject to the doctrine of implied repeal but what Laws LJ referred to
as ‘constitutional statutes’, which conditioned the legal relationship between citizen and state
in some overreaching manner, or which dealt with fundamental constitutional rights, were not
subject to the doctrine of implied repeal. And thus such repeal could only occur if there were
‘some express words in the later statute, or by words so specific that the inference of an
actual determination to effect the result contended for was irresistible.’ The ECA 1972 was
regarded as just such a constitutional statute.

Supremacy after Factortame, ECO, and Thoburn: The Substantive Impact of the Decisions

• In doctrinal terms, these decisions mean that the concept of implied repeal no longer applies
to clashes concerning Community and national law (subject perhaps to Thoburn)
 • If Parliament ever does wish to derogate from its Community obligations then it will have to do
so expressly and unequivocally. (and should they, the react of the courts remains to be seen)
• The supremacy of EC law over national law operates in areas where EC law is applicable.
The problem here is who decides when a matter is within the competence of the EC? Also,
the ECJ is well known to have often reasoned ‘teleologically’ (reasoned in order to attain the
ends it believes that the particular Treaty was intended to serve) and expanded the
boundaries of Community competence in a manner which caused disquiet within some
national legal systems. The German Federal Constitutional Court held that it will not inevitable
accept Community decisions which it regards as crossing the line between legitimate Treaty
interpretations and de facto treaty amendment. (Brunner (94); though more recent decisions
indicate a softening to this approach). The general tenor of the judgment of Laws LJ in
Thoburn is also inclined to the conclusion that the ultimate competence to decide on the
scope of Community Competence resides with the national court. While he does not address
the point directly his reasoning to the effect that the fundamental legal basis of the UK’s
relationship with the EU rests with domestic, not European, law lends support to that
conclusion. This is reinforced by his statement that if the EU were to enact a measure
repugnant to a constitutional right guaranteed by UK law, it would be for the national courts to
decide whether the general words of the ECA 1972 were sufficient to give it overriding effect
in domestic law.

Supremacy after Factortame, ECO, and Thoburn: The Conceptual Basis of the Decisions

• It is possible to rationalize what the courts have done as a species of statutory construction.
On this view accommodation between national law and EC law is attained through a rule of
construction to the effect that inconsistencies will be resolved in favour of EC law unless
Parliament has indicated clearly and unambiguously that it intends to derogate from
Community Law. There are a few points about this approach
○ The doctrine of implied repeal was itself part of the traditional view of PS and in this
sense, this approach constitutes a modification of the traditional doctrine even if one
adopts Laws LJ’s view that implied repeal should not generally apply to constitutional
statutes.
○ The wording of s2(4) is notoriously difficult to disentangle. The section is framed in
terms of ‘any enactment passed or to be passed . . . shall be construed and have
effect’ subject to Community rights. The view word ‘construed’ conveys the sense that
the later statute must be capable of being read so as to be compatible with EC law
without thereby unduly distorting its meaning or rewriting it. This may well not be
possible. It should be remembered that a statute might be seriously at odds with the
requirements of EC law, even where parliament has not, through any express
wording, manifested its intention to derogate from the Community norm. It is doubtful
whether s2(4) was intended to cure all such absences of fit.
○ Wade contends that incorporating s2(4) into a later statute (e.g. 1988 Act) ‘is merely
another way of saying taht the Parliament of 1972 has imposed a restriction on the
Parliament of 1988’ which is what ‘the classical doctrine of sovereignty will not
permit’. Nor can this be countered simply by saying that the later Parliament could
defeat the exercise of construction by expressly providing that the later statute is to
prevail over any conflicting EC law. It is by no means clear that an express provision
of the kind being postulated here would work, given the very reasoning of Lord
Bridge. Such a statutory provision itself would be held to be contrary to EC law by the
ECJ. This holding would be part of the ‘Community law to which by the Act of 1972
the Act of 1988 is held to be subject.’ In order to overcome this argument the later
statute would have to contain an express provision that it was to prevail over any
conflicting EC law and also a provision rendering the relevant provisions of the ECA
1972 inapplicable to the subject matter covered by the later statute.
 • A second way to conceptualize what the courts have done is to regard it as a technical legal
revolution (Wade’s preferred view) where the courts’ decisions are seen as modifying the
ultimate legal principle or rule of recognition on which the legal system is based. Here, the
‘rule of recognition is itself a political fact which the judges are able to change when they are
confronted with a new situation which so demands’. Such choices are made by the judiciary
at the point the law ‘stops’.
• A third way (Craig’s preferred view) is to regard decisions about supremacy as being based
on normative arguments of legal principle the content of which can and will vary across time.
On this view, there is no inexorable reason why Parliament, merely because of its very
existence, must be regarded as legally omnipotent. The existence of such power, like all
power, must be justified by arguments of principle that are normatively convincing. Possible
constrains on Parliamentary omnipotence must similarly be reasoned through and defended
on normative grounds. This fits well with Lord Bridge’s reasoning in Factortame.

Direct Effect

• The meaning of direct effect most commonly connotes the idea that individuals can bring
actions in their own names within national courts in order to vindicate rights secured to them
by the Treaty. It is in this sense a species of private enforcement of Community law. The
Treaty makes explicit provision for public enforcement of Community norms, in Article 226
EC: the Commission is charged with the responsibility of bringing before the Ech member
states which have failed to comply with the Treaty.
• The seminal case in the development of direct effect was Van Gend en Loos. Dutch
importers challenged the rate of duty imposed on a chemical imported from Germany. They
argued that a reclassification of the product under a different heading of the Dutch tariff
legislation had led to an income in the duty and that this was prohibited under Article 25
(Maastricht) which prohibits the imposition of any new customs duties on imports and also
precludes any increase in existing rates. The Dutch court asked the ECJ whether Article 12
gave rise to rights that could be invoked by individuals before their national courts. The
member states argued that the Treaty was simply a compact between states, to be policed in
the manner dictated by the Treaty, though public enforcement at the hands of the
Commission via Articles 226 and 227. They believed that DE would alter the nature of the
obligations accepted by the signatories.
• The ECJ disagreed. It held that the EEC was not simply to be viewed as a compact between
nations. The ‘interested parties’ included the people. This was affirmed by the preamble and
by the existence of institutions charged with the duty of making provisions for those
individuals. It was this crucial conceptual starting point which laid the foundation for the now
famous passage from the judgment, depicting the Community as a new legal order for the
benefit of which states have limited their sovereign rights, with the consequence that
individuals have rights and can be regarded as subjects of the Community. The ECJ
emphasized that Article 25 was a natural candidate for enforcement by individuals through
national courts. IT stressed the negative nature of the obligation, the fact that it was
unconditional and that its implementation was not dependent on any further measures before
being effective under national law.
• Following years saw DE applied to a growing number of articles and a relaxation in the
conditions for its applications.
• Questions were asked whether Community legislation passed pursuant to the Treaty could
have DE.
• With regards to Regulations, defined in Art 249 EC as having general application, they are
binding in their entirety and directly applicable in all member states. The ECJ had no
reluctance in concluding that regulations were capable of having direct effect, provided that
they were sufficiently certain and precise, which was normally the case.
• There has been more difficulty with directives. According to Art 249 EC, these are binding as
to the result to be achieved while leaving the choice of form and methods to the states to
 which they are addressed. Moreover, while regulations are binding on all states, directives
are only binding on the specific states to which they are addressed.
• While directives have proved to be more useful in achieving objectives, their very nature
seems to indicate they could not have DE: they clearly require further action on the part of
the member states, and they leave them with discretion as to methods of implementation.
• The ECJ nonetheless concluded that directives are capable of having DE holding that it
would be inconsistent with the binding effect of directives to exclude the possibility that they
can confer rights. (Van Duyn)
• The ECJ also drew on article 234, which allows questions concerning the interpretation and
validity of Community law to be referred by national courts to the ECJ. From the generality of
this provision the Court concluded that questions relating to directives can be raised by
individuals before national courts.
• A further reason for according direct effect to directives is the estoppel argument: a member
state that has not implemented the directive ‘may not rely, as against individuals, on its own
failure to perform the obligations which the directive entails’. (Pubblico Ministero v Ratti)
Provided therefore that the directive is sufficiently precise, that the basic obligation is
unconditional, and that the period for implementation has passed, an individual can dereive
enforceable rights from a directive.
• Held however that unlike with articles and regulations, for directives only vertical DE applies
• Seen in Marshall where the ECJ held that the directive in question on equal treatment could
not impose obligations on individuals, but only on the state. The reason given for this
limitation as the wording of Art 249: the binding nature of the directive existed only in relation
to ‘each Member State to which is it addressed’. The correctness of this ruling at the rationale
for this limitation are by no means self-evident and its existence has generated complex case
law. The complexity is in part the result of the doctrine f indirect effect, associated with the
important decision in Von Colson.
• Here, the applicants relied upon the provision of a directive in order to argue that the
quantum of relief was too small. The ECJ held that the provisions were not sufficiently
precise to have DE. It went on however to hold that national courts had an obligation to
interpret national law so as to be inconformity with the directive. The purpose of the directive
was to provide an effective remedy in cases of discrimination, and if states choose to fulfil
this aim through the provision of compensation then this should be adequate in relation to the
damage suffered. National courts should therefore construe their own national law with this in
mind.
• In Marleasing the ECJ held that in applying national law, whether passed before or after the
directive, a national court was required to interpret national law in every was possible so as to
be in conformity with the directive.
• Thus though in a literal sense an individual cannot derive rights from a directive in an action
against another individual, it is possible to plead the directive in such an action. Once the
directive has been placed before the national court, then the obligation to interpret national
law in fconformity with the directive whre possible, derived from Von Colson and Marleasing
comes into operation. Where the directive encapsulates precise obligations, and where the
national court is minded to interpret national law in the requires fashion, this ‘indirect’ species
of enforcement of a directive as between individuals will have mch the same results as if the
directive had been accorded horizontal direct effect.
• The interpretative obligation however does create problems for courts and litigants alike
• The jurisprudence in this area has become even more complex as a result of case law in
which the ECJ has been willing to accord some measure of ‘incidental horizontal direct effect’
to a directive in actions between private individuals. (e.g. unilever)

Direct Effect: Constitutional Implications

• DE allows individuals to derive rights that are enforceable in their own national courts from
norms derived from an International Treaty and legislation made thereunder (contrast with
classic notion of PIL)
 • In terms of national and constitutional significance this means that law derived from sources
other than Parliament and the common law will avail individuals before their own national
courts in a way which has not been so on this scale hitherto.

• The second reason why DE is of constitutional significance resides in the connection between
this concept of the supremacy of Commity law. The essence of this connection is that DE
allows for the supremacy doctrine to be applied at a national level and thereby makes it far
more potent than it would otherwise have been.
• DE enables supremacy of EC law to be enforced by individuals through their own national
courts. This renders the supremacy of EC law all the more effective for numerous reasons.
○ MSs might be more inclined to listen to their own national courts than tot eh ECJ
○ The national courts become Community courts in their own right, being able to pass
judgment on national primary legislation in the context of an action brought by an
individual.
○ DE spreads the workload of enforcing Community law, and its supremacy, across all
the individuals an the national courts of the EC.

Fundamental Rights

• Most claims to protect rights will now be brought under the HRA 98. However claimants can
still use rights-based arguments derived from Community law.
• An individual may draw on the fundamental rights doctrine as developed by the ECJ (read
again; see Solange and other cases)
• The supremacy doctrine will aplly with the consequence that national norms, including
primary legislation, which are inconsistent with Community law can be declared inapplicable
in the instant case. This is by way of contrast with the HRA where the courts are limited, in
cases involving primary legislation, to making a declaration of incompatibility under s4.
• There is now also a Charter of Fundamental Rights of the European Union.

Judicial Architecture: National Courts as Community Courts

• It is tempting to think that there are only two Community courts, the ECJ and the CFI. National
courts have general jurisdiction over matters of Community law. This is a matter worthy of
constitutional note. A conjunction of two factors explains this role (of NC’s)
• The first is the concept of DE considered above. The fact that individuals are able to enforce
their Community rights through national courts means that it will be the national judiciaries
that frequently apply Community law doctrine.
• This is reinforced by the fact that the ECJ made it clear that national courts should apply
existing case law of the ECJ and the CFI. They should therefore only refer a case to the ECJ
pursuant to Art 234 where the question before the national court had not already been
adequately answered in a previous ruling given by the ECJ. This became clear from the
decision in the Da Costa case where the facts wand the questions posed by the national court
were materially identical to those in Van Gend en Loos.
• The ECJ extended this idea in CILFIT where it held that the obligation to refer in Art 234 could
also be qualified ‘where previous decisions of the Court have already dealt with the point of
law in question, irrespective of the nature of the proceedings which led to those deicions,
even though the questions at issue are not strictly identical’.
• The application of precedent by national courts has enhanced the enforcement of community
law, and has eased the workload on the ECJ and the CFI. The Community system of
adjudication could not have functioned as it has if the national courts had not been accorded
this role.
• The EOC case considered above provides a good example of this process at work. Not only
did the HL make a declaration that provisions of a statute were incompatible with EC law. IT
did so without making a reference to the ECJ, having satisfied itself that the existing ECJ
precedents meant that the national statute was indirectly discriminatory.
The European Constitution

• Reread if necesarry