The supremacy of Union law over the laws of the member states

From a very early stage in the development of the European Economic Community (as it then was), the Court of Justice established the supremacy of what is now EU law over the laws of the member states.

The Community constitutes a new legal order … for whose benefit the states have limited their sovereign rights.

Very shortly afterwards, in Costa v ENEL [1964] CMLR 425, the Court said (at pp. 455–456):

The reception within the laws of each member State, of provisions having a Community source, and more particularly of the terms and of the spirit of the Treaty, has as a corollary the impossibility, for the member State, to give preference to a unilateral and subsequent measure against a legal order accepted by them on the basis of reciprocity …

The transfer, by member States, from their national orders in favour of the Community order of the rights and obligations arising from the Treaty, carries with it a clear limitation of their sovereign right upon which a subsequent unilateral law, incompatible with the aims of the Community, cannot prevail. (Emphasis added.)

The justification for the supremacy of EU law over national law lies in the Court’s insistence that EU law must apply uniformly in all member states.

In accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and direct 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 national legislative measures to the extent to which they would be incompatible with Community provisions.

Indeed any recognition that national legislative measures which encroach upon the field within which the Community exercises its legislative power or which are otherwise incompatible with the provisions of Community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by member states pursuant to the Treaty and would thus imperil the very foundations of the Community. (Emphasis added. Italian Finance Administration v Simmenthal [1978] 3 CMLR 263, 283.)

Furthermore, it is clear from Internationale Handelsgessellschaft mbH [1972] CMLR 255, that EU law prevails even over a fundamental doctrine of a member state’s constitution. The facts were that a German company argued that a Community Regulation was invalid because it infringed the principle of proportionality, which was a fundamental principle of the German Constitution, and the Constitution contained nothing which would give supremacy to Community law. Although the Court of Justice decided, on the facts, that there had been no breach of the principle of proportionality, the Court took the opportunity (at p. 283) to re-emphasise the supremacy of Community law:

The law born from the Treaty [cannot] have the courts opposing to it rules of national law of any nature whatsoever … the validity of a Community instrument or its effect within a member state cannot be affected by allegations that it strikes at either the fundamental rights as formulated in that state’s constitution or the principles of a national constitutional structure. (Emphasis added.)

The EU doctrine of the supremacy of EU law clearly raises a difficulty in relation to the United Kingdom. One side of the argument may be outlined thus:

The United Kingdom courts should not uphold United Kingdom legislation which is inconsistent with EU law, because (at least in the case of legislation passed after the European Communities Act 1972), the doctrine of implied repeal will operate to repeal, at least as far as is necessary for the instant case, that part of the 1972 Act which provided for the law of the EU to prevail over the law of the United Kingdom.

The other side of the argument may be outlined thus:

when passing the 1972 Act, Parliament made what is now EU law part of English law; and

it is a basic doctrine of EU law that it shall prevail over any inconsistent laws of member states; and

Internationale Handelsgessellschaft mbH (see above) shows that this basic doctrine prevails over even the most basic constitutional doctrines of member states.

The House of Lords resolved the matter in Factortame Ltd v Secretary of State for Transport (No 2) [1991] AC 603. In the context of a decision that came down in favour of the second argument, Lord Bridge said (at pp. 658–659):

If the supremacy within the European Community of Community law over the national law of member States was not always inherent in the EEC 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. Similarly, when decisions of the Court of Justice have exposed areas of United Kingdom law which failed to implement Council Directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments.

Finally, the case of Thoburn v Sunderland City Council [2002] EWHC 195 Admin [2003], QB 151 must be noted. In the context of an appeal by way of case stated to the High Court, Laws LJ expressly rejected the possibility of relying on the doctrine of implied repeal where a later statute conflicts with the European Communities Act 1972. The basis of his decision was that there is a category of ‘constitutional statutes’ (including Magna Carta, the Bill of Rights 1689, the Human Rights Act 1998, and – crucially in the present case – the European Communities Act 1972) which ‘by force of the common law cannot be impliedly repealed’. (Emphasis added.) In passing, it may be worth noting that, while this decision may well be correct in relation to the narrow point of the inapplicability of the doctrine of implied repeal in relation to the European Communities Act 1972, the House of Lords subsequently doubted the existence of a category of statutes which can properly be described as ‘constitutional’. (Watkins v Secretary of State for the Home Department [2006] UKHL 17, [2006] 2 AC 395.)