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Supremacy Limits: EU Law

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Supremacy Limits: EU Law

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Treaty obligations:

  • committed to common objectives / process of creating an ever closer union among the people of Europe (Maastricht Treaty 1992)
  • non-compliance / breach of international law / action against UK in European Court of Justice (ECJ)
  • Lisbon Treaty: national parliaments powers in formulation EU law / President of European Council appointed by national Governments / but also increases policy areas covered / incorporates EU Charter of Fundamental Freedoms
  • UK: Protocol that Charter not create any additional rights / not empower courts to strike down UK legislation
  • Government accepts treaty obligations / not affect Parliamentary supremacy / may restrict national sovereignty / no legal limit as Parliament can override
  • if treaty requires change in law Parliament must authorise / courts only enforce if enacted in law (Blackburn v Attorney-General)

Direct effect:

  • Doctrine: EU law / enforceable in domestic courts / if give rise to individual rights or obligations
  • Van Gend en Loos: requires national courts to give effect to EU law / if clear, precise & unconditional
  • Directives: vertical direct effect (against State or State bodies) / not horizontal (against individuals)
  • Treaties: bind Member States to apply provisions
  • directly effective EU law is supreme if conflict with national law
  • EU law must be same in all Member States / necessarily prevail over national law / legal basis of Community would be questioned if national law could override / Member States have limited their sovereign rights, albeit within limited fields (Costa v ENEL)
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Supremacy Limits: EU Law

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European Communities Act 1972 (ECA):

  • Implemented Treaty of Accession 1972 / UK committed to EU

Section 2(1):

  • broadly drafted incorporates all EU law into UK law / if in accordance with the Treaties without further enactment to be given effect in the UK / gives effect in UK to directly applicable & directly effective EU law
  • gateway provision / Treaty provisions & regulations are directly applicable (Treaty on the Functioning of the European Union) / Directives if have direct effect / UK courts obliged to apply doctrine of direct effect

Section 2(2):

  • enables UK Government to make delegated legislation to implement EU law

Section 2(4):

  • deals with conflicts between directly effective EU law & UK statutes
  • any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions of this section / pre & post 1972 legislation / UK courts give priority to directly effective EU law
  • UK legislation implementing directive / legislation designed to give effect to UK's treaty obligations to the Community / read with purposive approach / even if contrary literal meaning Litster v Forth Dry Dock
  • not if purposive approach creates distortion of national law Webb v EMO Air Cargo
  • intention to be inconsistent with EU law / Act of Parliament prevails Macarthys v Smith
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Supremacy Limits: EU Law

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European Communities Act 1972 (ECA):

Factortame Case:

  • doctrine of implied repeal / not prevent EU law prevailing over post-1972 Acts / avoids accidental conflict
  • Lord Bridge: s2(4) will prevail over later Act / s4(2) implied section in later Acts / Act is without prejudice to directly enforceable EU law right

Section 3:

  • requires UK courts to apply EU law / according to principles laid down by ECJ


  • Courts have power to review compatibility UK legislation with EU law / contrary to principle courts cannot question Act of Parliament


  • Interim injunction against Crown: prevents government from applying an Act / before final decision in litigation
  • Declaration: declaration Act not apply so as to infringe directly effective EU law right / UK law is incompatible with EU law/ merely states the law (eg R v Secretary of State for Employment, ex parte Equal Opportunities Commission)
  • No court nullified or quashed UK Acts / for incompatibility / maintains constitutional position / courts interpret on basis of ECA s2(4) / not question Parliament
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Supremacy Limits: EU Law

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State liability:

  • Individuals: can challenge UK law compatibility / may obtain damages for loss from State (Francovich) / applied in Factortame
  • Liability may arise from failure to pass Act giving effect to EU law / or defective implementation / courts questioning Parliament's authority by awarding damages
  • Constitutionally justified / Lord Bridge: whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972 was entirely voluntary (Factortame) / including developments such as Francovich damages

Democratic deficit:

  • Directly effective EU legislation / transfers powers to EU institutions to legislate for UK / not democratically accountable like UK Government
  • Deliberative procedure for EU law / usually considered by European Parliament / before decision of Council Ministers / UK MEPs & represented on Council

Legal certainty:

  • Doctrine direct effect / rights under UK law uncertain / especially Treaty provision which place obligations on individuals / drafted as framework & teleological interpretation / can cause uncertainty
  • Directives: Equal treatment directive / can be used against State (Marshall v Southampton & South West Health Authority) / failed against private body (Duke v GEC Reliance)
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Supremacy Limits: EU Law

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Fundamental rights:

  • Undermines Parliament's role as UK guardian of rights / German Basic Law overridden by EU law Handelsgesellschaft

European Union Act 2011:

  • Requires referendum before UK agrees TFEU amendments / further transfer of power to EU / statutory principle of Parliamentary supremacy in respect directly applicable or directly effective EU law


  • arguably EU law provides most serous limit to Parliamentary supremacy / especially doctrine of dircet effect / rulings of ECJ placing obligations on doemstic courts interpretation
  • although can be reversed by Parliament / ultimately ECA could be repealed / politically difficult
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