THE EUROPEAN COURT OF JUSTICE AND

THE SUPREMACY OF EC LAW

I. INTRODUCTION
In the making and promulgation of Community law, the European Court of
Justice (ECJ) plays a crucial role. Many of the fundamental doctrines of EC law are
not to be found in the reaties, or secondary EC legislation, but in the case law of the
European Court.
!o pro"ision of the reaty on European #nion (E#) contains an e$press term
regulating the issue of the supremacy between the Community and the "arious
national laws of the Member %tates. he only implied reference to the issue of
supremacy is &rticle '(
'
of the E# which imposes a duty on all Member %tates to
adopt appropriate measures to ensure that the obligations of the reaty are
obser"ed, together with an additional duty to abstain from all acts which might
)eopardise the achie"ement of the ob)ecti"es of the reaty.
&rticle '( states that*
Member States shall take all appropriate measures, whether general or
particular, to ensure fulfillment of the obligations arising out of this Treaty or
resulting from action taken by the institutions of the Community. They shall
facilitate the achievement of the Communitys tasks.
They shall abstain from any measure which could eopardise the attainment of
the obectives of this Treaty.!.
hus, the principle of the supremacy of Community law o"er national law was
first established by the European Court of Justice whose role is e$plicitly stated in
&rticle ++(
+
of the E#*
'
e$ art. , of the EC reaty
+
e$ &rt. '-. of the EC reaty
The Court of "ustice shall ensure that in the interpretation and application of
this Treaty the law is observed.!
/rior to an analysis of the doctrine of supremacy and the rele"ant case law
and implementation of the doctrine, an introduction into the composition, structure
and practices of the European Court of Justice (ECJ) will be followed.
+
I. THE EUROPEAN COURT OF JUSTICE
Composition and Structure
he ECJ, to which the Court of 0irst Instance (C0I) is attached, is the )udicial
branch of the Community. It has been described by %haw as 1a heroin figure in the
development of the #$2. he ECJ, which sits in 3u$embourg, now has ', )udges who
are assisted by 4 &d"ocate56enerals (&6s). Each Member %tate (M%) is entitled to
appoint a )udge of its own nationality.
he appointment of all )udges is re7uired by &rticle ++8 E#
8
to be*

by common accord of the %overnments of the Member States!.
he term of office is si$ years and the appointment of new )udges or
reappointment (for another term) of the e$isting )udges is staggered so that there will
be a partial replacement of )udges e"ery 8 years.
he )udges select one of their number to be /resident of the Court for a
renewable term of 8 years. he /resident directs the work of the Court and presides
at hearings and deliberations.
he ECJ is assisted by 4 &6s. 0i"e of the 4 &6s should be appointed by the ,
largest Member %tates, the remaining to be appointed by the other Member %tates
on a system of rotation. heir duty, which is set out in &rt. +++ E#
.
is,
to make, in open court, reasoned submissions on cases brought before the
#C"! with complete impartiality and independence.
,
8
e$ &rt. '-9 : EC reaty
.
e$. &rt. '-- : EC reaty
,
heir duties should not be confused with those of a prosecutor or similar official : that is the role of
the Commission, as guardian of the Community;s interests.
8
he 7ualifications for selection, method of appointment and conditions of office
of the &ttorney 6enerals are the same as for the )udges of the Court.
he 7ualifications for selection as a )udge of the ECJ are stated in &rticle ++8
E#
-
and re7uire*
persons whose independence is beyond doubt and who possess the
&ualifications re&uired for appointment to the highest udicial offices in their
respective countries or who are urisconsults of recognised competence.!
0urthermore, )udges may not hold any other political or administrati"e office
while they are members of the Court.
In accordance with their respecti"e traditions, certain Member %tates ha"e
appointed academics to sit as )udges, whereas others : such as the #.<. : ha"e
nominated e$isting national )udges or practicing ad"ocates.
&lthough states tend to select their own nationals, the reaty clearly re7uires
that the )udges be entirely independent of their national go"ernments. Judging from
the nature of the ECJ;s )urisprudence, the wishes of indi"idual Member %tates ha"e
had little influence on its decisions5making.
#nder &rticle ++' E#
9
the ECJ is permitted to sit in Chambers of 8 or , as
well as in plenary session. he court will, howe"er sit in plenary session when a
Member %tate or a Community Institution which is party to the proceedings so
re7uests, or in particularly comple$ or important cases.
he organisation of the Court is regulated by a separate /rotocol to the EC
reaty : /rotocol on the %tatute of the Court of Justice.
Matters of procedure are regulated by this /rotocol, including the content of
oral and written pleadings, citation of witnesses, costs and e$penses etc.
-
e$ &rt. '-9 : EC reaty.
9
e$ &rt. '-, : EC reaty.
.
he problem of o"er burdening the Court apparently continues to grow
=
despite the temporary easing of the caseload which the establishment of the C0I, in
'4== initially brought about.
>ther than the appeal on a point of law from the decisions of the C0I to the
ECJ, there is no further appeal from the )udgments of the ECJ, which is the ultimate
or supreme Court of the EC.
The Court of First Instance (CFI)
Composition
he %ingle European &ct, ('4==) authorised the Council of Ministers to create
a C0I to alle"iate the "olume of work before the ECJ.
he aim of the creation of the C0I in '4=4 was to strengthen the )udicial
safeguards a"ailable to indi"iduals by introducing a second tier of )udicial authority
and enabling the ECJ to concentrate on its essential task, the uniform interpretation
of Community law.
he C0I consists of ', )udges who are appointed by agreement between
Member %tates for periods of - years. here are no permanent &6s. he duties of an
&6 are performed by one of the )udges.
Jurisdiction
he C0I does not e$tend the )urisdiction of the ECJ, but rather, it e$ercises
certain aspects of the Court?s functions.
he )urisdiction e$tends to the following classes of cases*
- staff cases
=
%ince it was set up in '4,+, more than =,-(( cases ha"e been brought before the Court.
,
- competition cases
- cases under the EC%C reaty
- anti5dumping cases
It has no )urisdiction to hear preliminary rulings.
0urthermore, according to &rt. ++, E#, decisions of the C0I are sub)ect to an
appeal to the ECJ on points of law only.
Enforcement of EC Law in Domestic Courts
3ike any true legal system, the Community legal system needs an effecti"e
system of )udicial safeguards when Community law is challenged or must be applied.
he ECJ, as the )udicial institution of the Community, is the backbone of that
system of safeguards. It is responsible for interpreting 7uestions of EC law and
pro"ision is made in the reaty for references to the ECJ by national courts.
@ecisions of the ECJ, upon a reference, are reached by ma)ority "ote and are binding
on all domestic courts of all Member %tates. #nder &rticle +8. E#
4
it is pro"ided
that*
The Court of "ustice shall have urisdiction to give preliminary rulings
concerning
'a( The interpretation of the Treaty)
'b( The validity and interpretation of acts of the institutions of the
Community*
where such a &uestion is raised before any court *of a Member State that
court*..may, if it considers that a decision on the &uestion is necessary to
enable it to give udgment, re&uest the #C" to give a ruling**..+here any
such &uestion is raised**before a court of a Member State against whose
4
E$ &rt.'99 EC reaty
-
decisions there is no udicial remedy under national law, the court**shall
bring the matter before the Court.!
It is through this &rticle that the ECJ has achie"ed the principle of supremacy
and its uniform application in all Member %tates when Community law may be in
conflict with domestic legislation. In C,-.,T ('4=8) the ECJ emphasised that the
purpose of the then &rt. '99 was to ensure the proper application and uniform
interpretation of EC law in all Member %tates.
Aowe"er, preliminary references procedure depends on the effecti"eness of
cooperation between the ECJ and national courts. he power to ask for a preliminary
ruling rests solely with the national court and the power of the ECJ is limited to an
interpretation of EC law
'(
.
In procedural terms, indi"iduals still ha"e no right of appeal to the ECJ and the
national court can decide whether a reference is necessaryB the Court;s )udgements
are still, in theory, at least, only gi"en on points of interpretation and "alidity.
Aowe"er, following the many changes that the Community has gone under,
the ECJCs role has been e"olutionary, siting at the ape$ of the Community )udicial
hierarchy. he increasing emphasis which the ECJ places on &rticle '( E#,
rendering Community law applicable to national courts as well as to the political arm
of Member %tates, is merely one important manifestation of this process in operation.
he Community as a whole is in a state of transition, and it would be
surprising if the relationship between the ECJ and the national courts were to remain
immune from the wider changes. &s the Community mo"es towards a closer social
and political union, one could well e$pect the ECJ to cement its position at the ape$
of the )udicial hierarchy.
II. THE DOCTRINE OF SUPREMACY PRINCIPLE
'(
%ee also case '(.D94, /as&uale .oglia v. Mariella 0ovello ('4=()' ECE 9.,, ('4=') CM3E ., and
Case +..D=(, /as&uale .oglia v. Mariella Movello (!F+) ('4=') ECE 8(.,, ('4=+) CM3E
,=,.
9
he ECJ, as the guardian of legality and instrument of cohesion within the
Community, has, from the start been in a strong position to define the status of
Community law and to gi"e it precedence when in conflict with the national legal
systems of the "arious Member %tates.
he first case where the Court made a statement on the nature of European
law is the famous case of 1an %end en -oos v. 0etherlands ('4-8)
''
dealing with the
principle of direct effect of EC reaty pro"isions and the degree to which indi"iduals
can rely on such terms to challenge measures of national law.
In that case, which will be dealt with in detail later on, the ECJ stated that*
The obective of the ##C Treaty, which is to establish a Common Market, the
functioning of which is of direct concern to interested parties in the Community,
implies that this Treaty is more than an agreement which merely creates mutual
obligations between the contracting states*
The Community constitutes a new legal order of international law for the
benefit of which the states have limited their sovereign rights, albeit within limited
fields, and the subects of which comprise not only Member States but also their
nationals!.
he reasoning of the Court in the case is brief and apart from its elaboration
on the concept of direct effect, where it stressed the need for direct enforcement by
national courts of Community norms, little more was said about the need for national
courts to accord primacy to EC law o"er conflicting national law. he Court?s focus in
1an %end was on whether &rticle '+ (customs duties on imports from Member
%tates to other Member %tates) could gi"e rise to so5called direct effects 5 the
immediate enforceability in national courts by indi"idual applicants of reaty
pro"isions 5 so that an indi"idual could rely on and ha"e that &rticle enforced before
domestic courts.
''
Case +-D-+ ('4-8) ECE ', ('4-8) CM3E '(,.
=
he approach of the Court was based on the Court?s "ision of the kind of
Community which those reaties had set out to create, and the kind of legal system
which the effecti"e creation of such a Community would necessitate.
It was in a second important case, two years later, howe"er, that the ECJ
e$panded on its constitutional theory of the Community, declaring again that the
states had created a so"ereign Community by limiting their own so"ereign rights.
he case was Costa v. #0#- ('4-.)
'+
and the facts were as follows*
&n indi"idual was claiming before his local court that the law nationalising
production and distribution of electricity was incompatible with the EC reaty. he
local court referred the 7uestion to the ECJ for a preliminary ruling.
he ECJ in its )udgment emphasised the unlimited duration of the Community,
the autonomy of Community power, both internally and e$ternally, and especially the
limitation of competence or transfer of powers from the states to the EC.
he Court was determined to show that the words and spirit of the treaty!
necessarily implied that*
,t is impossible for the states to set up a subse&uent unilateral measure
against a legal order which they have accepted on a reciprocal basis!.
he Court found the primacy of EC law confirmed by the wording of &rticle
'=4 EC reaty
'8
under which regulations ha"e 1binding2 force and are directly
applicable in all Member States!.
he Court pointed out that this pro"ision which is not 7ualified by any
reser"ation 1would be meaningless if a state would unilaterally nullify its effect by
means of legislative measures which could prevail over #C law!.
'+
Case -D-. ('4-.) ECE ,=,B ('4-.) CM3E .+,.
'8
now &rt. +.4 E#.
4
he Court was thus able to reach a conclusion in Costa in words which ha"e
become classic and ha"e had considerable influence in national decisions*
,t follows from all these observations that the law stemming from the Treaty,
an independent source of law could not, because of its special and original nature,
be overridden by domestic legal provisions, however framed, without being deprived
of its character as Community law and without the legal basis of the Community itself
being called into &uestion.
The transfer by the states from their domestic legal system to the Community
legal system of rights and obligations arising under the Treaty carries with it a
permanent limitation of their sovereign rights against which a subse&uent unilateral
act incompatible with the concept of the Community cannot prevail!.
&s in the case of 1an %end, the Court made no reference to the constitution of
any particular Member %tate to see whether such a transfer or limitation of
so"ereignty was contemplated or e"en was possible in accordance with that
constitution.
0urthermore, the Court drew on the spirit and the aims! of the reaty to conclude
that it was impossible! for the Member %tates to accord primacy to domestic
laws.
he spirit of the reaty re7uired that they all act with e7ual diligence to gi"e full
effect to Community laws which they had accepted on the basis of state
reciprocity! : meaning presumably that since each state was e7ually bound by
laws passed for the Community as a whole, they had all agreed that no one of
them would unilaterally derogate from reaty obligations. &nd since the aims! of
the reaty were those of integration and co5operation, their achie"ement would be
undermined by one Member %tate refusing to gi"e effect to a Community law
which, should bind all.
'(
In 1an %end and Costa v. #nel the Court set out its theorical basis for the
principle of supremacy of Community law. he force and practical application of the
principle became clearer still in its later decisions.
In the following case, the Court made clear that the legal status of a conflicting
national measure was not rele"ant to the 7uestion whether Community law should
take precedence* not e"en a fundamental rule of national constitutional law could, of
itself, be in"oked to challenge the supremacy of a directly applicable EC law*
,nternationale 2andelsgesellschaft v. #infuhr ('49()
'.
3ecourse to the legal rules or concepts of national law in order to udge the
validity of measures adopted by the institutions of the Community would have an
adverse effect on the uniformity and efficacy of Community law. The validity of such
measures can only be udged in the light of Community law**.
The validity of a Community measure or its effect within a Member State cannot
be affected by allegations that it runs counter to either fundamental rights as
formulated by the constitution of that state or the principles of a national
constitutional structure!.
his decision ga"e rise for some time to a potentially serious deadlock in relations
between the 6erman Constitutional Court, which held that the Community deposit
system breached a fundamental pro"ision of the national legal order, and the ECJ,
which denied that national constitutional principles could ha"e any effect on the
domestic applicability of Community law.
Gut far from backing off from its claims, the Court continued to emphasise the
importance of ensuring that the supremacy of Community law was not simply a
matter of principle or of theory only, but was gi"en practical effect by all national
courts in cases arising before them.
'.
Case ''D9( ('49() ECE ''+,B ('49() CM3E +,,.
''
It is howe"er, interesting to note that following this case, the ECJ e"ol"ed the
concept of E# fundamental rights declaring them to be general principles of law that
the Court will apply within the framework of Community law
In Simmenthal S/4 ('49=)
',
an Italian )udge was faced with a conflict between a
Council Eegulation on the common organisations of the market in beef and "eal and
the Italian "eterinary and public health laws.
#nder Italian law, domestic legislation contrary to EC Eegulations may be held to
be unconstitutional but only by such declaration from the Constitutional Court and not
by the ordinary courts.
%hould the Italian )udge of 0irst Instance disregard inconsistent national
legislation without waiting for its repeal from the Constitutional CourtH
In a reference to the ECJ on the 7uestion, the latter held that the national court
was under a duty to gi"e full effect to Community law e"en where there was a
conflicting pro"ision of national law and without waiting for a higher court to rule on
the matter.
#very national court must**.apply Community law in its entirety and protect
rights which the latter confers on individuals and must accordingly set aside any
provision of national law which may conflict with it, whether prior or subse&uent to the
Community rule!.
Simmenthal is an interesting case, since it spells out the practical implications
for the Community legal order of the principles of supremacy and direct effect.
he facts of it highlighted a further problem for national courts* what if the national
court was one which had no )urisdiction in the domestic legal system to 7uestion or to
set aside national legislati"e actsH
',
Case '(-D99 ('49=) ECE -+4B ('49=) 8 CM3E +-8
'+
he clear implication of the Court?s response was that, e"en if the only national
court empowered to pronounce on the constitutionality of a national law is the
Constitutional Court, ne"ertheless, if such a case arises before any other national
court, that court is bound to gi"e immediate effect to Community law without awaiting
for the ruling of the Constitutional Court.
Ie therefore see how Community law has 1conferred2 on domestic courts :
indeed how it has re7uired them to e$ercise : powers and )urisdiction which they did
not ha"e under national law. he key emphasis in these decisions is on the principle
of effecti"eness.
his certainly became clear in the #.<. after the ruling in the well5known
.actortame litigation ('44()
'-
, on the 7uestion of interim relief against a pro"ision of
national law which appeared to conflict with one of Community law.
he facts of the case were as follows*
he #.<. Merchant %hipping &ct '4== operated to e$clude from registration
for purposes of fishing permits 4, fishing "essels owned by %panish nationals who
challenged the &ct on the basis of breach of the EC reaty : (discrimination by
nationality). he #.<. Court asked the ECJ for a preliminary ruling. In the meantime,
interim relief was granted and then lifted on the basis that that remedy did not lie
against the Crown in English law.
he ECJ ruled that interim relief must be a"ailable and that this obligation
o"errode conflicting domestic principles. he domestic court was re7uired to set
aside national law, if that would ha"e pre"ented the grant of interim relief gi"ing effect
to EC law.
his was re7uired to enable effecti"e enforcement of Community law*
*..the full effectiveness of Community law would be ust as much impaired if
a rule of national law could prevent a court**granting interim relief in order to
ensure the full effectiveness of*Community law!.
'-
(!o +) Case C+'8D=4 ('44() ECE +.88B ('44()8 CM3E =-9
'8
&ccording to -ord 5ridge of the Aouse of 3ords
'9
,
,f the supremacy within the #uropean Community of Community law over the
national law of Member States were not always inherent in the ##C Treaty, it was
certainly well established in the urisprudence of the #C"!.
hus, in so far as the Court was concerned, by '44(, the principle of
supremacy of Community law and its practical effecti"eness amongst Member %tates
were established beyond 7uestion.
Aowe"er, the theory?s practical application is ultimately dependent on the
internal acceptance and adaptation of the constitutional orders of the Member %tates.
&nd as 4% 3oemer noted in 1an %end en -oos the constitutional orders of some of
the Member %tates do not easily accommodate the principle of supremacy.
he accommodation so far reached by the courts of "arious Member %tates
on this issue will now be e$amined. 0or reasons of time, only some Member %tates
will be discussed, although e"ery state has its own interesting constitutional
perspecti"e to offer.
'9
E ". %ecretary of %tate, e$ parte 0actortame (!o ') ('4=4)+ I3E 444
'.
III. THE PRINCIPLE OF SUPREMACY IMPLEMENTATION
E!E" ST#TES
#nder /ublic International 3aw (/I3), there are + conceptions regarding the
transfer or delegation of so"ereign powers to international organisations*
Monism @ualism
/I3J national law part of one single
system with /I3 taking precedence.
ie @utch J 0rench constitutions pro"ide
that duly ratified international obligations
preside o"er municipal law.
&lso, Gelgian courts achie"ed the same
result in absence of e$plicit constitutional
pro"ision by proclaiming that international
obligations ha"e effect superior to
domestic law.

directly speak of transfer powers.
/I3 J national law separate systems,
each supreme within its own spheres.
ie #< here you need incorporation of
/I3 into national law by national &ct of
/arliament in the form of a statute
54 v. -aker and 5lackburn case
European Communities &ct, '49+.

always seeking statutes to conform to EC

law.
In practice, there is little difference in the application of EC law.
In France, there was not any particular constitutional problem since the
constitution pro"ides that international treaties ha"e a direct effect and are accorded
supremacy.
In accordance, &rticle ,, of the 0rench Constitution of '4,= states that*
Treaties or agreements duly ratified or approved shall*..have an authority
superior to that of -aws.!
',
Aowe"er, the Conseil d;Etat, the supreme administrati"e court had difficulties
in accepting the supremacy of Community law.
In the case of Semoules ('49()
'=
, the problem was e$pressed as a
)urisdictional one* he Conseil d;Etat ruled that, since it had no )urisdiction to re"iew
the "alidity of 0rench legislation, it could not find such legislation to be incompatible
with Community law, nor could it accord priority to the latter. @ecisions on the
constitutionality were matters for the Conseil Constitutionnel : the Constitutional
Council.
Aowe"er, in the "ac&ues 1abres
'4
case in '49,, the Court of Cessation : Cour
de Cassation : the highest of the ordinary )udicial Courts : took a different "iew and
ruled that when a conflict e$ists between an internal law and a duly ratified
international act! which has thus entered the internal legal order (&rt. ,, of the
Constitution) the Constitution itself accorded priority to the latter.
It was not until '4=4 in 0icolo case
+(
, howe"er, that the Conseil d;Etat finally
abandoned its so5called splendid isolation! and decided to adopt the same position
as the Conseil Constitutionnel and the Cour de Cassation.
he caution displayed by the 0rench Conseil d;Etat in its approach to the
supremacy of Community law is e"ident in the case law of many other Member
%tates. he Court of Justice;s "iew that national law can ne"er take precedence o"er
directly effecti"e EC law on account of a transfer of so"ereignty by the Member
%tates and the spirit of the #C Treaty! is not unconditionally accepted by the courts
of Member %tates. In 0rance, the main obstacle to the recognition of supremacy of
EC law was the )urisdictional limitation of the 0rench courts. In other Member %tates,
in particular in $ermany, the difficulties which arose related to the fundamental
constitutional nature of the national legislation which appeared to contra"ene
Community law.
'=
@ecision of ' March, '4-= in Syndicat %6n6ral de .abricants de Semoules de .rance ('49() CM3E
84,
'4
@ecision of +. March '49, in 4dministration des 7ouanes v. Soci6t6 8 Caf6s9"ac&ues 1abre : et
S43- +eigel et Cie ('49,) + CM3E 88-
+(
@ecision of +( >ct., '4=4 in 0icolo ('44()I CM3E '98
'-
&rticle +. of the 6erman Constitution allows for the transfer of legislati"e
power to international organisations, but in litigation which arose o"er apparent
conflicts between Community legislation and pro"isions of the 6erman Constitution,
the e$tent of power which would be transferred in accordance with this &rticle was
7uestioned.
In particular, the focus of the case law was on whether &rticle +. permitted the
transfer, to an organisation outside the 6erman constitutional structure of a power to
contra"ene certain basic principles protected under the Constitution itself.
.ollowing the ECJ;s ruling in ,nternationale 2andelsgesellschaft
;<
, the 6erman
&dministrati"e Court ruled that the compulsory scheme regarding the Community
deposit system breached basic principles of 6erman constitutional law (compulsory
payment of money cannot be imposed in the absence of fault) and it re7uested a
ruling from the 0ederal Constitutional Court.
he latter refused to recognise the unconditional supremacy of Community
law. he ma)or ob)ection was a concern o"er the possible impact on basic rights
enshrined in the 6erman Constitution of conflicting measures of Community law. 0or
this reason, it held that the clause in the 6erman Constitution which allowed for the
transfer of legislati"e power to international organisations would not co"er a transfer
of power to alter or amend an inalienable essential feature! of the 6erman
constitutional structure, such as its e$press protection for fundamental rights. It
concluded by saying that the protection for fundamental rights in the 6erman
Constitution would ha"e to pre"ail in the e"ent of any conflict.
Aa"ing considered "arious changes in Community law since the time of the
'49. decision, including the de"elopment by the ECJ of a doctrine of protection for
fundamental rights, and the fact that all Member %tates by this stage acceded to the
European Con"ention of Auman Eights, the 6erman Court in Solange II ('4=9)
++
held
that*
+'
('49+) CM3E '99, at '=.
++
3e +unsche 2andelsgesellschat, @ecision of ++ >ct. '4=- ('4=9)8 CME3 ++, at +-,
'9
So long as the #uropean Communities, and in particular the case law of the
#uropean Court, generally ensure an effective protection of fundamental rights*the
Court will no longer e=ercise its urisdiction**!
More recently, in 5runner v. the #uropean $nion Treaty ('44.) the Court had
to consider the constitutional relationship between EC law and 6erman law, on the
occasion of the ratification of the E#. It ruled that ratification was compatible with
the Constitution.
he )udgment shows that the constitutional court asserts and clearly intends to
e$ercise a power of review o"er the scope of Community competence. E"en if the
6erman courts ha"e accepted that Community law should be gi"en precedence o"er
national law, the constitutional court has made clear that it will continue to re"iew the
actions of European institutions and agencies to ensure that they remain within the
proper limits of their ac7uired powers.
In the %nited &in'dom, the acceptance of the supremacy of Community law
has certainly not been unproblematic. %ince the Gritish Constitution is largely
unwritten, it is difficult to speak of amending! it. he central obstacle to acceptance
by the #.<. of supremacy of EC law is the fundamental constitutional principle of the
so(erei'nty of )arliament. &ccording to this principle, /arliament has the power to
do anything other than to bind itself for the future. &ccording to @icey,
/arliament has, under the #nglish Constitution, the right to make or unmake
any law whatever and no person or body*.has the right to override or set aside the
legislation of /arliament!.
0urthermore, the doctrine of implied repeal means that no /arliament can bind
its successor, and no /arliament can be bound by its predecessor. &ny &ct is thus
"ulnerable to change by a future /arliament.
Iith those problems in mind, it was ne"ertheless decided to gi"e internal legal
effect to Community law by means of an &ct of /arliament (dualist state)* the
European Communities &ct, '49+.
'=
Section *(+) establishes a legal basis within domestic law for directly
applicable EC laws
as in accordance with the Treaties and without further legal enactment to be
given legal effect or use in the $.>* and* shall be recognised and available in law!.
he section aims to make the concept of direct effect a part of the #.<. legal
system. It states that law which under the EC reaties is to be gi"en immediate legal
effect, is to be directly enforceable in the #<.
Section *(,) accords e$isting and future priority to EC laws.
4ny enactment passed or to be passed*.shall be construed and shall have
effect subect to the foregoing provisions of this section!.
0urthermore, section - states that*
.or the purposes of all legal proceedings any &uestion as to the meaning or
effect of any of the Treaties, or as to the validity, meaning or effect any Community
instrument, shall be treated as a &uestion of law and, if not referred to the #uropean
Court, be for determination as such in accordance with the principles laid down by
and any relevant decision of the #uropean Court or any Court attached thereto!.
It is therefore apparent that the supremacy of EC law is recognised in the #.<.
by "irtue of domestic legal processes and legal theory.
he principle of supremacy was in theory recognised by English )udges.
@espite earlier )udicial comments to the contrary
+8
, the English Master of the
Eolls, 3ord @enning, in the case of Shields v. Coomes '2oldings( -td
+.
('494)
demonstrated a willingness to accept the principle of supremacy of Community law.
In 5ulmer v. 5ollinger '<?@A(
;B
he furthermore held that*
+8
.eli=stone 7ock and 3ailway Company v. 5ritish Transport and 7ocks 5oard ('49-) + C3E -,,.
+.
('494)' &ll EE .,-.
+,
('49.) Ch .('
'4
The Treaty is like an incoming ride. +e must no longer speak or think of
#nglish law, as something of its own. +e must speak and think of Community law, of
Community rights and obligations and we must give effect to them!.
Gut again, this did not pre"ent )udicial difficulties from arising o"er the practical
recognition of the supremacy of EC law o"er national law.
In Macarthys v. Smith
;C
, a genuine conflict appeared to arise between &rticle
''4 of the EC reaty concerning e7ual pay and section ' of the E7ual /ay &ct '49(
in the #.<.
It was held by the Court of &ppeal that priority should be gi"en to Community
law following section +(') and (.) of the European Communities &ct, '49+.
Aere, then, is the )udicial reconciliation of /arliamentary %o"ereignty with the
supremacy of EC law. Gut the o"erriding of the &ct of /arliament is to be seen as a
fulfillment of the /arliamentary intention : the intention to comply with directly
effecti"e Community law : and if it is made clear that the legislati"e contra"ention of
Community law was intentional, then domestic law must pre"ail.
In other words, the supremacy of EC law is assured in the #.<. only in so far
as /arliament intends it to be, and the courts ha"e no power to undermine the clear
will of /arliament, whether or not it presents a breach of Community law
+9
.
he .actortame -itigation
+=
earlier discussed, shows that, although an
e7uilibrium may now ha"e been reached in the relationships between #.<. courts
and the ECJ as to the re7uirements of supremacy of EC law, the obligations of the
#.<. courts stem from the e$press will of /arliament, and not directly from the
reaties*
+-
('494) 8 &ll EE 8+,
+9
see . &llan, 1/arliamentary SovereigntyD -ord 7enningEs 7e=terous 3evolution2 ('4=8)8 - >3% ++
+=
('44()+ &C=, and ('44')' &C -(8.
+(
+hatever limitation of its sovereignty /arliament accepted when it enacted the
#uropean Communities 4ct <?@;,*was entirely voluntary!.
hus, in conclusion we see that the bidimensional picture of the supremacy of
Community law e$ists, e"en today, for although all Member %tates by now accept the
practical re7uirement to gi"e priority to EC law, few, if any, would be prepared to
abandon their super"ision of it, to ensure that the Community does not attempt to
e$tend the powers it has been gi"en.
Indi(iduals
he principle of supremacy has implications for indi"iduals. The principle of
direct effect gi"es the right to indi"iduals to plead before the national court the
pro"isions of EC legislation.
&s a doctrine which principally protects indi"iduals and often gi"es them rights
which they can rely upon as against Member %tates, it sets up a mechanism for
indi"idual or indirect enforcement of EC law making thus Community law a reality for
the citiKens of Europe.
1an %end en -oos pro"ides a clear e$ample of the approach of the Court. he
Court pointed to the fact that indi"iduals were en"isaged as being able to plead and
rely on points of EC law through the preliminary ruling procedure.
he Court set out certain criteria for the direct effect of a reaty pro"ision.
here must be*
'. a clear, negati"e, unconditional obligation on a Member %tate,
+. containing no reser"ation on the part of the M%,
8. and not dependent on any national implementing measure. (M%5no real
discretion whether to apply measure).
he Court held that &rt. '+ of the EC reaty was directly effecti"e.
+'
his process establishes pri"ate rights for indi"iduals which are enforceable in
municipal courts.
he principle applies most fre7uently in the relationship between pri"ate
indi"iduals and national authorities. his is called (ertical effect. %ome pro"isions,
howe"er, because of their nature, ha"e been recognised by the Court as ha"ing a
wider effect in that they can be in"oked against other indi"iduals. his is called
hori.ontal effect i.e. they impose obligations on other indi"iduals. eg. the reaty
pro"isions regarding the competition rules applicable to undertakings, for e$ample,
can clearly be in"oked before the national courts by one undertaking against another.
0urthermore, a "e'ulation, as described in &rticle '=4(+) EC reaty, now +.4
: E#
shall have general application. ,t shall be binding in its entirety and directly
applicable in all Member States!.
& Eegulation is defined as a general legislati"e instrument which is binding in
its entirety and which is directly applicable within the legal orders of the Member
%tates without the need of inter"ention on the part of legislati"e bodies. hus it has
horiKontal and "ertical effect.
In contrast, a Directi(e which is defined in &rt. +.4 E# too,
shall be binding, as to the result to be achieved, upon each Member State to
which it is addressed, but shall leave to the national authorities the choice of form
and methods!.
herefore, directi"es are not automatically applicable within Member %tates.
%ince directi"es are gi"en legal force through national measures, rights and
duties are conferred on indi"iduals only after incorporation into national law.
++
he conditions to be satisfied before direct effect can be pleaded are the 8
ones mentioned earlier. Aowe"er, + important limitations are placed on the
application of this principle*
(a) he principle only applies to directi"es which are unimplemented after the
date set for implementation.
(b) he Court has only been prepared to apply this doctrine to the relationship
between indi"iduals and the state ("ertical direct effect) as opposed to the
relationship amongst indi"iduals themsel"es (horiKontal direct effect). he
recent case of 7ori ('44+) reiterats this refusal.
+4
In Marshall '<?FC(
GH
and in 1an 7uyn
G<
('49.) the Court confirmed that while a
directi"e might be upheld against defaulting Member %tates, it cannot be in"oked
directly against other indi"iduals.
Aowe"er, the Court has sought to achie"e the same result though the
process of interpretation. 0or e$ample, where the Court is interpreting the terms of
an unimplemented directi"e as it applies between pri"ate indi"iduals, the Court has
obser"ed that*
,n applying national law, whether the provisions in &uestion were adopted
before or after the directive, a national court called upon to interpret it is re&uired to
do so, as far as possible, in light of the wording and purpose of the directive in order
to achieve the result pursued by the latter2
8+
* Marleasing S4 ('44+).
0urthermore, the principle of construction re7uires national courts, in
conformity with &rt. '( E#, to gi"e full effect to EC law, to interpret all national
legislation in the light of all rele"ant EC law, regardless of whether the particular
+4
@ori C54'D4+ 7ori v. 3ecrebSrl ('44.) ECE I : 88+,
8(
Case ',+D=. Marshall v. Southampton and South I +est 4rea 2ealth 4uthority ('4=-) ECE 9+8,
('4==)' CM3E -==
8'
Case .'D9.l, 1an 7uyn v. 2ome Jffice ('49.) ECE '889, ('49,)' CM3E '
8+
Case C5'(-D=4, Marleasing S4 v. -a Comercial de 4limentacion S4 ('44() ECE '5.'8, ('44+)'
CM3E 8(,, at p. .'.-
+8
pro"ision is of direct effect* EC law does not ha"e to be directly effecti"e in order for it
to benefit from the general doctrine of supremacy : 1an Colson ('4=.)
88
.
0urthermore, the ECJ has broadly defined the notion of the state to include
anything that pro"ides public ser"ice,
with sufficient statutory powers beyond those which result from normal rules
applicable between individuals!. .oster ('44')
8.

Eegional policy, health, ta$ and local authorities may be included.
0urthermore, the state may be held to be responsible in respect of breaches of
EC law, and liable in dama'es for the non5implementation of a directi"e, following
the decision in .rancovich
GB
('44') which held that*
The full effectiveness of Community rules would be impaired and the
protection of the rights which they grant would be weakened if individuals were
unable to obtain compensation when their rights are infringed by a breach of
Community law for which a Member State can be held responsible.!.
Aowe"er, 8 conditions must be satisfied*
- Implementation of the directi"e would confer rights on indi"iduals.
- Its terms should be sufficiently precise and unconditional to determine
rights.
- here should be a causal link between the breach and the loss.
he de"elopment by the Court of strong legal re7uirements in the area of
national remedies for breach of Community law has generally been welcomed as a
significant contribution to the effecti"eness of Community law, at least through the
medium of )udicial inter"ention by national courts. Aowe"er, the welcome has not
88
Case '.D=8,l 1on Colson and >amann v. -and 0ordrhein I+estfalen ('4=.) ECE '=4', ('4=-)+
CM3E.8(
8.
Case C5'==D=4, 4. .oster and others v. 5ritish %as L('44() ECE '588'8, ('44() + CM3E=88
8,
Case C5-D4( and C54D4(, .rancovich v. ,taly ('44') ECE ' : ,8,9, ('448)+
+.
been unconditional, and many commentators ha"e called on the legislati"e
institutions and political players in the Community legal process, to take appropriate
action, rather than to lea"e this area of law for the Court to de"elop through the
haphaKard process of litigation.
+,
Conclusion
It is clear that the ECJ the guardian of the Treaty! in formulating the principle
of supremacy, reaffirmed the nature and de"elopment of EC law. he supremacy of
EC law is inherent within the nature and spirit of the E#. he special and original
nature of Community law re7uires that its supremacy o"er national law is
acknowledged and followed. he ECJ will not entertain the prospect of any pro"ision
of national law, e"en of constitutional "alidity, pre"ailing o"er an inconsistent
pro"ision of Community law.
he success of this de"elopment is well profound, especially when one has in
mind that the Court in de"eloping the principle, attributed to it characteristics and
force which it considered necessary to carry through a set of profoundly altering and
potentially far reaching common goals within a group of politically and geographically
distinct nations and historically so"ereign states.
Elena /apageorgiou
3aw >fficer of Community 3aw
he 3aw >ffice of the Eepublic of Cyprus
MNDNN
+-