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Module Title: EU Law

Module Code: EULP215

LLB Honors/Law with Management

Introduction
Every nation has a set of laws but with the formation of the global environment and the global
citizenship views, more than countries it is a region that is gaining importance, with this in mind
all the European countries united to form the European Union which has a separate Central Bank
under which all Central Banks of the countries fall under and the EU Supreme Court of Justice
under which all the members countries supreme courts come under. The subject of discussion is
always concerned with the European Unions Supreme Court of Justice. This mean a clear
indication of resolution mechanism against the frequent conflicts among the European Union
state members will have higher priority the individual laws respectively and thus this approach is
also referred as the European Unions primary laws, which has two important decisions
considered in this context and they are as listed below..
C-106/77, Simmenthal II [1978] ECR 629: Main intention of this law is to ignore all the
incompatible laws within the European nations laws and just consider the provisions which are
in the scope of interest.
C-106/89 Marleasing [1991] ECR I-7321: These laws are applied and interpreted in the
interests of a community in a nation to avoid any conflict with the European Union community.
This basically means that if there is conflict between the member states the national law should
be applied .If, the laws do not solve the conflict then EU laws are applied in this context by
European Union Supreme Court of Justice.( Pliakos and Anagnostaras,2011,p.109)
The Statement
It is evident in most of the cases that, UK courts always accept the EUs Supreme Court of Law,
still supremacy always decision in the HS2 case. (In general HS2 Action and Alliance Limited
vs. Secretary of State for Transport [2014] UKSC 3 is considered in this context) represents an
important change of direction that is more consistent with the position of the German Federal
Constitutional Court.
The above statement is what is being discussed in the essay not from the view of EUs Supreme
Court of Justice, irrespective of the proposed changes as evident from the case details. HS2 case

(In general HS2 Action and Alliance Limited vs. Secretary of State for Transport [2014] UKSC 3
is considered in this context). The importance of this statement is that it is similar to that of the
standpoint of the German Federal Constitutional Court.(Conway,2012,p.190)
The reference in the case was used from Article 1-6 of the European Constitutional Law which
states that the EUs defined Laws and Constitution are quite followe3d from the state members
of EU, where rest of the laws are surpassed in this context. What gives the primacy a sanction is
that despite the fact that the constitution was not ratified, but in the replacement of the
constitution, role of Primacy declarations is considered against the rules as imposed by Treaty of
Lisbon.
From the discussion above, it is evident that the EU Court of Justice has most of the cases as
settled are within the scope defined and were widely accepted by the EU members in terms of
supremacy. As per the statement of Counsel of Legal Service that has the documents of
absolute supremacy of the EU law and this can be found in 11197/07 (JUR260 Opinion of the
Council Legal Service of 22June2007). This forms the base principle of the EU law of
Supremacy.
Another important aspect of the primacy law is that the principle is an inherent principle which is
specific to the nature of the European community even if it is not explicitly written out. This law
according to EU laws of Supreme Court, the law was established with the first case where it was
used:
Case 6/641Costa/ENEL,(15 July 1964)
In this case, there is no special mention in terms of primacy, which was due to the facts
identification process, further discussion related to the Court of law and thus the importance to
the facts are considered in this context.

U.K.s Stand
The above statement is true from the facts available from precedence. There has been little doubt
that the U.K. was more than willing to accommodate the absolute supremacy claim of the Court
of Justice of the European Union, the evidence of this natural acceptance state can be seen over
the case of R vs. Secretary of State for Transport, ex p Factortame Ltd.
British Parliament ruled that the U.K. Courts had the authority to dis-apply the Acts of
Parliament when they were in conflict with the European Union Law. This had been a sign of
total acceptance of the primacy of the European Union Law over the U.K. laws if there was any
form of conflict in the rulings.
UKSC 3 at [207], [2014] per Lords Neuberger and Mance
Germanys Stand

As per the Germanys Stand, it is clear that all the EU laws protects basic
right of German citizens in accordance to their laws and thus, there is no
special mention in terms of comparison both the Nations Laws in this
context. During the case of Solangel 1, the European Court of Justice ruled
that, there is no special consideration of German Laws and just imposed to
EU primacy laws, those were suited for this case. Few conflicts were
identified in this case with the steps taken by EU Supremacy and has
imposed the threat of National Identity as well within the citizens.
(Yiallourou,,2012)
Re Wuensche Handelsgesellschaft, BVerfG decision of 22 October 1986 [1987] 3 CMLR
225,265).
HS2 case (R (on the application of HS2 Action Alliance Limited) v Secretary of State for
Transport [2014] UKSC 3)

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The above case was on Appeal from [2013]EWCA Civ 920; [2013]EWHC 481 Admin. The Appeal

was heard in the Bench that comprised of:

Lord Neuberger
Lady Hale
Lord Mance
Lord Kerr
Lord Sumption
Lord Reed
Lord Carnwath
The case was heard on the 15th and the 16th of October 2013 and the Judgment was delivered on
January 22nd 2014
The Appellants in the case were: David Elvin, Charles Banner, Nathalie Lieven, and Kassie
Smith
The respondents in the case were as provided below

James Maurici,
Lean Richard Turney
Jacqueline and
Tim Mould

The Questions in the Case

The first question was related to the level of decisions made by Government with respective to
the promotion of network within the North and London in terms of HS2. Complete decisions in
this context are subjected to the environmental aspects and the corresponding risk strategies of
the project considered in this context.
The second question in the case is whether the bill procedure which is a hybrid and its
consideration of EU Law and the corresponding requirements of procedures adopted here.

Issues for Court consideration

The issues that were placed before the court in the case were:

The Judgment
The Court of Appeals rejected the Appeal and ruled against the appellants. (Conway,2012,p.190)

The Interpretation of the Judgment

The ruling the above caws shows the relationship between the Laws in UK and the EU. It also
shows the nature of the UK constitutional order which is currently in existence today. Further
directions in the required judgment are driven by Directive 2011/92/EU, where the level of
constructions of laws is linked with the state members within and external context as well.
The relevance of the case appears to be not in the issues that have been raised in the case but in
the adoption of the process laid down by the EU directive to take decisions regarding the HS2
project. The particular issue in the case was the participation of the public in the project and the
degree of involvement that could be considered permissible.. The decision for the project was
proposed to be taken from the enactment of a bill which was placed before Parliament during the
time the case was heard and was called a hybrid bill. (Lebeck,2007,p.23)
According to the Speaker of the Parliament in U.K. a hybrid bill is one that considers both the
public and private interest in terms of different categories and classes and they are interpreted
based on the priorities allocated and importances required.
Re. Hansard (HC Debates), 10 December 1962, col 45)
The procedure for a Hybrid bill is similar to that of a public bill in U.K. but with a second
reading and a third reading taking place but there is an committee that is additionally selected.
Those who have any objections to the bill being passed can place their petitions to this

committee. This is available only to those who have a parliamentary standing that has been
ratified by the parliament of U.K.
Lord Reeds interpretation and ruling was accepted by all the sitting judges. He said that
scrutinizing the legislative procedures would be an infringement on the constitutional principles
on which the relationship of the Courts in UK and the Parliament stand on. Lord Reed referred to
article 9 of the Bill of Rights 1689. The conclusion of his ruling formed the landmark
judgment that showed that the supremacy law of the Court of Justice of the European was not
necessarily sacrosanct in all respects in the U.K. and that the national law was applicable to a
national dispute which had started in the UK and not outside the UK.(Elliot,2014)
Another important aspect of the constitutional law in UK is that the application of the Doctrine
of Supremacy of the Court of Justice of the European Union depended upon the guidelines that
have been set out in the European Communities Act,1972. If there is a conflict that arises with
EU law then it is the UK Courts that have to resolve the issue by using the constitutional law of
UK since it was not a case of compatibility if EU laws and UK constitutional laws.
(Schmidt,2001,p.95)
Section -18 of the European Union Act 2011 shows that the effectiveness of the European Union
laws within the UK is attributed to the interpretation of the function of the European
Communities Act 1972. This is the relationship of the legal system of the UK with that of the
European Union. On another level, Lord Reed upheld that the EU primacy law would have to be
seen in the light of the domestic constitutional scenario and in the case of any conflict the UK
law would be binding as they were created specifically to protect the fundamental rights of the
population of UK.
This could make it difficult to apply the EU laws within the UK and said that the applicability of
the European laws within the UK was a complex matter and could not be resolved though
references and case citations. Lord Reed said that the required differentiations are done in terms
Sunderland City Council vs. Thoburn [2002]. Now the case with Admin EWHC 195
constitutional and ordinary legislation is further chosen for legal evalution.(Doukas,2009)

Constitutional law and legislation may not all be equal in a region.

Lords Neuberger and).

Lords Neuberger and Mince highlighted the claimants legal requests that the Directive should be
assessed to ascertain the amount of procedures of legislative as followed by UKs Parliament. By
following this there would be a conflict being created between the courts and the constitutional
principles on which the relationship of the court with the parliament is based.(Mannitakis,2004)
Mance s Lords Neuberger and Observation
As per the predefine Article 9, all the rights or Bills proposed for the State members are under
the consideration and proceedings of Parliament or respective debates. This has been considered
to be of the highest constitutional importance according to Lord Browne Wilkinson in the
case Re in Pepper v Hart [1993] AC 593, 638.The European Courts could not ask the UK courts
to set aside their jurisdiction or the fundamental principles that govern the legal system in UK.
The European Courts could not ask the UK courts to set aside their jurisdiction or the
fundamental principles that govern the legal system in UK. The UK Constitutional alw is of
importance more so because it is not a written constitution the constitutional laws are interpreted
from several constitutional instruments like Magna Carta, the Petition of Right 1628, the Bill of
Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of
Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the
Constitutional Reform Act 2005
It is clear from the above that the inclination of the UK through the above case ruling has
established a precedence that permits the UK laws to take prevalence over that of EU laws when
the domestic situation is such that the European law primacy cannot be used in the UK legal
system. The legal principles and the constitutional law are a creation of the needs of the people
of U.K. and therefore even as a member state of the European Union there is a distinct identity of
the people and distinct fundamental rights of the British people which cannot be undermined
solely on the basis of the EU supremacy in a situation where there is no conflict where the EU
laws need to be applied.(Lord Bridge,1991)
Summary

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The supremacy of the legal system of the European Union is for the benefit of all the member
states to ease the conflict situations that arise and needs to be used when the national laws are
unable to resolve the issue.
It is also a fact that when there is a case in the Court of Justice of the European Union the
relevant laws of the European Union courts needs to be cited and not the national law of the
country. If the case is a member country only then can a nation cite national. The conditions with
the domestic requirements in a nation make it necessary to sue that which will help to resolve the
situation internally and it is not always possible that the requirements of the UK domestic scene
will be resolved by using the EU laws. As a result, what needs to be seen is that from agreeing to
the primacy of the R laws with this ruling the UK legal system has paved the way to show the
legal sovereignty of the British courts within the UK.(Elliot,2014)

Conclusion
The similarity of the view points of the UK and the German legal system have emerged with this
ruling. Even though there is not denial to the primacy of EU law, it can provide the guidelines
but to actually enforce the law in the member state are up to the law enforcement agencies of the
member state whose allegiance would be to the national law since it is the nation that provides
the pay check. The conflict as it appears is not about the supremacy of a legal system but the
sovereignty of a legal system that has been disputed.

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References
Antonis Manitakis, Greek Constitutional Law, General Part 11, Thessaloniki: Sakkoulas,2004

Asterios, Pliakos and George Anagnostaras, Who is the Ultimate Arbiter? The battle Over
Judicial Supremacy in EU Law,2011, E.L.Rev,36(1)109

Carl Lebeck, National Constitutional Control and the Limits of European Integration: The
European Arrest Warrant in the German Constitutional Court, 2007, Public law
Issue,Springer,p.23

Christopher U Schmidt, All Bark and No Bite: Notes on the Federal Constitutional Courts
Banana Decision, 2001, ELJ7 (1) 95

Dimitrios Doukas, The Verdict of the German Federal Constitutional Court on the Lisbon
Treaty: Not Guilty, but Dont Do It Again,2009,E.L.Rev 34(6)866
Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice Combined,
University Press, 2012,p.190-192

Lord Bridge, Appeal Cases 603, 658; quoted in Craig, Paul; de Brca, Grinne (2007). EU Law,
Text, Cases and Materials (4 ed.). Oxford: Oxford University Press. 1991, pp. 367368.

Mark Elliott, Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the
qualified primacy of EU law U.K. Const. L. Blog (23rd January 2014)

Salome Yiallourou, The Doctrine of Supermacy of EU law and the Judgment of the German
Federal Constitutional Court in Gauweiler v Treaty of Lisbon(2012)