PARLIAMENTARY SOVEREIGNTY AND THE PRIMACY OF EUROPEAN COMMUNITY LAW
| Date | 01 July 1972 |
| Published date | 01 July 1972 |
| Author | F. A. Trindade |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02355.x |
PARLIAMENNTARY SOVElREiIGNTY AND
THE
PRIMACY
OF
EUgROPEAN
COMMUNITY LAW
AMONG the various issues which have been raised by the decision
of the United Kingdom to become a member of the European
Economic Communities there is one which is
of
unique interest to
constitutional lawyers and politicians alike. The question is simply
one of whether the principle of the primacy of Community law
which is embodied in the Treaties of the European Communities,
and which Member States are required to accept as a condition of
membership, will spell the end of the British doctrine of parlia-
mentary sovereignty. The Government’s view is tersely expressed
in
the White Paper of
1971:
“
there is
no
question of any erosion
of essential national sovereignty.” Not everyone, however, was
convinced by this statement and a Government backbencher was
moved to remark in the
‘‘
Great Debate
”
that
(‘
we are abolishing
Parliament at Westminster and transferring its powers to
Brussels.”
*
And, in the same Debate, the former Leader of the
Liberal Party said:
(‘
I
accept that British sovereignty will bc
impaired.
It
is misleading of Ministers to pretend that
it
will not
be. However, that is one of the good things about going into
Europe.” The issue becomes even more intriguing when one
peruses the Debate
on
the Second Reading of the European Com-
munities Bill.*
In
considering the question whether the directly
applicable provisions of the Community were designed to take
precedence over the domestic law of Member States in the sense that
they prevail in cases of conflict, the Chancellor of the Duchy of
Lancaster (Mr. Geoffrey Rippon) said
:
“
By accepting the directly applicable law in clause
2
(1)
and
accepting the jurisprudence of the European Court in clause
3
(1)
the Bill provides the necessary precedence.
In
relation to
statute law, this means that the directly applicable provisions
ought to prevail over future Acts of Parliament
in
so
far as
they might be inconsistent with them.”
Yet, only a few seconds later,
Mr.
Rippon was saying (‘Of course
nothing in this Bill abridges the ultimate sovereignty of
Parliament.”
0
1
The
Utiited
Kingdom
urrd
the
European
Coitmunities
(Cmnd.
4715,
H.M.S.O.,
2
Sir Robin
Turton,
H.C.Deb.,
Vol.
823,
col.
974.
3
Mr.
Jo
Grimond,
ibid.,
col.
1312.
4
Rill
68
of
1972.
5
H.C.Deb., February
15, 1972;
Vol.
831,
col.
278.
6
Ibid.
July
1971),
para.
29.
875
VOL.
36
376
THE
MODERN
LAW
REVIEW
The principle of the primacy of Community law is
in
a way
recognised by the proposed European Communities Act in section
2
(1)
which attempts to ensure that
:
"
All such rights, powers,
liabilities, obligations
and restrictions
from time to time created
or
arising by
or
under the Treaties,
and all such remedies and procedures from time to time pro-
vided
for
by
or
under the Treaties, as in accordance with the
Treaties are without further enactment to be given legal effect
or
used in the United Kingdom shall be recognised and available
in
law, and be enforced, allowed and followed accordingly;
and the expression
'
enforceable Community right
'
and similar
expressions shall be read as referring to one to which this
subsection applies."
In addition, section
8
(1)
requires British judges to treat
"
any
question as to the meaning
or
effect of any of the Treaties,
or
as
to the validity, meaning
or
effect of any Community instrument
"
as
a
question of law and
if
the matter is not referred to the European
Court the judges are required to determine the matter in accordance
with
"
the principles laid down by and relevant decisions of the
European Court." They are also required by section
3
(2)
to take
judicial notice of
"
the Treaties, of the
Oficial Journal
of
the Com-
munities
and of any decision of,
or
expression of opinion by, the
European Court
on
any such question
"
as referred to in section
3
(1).
This is significant because the Court of Justice of the European
Communities (hereinafter the European Court) certainly accepts
and advances the principle of the primacy of Community law. As
the Court said in
1964
in
Costa
v.
ENEL:
"
The pre-eminence of Community law is confirmed by Article
189
which prescribes that Community regulations have an
'
obligatory value and are
'
directly applicable within each
Member State.' Such a provision which,
it
will be noticed,
admits of no reservation, would be wholly ineffective
if
a
Member State could unilaterally nullify its purpose by means
of
a
Law contrary to Community dictates.
It
follows from all
these observations that the rights created by the Treaty, by
virtue of their specific original nature, cannot be judicially
contradicted by an internal law, whatever
it
might be, without
losing their Community character and without undermining
the legal basis of the Community.
"
The transfer, by Member States, from their national
order, in favour of the Community order of the rights and
obligations arising from the Treaty, caries with
it
a
clear
limitation of their sovereign right upon which a subsequent
unilateral law, incompatible with the aims of the Community,
cannot prevail."
And this view has been reaffirmed recently in
Wilhelm
v.
Bundes-
kartellamt
where the Court said that
''
conflicts between the
[1964]
3
C.M.L.R.
425,
456.
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