January 1973,the United Kingdom (UK) joined the European Economic Community (EEC) nowreferred to as the European Union (EU). A case widely accredited for laying thedoctrinaire foundation for the primacy of EU law is Costa v ENEL1 and itwas here the European Court of Justice (ECJ) established the doctrine ofsupremacy of the European Community law over national law. Other member statesof the European Union have been more hesitant to accept the supremacy of the EUlaw other than the United Kingdom. However, the acquisition of the supremacy ofthe EU law by the UK courts has had to deal with the battle of not surrenderingthe constitutional tradition. These attempts were visible in the rulings of theUK courts and the fact that the principle of Sovereignty of Parliamentseems to contradict with the basis of the Community legal system. In 1979, LordDenning ruled in the case of Macarthys Ltd. vs.
Smith2that though the Acts of British Parliament are the supreme law, they need to beinterpreted in compliance with the EC law, unless the legislator explicitlyexpresses the opposite opinion. In other words, the UK courts are obligednot to enforce UK laws if it conflicts with EU obligations. (235) When the six European States created the European Economic Communityin 1957 they did it in the form of creating a national treaty (known as theTreaty of Rome). The treaty also created the European Court of Justice. Therole of the European Court of Justice is to ensure EU law is interpreted andapplied the same in each European state, ensuring states in the EU abide by theEU law.
3The Court of Justice, however, does not have the power to overrule nationallaw; this is a job for the national courts. The principle of the primacy of EU law is so that if there is conflictbetween EU law and the law of one of its Member states EU law prevails. It canbe argued that the UK has fully accepted EU primacy so much so that it is an independentand overriding source of national law. Section 2 (1) of the European CommunityAct4states that allEU law rights, obligations etc are part of UK law without further enactment. Thisis seen in the case of R v Secretary of State for Transport ex parteFactortame Ltd5, the Court of Justice ruled that the courtsin the United Kingdom had the power to “disapply” acts of parliament where theyconflict with EU. The national court to protect the EU. The case of Thoburn6also emphasises the acceptance of EU law supremacy.
Though Factortame showedparliaments voluntary acceptance of the supremacy of EU law Thoburn showed themore domestic acceptance of EU law supremacy. This shows that EU law has becomeentrenched into domestic law as EU law could set limits on the power ofparliament which regulate the legal relationship between the EU and the UK.7 However, the principle of parliamentary sovereigntywhich means that, under English constitution no body or person has the right tooverride or set aside legislations of parliament EU law cannot be supreme. TheUK is a dualist state, unlike other European Countries. In a dualist state, internationallaw and national law are two separate systems of law: international law onlypart of national law, when and to the extent that national law provides. The UK’sdualist approach to national law Lord Denning ruled in watershed case of MacarthysLtd. vs. Smith.
8 stating that “If our legislation is deficient – or is inconsistentwith Community law… then it is our bounden duty to give priority to Communitylaw.
Lord Justice went on to say that there is nothing in the ECA whichallows the Court of Justice, or any other institutions of the EU, to touch orqualify the conditions of Parliament’s legislative supremacy. The overriding act fromParliament in Macarthys9 showed that when there is a breach incommunity law and it conflicts with EU law national law prevails. Furthermore,in the opinion of Trevor Hartley, there were major constitutional problems whenthe UK joined the EU.
Firstly, the UK is an unwritten constitution therefore itis impossible to amend it to introduce provisions required by the treaties.Secondly, the UK’s approach to international law is dualist and there is norule to allow treaties to take effect in the international legal system unlikeother European states which are monist. 1 Costa v ENEL 1964ECR 5842MacarthysLtd. vs.
Smith, Court of Appeal (Civil Division) 1979 3 All ER 325; P.P.Craig, G. de Búrca, op.cit., p. 303-3043 European Union. (2018).
Court of Justice of theEuropean Union (CJEU) – European Union – European Commission. onlineAvailable at: https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_enAccessed 1 Jan. 2018.4 European CommunityAct 1972 Section 2 (1)5 R v Secretary ofState for Transport ex ex parte Factortame Ltd (No 1) 1990 AC 85: (No 2) 1991 1 All ER 706 Thoburn vSunderland CC (2002) 1 CMCR 507 Costa v ENEL (1964)ECR 5858 MacarthysLtd. vs.
Smith, Court of Appeal (Civil Division) 1979 3 All ER 325; P.P.Craig, G. de Búrca, op.
cit., p. 303-3049 MacarthysLtd. vs.
Smith, Court of Appeal (Civil Division) 1979 3 All ER 325; P.P.Craig, G. de Búrca, op.cit.
, p. 303-304