January 1973,
the United Kingdom (UK) joined the European Economic Community (EEC) now
referred to as the European Union (EU). A case widely accredited for laying the
doctrinaire foundation for the primacy of EU law is Costa v ENEL1 and it
was here the European Court of Justice (ECJ) established the doctrine of
supremacy of the European Community law over national law. Other member states
of the European Union have been more hesitant to accept the supremacy of the EU
law other than the United Kingdom. However, the acquisition of the supremacy of
the EU law by the UK courts has had to deal with the battle of not surrendering
the constitutional tradition. These attempts were visible in the rulings of the
UK courts and the fact that the principle of Sovereignty of Parliament
seems to contradict with the basis of the Community legal system. In 1979, Lord
Denning ruled in the case of Macarthys Ltd. vs. Smith2
that though the Acts of British Parliament are the supreme law, they need to be
interpreted in compliance with the EC law, unless the legislator explicitly
expresses the opposite opinion. In other words, the UK courts are obliged
not to enforce UK laws if it conflicts with EU obligations. (235)


When the six European States created the European Economic Community
in 1957 they did it in the form of creating a national treaty (known as the
Treaty of Rome). The treaty also created the European Court of Justice. The
role of the European Court of Justice is to ensure EU law is interpreted and
applied the same in each European state, ensuring states in the EU abide by the
EU law.3
The Court of Justice, however, does not have the power to overrule national
law; this is a job for the national courts.

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The principle of the primacy of EU law is so that if there is conflict
between EU law and the law of one of its Member states EU law prevails. It can
be argued that the UK has fully accepted EU primacy so much so that it is an independent
and overriding source of national law. Section 2 (1) of the European Community
states that all
EU law rights, obligations etc are part of UK law without further enactment. This
is seen in the case of R v Secretary of State for Transport ex parte
Factortame Ltd5, the Court of Justice ruled that the courts
in the United Kingdom had the power to “disapply” acts of parliament where they
conflict with EU. The national court to protect the EU. The case of Thoburn6
also emphasises the acceptance of EU law supremacy. Though Factortame showed
parliaments voluntary acceptance of the supremacy of EU law Thoburn showed the
more domestic acceptance of EU law supremacy. This shows that EU law has become
entrenched into domestic law as EU law could set limits on the power of
parliament which regulate the legal relationship between the EU and the UK.7


However, the principle of parliamentary sovereignty
which means that, under English constitution no body or person has the right to
override or set aside legislations of parliament EU law cannot be supreme. The
UK is a dualist state, unlike other European Countries. In a dualist state, international
law and national law are two separate systems of law: international law only
part of national law, when and to the extent that national law provides. The UK’s
dualist approach to national law Lord Denning ruled in watershed case of Macarthys
Ltd. vs. Smith.8 stating that “If our legislation is deficient – or is inconsistent
with Community law… then it is our bounden duty to give priority to Community
law. Lord Justice went on to say that there is nothing in the ECA which
allows the Court of Justice, or any other institutions of the EU, to touch or
qualify the conditions of Parliament’s legislative supremacy. The overriding act from
Parliament in Macarthys9  showed that when there is a breach in
community law and it conflicts with EU law national law prevails.


in the opinion of Trevor Hartley, there were major constitutional problems when
the UK joined the EU. Firstly, the UK is an unwritten constitution therefore it
is impossible to amend it to introduce provisions required by the treaties.

Secondly, the UK’s approach to international law is dualist and there is no
rule to allow treaties to take effect in the international legal system unlike
other European states which are monist.

1 Costa v ENEL 1964
ECR 584

Ltd. vs. Smith, Court of Appeal (Civil Division) 1979 3 All ER 325; P.P.

Craig, G. de Búrca, op.cit., p. 303-304

3 European Union. (2018). Court of Justice of the
European Union (CJEU) – European Union – European Commission. online
Available at: https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en
Accessed 1 Jan. 2018.

4 European Community
Act 1972 Section 2 (1)

5 R v Secretary of
State for Transport ex ex parte Factortame Ltd (No 1) 1990 AC 85: (No 2) 1991 1 All ER 70

6 Thoburn v
Sunderland CC (2002) 1 CMCR 50

7 Costa v ENEL (1964)
ECR 585

8 Macarthys
Ltd. vs. Smith, Court of Appeal (Civil Division) 1979 3 All ER 325; P.P.

Craig, G. de Búrca, op.cit., p. 303-304

9 Macarthys
Ltd. vs. Smith, Court of Appeal (Civil Division) 1979 3 All ER 325; P.P.

Craig, G. de Búrca, op.cit., p. 303-304


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