THE SOVEREIGNTY OF EUROPEAN UNION LAW

ORIGINS OF SUPREMACY:
o VAN GEND EN LOOS:
UNION CREATED A NEW LEGAL ORDER OF
INTERNATIONAL LAW FOR THE BENEFIT OF WHICH
THE STATES HAVE LIMITED THEIR SOVEREIGN
RIGHTS.
o FLAMINCO COSTA V ENEL:
APPLICANT SOUGHT TO PROVE THAT THE
NATIONALISATION OF AN ENERGY COMPANY (WHICH
HE WAS A SHAREHOLDER OF) WAS A BREACH OF
COMMUNITY LAW)
BY CREATING A COMMUNITY OF UNLIMITED
DURATION, HAVING ITS OWN INSTITUTIONS, ITS OWN
PERSONALITY, ITS OWN LEGAL CAPACITY REAL
POWERS STEMMING FROM A LIMITATION OF
SOVERIEGNTY OR A TRANSFER OF POWERS FROM THE
STATES TO THE COMMUNITY, THE MEMBER STATES
HAVE LIMITED THEIR SOVEREIGN RIGHTS AND HAVE
THUS CREATED A BODY OF LAW WHICH BINDS BOTH
THEIR NATIONALS AND THEMSELVES.

DECLARATION 17
o IN ACCORDANCE WITH WELL SETTLED CASE LAW OF THE
COURT OF JUSTICE THE TREATIES AND THE LAW ADOPTED
BY THE UNION ON THE BASIS OF THE TREATIES HAVE
PRIMACY OVER THE LAW OF MEMBER STATES.
CONTRAST BETWEEN MONAST AND DUALIST CONSTITUTIONAL
ARRANGEMENTS PARLIAMENTARY SOVEREIGNTY MEANS THAT
INTERNATIONAL TREATIES DO NOT AUTOMATICALLY BECOME
PART OF NATIONAL LAW, UNTIL GIVEN EFFECT BY A PIECE OF
ENABLING LEGISLATION. FRANCE IS MONAST, UK IS DUALIST.
EUROPEAN COMMUNITIES ACT 1972 GAVE INTERNAL EFFECT TO
EUROPEAN UNION WITHIN THE UNITED KINGDOM
o S2(1): ALL SUCH RIGHTS SHALL BE RECOGNISED AND
AVAILABLE IN LAW, AND ENFORCED AND FOLLOWED
ACCORGINGLY
o S3(1) ANY QUESTION AS TO THE MEANING OR EFFECT OF THE
TREATIES SHALL BE TREATED AS A QUESTION OF LAW
EUROPEAN UNION ACT 2011:
o S2(1) NO FURTHER TREATY AMMENDMENTS UNLESS
CONSENTED TO IN A REFERENDUM
o S18 SOVEREIGHNTY CLAUSE THE UNITED KINGDOM
REMAINS PART OF THE EU BY VIRTURE OF PARLIAMENT, AND
IT IS ONLY BY THIS VIRTUE THAT DIRECTLY APPLICABLE OR
DIRECTLY EFFECTIVE EU LAW IS RECOGNISED AS AND IS
AVAILABLE WITHIN THE UNITED KINGDOM.

INTERNATIONALE HANDELSGESELLSCHAFT:
o Case involved a possible conflict between EC regulations and the
German Constitution. The applicant argued that the EC regulation
should be invalidated due to its conflict with the Constitution. The ECJ
rejected any possibility of EC law being judged against national laws,
including constitutional norms. It held: THE VALIDITY OF A
COMMUNITY INSTRUMENT OR ITS EFFECT WITHIN A MEMBER
STATE CANNOT BE AFFECTED BY ALLEGATIONS THAT IT
STRIKES AT EITHER THE FUNDAMENTAL RIGHTS AS
FORMULATED IN THAT STATES CONSTITUTION, OR THE
PRINCIPLES OF A NATIONAL CONSTITUTION STRUCTURE.
SIMMENTHAL:
o An Italian judge was faced with a conflict between an EC regulation
and Italian laws enacted after the regulation. In Italy, domestic
legislation contrary to EC law was unconstitutional, but only the
constitutional court could make such a ruling, ordinary courts could
not. ECJ held: EVERY NATIONAL COURT MUST IN A CASE
WITHIN ITS JURISDICTION APPLY COMMUNITY LAW IN ITS
ENTIRETY AND MUST ACCORDINGLY SET ASIDE ANY
PROVISION OF NATIONAL LAW WHICH MAY CONFLICT WITH
IT, WHETHER PRIOR OR SUBSEQUENT TO COMMUNITY RULE
IT IS NOT NECESSARY FOR THE COURT TO REQUEST FOR OR
AWAIT THE PRIOR SETTING ASIDE OF SUCH PROVISIONS BY
LEGISLATIVE OR CONSTITUTIONAL MEANS.
BRASSERIE DU PRCHEUR AND FACTORTAME:
o Spanish fishermen sought injunctive relief for specific sections of the
Merchant Shipping Act 1988 which prevented them registering their
boats in the UK, and which they claimed was contrary to EU law.
Held: THE FULL EFFECTIVENESS OF COMMUNITY LAW
WOULD BE JUST AS MUCH IMPARIED IF A RULE OF A
NATIONAL LAW COULD PREVENT A COURT ... FROM
GRANTING INTERIM RELIEF IT FOLLOWS THAT IN A COURT
IN THOSE CIRCUMSTANCESIS OBLIGED TO SET ASIDE THAT
RULE.
MACARTHYS LTD V SMITH
o Dispute concerning the Equal Pay Act 1970 and Article 119 EC. Held:
OUR PARLIAMENT, WHENEVER IT PASSES LEGISLATION,
INTENDS TO FULFILL ITS OBLIGATIONS UNDER THE TREATY.
WHEN OUR PARLIAMENT PASSES AN ACT REPUDIATING
THE TREATY IT WOULD BE THE DUTY OF OUR COURTS TO
FOLLOW THE STATUTE OF OUR PARLIAMENT.
THOBURN V SUTHERLAND CITY COUNCIL
o Dispute concerned the prosecutions of the metric martyrs. DIFFERS
FROM FACTORTAME RELATIONSHIP TO BE JUDGED
EXCLUSIVELY FROM NATIONAL LAW. Held: THERE EXIST
TWO TYPES OF STATUTE, NORMAL AND CONSTITUIONAL
STATUTES. CONSTITUTIONAL STATUES ARE IMMUNE FROM
THE DOCTRINE OF IMPLIED REPEAL,ALL THE SPECIFIC
RIGHTS AND OBLIGATIONS WHICH EU LAW CREATS AARE BY

THE ECA 1972, INCORPORATED INTO OUR DOMESTIC LAW

AND RANK SUPREME. ECA IS A CONSTITUTIONAL STATUTE,
NOT DERIVED FROM THE EU, BUT RATHER PARLIAMENT.
ARTICLE 4(3) TEU THE FIDELITY PRINCIPLE REQUIRES STATES
TO ACT IN MUTUAL COOPERATION TO CARRY OUT THE
OBJECTIVES OF THE UNION