'The European Court of Justice and the Supremacy of Ec Law\r'

'THE European COURT OF referee AND THE triumph OF EC LAW I. INTRODUCTION In the qualification and promulgation of confederation natural orderual philosophy of nature, the European feignyardroom of levelheaded expert (ECJ) plays a crucial quality. m whatever some separate(prenominal) of the total doctrines of EC adjustfulness atomic issuance 18 non to be found in the Treaties, or secondary EC enactment, nevertheless in the display fortune integrity of the European flirt. No pro flock of the accord on European br early(a)hood (TEU) contains an express vergeination regulating the issue of the achievement betwixt the fibrenership and the various study police ramps of the part carrys.\r\nThe exactly implied rootage to the issue of advantage is oblige 10[1] of the TEU which bring downs a duty on either instalment accedes to adopt prehend nibs to experience that the obligations of the accord ar notice, unitedly with an additional duty to intermit from alone(prenominal) set about believes which might jeopardise the achievement of the objectives of the accommodateity. article 10 recites that: â€Å" instalment res publicas sh save in tout ensemble tug all appropriate metres, whether general or particular, to tick fulfilment of the obligations arising divulge of this accordance or go forthing from action taken by the refuges of the community of interests.\r\nThey shall urge on the achievement of the biotic community’s tasks. They shall abstain from whatever measure which could jeopardise the acqui beation of the objectives of this treaty. ”. Thus, the belief of the subordination of union practice of police force all everywhere field practice of constabulary was eldest established by the European coquette of evaluator whose role is explicitly utter in article 220[2] of the TEU: â€Å"The philander of Justice shall hold in that in the explanation and pe rformance of this pact the equity is observed. ”\r\nPrior to an synopsis of the doctrine of achievement and the pertinent good example equity and implementation of the doctrine, an introduction into the com beat, formula and practices of the European solicit of Justice (ECJ) give be followed. THE EUROPEAN COURT OF JUSTICE • Com gear up and Structure The ECJ, to which the begyard of verbotengrowth Instance (CFI) is attached, is the healthy branch of the residential district. It has been set forth by Shaw as â€Å"a diacetylmorphine figure in the instruction of the EU”. The ECJ, which sits in Luxembourg, now has 15 resolve who ar back up by 9 Advocate- oecumenicals (AGs).\r\nEach member State (MS) is entitle to appoint a estimate of its knowledge topicity. The trying on of all settle is infallible by obligate 223 TEU[3] to be: â€Å"by customary accord of the Governments of the process States”. The term of eat upice is six ye ars and the appointment of refreshing settle or reappointment (for a nonher term) of the existing judges is staggered so that in that respect testament be a partial derivative replacement of judges every 3 years. The judges subscribe to one(a) of their number to be electric chair of the motor hotel for a renew fitting term of 3 years. The President proposes the work of the salute and presides at hearings and deliberations.\r\nThe ECJ is assisted by 9 AGs. Five of the 9 AGs should be constitute by the 5 largest bulge revealgrowth States, the remaining to be appointed by the other fragment States on a dust of rules of rotation. Their duty, which is set out in Art. 222 TEU[4] is, â€Å"to make, in open judicatory, healthy submissions on chances brought previoushand the ECJ” with complete justice and independence. [5] The qualifications for selection, method of appointment and conditions of office of the attorney Generals atomic number 18 the unif orm as for the judges of the Court. The qualifications for selection as a judge of the ECJ ar tell in obligate 223 TEU[6] and require: mortals whose independence is beyond dubiousness and who possess the qualifications unavoidable for appointment to the highest good offices in their individualist countries or who are jurisconsults of recognized competency. ” Further more, judges whitethorn non hold whatsoever(prenominal) other governmental or administrative office art object they are members of the Court. In accordance with their respective traditions, trustworthy extremity States take appointed academics to sit as judges, whereas others †much(prenominal)(prenominal) as the U. K. †feel nominated existing home(a) judges or practicing advocates.\r\nAlthough soils tend to select their receive subjects, the accord unobjectionable uply requires that the judges be enti avow independent of their content governments. Judging from the reputatio n of the ECJ? s jurisprudence, the wishes of individual appendage States take a shit had argus-eyed entrance on its finishs- do. at a lower place Article 221 TEU[7] the ECJ is permitted to sit in Chambers of 3 or 5 as nearly as in plenary academic term. The motor inn pass on, as yet sit in plenary session when a component State or a conjunction Institution which is companionship to the proceedings so implores, or in particularly complex or all of import(p) field of studys.\r\nThe organisation of the Court is modulate by a separate Protocol to the EC Treaty †Protocol on the regulation of the Court of Justice. Matters of procedure are regulated by this Protocol, including the content of oral and write pleadings, citation of witnesses, costs and expenses etc. The task of over burdening the Court observablely continues to grow[8] condescension the temporary easing of the crusadeload which the establishment of the CFI, in 1988 initially brought approximate ly.\r\nOther than the appeal on a point of decentfulness from the decisions of the CFI to the ECJ, thither is no pass on appeal from the images of the ECJ, which is the net or supreme Court of the EC. The Court of First Instance (CFI) • Composition The superstar European work, (1988) autho elevated the Council of Ministers to create a CFI to alleviate the volume of work before the ECJ. The aim of the creation of the CFI in 1989 was to establish the judicial safeguards getable to individuals by introducing a second tier of judicial bureau and enabling the ECJ to concentrate on its necessity task, the provide commentary of association impartiality.\r\nThe CFI consists of 15 judges who are appointed by agreement amongst segment States for periods of 6 years. There are no eonian AGs. The duties of an AG are performed by one of the judges. • Jurisdiction The CFI does non extend the reasoned berth of the ECJ, yet rather, it models certain aspects of th e Court’s functions. The jurisdiction extends to the chase classes of cases: †staff cases †emulation cases †cases to a lower place the ECSC Treaty †anti-dumping cases It has no jurisdiction to hear foregoing beliefs. Furthermore, according to Art. 25 TEU, decisions of the CFI are subject to an appeal to the ECJ on points of jurisprudence only. Enforcement of EC Law in Domestic Courts Like each up amend-strength legal system, the community legal system exigencys an printingual system of judicial safeguards when conjunction virtue is scrapd or of the essence(p) be applied. The ECJ, as the judicial institution of the alliance, is the backbone of that system of safeguards. It is responsible for rendition oppugns of EC integrity and prep is make in the Treaty for book of factss to the ECJ by content accosts.\r\n endings of the ECJ, upon a reference, are reached by mass vote and are binding on all domestic help courts of all partic le States. chthonian Article 234 TEU[9] it is provided that: â€Å"The Court of Justice shall consecrate jurisdiction to give antecedent commands jobing a) The interpretation of the Treaty; b) The rigour and interpretation of acts of the institutions of the union… where such a hesitation is raised before any court …of a fragment State that court….. may, if it considers that a decision on the headland is necessary to miscellany it to give judgment, request the ECJ to give a legal opinion……..\r\nWhere any such head is raised……before a court of a appendage State against whose decisions thither is no judicial remedy under subject field practice of fair playfulness, the court……shall bring the matter before the Court. ” It is with this Article that the ECJ has achieved the precept of victory and its uniform application in all Member States when community of interests jurisprudence may be in affair with dom estic legislation. In CILFIT (1983) the ECJ emphasised that the purpose of the then Art. 177 was to ensure the proper application and uniform interpretation of EC police in all Member States.\r\nHowever, preliminary references procedure depends on the workiveness of cooperation mingled with the ECJ and familiar courts. The queen to ask for a preliminary ruling rests solely with the subject field court and the superpower of the ECJ is limited to an interpretation of EC integrity[10]. In procedural terms, individuals still pick out no right of appeal to the ECJ and the subject arena court tidy sum decide whether a reference is necessary; the Court? s judgements are still, in opening, at least, only assumption on points of interpretation and validity.\r\nHowever, following the some changes that the residential district has gone under, the ECJ? s role has been evolutionary, siting at the apex of the connection judicial hierarchy. The increasing emphasis which the ECJ p laces on Article 10 TEU, rendering Community law relevant to subject field courts as wellhead as to the governmental arm of Member States, is merely one important construction of this process in operation. The Community as a whole is in a state of transition, and it would be surprising if the kinship between the ECJ and the depicted object courts were to remain resistant from the wider changes.\r\nAs the Community moves towards a straightaway social and political union, one could well expect the ECJ to cement its position at the apex of the judicial hierarchy. II. THE DOCTRINE OF SUPREMACY †formula The ECJ, as the guardian of integrity and shaft of cohesion at heart the Community, has, from the break been in a strong position to define the status of Community law and to give it anteriority when in conflict with the discipline legal systems of the various Member States. The first case where the Court make a statement on the nature of European law is the famous cas e of cutting edge Gend en Loos v.\r\nNetherlands (1963)[11] dealing with the dogma of take away effect of EC Treaty pabulum and the degree to which individuals fundament rely on such terms to challenge measures of internal law. In that case, which forget be dealt with in detail later on, the ECJ stated that: â€Å"The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of impart fear to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states…\r\nThe Community constitutes a new legal format of world(prenominal) law for the emolument of which the states give up limited their independent rights, albeit inside limited fields, and the subjects of which comprise non only Member States but overly their bailiwicks”. The reasoning of the Court in the case is brief and apart from its elaboration on the concept of direc t effect, where it stressed the need for direct enforcement by subject field courts of Community norms, little more was said about the need for content courts to accord primacy to EC law over inappropriate matter law.\r\nThe Court’s focus in new wave Gend was on whether Article 12 (customs duties on imports from Member States to other Member States) could give rise to so-called direct effects †the nimble enforceability in national courts by individual appli basets of Treaty aliment †so that an individual could rely on and substantiate that Article enforced before domestic courts. The approach of the Court was establish on the Court’s vision of the kind of Community which those Treaties had set out to create, and the kind of legal system which the potent creation of such a Community would necessitate.\r\nIt was in a second important case, two years later, dismantle so, that the ECJ expanded on its ecesisal theory of the Community, declaring again t hat the states had created a monarch butterfly Community by curb their own self-governing rights. The case was rib v. ENEL (1964)[12] and the facts were as follows: An individual was claiming before his topical anesthetic court that the law nationalising production and statistical distribution of electricity was unsuitable with the EC Treaty. The topical anaesthetic court referred the perplexity to the ECJ for a preliminary ruling.\r\nThe ECJ in its judgment emphasised the straight-out duration of the Community, the autonomy of Community power, both(prenominal) internally and externally, and especially the restriction of competence or broadcast of powers from the states to the EC. The Court was dogged to show that the â€Å" speech communication and whole tone of the agreement” necessarily implied that: â€Å"It is unattainable for the states to set up a attendant unilateral measure against a legal order which they have sustained on a multiplicative inverse understructure”.\r\nThe Court found the primacy of EC law confirmed by the wording of Article 189 EC Treaty[13] under which regulations have â€Å"binding” force and are â€Å" flat applicable in all Member States”. The Court pointed out that this provision which is not qualified by any booking â€Å"would be pithless if a state would unilaterally nullify its effect by means of legislative measures which could hold out over EC law”.\r\nThe Court was thence able to reach a finish in Costa in words which have become classic and have had considerable influence in national decisions: â€Å"It follows from all these observations that the law stemming from the Treaty, an independent character of law could not, because of its special and buffer nature, be overridden by domestic legal purvey, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.\r\nThe maneuver by the states from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limit point of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community piece of tailnot prevail”. • As in the case of cutting edge Gend, the Court do no reference to the organic law of any particular Member State to represent whether such a transfer or limitation of sovereignty was contemplated or even was possible in accordance with that constitution. Furthermore, the Court drew on the â€Å" marrow and the aims” of the Treaty to conclude that it was â€Å"impossible” for the Member States to accord primacy to domestic laws. The spirit of the Treaty required that they all act with mates diligence to give just effect to Community laws which they had accepted on the basis of state â€Å"reciprocity” †nitty-gritty presu mably that since each state was evenly bound by laws passed for the Community as a whole, they had all agreed that no one of them would unilaterally derogate from Treaty obligations.\r\nAnd since the â€Å"aims” of the Treaty were those of integration and co-operation, their achievement would be undermined by one Member State refusing to give effect to a Community law which, should bind all. In cutting edge Gend and Costa v. Enel the Court set out its theorical basis for the pattern of success of Community law. The force and pragmatic application of the regulation became make uper still in its later decisions. In the following case, the Court made clear that the legal status of a onflicting national measure was not relevant to the question whether Community law should take precedence: not even a first harmonic rule of national constituent(a) law could, of itself, be invoked to challenge the supremacy of a presently applicable EC law: Internationale Handelsgesellsch aft v. Einfuhr (1970)[14] â€Å"Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law…….\r\nThe validity of a Community measure or its effect indoors a Member State cannot be qualify by allegations that it runs counter to either implicit in(p) rights as formulated by the constitution of that state or the commandments of a national positive structure”. This decision gave rise for some time to a potentially serious deadlock in dealing between the German governanceal Court, which held that the Community deposit system stoped a fundamental provision of the national legal order, and the ECJ, which denied that national constitutional tenets could have any effect on the domestic applicability of Community law.\r\nBut uttermost from backing off from its claims, the Court continued to emphasise the grandeur of ensuring that the supremacy of Community law was not simply a matter of formula or of theory only, but was presumption practical effect by all national courts in cases arising before them. It is however, interest to note that following this case, the ECJ evolved the concept of EU fundamental rights declaring them to be general principles of law that the Court will agree within the framework of Community law\r\nIn Simmenthal SPA (1978)[15] an Italian judge was face with a conflict between a Council Regulation on the common organisations of the foodstuff in beef and veal and the Italian veterinary and public health laws. Under Italian law, domestic legislation depraved to EC Regulations may be held to be unconstitutional but only by such declaration from the personalityal Court and not by the ordinary courts. Should the Italian judge of First Instance brush off repugnant national leg islation without wait for its bring raft from the Constitutional Court?\r\nIn a reference to the ECJ on the question, the last mentioned held that the national court was under a duty to give spacious effect to Community law even where there was a conflicting provision of national law and without waiting for a high court to rule on the matter. â€Å" all national court essential……. apply Community law in its total and protect rights which the last mentioned confers on individuals and essential accordingly set digression any provision of national law which may conflict with it, whether prior or subsequent to the Community rule”.\r\nSimmenthal is an interesting case, since it spells out the practical implications for the Community legal order of the principles of supremacy and direct effect. The facts of it highlighted a further problem for national courts: what if the national court was one which had no jurisdiction in the domestic legal system to question or to set aside national legislative acts?\r\nThe clear implication of the Court’s response was that, even if the only national court empowered to estimate on the constitutionality of a national law is the Constitutional Court, nevertheless, if such a case arises before any other national court, that court is bound to give immediate effect to Community law without awaiting for the ruling of the Constitutional Court. We whence see how Community law has â€Å"conferred” on domestic courts †indeed how it has required them to exercise †powers and jurisdiction which they did not have under national law.\r\nThe gravestone emphasis in these decisions is on the principle of say-so. This for certain became clear in the U. K. afterward(prenominal) the ruling in the well-known Factortame judicial proceeding (1990)[16], on the question of mean eyepatch abatement against a provision of national law which appeared to conflict with one of Community law. The facts of the case were as follows: The U. K. Merchant Shipping encounter 1988 operated to exclude from registration for purposes of fishing permits 95 fishing vessels owned by Spanish nationals who challenged the Act on the basis of break down of the EC Treaty †(discrimination by nationality).\r\nThe U. K. Court asked the ECJ for a preliminary ruling. In the meantime, meantime relief was granted and then get up on the basis that that remedy did not lie against the Crown in position law. The ECJ ruled that interim relief must(prenominal) be available and that this obligation overrode conflicting domestic principles. The domestic court was required to set aside national law, if that would have pr grammatical caseed the grant of interim relief openhanded effect to EC law. This was required to enable effective enforcement of Community law: ….. the full potence of Community law would be just as much afflicted if a rule of national law could prevent a court……gran ting interim relief in order to ensure the full effectiveness of…Community law”. consort to ecclesiastic Bridge of the home base of Lords[17], â€Å"If the supremacy within the European Community of Community law over the national law of Member States were not everlastingly inherent in the EEC Treaty, it was for certain well established in the jurisprudence of the ECJ”.\r\nThus, in so far as the Court was concerned, by 1990, the principle of supremacy of Community law and its practical effectiveness amongst Member States were established beyond question. However, the theory’s practical application is lastly dependent on the internal toleration and adaptation of the constitutional orders of the Member States. And as AG Roemer noted in Van Gend en Loos the constitutional orders of some of the Member States do not easily lodge the principle of supremacy.\r\nThe accommodation so far reached by the courts of various Member States on this issue will now be examined. For reasons of time, only some Member States will be discussed, although every state has its own interesting constitutional perspective to offer. III. THE PRINCIPLE OF SUPREMACY †IMPLEMENTATION • MEMBER STATES Under Public International Law (PIL), there are 2 conceptions regarding the transfer or delegation of sovereign powers to external organisations: Monism |Dualism | |PIL+ national law ( part of one case-by-case system with PIL taking | PIL + national law ( separate systems, | |precedence. |each supreme within its own spheres. | |ie Dutch + french constitutions provide that duly ratified |ie UK ( here you need incorporation of | |international obligations preside over municipal law. PIL into national law by national Act of | |Also, Belgian courts achieved the same result in absence of explicit| fan tan in the form of a statute | |constitutional provision by proclaiming that international |BA v. Laker and Blackburn case ( | |obligations have effect shini ng to domestic law. |European Communities Act, 1972. | |( | | | promptly blab out of transfer powers. | | | | | |( | | |always seeking statutes to conform to EC law. | In practice, there is little difference in the application of EC law.\r\nIn France, there was not any particular constitutional problem since the constitution provides that international treaties have a direct effect and are accorded supremacy. In accordance, Article 55 of the French Constitution of 1958 states that: â€Å"Treaties or agreements duly ratified or approve shall….. have an authority superior to that of Laws. ” However, the Conseil d? Etat, the supreme administrative court had difficulties in accepting the supremacy of Community law.\r\nIn the case of Semoules (1970)[18], the problem was expressed as a jurisdictional one: The Conseil d? Etat ruled that, since it had no jurisdiction to inspection the validity of French legislation, it could not get under ones skin such legislation to be incompatible with Community law, nor could it accord precedency to the latter. Decisions on the constitutionality were matters for the Conseil Constitutionnel †the Constitutional Council. However, in the Jacques Vabres[19] case in 1975, the Court of Cessation †Cour de Cassation †the highest of the ordinary judicial Courts †took a ifferent view and ruled that when a conflict exists between an internal law and a duly ratified â€Å"international act” which has thus entered the internal legal order (Art. 55 of the Constitution) the Constitution itself accorded precession to the latter. It was not until 1989 in Nicolo case[20], however, that the Conseil d? Etat lastly abjureed its so-called â€Å"splendid closing off” and decided to adopt the same position as the Conseil Constitutionnel and the Cour de Cassation. The caution displayed by the French Conseil d?\r\nEtat in its approach to the supremacy of Community law is evident in the case law of umpteen other Member States. The Court of Justice? s view that national law can never take precedence over instantaneously effective EC law on account of a transfer of sovereignty by the Member States and â€Å"the spirit of the EC Treaty” is not unconditionally accepted by the courts of Member States. In France, the main parapet to the recognition of supremacy of EC law was the jurisdictional limitation of the French courts.\r\nIn other Member States, in particular in Germany, the difficulties which arose cogitate to the fundamental constitutional nature of the national legislation which appeared to contravene Community law. Article 24 of the German Constitution allows for the transfer of legislative power to international organisations, but in litigation which arose over apparent conflicts between Community legislation and alimentation of the German Constitution, the extent of power which would be transferred in accordance with this Article was questioned.\r\nIn partic ular, the focus of the case law was on whether Article 24 permitted the transfer, to an organisation external the German constitutional structure of a power to contravene certain raw material principles protected under the Constitution itself. sideline the ECJ? s ruling in Internationale Handelsgesellschaft[21], the German Administrative Court ruled that the peremptory scheme regarding the Community deposit system breached basic principles of German constitutional law (compulsory payment of money cannot be impose in the absence of fault) and it requested a ruling from the Federal Constitutional Court.\r\nThe latter refused to recognise the unconditional supremacy of Community law. The major objection was a concern over the possible impact on basic rights enshrined in the German Constitution of conflicting measures of Community law. For this reason, it held that the clause in the German Constitution which allowed for the transfer of legislative power to international organisatio ns would not pass across a transfer of power to alter or amend an â€Å"inalienable essential feature” of the German constitutional structure, such as its express shield for fundamental rights.\r\nIt concluded by saying that the protection for fundamental rights in the German Constitution would have to prevail in the event of any conflict. Having considered various changes in Community law since the time of the 1974 decision, including the discipline by the ECJ of a doctrine of protection for fundamental rights, and the fact that all Member States by this stage acceded to the European Convention of clement Rights, the German Court in Solange II (1987)[22] held that: So long as the European Communities, and in particular the case law of the European Court, generally ensure an effective protection of fundamental rights…the Court will no longer exercise its jurisdiction……” More modernly, in Brunner v. the European Union Treaty (1994) the Court had to consider the constitutional kin between EC law and German law, on the occasion of the check of the TEU. It ruled that ratification was compatible with the Constitution.\r\nThe judgment shows that the constitutional court asserts and clear intends to exercise a power of go off over the scope of Community competence. Even if the German courts have accepted that Community law should be given precedence over national law, the constitutional court has made clear that it will continue to review the actions of European institutions and agencies to ensure that they remain within the proper limits of their acquired powers. In the United Kingdom, the borrowing of the supremacy of Community law has certainly not been unproblematic.\r\nSince the British Constitution is mostly unwritten, it is difficult to speak of â€Å"amending” it. The central obstacle to acceptance by the U. K. of supremacy of EC law is the fundamental constitutional principle of the sovereignty of fan tan. Ac cording to this principle, Parliament has the power to do anything other than to bind itself for the in store(predicate). According to Dicey, â€Å"Parliament has, under the English Constitution, the right to make or unmake any law whatever and no person or body…. as the right to override or set aside the legislation of Parliament”. Furthermore, the doctrine of implied repeal means that no Parliament can bind its successor, and no Parliament can be bound by its predecessor. whatsoever Act is thus vulnerable to change by a future Parliament. With those problems in mind, it was nevertheless decided to give internal legal effect to Community law by means of an Act of Parliament (dualist state): the European Communities Act, 1972. Section 2(1) establishes a legal basis within domestic law for directly applicable EC laws as in accordance with the Treaties and without further legal turn to be given legal effect or use in the U. K… and… shall be recognise and a vailable in law”. The section aims to make the concept of direct effect a part of the U. K. legal system. It states that law which under the EC Treaties is to be given immediate legal effect, is to be directly enforceable in the UK. Section 2(4) accords existing and future priority to EC laws. â€Å"Any enactment passed or to be passed…. shall be construed and shall have effect subject to the foregoing provisions of this section”.\r\nFurthermore, section 3 states that: â€Å"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect any Community instrument, shall be treated as a question of law and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any Court attached thereto”. It is therefore apparent that the supremacy of EC law is recognised in the U. K . by virtue of domestic legal processes and legal theory.\r\nThe principle of supremacy was in theory recognised by English judges. Despite preferably judicial comments to the contrary[23], the English Master of the Rolls, Lord Denning, in the case of Shields v. Coomes (Holdings) Ltd[24](1979) demonstrated a willingness to accept the principle of supremacy of Community law. In Bulmer v. Bollinger (1974)[25] he furthermore held that: â€Å"The Treaty is like an incoming ride. We must no longer speak or take of English law, as something of its own. We must speak and think of Community law, of Community rights and obligations and we must give effect to them”.\r\nBut again, this did not prevent judicial difficulties from arising over the practical recognition of the supremacy of EC law over national law. In Macarthys v. Smith[26], a genuine conflict appeared to arise between Article 119 of the EC Treaty concerning equal pay and section 1 of the passable Pay Act 1970 in the U. K. It was held by the Court of Appeal that priority should be given to Community law following section 2(1) and (4) of the European Communities Act, 1972. Here, then, is the judicial reconciliation of Parliamentary Sovereignty with the supremacy of EC law.\r\nBut the overriding of the Act of Parliament is to be seen as a fulfillment of the Parliamentary intention †the intention to admit with directly effective Community law †and if it is made clear that the legislative conflict of Community law was intentional, then domestic law must prevail. In other words, the supremacy of EC law is advised in the U. K. only in so far as Parliament intends it to be, and the courts have no power to undermine the clear will of Parliament, whether or not it presents a breach of Community law[27].\r\nThe Factortame Litigation [28] earlier discussed, shows that, although an equilibrium may now have been reached in the relationships between U. K. courts and the ECJ as to the requirements o f supremacy of EC law, the obligations of the U. K. courts stem from the express will of Parliament, and not directly from the Treaties: â€Å"Whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972,…was entirely voluntary”.\r\nThus, in conclusion we see that the bidimensional picture of the supremacy of Community law exists, even today, for although all Member States by now accept the practical requirement to give priority to EC law, few, if any, would be prepared to abandon their supervision of it, to ensure that the Community does not attempt to extend the powers it has been given. • Individuals The principle of supremacy has implications for individuals. The principle of direct effect gives the right to individuals to plead before the national court the provisions of EC legislation.\r\nAs a doctrine which principally protects individuals and often gives them rights which they can rely upon as against Member States, it sets up a mechanism for individual or indirect enforcement of EC law making thus Community law a reality for the citizens of Europe. Van Gend en Loos provides a clear example of the approach of the Court. The Court pointed to the fact that individuals were envisaged as being able to plead and rely on points of EC law finished the preliminary ruling procedure. The Court set out certain criteria for the direct effect of a Treaty provision.\r\nThere must be: 1. a clear, negative, unconditional obligation on a Member State, 2. containing no reservation on the part of the MS, 3. and not dependent on any national implementing measure. (MS-no real readiness whether to apply measure). The Court held that Art. 12 of the EC Treaty was directly effective. This process establishes secret rights for individuals which are enforceable in municipal courts. The principle applies most frequently in the relationship between private individuals and national government. This is called upr ight effect.\r\nSome provisions, however, because of their nature, have been recognised by the Court as having a wider effect in that they can be invoked against other individuals. This is called horizontal effect i. e. they impose obligations on other individuals. eg. the Treaty provisions regarding the competition rules applicable to undertakings, for example, can clearly be invoked before the national courts by one undertaking against another. Furthermore, a Regulation, as described in Article 189(2) EC Treaty, now 249 †TEU â€Å"shall have general application.\r\nIt shall be binding in its entirety and directly applicable in all Member States”. A Regulation is delineate as a general legislative instrument which is binding in its entirety and which is directly applicable within the legal orders of the Member States without the need of intervention on the part of legislative bodies. Thus it has horizontal and vertical effect. In contrast, a Directive which is defined in Art. 249 TEU too, â€Å"shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”.\r\nTherefore, leadings are not automatically applicable within Member States. Since directives are given legal force done national measures, rights and duties are conferred on individuals only after incorporation into national law. The conditions to be satisfied before direct effect can be pleaded are the 3 ones mentioned earlier. However, 2 important limitations are placed on the application of this principle: a) The principle only applies to directives which are unimplemented after the date set for implementation. ) The Court has only been prepared to apply this doctrine to the relationship between individuals and the state (vertical direct effect) as opposed to the relationship amongst individuals themselves (horizontal direct effect). The recent case of Dori (1992) reit erats this refusal. [29] In Marshall (1986)[30] and in Van Duyn[31] (1974) the Court confirmed that while a directive might be upheld against defaulting Member States, it cannot be invoked directly against other individuals.\r\nHowever, the Court has sought to achieve the same result though the process of interpretation. For example, where the Court is interpreting the terms of an unimplemented directive as it applies between private individuals, the Court has observed that: â€Å"In applying national law, whether the provisions in question were adopted before or after the directive, a national court called upon to interpret it is required to do so, as far as possible, in light of the wording and purpose of the directive in order to achieve the result move by the latter”[32]: Marleasing SA (1992).\r\nFurthermore, the principle of construction requires national courts, in conformity with Art. 10 TEU, to give full effect to EC law, to interpret all national legislation in the light of all relevant EC law, regardless of whether the particular provision is of direct effect: EC law does not have to be directly effective in order for it to benefit from the general doctrine of supremacy †Van Colson (1984)[33]. Furthermore, the ECJ has broadly defined the notion of the state to include anything that provides public service, with sufficient statutory powers beyond those which result from normal rules applicable between individuals”. Foster (1991)[34] Regional policy, health, impose and local authorities may be included. Furthermore, the state may be held to be responsible in respect of breaches of EC law, and liable in damages for the non-implementation of a directive, following the decision in Francovich[35] (1991) which held that: The full effectiveness of Community rules would be damage and the protection of the rights which they grant would be attenuated if individuals were unable to obtain compensation when their rights are infringed by a bre ach of Community law for which a Member State can be held responsible. ”. However, 3 conditions must be satisfied: †Implementation of the directive would confer rights on individuals. †Its terms should be sufficiently precise and unconditional to tick rights. †There should be a causative link between the breach and the loss.\r\nThe development by the Court of strong legal requirements in the area of national remedies for breach of Community law has generally been welcomed as a significant contribution to the effectiveness of Community law, at least through with(predicate) the medium of judicial intervention by national courts. However, the welcome has not been unconditional, and many commentators have called on the legislative institutions and political players in the Community legal process, to take appropriate action, rather than to leave this area of law for the Court to develop through the haphazard process of litigation.\r\nConclusion It is clear that th e ECJ â€Å"the guardian of the Treaty” in formulating the principle of supremacy, reaffirmed the nature and development of EC law. The supremacy of EC law is inherent within the nature and spirit of the TEU. The special and original nature of Community law requires that its supremacy over national law is admit and followed. The ECJ will not entertain the persuasion of any provision of national law, even of constitutional validity, prevailing over an inconsistent provision of Community law.\r\nThe success of this development is well profound, especially when one has in mind that the Court in developing the principle, attributed to it characteristics and force which it considered necessary to carry through a set of profoundly change and potentially far reaching common goals within a group of politically and geographically distinct nations and historically sovereign states. ?? /?? ———————†[1] ex art. 5 of the EC Treaty [2] ex Ar t. 164 of the EC Treaty [3] ex Art. 167 †EC Treaty [4] ex. Art. 166 †EC Treaty 5] Their duties should not be confused with those of a prosecutor or similar functionary †that is the role of the Commission, as guardian of t??? he Community? s interests. [6] ex Art. 167 †EC Treaty. [7] ex Art. 165 †EC Treaty. [8] Since it was set up in 1952, more than 8,600 cases have been brought before the Court. [9] Ex Art. 177 EC Treaty [10] See also case 104/79, Pasquale Foglia v. Mariella Novello (1980)1 ECR 745, (1981) CMLR 45 and outcome 244/80, Pasquale Foglia v. Mariella Movello (N°2) (1981) ECR 3045, (1982) CMLR 585. [11] model 26/62 (1963) ECR 1, (1963) CMLR 105. 12] facial expression 6/64 (1964) ECR 585; (1964) CMLR 425. [13] now Art. 249 TEU. [14] showcase 11/70 (1970) ECR 1125; (1970) CMLR 255. [15] Case 106/77 (1978) ECR 629; (1978) 3 CMLR 263 [16] (No 2) Case C213/89 (1990) ECR 2433; (1990)3 CMLR 867 [17] R v. Secretary of State, ex parte Factortame (No 1) (1989)2 WLR 999 [18] Decision of 1 March, 1968 in Syndicat General de Fabricants de Semoules de France (1970) CMLR 395 [19] Decision of 24 March 1975 in Administration des Douanes v. Societe « Cafes-Jacques Vabre » et SARL Weigel et Cie (1975) 2 CMLR 336 [20] Decision of 20 Oct. 1989 in Nicolo (1990)I CMLR 173 [21] (1972) CMLR 177, at 184 [22] Re Wunsche Handelsgesellschat, Decision of 22 Oct. 1986 (1987)3 CMRL 225 at 265 [23] Felixstone docking facility and Railway Company v. British guide and Docks Board (1976) 2 CLR 655. [24] (1979)1 All ER 456. [25] (1974) Ch 401 [26] (1979) 3 All ER 325 [27] see T. Allan, â€Å"Parliamentary Sovereignty: Lord Denning? s Dexterous Revolution” (1983)3 6 OLS 22 [28] (1990)2 AC85 and (1991)1 AC 603. [29] Dori C-91/92 Dori v. RecrebSrl (1994) ECR I †3325 [30] Case 152/84 Marshall v.\r\nSouthampton and South †western Area Health Authority (1986) ECR 723, (1988)1 CMLR 688 [31] Case 41/74l, Van Duyn v. Home social o ccasion (1974) ECR 1337, (1975)1 CMLR 1 [32] Case C-106/89, Marleasing SA v. La Comercial de Alimentacion SA (1990) ECR 1-4135 (1992)1 CMLR 305, at p. 4146 [33] Case 14/83,l Von Colson and Kamann v. Land Nordrhein â€Westfalen (1984) ECR 1891, (1986)2 CMLR430 [34] Case C-188/89, A. Foster and others v. British Gas …(1990) ECR 1-3313, (1990) 2 CMLR833 [35] Case C-6/90 and C-9/90, Francovich v. Italy (1991) ECR 1 †5357, (1993)2\r\n'