House of Commons - European Scrutiny

Select Committee on European Scrutiny Fourteenth Report

The primacy of Union law

17. Article I-6 of the Treaty states that:

'The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.'

The IGC adopted a Declaration on Article I-6, which is annexed to the Treaty and states:

"The Conference notes that Article I-6 reflects existing case law of the Court of Justice of the European Communities and of the Court of First Instance."[22]

18. The doctrine of primacy has determined the relationship between Community law and national law for over 40 years. It is not based directly on any provision in the existing Treaties but was developed by the ECJ in a series of cases beginning with Costa v. ENEL in 1964.[23] Under the primacy principle, in the event of a conflict between Community law and national law, Community law is supreme and has primacy, irrespective of the source, status or date of the national law in question. This was stated by the ECJ most clearly in the Simmenthal case:

'every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule.

'Accordingly any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside the national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the essence of Community law'.[24]

19. The change which would be made by the Treaty is to codify the doctrine of primacy by setting it out explicitly in Article I-6, forming part of a constitution. The Foreign Secretary stressed that 'the statement about primacy and the Declaration are no more than a statement of the status quo', as the Declaration made clear, and the principle of primacy had already been well-established when the United Kingdom acceded to the Community in 1973. He added that treaties in general would be unworkable without a rule which provided that the treaty obligations of signatories had primacy over conflicting national laws, and 'the issue of primacy arises fundamentally from Article 27 of the Vienna Convention on the Law of Treaties'. The UK Parliament remained sovereign because it retained the right to decide whether the UK remained a signatory to a particular treaty.[25]

20. Professor Edward emphasised that at its simplest the primacy principle meant 'that you cannot have two incompatible rules applied at the same time'; the notion of primacy was based on the idea of reciprocity.[26] Richard Corbett MEP made a similar point by asking 'what would be the point of jointly agreeing common laws in a particular field … if everyone is then free to ignore them? That is the whole point of having common legislation, that we are all bound by the same set of rules that we enacted.'[27]

21. Our witnesses generally accepted that, in strictly legal terms, Article I-6 did not change the doctrine of primacy of Union law. Professor Arnull summarised the position as follows: 'The jurisdiction of the Court of Justice under the Constitutional Treaty would in all essential respects remain unchanged. National courts will therefore continue to be prevented from unilaterally declaring Union acts invalid. The result is that the Court of Justice would retain the last word on the extent of the powers conferred on the Union.'[28] The one dissenting voice was that of Martin Howe QC, who thought that 'turning the existing Treaties into a Constitution will result in the European Court going further than it has already gone and in due time saying fundamental sovereignty has shifted to this greater entity'.[29] However, Professor Edward pointed out that Article I-6 made clear that primacy applied only to Union law adopted in the exercise of the competences conferred on the Union's institutions under the Treaty,[30] and, as Professor Eeckhout put it, 'It is only in so far as the Union acts within the limits of its powers that any law which it produces prevails over domestic law'.[31]

22. Even if it is accepted that Article I-6 simply codifies the existing principle of primacy, a number of questions arise. Does the Treaty extend the scope of EU competences and ECJ jurisdiction in ways which would increase the application of the principle of primacy? Even more seriously, would the codification of the principle of primacy in Article I-6, and its incorporation in a constitution endorsed by Member States and their national parliaments, alter the existing balance between the ECJ and national courts in determining the relationship between EU and national law and the limits of the EU's legislative competence? The latter question, which we deal with first, is often referred to as the issue of Kompetenz-Kompetenz, that is, the question of which court has competence to decide on the extent of competence and therefore whether primacy applies in a particular case.

Primacy and parliamentary sovereignty

23. The ECJ can rule that a national law is incompatible with EU law, but, as Professor de Búrca emphasised, it cannot set aside a national law: its 'only power is either to declare a state in violation of the Treaty under the enforcement procedure brought by the Commission—which does not affect national law—or to send a reference back to a national court. Ultimately, it remains with the national court and the national parliament to decide what you do. The European Court of Justice can do nothing, and I do not think the Constitution will change that at all'.[32] Professor Eeckhout added that

'the Constitutional Treaty, like any other Treaty, is a form of international law which under international law is binding on the States which have signed it. … the European Court of Justice has confirmed this principle and the national courts have accepted that that in general is a principle which they will uphold. Again, the Constitution does not in any way change that. It is a matter for the unwritten constitution of the United Kingdom and for the courts interpreting that constitution to decide precisely what effect and under what circumstances European law does that.'[33]

The important question is therefore how Article I-6 would affect the decisions of courts in the UK. There is also the possibility of infraction proceedings and fines on the basis of an ECJ ruling, but that possibility exists at present and would not be changed by the Constitutional Treaty.

24. In some other Member States there has been concern that the formulation of Article I-6 might make the doctrine of the primacy of Union law part of the constitutional law of each Member State. This might have the effect of resolving the Kompetenz-Kompetenz question definitively in favour of the ECJ.[34] However, the UK differs from other Member States in the way in which EU law is given effect. In the UK, obligations which arise under international treaties can take effect and become enforceable in the domestic courts only if they become part of domestic law through an Act of Parliament. The EC and EU Treaties are no exception to this rule, and Community law currently has effect in the domestic law of the UK only as a result of the European Communities Act 1972. Furthermore, since the UK Parliament is sovereign, it is not constrained by the provisions of a constitution or by laws previously enacted by the UK Parliament itself; it could, if it chose, repeal the 1972 Act. At the same time it is not able to enact laws that are themselves protected or entrenched against change by future Acts of Parliament; Parliament cannot bind its successors.[35]

25. The Kompetenz-Kompetenz question is therefore resolved in UK law by the European Communities Act 1972, by virtue of which alone the courts in the UK give precedence to Community law. This potentially allows for conflict between the primacy of Community law under the 1972 Act, whereby the courts are obliged to give precedence to Community law, and the doctrine of parliamentary sovereignty, whereby a later Act of Parliament always overrides an earlier one. Professor Dashwood explained that this would be resolved as follows: in the event that Parliament were to adopt a measure incompatible with some Community provision but does not state expressly that this effect is intended, the courts would be entitled to assume that there was no intention to go back on the acceptance of the primacy of Community law under the 1972 Act; in contrast, if Parliament has made clear on the face of the statute its intention to pass legislation overriding the effect of the 1972 Act, the UK courts would defer to the will of Parliament. Parliament therefore has not given up its power to adopt legislation incompatible with Community law, but, as Professor Dashwood concludes, 'if it wishes so to act, its intention must be made explicit, by using some such language as "Notwithstanding section 2 of the European Communities Act..." '[36] The courts have themselves indicated that, provided it was stated in express terms that Parliament intended to repeal or amend the European Communities Act or to legislate in breach of Community law taking effect under it, they would give effect to the will of Parliament.[37]

26. The Foreign Secretary also stated that the position would not be changed by the Constitutional Treaty and Article I-6: 'The British Parliament…—this has not changed—can do anything it wants, but there are consequences in the real world…. If we pass a law which is plainly and expressly inconsistent with treaty obligations, we will then be in breach of those treaty obligations. The consequences are likely to be political and financial, more than legal.'[38]

27. Other witnesses agreed that, in strictly legal terms, the Constitutional Treaty would not affect the sovereignty of Parliament; nor could it, since in the UK domestic effect can be given to obligations in international law only by enactment, and such enactments cannot be entrenched. According to Professor Dashwood, 'the Community legal order and the national legal orders function as co-ordinate systems. One is not subordinate to the others. They each are self-referential, but we have this rule of primacy which makes it possible to resolve conflicts in practice. My view is that simply by writing down the principle of primacy you do not alter that fundamental relationship'. As he pointed out, the UK is 'one of the Member States where the courts have never had the slightest difficulty in ensuring that Community law is given primacy where this was necessary, without apparently violating the fundamental principles of the constitution'.[39] Professor Eeckhout noted that 'the authority for the UK courts to apply the Constitutional Treaty will be an Act of Parliament so, to the extent that there is agreement that the Constitutional Treaty within the UK domestic context does not in any way amend the sovereignty of Parliament compared to the current position, then I think it is agreed that nothing changes and then courts are likely to give effect to the Act of Parliament which overrides the Act which approves of the Constitutional Treaty, as would be the same with the European Communities Act'.[40]

28. Professor Dashwood has observed that 'The only question is whether ratification of the Constitutional Treaty might be interpreted by the courts as having brought about a further twist in the evolution of the common law, whereby Parliament could be taken to have bound itself not to counteract the primacy principle by repealing or amending the European Communities Act, as long as the United Kingdom remains a member of the Union'.[41] Even this would not prevent the UK withdrawing from the EU, and it would entail abandonment of the centuries-old principle that Parliament cannot bind its successors, giving rise to a major constitutional conflict. Professor Dashwood thought it was not 'at all likely the courts would go down that route in the near future', though he could not guarantee that the courts would never do so.[42] Professor Eeckhout also considered it unlikely that the courts would act in such a way.[43]

29. On the other hand, the view of Mr Howe was that in the UK fundamental legal authority lay where the judges said it lay, and 'because the doctrine of supremacy of Parliament is itself a common law doctrine there is no Act of Parliament or formal constitution from which it stems'; the Factortame case had already substantially modified the doctrine through the decision that the 1972 Act overrode a later inconsistent Act, instead of a later Act overruling an earlier one, and it was constitutionally possible for an Act of Parliament to pass fundamental sovereignty to another body; sovereignty, if the Constitutional Treaty were ratified, would depend 'in part on the terms of the Act which Parliament passes to enable ratification and in part on how the judges interpret it', and 'what the judges say this decade is not necessarily the same as what they say next decade on fundamental points like this'.[44]

30. Mr Howe and Professor Dashwood agreed that the issue was really one for national law.[45] While primacy would continue to be a provision made at EU level, national courts would determine how it was applied, and national legislation could guide them. Professor Denza, referring to Member States in general, suggested that, while nothing on the face of the Constitutional Treaty purported to change the ultimate authority, the voluntary acceptance of an explicit primacy clause by Member States might tip the political balance to the centre; if the Constitution were adopted, the ECJ would 'inevitably tend not only to regard itself as a constitutional court but to be generally regarded as a constitutional court, and I think there will be a greater level of deference and perhaps greater reluctance to challenge on issues of primacy and supremacy in particular'.[46] Professor Arnull likewise considered that codification of the primacy principle might persuade national courts to accept the principle more readily than in the past: 'the express primacy provision, having been inserted by "electorally accountable constitutional legislators", may be regarded as having greater legitimacy and authority than the case law it reflects'.[47]

31. Elsewhere in the EU, legislatures are not sovereign but are subject to review by the national constitutional courts, many of which have the power to declare primary legislation unconstitutional. In those circumstances, acceptance of the primacy clause could entrench it in the constitution. However, even such entrenchment would not resolve the question of who decides which system of law prevails in particular cases. So far no constitutional court in the EU has accepted that the ECJ has the ultimate Kompetenz-Kompetenz.[48] The ECJ's Advocate-General Jacobs, giving evidence to the House of Lords European Union Committee, doubted whether a final resolution of the Kompetenz-Kompetenz question in favour of the ECJ was possible at all, since national constitutions contained 'provisions of a perhaps more fundamental nature, such as the provisions for the protection of fundamental rights, and it is not easy to see how those provisions can be overridden by Union law without creating serious conflicts. So there some accommodation has to be found between the national constitutions on the one hand and Community law on the other and that has been done, successfully I think so far, by accommodation between the Court of Justice and the jurisprudence of the national constitutional courts, each respecting the position of the other'.[49]

32. We accept that, in strictly legal terms, the primacy provision in Article I-6 of the Constitutional Treaty does not alter the existing relationship between EU law and national law, or the means by which any conflict between them is resolved, or the extent of parliamentary sovereignty. International obligations, including EU law in general and the primacy principle in particular, can take effect in domestic law in the UK only through an Act of Parliament, which can in turn be amended or repealed by a later Act. The principle that Parliament cannot bind its successors ultimately depends on acceptance by the UK's courts, and we note the theoretical possibility that explicit agreement by the UK Parliament to the primacy principle in the Constitutional Treaty could result, over time, in the UK's courts giving greater weight to that principle as against any UK legislation inconsistent with it. However, if Parliament were to pass legislation which was clearly expressed to be inconsistent with EU laws, it would amount to a constitutional and legal revolution for any court in the UK to assert that the principle that Parliament cannot bind its successors no longer applied, and we consider it inconceivable that any court in the UK would, in any foreseeable circumstances, behave in this way. Our conclusion is therefore that the codification of the principle of primacy in Article I-6 of the Constitutional Treaty would maintain the existing situation.

The scope of the primacy principle

33. The existing doctrine of primacy is a doctrine of Community (not Union) law. It applies to matters covered by the EC Treaty (the so-called 'first pillar' of the European Union), but does not extend to the Common Foreign and Security Policy (the 'second pillar') or to police and judicial cooperation in criminal matters (the 'third pillar'), which are governed by the Treaty on European Union. The Constitutional Treaty would abolish the existing pillar structure of the European Union. The question therefore arises as to whether the primacy principle would be extended to those areas. According to Professor Dashwood, 'The Declaration [on Article I-6] provides no help in resolving this issue. It cannot be inferred from existing Court of Justice case law that Article I-6 does not apply to former Second and Third Pillar matters, because under the present Treaties the issue simply does not arise'. Article I-6 is unqualified and, at first sight, therefore, might appear as if it 'is intended to extend throughout the Constitutional Treaty'.[50]

34. It is generally agreed that, as result of the abolition of the pillar structure, Article I-6 will extend primacy to what is currently the third pillar. Professor Dashwood considered this might be seen as uncontroversial, because 'The progressive assimilation of the Third Pillar to the Community model of the First Pillar has been under way since the Treaty of Amsterdam'.[51] The fact remains, however, that in those areas covered by the part of the Treaty headed 'Area of Freedom, Security and Justice',[52] Member States will no longer be able to apply their own national rules if they conflict with Union law.

35. On the other hand, it is less clear that Article I-6 would extend primacy to the second pillar, the Common Foreign and Security Policy (CFSP). The Minister for Europe (Mr Denis MacShane) has sought to provide an explanation, in which he distinguishes between the wider meaning of primacy (that a Member State must not invoke the provisions of its national law as an excuse for failing to give effect to its obligations under the EC Treaty) and the narrower meaning developed from that wider rule by the ECJ (that if Community and national laws conflict, a national court must apply the Community law and disapply the national law to the extent necessary); he adds that the narrower meaning can apply only if the Community law is directly effective or directly applicable. According to the Minister, primacy in its wider sense also applies to the CFSP, both currently and under the Constitutional Treaty, but primacy in the narrower sense does not and will not, because the ECJ will have 'no jurisdiction over the CFSP provisions of the Treaty or most measures adopted under them'; also, CFSP measures are 'highly unlikely in practice to contain provisions that are directly effective or directly applicable'.[53]

36. Article III-376 contains a general exclusion of the ECJ's jurisdiction from nearly all the CFSP provisions of the Treaty. The one relevant Article not specifically excluded is Article I-16, which is as follows:

'1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.

2. Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area. They shall refrain from action contrary to the Union's interests or likely to impair its effectiveness.'

37. No reason has been given for not extending the exclusion to Article I-16. The Foreign Secretary stated that 'ECJ jurisdiction over CFSP cannot be established through Article [I-16] … because the EU's competences in relation to CFSP can only be given effect by action under Articles [I-40 and I-41] and the provisions of Chapter II of Title V, all of which are specifically excluded from ECJ jurisdiction by Article [III-376]'.[54] Professor Arnull argued that the ECJ might well consider the obligations in Article I-16(2) justiciable, even though it overlapped to a considerable extent with Article III-294(2), which was excluded from the ECJ's jurisdiction, and Mr Howe felt that the ECJ could rule either way.[55] Paul Arthur challenged the Foreign Secretary's view on the ground that 'Article [I-16] stands alone', rather than being implemented through other Articles excluded from ECJ jurisdiction; he believed problems could arise if a common foreign or defence policy were agreed but subsequent events caused a Member State to wish to alter the policy in a way not accepted by other Member States.[56] Professors Denza and Dashwood, however, did not believe the CFSP would be justiciable; Professor Dashwood pointed to Article I-40 as having more specific requirements about solidarity in the CFSP and being excluded from ECJ jurisdiction.[57] The omission of Article I-16 from the application of Article III-376 appears to us illogical, but we consider it unlikely that this omission will result in the extension of ECJ jurisdiction to the CFSP.