Implications of EU Membership (L22) Flashcards
What is the doctrine of implied repeal?
In the event of two incompatible statutes, courts give effect to later one.
Ellen Street Estates v Minister of Health [1934] 1 KB 590.
What does it mean to say that the UK is a dualist constitutional order?
Domestic law and international law are SEPARATE.
’The prerogative power to make treaties depends on two related propositions. The first is that treaties between sovereign states have effect in international law and are not governed by the domestic law of any state… The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.’
- Miller v Secretary of State for Exiting the European Union [2017] UKSC 5, [55].
To give effect to international law in domestic law, Parliament must legislate.
What were the stages involved in the UK joining the EU?
Dualism meant it was necessary to take action on both international and domestic planes.
Process:
- Signing the Treaty.
- European Communities Act 1972.
- Ratification of the Treaty.
- Comes into force the day UK membership of the EU begins: 1st Jan 1973.
European Communities Act 1972 was key to effect of EU law in domestic law, along with Scotland Act 1998.
What is the principle of ‘direct effect’?
Van Gend en Loos.
Payment of tariff and claim that EU law gave one the right to import without paying tariffs.
Principle of ‘direct effect’ means that under certain conditions rights under EU law can be invoked before domestic courts regardless of whether or not given effect in domestic law.
Don’t need EU law to have been incorporated into domestic law in order to enjoy rights in question.
Tension with idea of constitutional dualism.
What does Declaration 17 of the Treaty of Lisbon set out?
“In accordance with well-settled case law of the [CJEU], the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.”
What is the principle of supremacy or primacy?
Principle first developed in Costa v ENEL.
- Question of compatibility with Treaty of Rome.
ECJ built upon basis of its conception of EU as “new legal order” (as outlined in Van Gend en Loos) which was “an integral part of the legal systems of the Member States).
’The prerogative power to make treaties depends on two related propositions. The first is that treaties between sovereign states have effect in international law and are not governed by the domestic law of any state… The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.
- Miller v Secretary of State for Exiting the European Union [2017] UKSC 5, [55]
Held that in the event of a conflict between domestic and EU law, EU law takes priority.
What was said in Costa v ENEL regarding supremacy?
“The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral, and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system.”
“… the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”
What does the case of Internationale Handelsgesellschaft tell us about the principle of supremacy after the Costa case?
Legal status of conflicting national law is irrelevant (i.e. supremacy of EU law applies equally to provisions of domestic constitutions).
“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….”
But no distinction between ordinary and constitutional law?
What does the case of Simmenthal tell us about the principle of supremacy after the Costa case?
Principles of supremacy applies to national law whenever made.
The Treaties “not only by their entry into force render automatically inapplicable any conflicting provision of current national law but - in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the member states - also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions.”
At odds with domestic rule of implied repeal.
