MS Perspective

Question 1

Supremacy (2) plus articles

Answer 1

MS preference for principle of conferral (Art 5 TEU) vs

CJEUs use of loyal cooperation principle (Art 4(3) TEU)

Question 2

UK System of recognition (3)

Answer 2

Dualist system
AoP required
S2(1) ECA 1972

Question 3

Supremacy UK

Sovereignty of parliament

Answer 3

Parliament can’t bind itself for the future
Doctrine of implied repeal
Duty of UK courts to apply/ interpret but not review or disapply AoPs

Question 4

Dualism

Answer 4

Ratified international treaties cannot become part of domestic law unless incorporated into AoP

Question 5

ECA 1972

Answer 5

Gives domestic legal effect to EU law

Question 6

ECA 1972 sections (4)

Answer 6

S2(1) direct enforcement of directly effective EU law
S2(2) implementation of EU law
S2(4) interpretation of all UK legislation in light of ECA 1972
S3 compliance of UK courts with ECJ case law

Question 7

ECA 1972 provides basis for…(2)

Answer 7

Recognition of supremacy of EU law over any conflicting domestic legislation, primary or delegated, prior or subsequent to ECA 1972
Reliance on Parliament intention

Question 8

EU Act 2011 (2)

Answer 8

Regime of parliament and referendum locks on EU Treaty amendments and a range of other EU decisions
Constraints on any Treaty amendments to extending EU competences

Question 9

S18 ECA (3)

Answer 9

Sovereignty clause
Effect of EU law dependent on continuity statutory basis
Silence on voluntary withdrawal under Art 50 TEU

Question 10

The harmonious construction

Answer 10

Interpretation of any apparently conflicting provision of national law in conformity with (directly effective) EU law, even where this would not comply with literal rule

Question 11

The harmonious construction cases (2) plus one judge

Answer 11

Lord Denning in Macarthys v Smith

Garland v British Rail

Question 12

Factortame II (3)

Answer 12

Per Lord Bridge
HoL; supremacy of EU law based on sovereign parliaments will
Voluntary acceptance of limitations on Parliamentary sovereignty

Question 13

EOC (1994) (3)

Answer 13

Per lord Keith
HoL; no constitutional barrier to applications for judicial review for breach of EU law
UK courts have jurisdiction to declare primary law incompatible with EU law

Question 14

Thoburn v Sunderland (2002) (6)

Answer 14

Per Laws LJ
Judicial application of AoPs reconciled with Parliamentary sovereignty
Supremacy of EU law based on ECA 1972 and common law
Parliamentary sovereignty in tact but doctrine modified by common law
ECA 1972 as common law constitutional statute that can only be expressly repealed/ amended
Duty to give effect to EU law doesn’t exempt from duty to uphold constitutional rights

Question 15

Protocol on the application of EU Charter on Fundamental Rights to Poland and the UK (3)

Answer 15

Doesn’t grant UK general opt-out
Affirms limitation of the affect of the charter by principle of conferral (Arts 1(1) and 2)
Only substantive limit to the application of the Charter (social and labour rights)

Question 16

Constitutional challenge can be avoided by… (1) plus 2 cases

Answer 16

Relying on parliaments intention
Lord Denning in Bulmer v Bollinger (1974)
Miller (2017)

Question 17

ECA 1972 is a “____ ____” (3)

Answer 17

Conduit pipe by which EU law is introduced to UK
Has a constitutional character
EU law can’t be displaced by enactment of conflicting law

Question 18

Germany system of recognition

Answer 18

Dualism system

Art 2 German convention - transfer of power to EU

Question 19

Solange (2) plus year

Answer 19

1974
Transfer of sovereign rights to EU mustn’t affect fundamental rights of GC
If EU law falls below GC standards of protecting fundamental rights, Fundamental Constitutional Court can review compliance of EU with GC

Question 20

GC amended to ratify (3)

Answer 20

1992 Treaty (Maastricht)
New provision that EU guarantee protection of fundamental rights
Jurisdiction of FCC to review whether EU exceeds its conferred powers and complies with GC

Question 21

MS perspective (5) plus 2 theorists

Answer 21

Supremacy is conditional
Conferral principle and national sovereignty
Powers conferred by sovereign MS in Treaties
Coexisting norms with no hierarchy - J Bell
A happily divorced couple - O Dutheillet de Lamothe