Lecture notes
the legal effects of EU law
- Module
- EU Law
- Institution
- Coventry University (West Midlands) (CU)
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Legal Effects of EU LawReading:
● Paul Craig and Gráinne de Búrca, EU Law: Texts, Cases, and Materials
(6th edn, OUP, 2015), ch. 7.
seminar:
Direct effect: provision of EU law can be relied upon by individuals
Indirect: rely on measures but this is subject to national court interpreting EU law
Supremacy of EU Law
EU law has supremacy over national law
If there is a conflict, EU law always overrules, no matter when inforces
● Case 6/64, Costa v. ENEL [1964] ECR 585.
● Italy nationalises electricity sector in 1957, in a law passes subsequent to the EEC
Treaty coming into force.
● Costa objects to this, refuses to pay his electricity bill, and is sued.
● Costa defends action arguing that the nationalisation was contrary to the EEC Treaty.
● Italian court agrees with Italian Government that the nationalisation is lawful as doctrine
of implied repeal still applies.
● Efficacy argument: that for EU Law to be effective it must be supreme.
National law was inflict with EU law (EEC Treaty)?
National Court: Doctrine of implied repeal (later law replaces law) applied.
Europe: This doctrine does not apply to EU Law
•“By contrast with ordinary international treaties, the EEC Treaty has created its own legal
system which, on the entry into force of the treaty, became an integral part of the legal
systems of the Member States and which their courts are bound to apply.”
•“By creating a community of unlimited duration, having its own institutions, its own
personality, its own legal capacity and capacity of representation on the international plane
and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of
, powers from the states to the community, the Member States have limited their sovereign
rights, albeit within limited fields, and have thus created a body of law which binds both their
nationals and themselves.”
Rationale: efficacy argument: in order for EU law to be effective it would be more effective if
supreme. Otherwise states would repeal it and ignore it.
•Implied repeal cannot have the effect of knocking out EU law.
•Followed in subsequent UK cases: Factortame, Thoburn v. Sunderland City Council
European Communities Act 1972, s.2: General implementation of
Treaties
(1) All such rights, powers, liabilities, obligations
and restrictions from time to time created or
arising by or under the Treaties, and all such
remedies and procedures from time to time
provided for by or under the Treaties, as in
accordance with the Treaties are without further
enactment to be given legal effect or used in the
United Kingdom shall be recognised and
available in law, and be enforced, allowed and
followed accordingly; and the expression
“enforceable EU right” and similar expressions
shall be read as referring to one to which this
subsection applies.
(2) Subject to Schedule 2 to this Act, at any time
after its passing Her Majesty may by Order in
Council, and any designated Minister or
department may by order, rules, regulations or
scheme, make provision—
(a) for the purpose of implementing any EU
obligation of the United Kingdom, or
enabling any such obligation to be
implemented, or of enabling any rights
enjoyed or to be enjoyed by the United
Kingdom under or by virtue of the
Treaties to be exercised; or
(b) for the purpose of dealing with matters
arising out of or related to any such
, obligation or rights or the coming into
force, or the operation from time to time,
of subsection (1) above; and in the
exercise of any statutory power or duty,
including any power to give directions or
to legislate by means of orders, rules,
regulations or other subordinate
instrument, the person entrusted with the
power or duty may have regard to the
objects of the EU and to any such
obligation or rights as
aforesaid.
In this subsection “designated Minister or
department” means such Minister of the
Crown or government department as may
from time to time be designated by Order
in Council in relation to any matter or for
any purpose, but subject to such
restrictions or conditions (if any) as may
be specified by the Order in Council.
[…]
(4) The provision that may be made under
subsection (2) above includes, subject to
Schedule 2 to this Act, any such provision (of
any such extent) as might be made by Act of
Parliament, and any enactment passed or to be
passed, other than one contained in this part of
this Act, shall be construed and have effect
subject to the foregoing provisions of this
section; but, except as may be provided by any
Act passed after this Act, Schedule 2 shall have
effect in connection with the powers conferred
by this and the following sections of this Act to
make Orders in Council or orders, rules,
regulations or schemes.
Old rule that Parliament cannot bind it successors, does not work. Parliament does
bind its successors.
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