EC law and national taw
- The ECJ has asserted the supremacy of EC law over conflicting national law on many occasions. The two early cases of Van Gend en Loos  CMLR 105 and Costa v ENEL  CMLR 425 lay the foundations for the current relationship between domestic law and Community law and, therefore, require your careful consideration.
- In these cases the ECJ enunciated the principle that, by signing the Treaties, the member states had created a new legal order in which individual states had limited their sovereign rights.
- In order to understand fully the supremacy of EC law you should also look carefully at the cases of Internationale
- HandelsgeselLschaft  CMLR 255, [197412 CMLR 540 and Simmenthal  ECR 629. In these cases, the ECJ found that even a fundamental provision in the written constitution of a member state could not be invoked to challenge the supremacy of EC law. The above cases, as well as later ones, are discussed in Barnett (2000).
How EC law enters the UK legal system
EC law enters into UK domestic law under the European Communities Act 1972 (ECA 1972). You should look carefully at this Act, in particular, at Section 2. The Act specifies that:
Ø Rights and duties derived from EC provisions that have direct effect are to be given full legal effect within the UK
Ø The UK executive has the power to implement EC law without need for parliamentary approval. This covers both EC laws adopted prior to 1972 and, crucially, in the future.
Ø The meaning or effect of EC legislative provisions is to be interpreted by the executive and the judiciary in accordance with EC law, which includes the jurisprudence of the ECJ.
EC law and parliamentary sovereignty
The manner in which, and the extent to which, the United Kingdom courts have accommodated Community obligations requires consideration. As you know, in the unwritten UK constitution, the highest principle is that of Parliamentary sovereignty, whereby the UK Parliament is free to pass any laws and cannot bind its successors. This creates the possibility of conflict between uk law
which British judges must always respect – and EC law, which is recognised as supreme across the EC member states. The ECA 1972 strikes a balance between the principles of parliamentary sovereignty and supremacy of EC law in the following manner. On the one hand, the ECA 1972 is not entrenched – that is, it is not immune from amendment or repeal. There is no statement in the Act purporting that EC law is a `higher form of law’, which cannot be repealed, or could be repealed but only by some specified `manner and form’. On the other hand, the Act’s provisions have been understood by the British judiciary to essentially allow that, for as long as the Act remains in force, British judges should resolve conflicts between UK law and EC law by assuming, in their interpretations, that the UK Parliament does not wish to contradict EC law. There is now a great deal of case law demonstrating the attitude of the English courts to Community law. Make sure you read and understand the cases of:
Ø Macarthys v Smith  3 All ER 325 – Lord Denning’s dictum is of particular significance
Ø Garland v British Rail Engineering Ltd  2 AC 751
Ø Pickstone v Freemans plc  AC 66
Ø Marshall v Southampton Area Health Authority  1 CMLR 688
Ø Duke v GEC Reliance Ltd  AC 618
Ø Litster v Forth Dry Dock Ltd  1 AC 546.
Undoubtedly the most significant recent series of cases revealing the relationship between EC law and domestic UK law is that of Factortame. Of the various Factortame cases that were referred to the ECJ for a preliminary ruling, the most significant is R v Secretary of State for Transport ex parte Factortame Ltd  AC 603.
In that case, the ECJ explained to the English judges not only that EC law is supreme but also that, pending a preliminary ruling by the ECJ, the application of the national law, which is suspected of contravening EC law, must be suspended. In other words, the ECJ `authorised’ the British Court to `set aside’ a valid law passed by the sovereign UK Parliament.
Finally, the UK government is no exception to the rule that the governments of member states are liable in damages for loss to individuals caused by the state breaching EC law (see Chapter 8 of and, in particular, the reference to the Francovich case). The ECJ, however, was more lenient towards the UK government in a case where the government, in good faith, had caused financial loss to a British company in the process of interpreting and implementing an EC Directive, which was `insufficiently clear’: R v HM Treasury ex parte British Telecommunications plc [199612 CMLR 217.