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Foster: EU Law Directions

Chapter 5

1. What role do the principles of subsidiarity, proportionality, and attributed competence play in the process of EU law-making? Who should rule on the question of whether these principles are being respected?

These are all means by which attempts are made to draw the line between the competence of the Union to act and the competence of the member states. Of course, because the development of the EU is a dynamic process, the line is often blurred and disputes arise as to whether the member states or the Commission of the Union enjoy a competence and these have often been adjudicated by the ECJ. Both the CT and the reform Treaty made proposals to involve the national parliaments in determining whether a particular proposal should be undertaken by the Union or member states.

2. Outline the reasons and logic provided by the ECJ in the Costa v ENEL and later judgments for the supremacy of EC law over national law.

The Community view on supremacy is that because of its unique nature, Community law denies member states the right to resolve conflicts of law by reference to their own rules or constitutional provisions. Community law obtains it's supremacy because of the transfer of state power and sovereignty to the Community in those areas agreed. The member states have provided the Community with legislative powers to enable it to perform it's tasks. There would be no point in such a transfer of power if the member states could annul or suspend the effect of Community law by later national law or provisions of the constitutions. If that were allowed to be the case, the existence of the Community legal order and the Community itself would be called into question. A precondition of the existence and functioning of the Community is the uniform and consistent application of Community law in all the member states. It can only achieve such an effect if it takes precedence over national law.

3. Is Community Law supreme over any form of conflicting national law in the UK?

Basically, for the reasons outlined above, yes.

4. Would your answer be any different if a UK Act of Parliament expressly stated it was aware of a conflict with Community law but that the Act shall nevertheless apply or contains an instruction to the judges that they shall nevertheless apply the UK Act and not set it aside in favour of Community law?

This was the suggestion made by Lord Denning in Macarthy's v Smith and has yet to receive a definitive answer in a UK case. However, the position from the Community Law point of view remains the same and in view of more recent UK judgments in the Factortame and Metric Martyr's cases, it is not likely a UK court would ignore the supremacy of EU law. However, only a real case will show the true attitude of the courts.