The new legal order dogma propagated by the Court of Justice, which was considered irreconcilable with the dualist attitude, did not transform the dualist into monist countries, not even in the context of Community law. Germany and Italy have remained dualist, also in the context of Community law which is not considered to apply and take precedence by and of itself. Community law is considered special, and is granted a spe- cial status, not on grounds of some monist view, but on grounds of the transfer of powers provision in the Constitution allowing for a ‘special’
theory designed to comply with the requirements of Community law. It is not the very nature of Community law which makes it effective and supreme, but a new interpretation of the Constitution.
Franceand Luxembourg make no distinction between Community law and international treaty law. Both are effective and take precedence on the same basis: their very nature in Luxembourg; Article 55 of the Constitution in France. The Netherlands position is peculiar in that, while like in France and Luxembourg, there is no need to give a special status to Community law, this has been done in the past. In Belgium, the central argument of the Court of Justice, ‘the very nature of Community law’, was extended to inter- national treaty law in general and Community law a fortiori. The specificity of Community law did re-emerge with the creation of the constitutional court and in the context of the constitutionality of Community law.
7.6.8. The ‘New’ Member States: Ireland and the United Kingdom126 For the Member States joining the Communities and Union after the rulings in Van Gend en Loosand Costa v ENEL, the issue did not present itself in the same way. For those States, it must have been clear from the outset that the Community legal order was an autonomous legal order, inserted in the legal order of the Member States and to be enforced by the courts with prece- dence over conflicting national law. Admittedly, Simmenthal was not yet
126The analysis of the Member States acceding to the Communities and Union after Van Gend en Loosand Costa v ENELwill be limited to these countries. They acceded at a time when the Community doctrine, while it had been formulated by the ECJ, was still in a foundational stage. For the countries that joined later, the situation was entirely different as the foundational period had come to an end when they joined; Simmenthalhad been handed to confirm the basic tenets of Van Gend en Loosand Costa v ENEL; the doctrine of the legal order was widespread and direct effect and supremacy were firmly established as principles of Community law. Denmark is left out due to language constraints, and apparently there has not, at least not in judicial decisions, been much debate on the issue.
The Irish case is interesting as the Irish Constitution was amended to provide for the direct application and the supremacy of Community law; the English case is interesting since the most fundamental principles of British constitutional law on the one hand and those of Community law on the other seemed irreconcilable at the time of the accession.
decided when Ireland, the United Kingdom and Denmark127 joined, but Simmenthalonly restated Costa v ENELin unequivocal terms emphasising the mandate of the courts resulting from the principle of supremacy.128They had the opportunity to brush up the national legal order before entering and to find a method to facilitate the application of Community law, and, if need be, to adjust the constitutional environment. Of those countries, the Irish and English case are especially interesting in the discussion of legal order think- ing and its effects on judicial review powers. Both countries are devoted to radical dualism. Ireland is one of the rare countries in which the perception of the relation between legal orders is set out in the constitutional texts.
According to Article 29.6 of the Irish Constitution ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas’.129In order to be enforceable by the courts, treaty provisions must be incorporated in Irish law; upon enactment, they have the status in Irish law of the incorporating measure.130The version of dualism prevailing in the United Kingdom is a direct repercussion of the cornerstone of constitu- tional law, the principle of parliamentary sovereignty. According to the doc- trine of parliamentary sovereignty, all law derives from or under the authority of Parliament. Since the treaty making power rests with the Crown, treaties entered into cannot of their own force enter into the domes- tic legal order without impairing the legislative monopoly. In order to become operative in the domestic legal order and to affect the rights and obligations of individuals, treaty provisions must be incorporated by Parliament.131The status of the treaty provisions in the British legal order is
127During the legal constitutional debate on the Danish accession, it was asserted that the supremacy of Community law was unconceivable from a Danish perspective, and that it could only be achieved by constitutional amendment, see O Due and C Gulmann,
‘Constitutional Implications of the Danish Accession to the European Communities’, (1972) CML Rev256; No constitutional amendment was however made, and Denmark joined on the basis of Article 20 of the Constitution, the transfer of powers provision. Denmark is a dualist country, see J Albaek Jensen, ‘Human Rights in Danish Law’, (2001) 7 EPL, 1; the Act of accession only provided for the direct applicability of Community law, without explicitly giving it supremacy; it seems however that there have not been cases of inconsistency and the courts have not had to pronounce themselves on the question of supremacy, see egH Zahle, ‘National constitutional law and the European Integration’, Le droit constitutionnel national et l’intégration européenne, 17th FIDE Kongress (Berlin, 1996) 60, at 67.
128Even though it did cause an upheaval of doubts as to the compatibility of the supremacy of Community law and the sovereignty of Parliament, see JDB Mitchell, ‘The Sovereignty of Parliament and Community Law: The Stumbling-Block that Isn’t There’, (1979) International Affairs, 33; O Hood Philips, ‘Has the “incoming tide” reached the Palace of Westminster?’ (1979) 95 LQR, 167.
129The Oireachtas is the Irish Parliament.
130CR Symmons, ‘Ireland’, in PM Eisemann (ed), L’intégration du droit international et com- munautaire dans l’ordre juridique national (Kluwer, 1996) 317, at 337ff.
131There are various ways in which this is done: Either the words of the treaty are repeated in a statute without reference to its source; or the statute may name the treaty and then enact all or part of the substance of the treaty; or, third, the statute sets out the text of the treaty in a schedule while giving effect to all or certain specified provisions thereof; see AW Bradley and KD Ewing, Wade & Bradley, Constitutional and Administrative Law, 11th edn (London, Longman, 1993) at 333.
determined by the act incorporating them, mostly in the form of an Act of Parliament. Under the principles of parliamentary sovereignty, a later Act always takes precedence over an earlier one, even if the latter incorporates a treaty. Parliament is supposed to have implicitly repealed the earlier Act by introducing another, contradictory Act. The courts acknowledge the fact that they have no business with treaties directly.132Both countries thus had to find a way to allow Community law to be effective in the national legal order, and to be given precedence over conflicting national law.
Bunreacht na héireann, the 1937 Constitution of Ireland, the youngest sovereign and independent State among the Members of the European Union, contains several elements that may be interpreted as opposing Irish membership of the European Communities and certain principles of Community law, such as direct effect, supremacy and the judicial enforce- ment of those principles. The notion of sovereignty and the problem of fundamental rights will be discussed in Part 2. What is of interest here is the supremacy of Community law and the Simmenthalmandate. The bul- wark of the Irish Constitution was opened up to Community law by the introduction through a referendum of a new provision in the Constitution.133The new article134provided the constitutional authorisa- tion to join the Communities, made Irish acts done pursuant to the obli- gations of membership lawful and granted constitutional immunity to Community law. Yet, it did not explicitly tackle the issue of ordinary supremacy135and, more importantly, of the power of all Irish courts to give effect to Community law over conflicting Acts. Within the dualist paradigm of the Irish Constitution, a further act incorporating the Treaties
132From among numerous examples, Lord Templeman in Rayner (MIncing Lane) Ltd v Dept of Trade [1989] 3 WLR 969; [1990] 2 AC 418, at 477: ‘Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts (..) have no power to enforce treaty obligations (…)’.
133Known as the Third Amendment, adopted by the Oireachtas and approved by the People in a referendum. The Constitution was later amended, in relation to European Treaties amendments, by the Tenth Amendment of 1987 (SEA), the Eleventh Amendment of 1992 (Treaty of Maastricht); the Eighteenth Amendment of 1998 (Treaty of Amsterdam) and the Twenty-Sixth Amendment of 2002 (Treaty of Nice).
134The relevant provisions of article 29.4 of the Constitution now read: ‘(3) The State may become a Member of the ECSC (..), the EEC (..), and Euratom (..). The State may ratify the SEA (..). (4) The State may ratify the TEU signed at Maastricht (..) and may become a member of that Union. (5) The State may ratify the Treaty of Amsterdam (..) (6) The State may exercise the options or discretions [in the framework of flexibility] (..) subject to the prior approval of both Houses of the Oireachtas (7) No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessi- tated by the obligations of membership of the EU or of the Communities, or prevents laws enacted, acts done or measures adopted by the EU or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State’. [abbreviations added, place and date of signatures omitted].
135It seems, though, as a matter of common sense, that if Community law is supreme over the Constitution, it must also be supreme over primary legislation, inferior to the Constitution.
‘Qui peut le plus, peut le moins’. It was not, however, stated in the Constitution.
and Community law was needed. This was the European Communities Act 1972.136
The constitutional and statutory provisions opened up the Irish legal order and introduced the Treaties and secondary law, granting them a special status over domestic law and even over the Constitution. Irish courts accept that they must, in accordance with the principles of Community law, apply Community law with precedence over competing Irish law.137 That position has never been challenged judicially.138 Irish judges accepted Community law , and its primacy, very easily and in a matter-of-fact way.139 Community law must be enforced in the Irish courts on the terms dictated by the Treaties as interpreted by the Court of Justice. According to the Supreme Court in the Meaghercase, ‘Section 2 of the Act which provides for the application of the Community law and acts bind- ing on the State and as part of the domestic law subject to the conditions laid down in the Treaty which, of course, include its primacy, is the major or funda- mental obligation necessitated by membership of the Community’.140
Diarmuid Rossa Phelan argues that the reasoning itself, which refers back to the constitutional and statutory provisions, does conflict with Community law, which in his view requires that the autonomy of Community law deriving from the Treaties as the constitutional charter must be respected also in national law.141 The alternative view is that Community law makes no specific claim as to the source of its status within the domestic legal order as long as the results of its own conception, such
136A consolidated (until 1995) and annotated version of the Act can be found in G Hogan and A Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary(London, Sweet & Maxwell, 1995), at 166–81. Section 2(1) of the Act states:
‘(..) the treaties governing the EC and the existing and future acts adopted by the insti- tutions of those Communities and by the bodies competent under the said treaties shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties’.
137Pigs and Bacon Commission v McCarren[1978] JISEL 87: ‘If according to Community law the provisions of Community law take precedence over a provision of national law in conflict with it, an Irish court must give effect to the rule’.
138Though there still is much debate, both judicially and scholarly, as to the exact meaning and impact of the constitutional and statutory provision. As the issues under debate do not concern the principle of ordinary supremacy and the judicial review powers, they will not be discussed here. The main points of contention are the meaning of ‘necessitated’ in article 29.4.5. of the Constitution, the question whether directives may be implemented by ministerial order, and the question of whether there is, despite the constitutional text, a nucleus in the Constitution which can never be overridden by Community law. See below.
139B Walsh, ‘Reflections on the Effects of Membership of the European Communities in Irish Law’, in F Capotorti et al(eds), Du droit international au droit de l’intégration. Liber Amicorum Pierre Pescatore, (Baden-Baden, Nomos, 1987), 805; J Temple Lang, ‘European Community Law, Irish Law and the Irish Legal Profession’, Frances E Moran Memorial Lecture 1982, at 23.
140Supreme Court, decision of 1 April 1993,Meagher v Minister for Agriculture [1994] 1 IR 329, at 350, perFinlay CJ; published on www.irlii.org.
141DR Phelan, Revolt or Revolution. The Constitutional Boundaries of the European Community (Dublin, Sweet & Maxwell, 1997), Chapter 27.
as primacy and direct effect are accepted.142The conception and terms of the effect and status of the Irish legal order may be different from those assumed by the Court of Justice, but they are not in practical terms inconsistent with them. Both conceptions lead to the same practical result, the courts awarding precedence to Community law over conflicting national law. Community law does not require the suppression of national constitutional conceptions of legal orders and of national constitutional and statutory techniques which are used as vehicles to make Community law operative.143In contrast to most of the founding Six, Ireland had brushed up its constitutional and statutory framework before entry to the Communities, with particular attention to the effect and primacy of Community law. The Irish way seems to be particularly recommendable since the statutory text refers back to the conditions laid down in the Treaty, it contains a renvoito Community law.
In the United Kingdom, the same result was sanctionedexpressis verbis only with theFactortame judgment of the House of Lords. Of course, the United Kingdom lacks a Constitution which could be brushed up. The British legal order was opened up for Community law by virtue of the European Communities Act 1972;144and Community law is accordingly given effect as a block, instead of each piece of Community legislation having to be transformed separately: ‘It took only a few lines in an Act of Parliament to receive within the United Kingdom a massive body of Community law (..)’.145Yet, the Act is not worded in the same clear terms146as its Irish equivalent, and more importantly, the fundamental question was whether the Act would be strong enough to break open the constraints of the principle of parliamentary sovereignty. Under the principle of sover- eignty, no Parliament can bind its successor; there is no such thing as
142G Hogan and A Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary (Sweet & Maxwell, London, 1995) at 10ff For comments on the discus- sion DR Phelan and A Whelan, ‘National Constitutional Law and European Integration’, in Le droit constitutionnel national et l’intégration européenne, 17th FIDE Kongress, (Berlin, 1996) 292, at 313ff.
143See also G Hogan and A Whelan, op cit, at 13.
144The EC Act states, in relevant part: ‘2(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 Community right” and simi- lar expressions shall be read as referring to one to which this subsection applies …
145AW Bradley, ‘The Sovereignty of Parliament: Form or Substance?’, in J Jowell and D Oliver (eds), The Changing Constitution (OUP, Oxford, 2000) 23, at 41.
146Different: JDB Mitchell, SA Kuipers and B Gall, ‘Constitutional Aspects of the Treaty and Legislation relating to British Membership’, (1972) CMLRev134, at 149: ‘From a legal point of view, the Bill is good. Indeed the draftsmen should be congratulated on producing an artistic piece of legislation which ingeniously achieves the desired results..’, it would however last until the 1989 Factortamejudgment of the House of Lordsfor everyone to be convinced that the EC Act did have this result, and for the highest court of the land to acknowledge it in so many words; for another positive appraisal see J Jaconelli, ‘Constitutional review and Section 2(4) of the European Communities Act 1972’, (1979) 28 ICLQ, 65.
entrenched legislation. So, Community law was made part of English law by the EC Act of 1972, and would therefore override any existing rules of common law and conflicting Acts of Parliament passed before 1972, even under according to the traditional ides of parliamentary sovereignty. But, if an Act of Parliament passed after 1972 were to conflict with Community law, the traditional principle of parliamentary sovereignty would lead to results diametrically opposed toSimmenthal. Since the case law concen- trated on the principle of parliamentary sovereignty and thus mostly on the constitutional position of the courts in relation to the primary legisla- ture, the English solution will be discussed further in Chapter 8.
7.7. CLOSING REMARKS
The formulation of an adequate doctrine on the relation between national law and Community law has called for a good deal of judicial creativity, first from the Court of Justice itself, and later from the national courts. The building blocks were to be found in the Treaties and, for the national courts, in the Constitutions, and in constitutional principles, Acts of accession and the Treaties binding on the State. The Court of Justice has presented the national courts with a theory, qualifying the Community legal order as ‘a new and autonomous legal order’, ‘integrated in the national legal orders’, and applicable with precedence over conflicting national law. The national courts operate in that other, national legal order, based on the national Constitutions. Now, from an external point of view, it may not be so difficult to conceptualise the co-existence of these legal orders on the basis of theories of pluralism or mixity of legal orders.
However, both the European Court and the national courts act withinone of these orders. The relationship between the legal orders can only be approached from within one of the systems, and on the basis of the prin- ciples and rules prevailing within that order. The national views of the relation between the Community and the national legal order differ from State to State. Even Italy and Germany, which supposedly start from sim- ilar positions, arrive at different interpretations of the relationship between the national and Community legal order.
It is striking that the successive Treaty amendments and accessions have never been used to insert the basic doctrines of direct effect or supremacy or indeed a more general statement on the nature of the Community legal order in the text of the Treaties. Perhaps it was not con- sidered necessary to insert them; it may have appeared the business of the courts, European and national. Perhaps, it was because these principles were so self-evident that they could go without saying.147Likewise, most
147B De Witte, ‘Direct Effect, Supremacy and the Nature of the Legal Order’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 1999) 177, at 194.