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NM11 Business Laws

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NM11 Business Laws

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Course Code: NM11
University: University Of The West Of England

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Country: United Kingdom

Question:
Whist the principle of Supremacy is firmly established in the (now) EU legal order, it was a novel concept and has faced challenges in its development.’ 
 
Demonstrate knowledge of and the ability to analyse and apply the constitutional law of the European Union, including understanding of the relationship between the Court of Justice and national courts concerning Supremacy.
Answer:

Introduction:
Doctrine of supremacy of European Union was advanced by the European Court of Justice, and as per this doctrine, whenever there is any dispute between the European law and law of member states, then law of EU will always dominant. As stated by the European community law, if any conflict arises in the nationwide law of member states and law developed by European Union then European law will supersede[1].
This paper mainly discuss the statement “principle of Supremacy is firmly established in the (now) EU legal order, it was a novel concept and has faced challenges in its development”. This essay demonstrates the knowledge related to the application of the constitutional law of EU which also includes the association between the Court of Justice and national courts concerning Supremacy. At the end, brief conclusion is stated which concludes the important facts of this essay.
Discussion:
While making and declaring the public law, The European Court of Justice (ECJ) shows very important part. There are number of important doctrines established by EC law which are not stated under the treaties or in any secondary legislation, but they are established by different case laws decided by the European Courts[2].
No regulations are defined under the Treaty on European Union (TEU) which defines the direct provision in context of resolving the problem of the supremacy between the civic and the different nationwide laws of the member states. Article 10 of TEU is the only provision which addresses the issue related to the supremacy, and make member states obliged to accept the relevant provisions in context of ensuring that the responsibilities of the treaty are pragmatic together accompanied with extra obligations to restrict from all the acts which can raise any conflict in the achievement of the objectives stated by treaty. It is clear that, doctrine of supremacy states that EU labour law takes precedence over the domestic labour law.
The formation of the new lawful order of the EU law and its supremacy clearly reflects that EU institutions can form the rules which directly influence the service and industrial relations, even though these rules are opposed by some member states, but maximum member states votes in favour of the rules. After the adaptation, these rules must be enforced by the member states in their national courts, even though these rules override the provisions stated under the domestic law of the member states. It must be noted that, national constitutional courts have also accepted the values related to the supremacy of the EU law. At the similar time, these principles imagined the boundary to the fundamental principles of the national constitution of the each member state[3].
The first and most important case in which statement of the components of the EU law was made by the Court was the case of Van Gend en Loos v. Netherlands (1963) Case 26/62 (1963) ECR 1, (1963) CMLR 105[4]. This case mainly deals with the principles of the straight result of the EC Treaty provisions and the grade to which individual can depend on these terms in context of challenge the provisions of the national law. In this case, it was clearly stated by the ECJ that new legal order in international law was framed by the community for whose benefits the independent rights of the states have been limited. Court further stated that, new legal process was required by the new legal order in context of defensive the new legal advantage created by the new legal order.
Doctrine of supremacy of the EU law had no formal ground in the  European Community Treaty, but the provisions of this doctrine is developed by the ECJ in context of its perception related to the new legal order. Even in case important concept of the judgment deals with the concept of the direct applicability and also the direct impact, but still it is meaningful to refer it as the new legal order. ECJ stated that the EU was not only the normal international law authority, but this authority holds the more independent status and also the great impact on the national law of the member states.
In case law Costa v ENEL Case 6/64 (1964) ECR 585; (1964) CMLR 425[5], the ECJ insistently frame the doctrine related to the supremacy in EU law over the national law of the member states. It must be noted that, there were almost two important assumptions in terms of the association between the community law and national law in this case. Sovereign rights were transferred by the member states to the community, and it was not possible to reverse this process through the subsequent unilateral measures which were not suited to the concept of the community. In other words, it can be said that independence of the member states to take action as they wish has been restricted by the validity of their membership.
In case law Simmenthal SPA (1978) Case 106/77 (1978) ECR 629; (1978) 3 CMLR 263[6], ECJ stated that the supremacy of the European Union law affects the present as well as future laws. In this case, Simmenthal was ordered to pay the fees for public health inspection while importing some beef from France to Italy. Regulation was stated under the Italian law passed in 1970, and at that time it was contrary to the European Community Treaty and two Community regulations passed in 1968 respectively. In this case, two significant facts were introduced by the Italian authorities at the time when case initiates. First observation states that, law of Italy must prevail because it was approved after the two EU regulations. Second Italian law must be implemented by the Italian courts until it had been professed unconstitutional by the constitutional court of Italy, even though it had been conflicted with the treaty obligations imposed on the Italy. ECJ in this case stated that, national courts must comply with the community provisions and does not implement any provision of the national law which fights with the EU law, even though such provision practiced in the member state o continuous basis.
Obligation of member states to avoid the national law provisions which conflicted with the community law more clearly sated under the Factortame litigation (No 2) Case C213/89 (1990) ECR 2433; (1990)3 CMLR 867[7]. In this case, ECJ deals with the dispute which rise between the regulations of the European Community Treaty which mainly restricts the discrimination on the base of the nationality and domestic law of UK states that any fishing boats which were recorded in the UK and which were fishing to the estimates allotted to the UK by the EC must be retained and achieved by the citizens of UK only. It was stated that parts of the Merchant Shipping Act 1988 were not compatible with the applicable regulations of the European Community Treaty. Inn this court stated that any provision of the law passed in the UK must be understood with European law in mind.
There are number of states such as Belgium which complied with the understood with applicable European law in mind in comparatively easy manner. However, some other states such as UK, France, and Italy create issues in the acceptance and development of this doctrine. As they accept this supremacy in slowly manner and after the lengthy process. All these things impose challenges in context of development of the supremacy[8].
This can be understood through the example of the UK. After the acceptance of the fact in context of community supremacy in the UK, approach adopted by the judges creates conflict between the European Community law and Parliamentary legislation in some specific manner. They are pr       oviding the considerable guidance in context of the European Community Act 1972[9]. This Act was passed by the parliament for the purpose of establishing the law in terms of Britain Membership in the community. Section 2(4) of this Act states that any law which is passed or to be passed shall be interpreted and take effect in context of the preceding terms of this section, such as those terms which enforce the community law in direct manner in the UK.
Judges of the UK further believed that absence of the written constitution which recognizes the sovereignty of the people in UK and also the constitution sovereignty is occupied by the doctrine of parliament supremacy. Provisions of the parliament supremacy stated that there is no more or less than this. In other words, under the English constitution, parliament is defined as the body which holds the right to make or remove any law. Further constitution stated that nobody or authority holds the power to override the legislation framed by the parliament of UK.
This example of UK clearly stated that, member states consider the supremacy of their constitutional law instead of the law framed by European community, and this is considered as biggest challenge in the development of the doctrine of supremacy[10].
It must be noted that, way through which community law is considers as the sui generis is depend on the fact whether the member state adopts the approach of the monist or dualist in terms of the international law. Monism is considers as the approach when both national and community law form the single conceptual structure in whole or in part, and in which precedence is taken by the international law. On the other hand, dualism is the approach which deals with the system of international law and the national law in separate manner. There are number of member states in which domestic law is enacted by the parliament for the purpose of entering the international law into the national law. For example, this view is adopted by the UK and they remain firm with the doctrine of the parliament sovereignty. Dualist approach adopted by the UK in context of the international law reflects that international treaties ratified by the UK do not become part of the domestic law of the UK. If UK wants to enforce these laws at the national level, then they must be incorporated by the Act of parliament. After considering the facts, it is clear that doctrine of parliament sovereignty makes difficult for the community law to precede the national law. As it creates hurdle in the development and adaptability of the community law over the national law.
Therefore, it can be said that there are number of challenges in context of the implementation and development of the doctrine of supremacy as the new legal order, and the biggest challenge faced by them is the monism and dualist approach of the member states.
Conclusion:
After considering the facts of this case, it is clear that ECJ as the treaty guardian established the principle of the supremacy, and also reaffirmed the EC law development. This doctrine of supremacy is included in the basic concepts of the TEU, but still its implementation and development face number of challenges. The basic requirement in context of development of this law requires the acknowledgement of supremacy by the member states. Member states consider the supremacy of their constitutional law instead of the law framed by European community, and this is considered as biggest challenge in the development of the doctrine of supremacy.
References
Websites
Bruges group, Why EU law has supremacy over national law and why attempts at reform will never succeed (2016), < https://www.brugesgroup.com/images/papers/eulawsupremeovernationallaw.pdf>, accessed on 25th may 2018.
AISI Zhang, Supremacy of EU Law: A Comparative Analysis (2014), < https://nicholasnicoletti.com/EU%20Conference/Paper%20Submissions/Zhang,%20Aisi%20-%20Supremacy%20of%20EU%20Law.pdf>, accessed on 25th may 2018.
EUROfound, Supremacy of EU law (4th May 2011), < https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/supremacy-of-eu-law>, accessed on 25th May 2018.
Canan Coskun, The principle of supremacy of EC law: the impact of the enlargement and the constitutional treaty, (2006), https://openaccess.bilgi.edu.tr:8080/xmlui/bitstream/handle/11411/194/The%20Principle%20of%20Supremacy%20of%20EC%20Law%20The%20Impact%20of%20the%20Enlargement%20and%20the%20Constitutional%20Treaty.pdf?sequence=1&isAllowed=y, accessed on 25th July 2018.
Case Laws
Van Gend en Loos v. Netherlands (1963) Case 26/62 (1963) ECR 1, (1963) CMLR 105.
Costa v ENEL Case 6/64 (1964) ECR 585; (1964) CMLR 425.
Simmenthal SPA (1978) Case 106/77 (1978) ECR 629; (1978) 3 CMLR 263.
Factortame litigation (No 2) Case C213/89 (1990) ECR 2433; (1990)3 CMLR 867.
Journals
Martin Stiernstorm, The Relationship Between Community Law and National Law (October 2005), Jean Monnet/Robert Schuman Paper Series Volume 5(33).
Statute
European Community Act 1972- Section 2
[1] Bruges group, Why EU law has supremacy over national law and why attempts at reform will never succeed (2016), < https://www.brugesgroup.com/images/papers/eulawsupremeovernationallaw.pdf>, accessed on 25th may 2018.
[2] AISI Zhang, Supremacy of EU Law: A Comparative Analysis (2014), < https://nicholasnicoletti.com/EU%20Conference/Paper%20Submissions/Zhang,%20Aisi%20-%20Supremacy%20of%20EU%20Law.pdf>, accessed on 25th may 2018.
[3] EUROfound, Supremacy of EU law (4th May 2011), < https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/supremacy-of-eu-law>, accessed on 25th May 2018.
[4] Van Gend en Loos v. Netherlands (1963) Case 26/62 (1963) ECR 1, (1963) CMLR 105.
[5] Costa v ENEL Case 6/64 (1964) ECR 585; (1964) CMLR 425.
[6] Simmenthal SPA (1978) Case 106/77 (1978) ECR 629; (1978) 3 CMLR 263.
[7] Factortame litigation (No 2) Case C213/89 (1990) ECR 2433; (1990)3 CMLR 867.
[8] Martin Stiernstorm, The Relationship Between Community Law and National Law (October 2005), Jean Monnet/Robert Schuman Paper Series Volume 5(33).
[9] European Community Act 1972- Section 2
[10] canan Coskun, The principle of supremacy of EC law: the impact of the enlargement and the constitutional treaty, (2006), https://openaccess.bilgi.edu.tr:8080/xmlui/bitstream/handle/11411/194/The%20Principle%20of%20Supremacy%20of%20EC%20Law%20The%20Impact%20of%20the%20Enlargement%20and%20the%20Constitutional%20Treaty.pdf?sequence=1&isAllowed=y, accessed on 25th July 2018.

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