‘The UK courts have generally been too willing to accept the absolute supremacy claim of the Court of Justice of the EU, but the Supreme Court decision in the HS2 case (R (on the application of HS2 Action Alliance Limited) v Secretary of State for Transport [2014] UKSC 3) represents an important change of direction that is more consistent with the position of the German Federal Constitutional Court.’ Critically discuss this statement.
With the advent of the European Union (EU), the consolidation process of the legal system started. Treaties between the EU and its member states integrated the judicial system and the European Court of Justice (ECJ) became the apex court of the Union and its member states. It was resolved by the members through Declaration 17 of the Consolidated EU Treaties that the laws adopted by the EU, settled case laws given by the ECJ and the treaties will prevail over the laws of the member states. In simple words, the laws passed by the EU will have an overriding effect on the national laws of member states. It was further resolved that member states would be required to integrate EU laws with their national laws in a phased manner. In essence, national courts were entrusted with the responsibility to apply and enforce Community Law. National courts were also delegated the duty of upholding Community Law where there is a contravention of the national laws and the EU law.
The Doctrine of Supremacy of the EU was developed with the help of a number of important rulings of the ECJ. National Courts are the first stage of implementing the EU laws. Litigations and requests based on EU law are first referred to the National Judges. The treaties stipulate an integrated system of law enforcement in the form of “Preliminary Ruling Procedure”. The national courts cannot decide on matters related to EU law. Under the Preliminary Ruling Procedure, national courts are required to refer matters related to judicial interpretation and contested questions to the ECJ. It is the responsibility of the ECJ to interpret Community law in a proper manner and makes sure that such law is implemented throughout the member states in a uniform manner.
The relationship between the EU and the member states is generally governed by three principles; the Doctrine of Supremacy, Direct Effect and Enforceability of the Community law. The doctrine was established by the famous case of Falminio Costa vs. ENEL (1964) where the court opined that EU law is a source of international law, which is based on the functioning of the community. The court further opined that community law draws its powers from treaties of the member states and cannot be overridden by provisions of national law. Another notable case in this regard is the case of Van Gend en Loos (1963) where the ECJ said that the European community proposes a new world order and its legal system influences international law to a great extent.
In this backdrop, member states have sacrificed their sovereignty, but to a limited extent in order to bring uniformity in the legal system throughout the union. In essence, the community receive a more independent status and exerts a considerable amount of influence on national legal systems of the member states. Member states have transferred some of their rights to the Community and in this context the autonomy of the Member States have become limited. In the case of Finanze dello Stato v Simmenthal SpA (1978), the ECJ opined that European law would prevail over both prior and future national legislations. The ultimate judgement stipulated that national courts are required to comply with the provisions of the European law and not apply any contravening provisions of national law even though it has been the legal practice.
It can be seen from the study of the above case laws that the doctrine of supremacy of the EU law is a well-established one among the member states of the Community. Time and again it has been proved in different circumstances that the EU law will always override the provisions of national law. The ECJ derives its powers from treaties undertaken by the member states with the Community and is the apex authority for interpreting EU laws and disposing off litigations related to such EU laws.
Sovereignty of country and its people are ensured by the constitution of a country. However, in UK, a complete codified constitution is not in use. Sovereignty is derived from the “Doctrine of Parliamentary Supremacy”. According to this doctrine, Parliament of UK holds the ultimate power to make and implement legislations. The Parliament is entrusted with responsibility of passing legislations and this authority cannot be challenged in any legal forum. It is from this authority, responsibility is derived regarding upliftment and protecting the rights of its citizens.
Judiciary of the country has the responsibility to interpret and explain statutory provisions and dispose of litigations. Therefore, it can be said that the courts and its judges uphold supremacy of the Parliament. With UK’s inclusion in the EU, it became necessary to enact a national legislation that will induce European law with the national law. Initially, international and domestic laws were considered separate and such induction of the international law required ratification of the UK Parliament. This became very difficult with the doctrine of parliamentary Supremacy in operation. The case of Blackburn v Attorney General (1971) played an important role in this regard. It was opined by the court that international treaties and the European laws cannot be made binding until they are embodied within domestic legislations passed by the Parliament.
With the objective of integrating international treaties and the European law, the European Communities Act 1972 was passed by the Parliament. Sections 2 of the Act relates to general implementation of Treaties in the form of Community laws. Along with this empowering section, Schedule 2 provides for some limitations of the Community laws. The provisions of section 2 stipulates that UK must enforce and confer all the rights arising out of the treaties and Community law without any further enactment of any domestic legislation in this regard (Subsection 2). Subsection 4 of section specifies that English law shall be interpreted subject to the principle that European law is supreme. In simple words, when any domestic law contravenes with the provisions of any European law, the latter will prevail and override the former domestic legislative provisions. Further, section 3 provides that interpretation of Community laws and international treaties are to be done by the ECJ and the judgement given thereof will prevail over the judgements given by UK courts.
Therefore, it can be seen that with the passing of the European Communities Act, the intention of the UK to become a part of the EU seems to be clear. In order to achieve this objective, legislative reforms were undertaken by the Parliament. The executive branch took a collective decision to enter the European Community. The provisions of the act were clear and it depicts the country’s keenness to be a part of an international community. With the enactment of the legislation, the supremacy of Parliament was sacrificed. This proved to be a great step of the country towards bringing about a change in the entire legal system.
The case involved an appeal by the appellant Action Alliance Limited with respect to a decision made by the government for developing a railroad link from London to the North known as HS2. The decision came in the form of a “Command Paper”, popularly known as “DNS”. The Command Paper enumerated in details the procedural requirements of the project. It also stated the manner in which consent for the development will be obtained by enacting two separate hybrid bills of the Parliament.
The contention of the appellants was that a Strategic Environmental Analysis (SEA) as stipulated by Directive number 2001/42/EC given by the EC should have preceded such development. The second important issue of the case was that whether passing of the hybrid bills were in consonance with Directive number 2011/92/EU, popularly known as the EIA Directive.
The Supreme Court of the UK unanimously dismissed the appeal. The SC opined that the main objective of the SEA directive is to prevent major effects on the environment that have been pre-determined and identifies with the help of effective planning. Such planning takes place before the EIA stage is reached. SEA directives do not describe any particular project or its merits and demerits; it simple provides a framework for the approving authority to give consent to the required project. The purpose of the SEA directives is to enable the approving authority to take an effective decision on the matter without any hindrances posed by earlier plans that have not been assessed in a proper manner for environmental effects.
The Court described that the DNS provides elaborate explanations about the HS2 project with a complete description about the rationale behind undertaking the project along with its pros and cons. In essence, the DNS does not pose and hindrance for the approving authority (the Parliament in this case) to make a suitable decision in this regard. The court further opined that the Parliament is an independent and autonomous body that is not bound by any criteria provided by the Government to take its decisions. The Court pointed out that there is a distinction between exerting mere influence on matter and limiting the scope of the decision making process. The DNS was open for all debates and submission before it was approved by the Parliament and it is also not required to expose the decision making process of the Parliament to SEA procedure. Thus, the Court concluded that the SEA directives should be interpreted on its own terms and there was no need to refer the matter to the CJEU.
On the second issue, it was alleged by the appellant that the bills were passed in the Parliament without proper representation of the common public, which is a violation of Article 6(4) of the EIA Directive. The issue in question was whether the Parliamentary procedure was compliant with the EIA Directives. To this, the Court exclaimed that it has to evaluate whether an important project like the HS2 is in public interest or not. The matter is of national political significance and should be determined by national legislature rather than by an ordinary process of development control. When a matter is subject to the consideration of the Parliament, the members do have adequate information about it and have the freedom of evaluating the same to make an informed decision. This includes information on environmental factors. Thus, the contention that the matter did not get enough public consideration from an environmental point of view is unpersuasive. The Court concluded that there was no reason to believe that the members of the Parliament did not have opportunity to debate on the matter and therefore, the matter is not required to be referred to the CJEU.
Integration of the Community law into the German legal structure has not been an easy task. The German Federal Constitutional Court (FCC) played an important role in the integration process. However, often it was found that the FCC deviated from the Community law and overruled litigations on the basis of national laws. The integration process often faced hindrances due to lack of proper debate in the German electorate. Many opine that the FCC is not the appropriate forum to debate about the integration of the EU laws into the German legal framework. The FCC that prioritized national law over the Community law gave a number of judgements in this regard.
In the case of Solange I (1974), there was a conflict between the Community law and fundamental rights guaranteed by the German Constitution. The FCC opined that German Constitutional rights would prevail over any conflicting provisions of the Community law. This was an outright rejection of the applicability of the Community law and its supremacy within the member states. Another important and comprehensive case in this regard was the case of Brunner v. Treaty on European Union (1993). In this case, the FCC provided a much more detailed analysis of the relationship between the EU law and the German law and emphasized on the theory of democratic legitimacy. It was clear that the German acceptance of the EU law was limited.
Even though both the cases may seem to be similar, but there is a thin line of difference between the approaches adopted by the UK Supreme Court and the FCC. Over the years, the contention of the FCC has been made clear by the profound judgments given by it. The FCC has explained cases mentioned above in details about the applicability and the integration of the Community law into the legal framework of the country. The FCC has opined that integration from its viewpoint is only a transfer of sovereignty to a certain extent and acceptance of the Community law is limited to the extent of applicability of the country’s constitutional laws. In several cases of contravention, the FCC has upheld the applicability of the fundamental rights guaranteed under the German Constitution.
On the other hand, the UK Parliament passed a special legislature to enforce the Community law into its legislative framework. The supremacy of the EU law has been accepted and in cases of contravention, matters have been referred to ECJ. However, in the HS2 case, the Supreme Court adopted a different approach. It can be said that it was not an outright rejection of the applicable EU directives, rather it was focussed more on explaining whether a contravention took place or not. The Supreme Court carefully examined the related matters and evaluated whether it requires referral to the ECJ or not. On the backdrop of the evidences provided and facts of the case, the Court focussed on determining whether any contravention took place or not and whether national laws will suffice to arrive at a conclusion or not. The Court rightfully dismissed the contentions of the appellant as all facts and evidence of the case pointed out that EU directives were not violated and nation law was consistent in disposing off the case.
After a careful consideration of the facts mentioned above, it can be said that the UK has a perfect structure to implement EU laws within its national laws. The procedural steps were maintained in its true sense and a national statute was passed by its Parliament to facilitate the integration of EU laws within the country. The supremacy doctrine was well accepted in cases of contravention. However, the judgement in the HS2 case brought about a new angle to the story. In the case, the Supreme Court tries to ascertain the legality and the extent to which contraventions are taking place rather than simply accepting a contention that violation has taken place. The reasons for the judgement were explained in an elaborate manner in determining the extent of contravention and non-compliance by the government and the Parliament. The Court ultimately opined that passing of the hybrid bills were well within the ambit of the Parliament without diminishing the applicability of EU directives. Therefore, it may seem in the beginning that the case and the viewpoint of the FCC are similar but they differ on a factual base.
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