European Communities Act 1972

8 Key excerpts on "European Communities Act 1972"

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  Q&A Public Law

  • Richard Glancey(Author)
  • 2014(Publication Date)
  • Taylor & Francis

    (Publisher)

  Community treaties and Community law capable of having direct effect in the UK were given such effect by the European Communities Act 1972, which, by s 2(1), incorporated all existing Community law into UK law. No express declaration of the supremacy of Community law is contained in the Act; the words intended to achieve this are contained in s 2(4) of the 1972 Act, which reads as follows: ‘… any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section.’ The words ‘subject to’ appear to suggest that the courts must allow Community law to prevail over a subsequent Act of Parliament. ‘[T]he foregoing’ are those provisions referred to in s 2(1) giving the force of law to ‘the enforceable Community rights’ there defined. 8 The problem arises in respect of statutes passed after 1 January 1972. According to the traditional doctrine of parliamentary sovereignty, the later Act should prevail as representing the latest expression of Parliament’s will, but the Community doctrine of the primacy of EU law and s 2(4) would require Community law to prevail. In this respect, it has become clear from the Treaty as interpreted by the ECJ (see Costa v EN EL (1964) and Amministrazione delle Finanze dello Stato v Simmenthal SpA (1978)) that it is an implied Community principle that Community law should prevail over national law. In Secretary of State for Transport ex p Factortame Ltd and Ors (1990), the UK courts had to consider the question of direct conflict between domestic and European Community law

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  Beyond Brexit

  Towards a British Constitution

  • Vernon Bogdanor(Author)
  • 2019(Publication Date)
  • I.B. Tauris

    (Publisher)

  39 It may be that some politicians came to accept that British membership of the Communities entailed the undermining of parliamentary sovereignty, but it is doubtful if the people ever did, although it is, of course, perfectly possible that they might have done so over a longer period of time. But in the forty-five years that Britain remained a member of the European Community/European Union, it is doubtful if the idea of the primacy of European law ever gained widespread popular acceptance. That, no doubt, is a further reason why British membership of the European Union never developed deep roots amongst the British public and it was perhaps a pointer to the outcome of the Brexit referendum.

  But, as we have seen, if the sovereignty of parliament can be abridged in one direction, it can also be abridged in another. The European Communities Act and Britain’s membership of the European Communities and the European Union created a precedent, fundamentally altering the British constitution.

  The European Communities Act transformed the character of the British constitution, the constitution which Dicey had called ‘historical’. For the Act had the quality of fundamental law and perhaps it began what may prove a long and tortuous process along the road towards a codified constitution. Later, towards the end of the twentieth century, the devolution legislation of 1998 and the Human Rights Act of 1998 further exemplified that process and may prove to be further steps along that road. By the end of the twentieth century, it was apparent that the British constitution was being refashioned in a highly conscious and deliberate way. It would be difficult to conceive of a more profound change in our constitutional arrangements. And this process began with the European Communities Act. Without that Act, without British entry into the European Community, it is possible that the process might not even have begun and perhaps the sovereignty of Parliament would not have been abridged. There can be no doubt, therefore, that membership of the European Community fundamentally altered the British constitution. Indeed, by means of the European Communities Act, Britain took a quantum leap from Dicey’s ‘historical’ constitution to a legal constitution. The question now to be asked is whether Brexit will also fundamentally alter the constitution, either by returning us to the status quo ante, or by leaving embedded in the constitution changes which were a result of our membership of the European Community and European Union. I will seek to answer that question in Chapter 5 in which I analyse whether membership of the European Community and the European Union have fundamentally altered our conception of human rights; and in the concluding chapter, Chapter 7 in which I discuss whether Brexit is likely to prove the catalyst for a codified constitution. Whatever the future holds, as a result of Britain’s European involvement, the sovereignty of Parliament has been irretrievably damaged.

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  Foreign and Security Policy in the European Union

  • Kjell A Eliassen(Author)
  • 1998(Publication Date)
  • SAGE Publications Ltd

    (Publisher)

  3 The Single European Act Marit S;lJvaag Political cooperation in Europe has long traditions, although economic issues have always been at the core of cooperation in the European Com-munities. However, the boundary between 'economic ' and 'political ' is becoming increasingly blurred, and politica l ends are often achieved through economic means. There exists an ambiguity in most member states about what they want to achieve in the international arena and how much national sovereignty they are wil ling to give up in order to reach these goals. In order to get a fuller understanding of these problems and their impact on the negotiations leading to the Treaty on European Union, it is useful to give a brief overview of the history of politica l cooperation in the European Communities. The scope of this chapter is to question whether one can, for the specific period 1985-9 1 , show a change in the leve l of interdependence between the EC countries in high politics. Further, if such an integration has occurred, it is interesting to study how it took place. One should bear in mind that six years is indeed too short a period to test or to build theories of politica l cooperation and integration among nations, but it wil l prove a useful basis on which to discuss the successive events, especial ly the 1 997 IGC held in Amsterdam. However, let us first look at some central and useful concepts. The Single European Act (SEA) was signed in 1986 as the first major revision of the Treaty of Rome and entered into force in 1987. It settled a plan for the completion of the internal market and introduced majority voting, and is widely considered a turning point for the integra tion process in Western Europe. From a period of severe economic difficulty in the early 1980s, European countries had an economic upturn from the mid 1 980s which facilitated the introduction of measures to promote closer economic dependence.

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  Understanding Legislation

  A Practical Guide to Statutory Interpretation

  • David Lowe, Charlie Potter(Authors)
  • 2018(Publication Date)
  • Hart Publishing

    (Publisher)

  1 See Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 [62]–[63] (Laws LJ). This description was adopted in R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324 [206]–[208] (Lord Neuberger and Lord Mance); see also Miller v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583 [65]–[68] (Joint majority judgment). 2 See Miller (n 1) [65] (Joint majority judgment): ‘So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law.’ 12 Interpretation of EU Law and its Effect on Domestic Legislation 12.1 The various sources of EU law (or ‘Community law’, as much of it was for-merly known) have been discussed above in Chapter 11. The focus of this chapter is on: (i) the basis on which, as a matter of domestic law, these sources have legal effect in the UK; (ii) the effect of EU law on the application and interpretation of domestic law; and (iii) the interpretation of EU law. We also address in this chap-ter the role of the Court of Justice of the European Union (CJEU) as the ultimate interpreter of EU law, and the use of travaux préparatoires as an aid to interpreta-tion of EU law. The Legal Basis for Application of EU Law in the UK 12.2 Rights and obligations under EU law are given effect in domestic law by the European Communities Act 1972 (ECA 1972), as amended from time to time. Such is its profound effect on the UK legal order that the ECA 1972 Act has been described as having a special status as a ‘constitutional statute’. 1 The terms of the Act, and its interpretation by the courts, mean that for most practical purposes, EU law has a status in the UK as a superior form of law. 2 The nature and effect of that status are discussed later in this chapter. The purpose of this section is to outline the basic scheme of the ECA 1972.

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  Britain in the European Union

  Law, Policy and Parliament

  • P. Giddings, G. Drewry, P. Giddings, G. Drewry(Authors)
  • 2004(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  12 2 Britain in Europe: Community to Union, 1973–2001 David Miers Introduction This chapter’s purpose is to set the scene for the detailed accounts which follow of the relationship between Westminster and Europe. It does so in two interconnected ways. First, it reviews the main developments that took place following the United Kingdom’s accession to the European Economic Community (EEC) on 1 January 1973. These are traced through key legislative events: the Single European Act 1986, the Treaty on European Union 1992 (TEU), the Treaty of Amsterdam 1997 and the Treaty of Nice 2001. Their cumulative and intended effect has been the progressive enlargement (widening) and integration (deepening) of the Community. The chapter comments, secondly, on the nature of the United Kingdom’s ambivalent relationship with the Community, in particular concern- ing the question whether deeper integration would best serve its long-term interests. In terms of British politics, this was perhaps the most acrimonious question of the latter half of the twentieth century. Two of its most prominent casualties were Margaret Thatcher and John Major, both of whose terms as Prime Minister foundered on deep-rooted divisions within the Conservative Party over the question of European integration. Despite its pro-European rhetoric, New Labour has pursued a cautious policy, vividly demon- strated by the United Kingdom’s non-participation in the launch of the Euro on 1 January 2002. 1 Following this introduction, the chapter is divided into four sections. The section ‘Aims, achievements, institutional arrangements and the David Miers 13 awkward partner’ summarises these features of the European Community, aims, and makes some preliminary comments about the United Kingdom’s ambivalent attitude to the notion of ‘closer union’.

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  The Institutional Framework of the European Communities

  • J. S. Davidson, D. A. C. Freeston(Authors)
  • 2005(Publication Date)
  • Routledge

    (Publisher)

  alia, research and technological development and the environment. This means that rather less reliance will need to be placed on either straining the meaning of Articles 100 and 235 or hoping for developments within the context of political cooperation.

  Paradoxically, the existence of the residual legislative powers of Article 235—and the possibility of amendment of the Treaty itself under Article 236—have possibly inhibited the development in Community law of the doctrine of implied powers. In international institutional law and the law of federal constitutions the doctrine of implied powers—whereby powers deemed necessary to achieve the objectives of the constitutional document but not specifically conferred are deemed to have been given—has been an important dynamic, often ensuring that the purpose of a constitutional provision is not frustrated by technicalities. Despite the generally expansive interpretation of the Treaty by the ECJ it is only in one field—that of external relations—that the doctrine of implied powers per se has been employed extensively. Relatively early in its case law the ECJ ruled that the initiation of a common Community legislative programme in a specific area, e.g. regulation of transport or fisheries, carried with it an implied exclusive common external competence.38

  THE EUROPEAN PARLIAMENT

  Since 1962 the Assembly, as it is called in the EEC Treaty,39 has called itself the European Parliament (EP). This term, which is now given official recognition by the Single European Act, will be used in this book, although it is important to realise at the outset that the EP is not a parliament in the sense that Westminster is a parliament. It does not pass legislation, nor is the executive chosen from its members. As we have seen, the legislative and executive functions are performed by the Council and the Commission. The Treaty only gives it restricted ‘advisory and supervisory powers’. The French text uses the expressions ‘pouvoirs de deliberation’ and ‘pouvoirs de contrôle’, this term ‘contrôle’

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  Using International Law in Domestic Courts

  • Shaheed Fatima KC(Author)
  • 2005(Publication Date)
  • Hart Publishing

    (Publisher)

  . . This does not involve, as con-tended for the Secretary of State, any attempt by the EOC to enforce the international treaty obligations of the United Kingdom. The EOC is concerned simply to obtain a ruling which reflects the primacy of European Community law enshrined in section 2 of the [European Communities Act 1972] and determines whether the relevant United Kingdom law is compatible with the Equal Pay Directive and the Equal Treatment Directive.’). (3) Direct Effect of Community Law 6.11. The direct effect of Community law into domestic law is achieved by section 2(1) of the European Communities Act 1972 [§ 6.6]. This is unlike other examples of provisions of incorporating statutes [chapter 3]. Here the international law being incorporated is not defined, as is generally the case, by reference to all or part of one treaty or a collection of treaties. Instead, the incorporation is ongoing and indefinite, referring to ‘powers, liabilities, obliga-tions and restrictions from time to time created by or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties’. 6.12. Where provisions of Community law have direct effect (or are ‘directly applicable’) they provide a direct source of rights for indi-viduals before domestic courts which can be maintained against the state and emanations of the state (‘vertical effect’) or some-times against other individuals (‘horizontal effect’). Provisions of directives are only capable of vertical direct effect. Of the sources of Community law, only regulations are expressly endowed in the EC Treaty with direct effect. This concept, a fundamental principle of Community law, has been developed by the ECJ and applied to 200 (3) Direct Effect of Community Law Treaty provisions, decisions, international agreements and direc-tives.

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  Governance and Politics in the Post-Crisis European Union

  • Ramona Coman, Amandine Crespy, Vivien A. Schmidt(Authors)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  Political community. Political community here refers to the relationship between a political regime on the one hand and individuals and social groups on the other hand, particularly to questions regarding whether the latter support and accept a political regime and see it as legitimate. BOX 2.1 Key concepts As a latecomer to this process, the EC illustrated several lessons from the his-tory of regional cooperation and integration during the first five years after World War II. First, it reflected the tendency to go for a rather small geographical scope, with comparably homogenous member states, instead of larger and more diverse forums. Second, it epitomised the trend to prioritise low politics instead of more contentious issues of high politics where national interests often obstructed an 2.2 The EU’s Political Regime in Context 37 agreement. Third, the EC stood for a particularly intense form of integration, with more legal muscle than other and earlier efforts of regional cooperation. This in turn was only possible thanks to the homogeneity and hence the small size of this new community (Patel, 2020 ). First, on size: the first significant effort of regional cooperation and integra-tion in postwar Europe was the United Nations Economic Commission for Europe (UNECE), founded in 1947 under the auspices of the United Nations (see Table 2.1 ). Originally, it brought together eighteen states. The UNECE included parts of Western Europe, but also Eastern European states like Czechoslovakia and Poland, as well as the two superpowers, the United States and the Soviet Union. The UNECE understood itself as a pan-European institution with the mission of coordinating the reconstruction of Europe and keeping the spirit of the wartime alliance against Nazism and fascism alive. The latter task became obsolete just months after the UNECE had been set up (Stinsky, 2019 ). The escalating Cold War quickly led to the formation of three camps: East, West and neutral.

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