Implementing an ec Directive do not apply to future amendments of

the Directive unless they are clearly worded as doing so. There is also a

‘spillover effect’ whereby rights initially established for European

purposes are later extended to domestic contexts on the basis that it

would be unjust for domestic law to be more restrictive than EC law.

This has led for example to the extension of a right to interim relief

against the Crown contrary to the long-established, but often con-

tested, doctrine of Crown immunity (M v. Home Office (1993)).

Not all EC rules are automatically part of UK law. Many EC

measures take effect ‘without further enactment’ (European Com-

munities Act 1972 s. 2 (1)) and these are automatically part of UK

law. These will be discussed below. In other cases there has to be a con-

Version to uk law, usually in the form of a statutory instrument (ibid.,

s. 2 (2)). Certain measures including taxation, the creation of new

criminal offences, and retrospective laws, can only be implemented by

an Act of Parliament (ibid., Schedule 2).

The main kinds of EC legal instrument are as follows:

(i) The Treaty, or at least such provisions of it that according to the

European Court have ‘direct effect’ (Bulmer v. Bollinger (1974);

R. v. Secretary of State for Trade ex parte Duddridge (1995)).

(ii) Regulations. Regulations are general rules, which can be made by

the Commission or the Council of Ministers, and apply to all

member states and persons. By virtue of Art. 249 of the Treaty

all regulations are ‘directly applicable’ and as such are automati-

cally binding on UK courts except where a particular regulation is

of a character that is inherently unsuitable for judicial enforcement.

(iii) Directives. Most EC law comprises Directives, which can be made

by the Commission or the Council of Ministers. A Directive as

such is not automatically binding. It is a requirement to achieve a

given objective but leaves it to the individual states to specify the

means by which that objective is to be achieved by altering their

198 General Principles of Constitutional and Administrative Law

own laws (Art. 249). A Directive may be addressed to all states or

to particular states. A time limit is usually specified for imple-

menting the Directive.

(iv) Decisions. These are addressed to specific persons or organisa-

tions including member states and are ‘binding in their entirety on

those to whom they are addressed’ (Art. 249).

(v) Opinions and recommendations. These do not have binding force.

However the ECJ has power under Art. 228 (6) to give an opinion

at an early stage of a matter, for example in relation to a proposed

treaty.

(vi) International agreements. The EC has power to enter into inter-

national agreements which might be binding if they are intended

to confer rights on individuals.

EC law pervades domestic law through various devices created by

the ECJ. These are as follows: supremacy, direct effect, indirect effect,

state liability. They are underpinned by the general obligation of mem-

ber states under Art. 10, to give effect to EC obligations. These devices

have been transmitted to English law through the European Commu-

nities Act 1972 s. 2 and 3, which require UK courts to apply EC law in

accordance with the decisions and general principles of the ECJ.

9.5.1 Supremacy

The Treaty does not expressly deal with conflicts between Union law

and national law. However, the ECJ has held that EC law prevails over

national law (see Costa v. ENEL (1964); Internationale Handelsgesell-

schaft (1974)). The ECJ therefore made a political value judgement

in much the same way as the US Supreme Court did in Marbury v.

Madison. In the UK the matter is more complex, since the court has

conflicting duties and must bear in mind that EC law obtains its force

only from a UK statute. Debate has therefore focused upon whether

the traditional doctrine of parliamentary supremacy has been affected

by membership of the EC. As we saw in Chapter 6, the current position

seems to be that a UK statute will give way to an EC law that according

to EC jurisprudence has priority, unless possibly the statute contains

express and unambiguous words forbidding the court to override the

statute on EC grounds. The doctrine of implied repeal does not there-

fore apply to European law. This position has been reached as follows.

The European Communities Act 1972, s. 2 (4), deals with the rela-

tionship between EC law and UK statutes as follows: ‘any enactment

passed or to be passed . . . [my italics] shall be construed and have effect

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subject to the foregoing provisions of this section’. The ‘foregoing

provisions’ require (i) that those rules of Community law that accord-

ing to the Treaty are automatically part of national law shall be

enforced as law, and (ii) that other EC laws shall be translated into UK

law. Section 3 (1) is also relevant. This provides that: ‘for the purpose of

all legal proceedings any question as to the meaning or effect of any

of the treaties or as to the validity meaning or effect of a community

instrument . . . shall be for determination as such in accordance with the

principles laid down by . . . the European Court’. We have seen that

the European Court endorses the supremacy of Community law over

national law.

However, the language of the 1972 Act cannot in itself resolve the

matter since the very question at issue is whether any Act is capable of

altering the basic principle of the UK constitution, that of parlia-

mentary supremacy. Only once we have answered yes to that question

can we then go on to consider whether the language of the 1972 Act is

sufficient to do so. We saw in Chapter 6 there is no compelling legal

obstacle in the way of altering or abandoning the doctrine of parlia-

mentary supremacy.

However, a court can avoid the issue of parliamentary supremacy

by striving hard to interpret a UK statute so as to conform to com-

munity law (e.g. Macarthys Ltd v. Smith (1979); Garland v. BREL

(1983)). In Garland Lord Diplock raised the possibility that unless

Parliament expressly said otherwise the court would always interpret a

statute to comply with an EC law, however much this might violate the

language of the statute, short that is of the statute expressly stating

that it overrides EC law. Thus the court could ‘read in’ to any statute

the words ‘except where EC law applies’. However, ‘interpretation’ at

this point becomes fictitious and political reality is better represented

by obeying the Community rule and admitting that the English rule is

inconsistent.

In Factortame v. Secretary of State for Transport (No. 2) [1991] 1

All ER 70 at 108 it was said that ‘under the terms of the 1972 Act, it

has always been clear that it was the duty of a United Kingdom Court

to override any rule of national law found to be in conflict with any

directly enforceable rule of community law’. This reflects the Com-

munity doctrine of ‘disapplying’ national law (Simmenthal (1978)), but

disapplying is not the same as invalidating a statute (cf. Lord Keith in

Equal Opportunities Commission v. Employment Secretary [1994] 1 All

ER 910 at 919). For example the statute retains its full effect in other

contexts and if the relevant European rule were to be repealed the

statute would surely apply in the ordinary way.

200 General Principles of Constitutional and Administrative Law

9.5.2 Direct applicability and direct effect

‘Direct effect’ must be distinguished from ‘direct applicability’ which

applies only to EC regulations. The difference between the two concepts

is that regulations are always binding, whereas ‘direct effect’ depends

upon the quality of the particular EC instrument. It has been suggested

that the ECJ developed the direct effect doctrine in order to make use of

domestic law enforcement agencies as a means of compensating for the

weak enforcement provision offered at EC level through the Commis-

sion (see Craig, 1992; Weatherill, 1995, p. 101 et seq).

Where the direct effect doctrine applies, the national court must give

a remedy which, as far as possible, puts the plaintiff in the same

position as if the directive had been properly implemented. This might

for example require national restrictions to be set aside, or national

taxes to be ignored or national rules which are stricter than a Directive

covering the same ground to be set aside (see e.g. Defrenne (1976) –

retirement restrictions; Pubblico Ministerio v. Ratti (1979) excessive

labelling requirements).

Direct effect applies to the Treaty itself but mainly relates to EC

Directives. A Treaty provision which has direct effect is enforceable

against anyone upon whom its provisions impose an obligation

(Defrenne v. SABENA (1976)). Directives, however, can be enforced

only ‘vertically’, that is, against a public authority or ‘emanation of

the state’, but not ‘horizontally’ against a private person (see Marshall

v. Southampton Area Health Authority (No. 1) (1986); Faccini Dori v.

Recreb (1995)). The reason seems to be that the state, which, as we saw

above has the primary duty to implement a Directive, cannot rely on

its failure to do so, an argument that it would be unfair to apply to a

private body. It also follows that the state cannot rely on an

unimplemented Directive against an individual (see Wychavon DC v.

Secretary of State (1994)).

What is meant by an emanation of the state? It will be recalled that

the UK has no legal concept of the state but relies on separate bodies

linked in a variety of ways to the central government. For the purpose

of direct effect, any public body seems to be regarded as an emanation

of the state (Marshall v. Southampton Area Health Authority (1986)).

A public body must (i) exercise functions in the public interest subject to

the control of the state, and (ii) have special legal powers not available to

individuals or ordinary companies (see Foster v. British Gas (1990)).

All the activities of such a body, even those governed by private law,

e.g. employment contracts, seem to be subject to direct effect. The pri-

vatised utilities of gas, electricity and water are probably emanations of

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the state but it is unlikely whether the privatised railway companies

would be, since although they are subject to state regulation and receive

state subsidy they have no statutory obligation to perform public duties

or significant special powers (see Doughty v. Rolls-Royce (1992)).

To have direct effect an instrument must be ‘justiciable’, meaning

that it is of a kind which is capable of being interpreted and enforced by

a court without trespassing outside its proper judicial role. In essence,

the legal obligation created by the instrument must be certain enough

for a court to handle.

The tests usually applied are as follows (see Van Duyn Ltd v. Home

Office (1974)):

(i) The instrument must be ‘clear, precise and unconditional’. It must

not give the member state substantial discretion as to how to give

effect to it. For example in Francovich (1993) a Directive con-

cerning the treatment of employees in an insolvency was not

sufficiently unconditional because it left it to member states to

decide which bodies should guarantee the payments required by

the Directive (see also Gibson v. East Riding DC (2000): Directive

about paid leave did not make clear what counted as working

time). However, the fact that a Directive leaves it to the state to

choose between alternative methods of enforcement does not

prevent it from having direct effect if the substance of the right is

clear from the Directive alone (Marshall (No. 2) (1993)). The

European Court interprets the precision test liberally, bearing in

mind that apparent uncertainty could be cured by a reference to

the court (see Craig, 1992).

(ii) The instrument must be intended to confer rights. A problem

arises here in respect of purely ‘public’ interests, such as some

environmental concerns, e.g. wildlife conservation. It is arguable

that a body with a public law right sufficient to give standing in

national law to challenge the government’s action, for example a

pressure group, could rely on the direct effect doctrine. In other

words the ‘rights’ requirement is no more than an aspect of the

general principle that the directive must be justiciable.

(iii) The time limit prescribed by a Directive for its implementation

must have expired.

9.5.3 Indirect effect

Even where a European law lacks direct effect, UK courts must

still take account of it. Article 10 requires member states to ‘take all

202 General Principles of Constitutional and Administrative Law

appropriate measures’ to fulfil European obligations, and Art. 249

requires that the objectives of Directives be given effect. This would

afford horizontal effect. The traditional attitude of the UK courts has

been that domestic legislation should be interpreted to fit European

law only where the relevant European rule had direct applicability

or direct effect, or where the domestic rule was specifically passed to

give effect to European law and then only where the domestic law was

unclear (see Litser (1990), Finnegan (1990), Duke (1990), Webb v.

EMO Air Cargo (UK) Ltd [1992] 4 All ER 929 at 940).

Doubt has been cast on this by the decision of the ECJ in Marleasing

(1992). The court held that all domestic law, whether passed before

or after the relevant community law must be interpreted to conform

with community law. The earlier ECJ case of Von Colson (1984) was

applied, but that case involved an ambiguous domestic rule. However,

Marleasing also involved a law (in the Spanish civil code) which could

be interpreted in different ways. It is uncertain therefore whether clear,

unambiguous domestic law, which was not meant to implement an

EU obligation must give way to a European rule. In Webb v. EMO Air

Cargo (UK) Ltd (1992), Lord Keith said that Marleasing applies to

laws passed at any time provided that their language is not distorted.

Moreover, according to Marleasing, the domestic court is required to