Factortame Litigation - Sovereignty From The United Kingdom Perspective

Sovereignty From The United Kingdom Perspective

The issue of whether the UK Parliament or the European Court of Justice has ultimate sovereignty over European Community laws which apply to the UK is still an area of intense legal debate and conflicting views. In current practice, the UK recognises the primacy of the European Court of Justice for those areas of law in which the EU has competency. However, in Macarthys Ltd v Smith, Lord Denning said, "If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then . . . it would be the duty of our courts to follow the statute of our Parliament."

This view of the UK's ultimate sovereignty was supported by Lord Justice Laws in the Thoburn v Sunderland City Council case, when he said, "...there is nothing in the European Communities Act which allows the European Court, or any other institution of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom...That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions."

That European law has primacy over UK law has been stated many times. In ECJ Case 6/64 Costa v. ENEL (1964), the ECJ stated, "...the Members States have limited their sovereign rights, albeit within limited fields." In Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen (1963) their ruling states, "...the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights."

The question of who has the ultimate 'Kompetenz-Kompetenz' (i.e. the right to decide the limits the European Court of Justice's jurisdiction) has not been settled.