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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
    1. Van Gend en Loos v Nederlandse Tariefcommissie (case 26/62) [1963] ECR 1.
    2. Costa v ENEL (case 6/64) [1964] ECR 585 - ECJ
    3. Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court
    4. Franz Grad v Finanzamt Traunstein (case 9/70) [1970] ECR 825
    5. Politi SAS. v Ministry for Finance of the Italian Republic (Case 43-71) [1971] ECR 1039.
    6. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Case 11/70) [1970] ECR 1125; before the ECJ
    7. Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat)
    8. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Solange I) [1974] 2 CMLR; (German Federal Constitutional Court)
    9. Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation
    10. Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation
    11. Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court)
    12. Blackburn v Attorney-General [1971] 2 All ER 1380
    13. European Communities Act 1972
    14. Van Duyn v The Home Office (case 41/74) [1974] ECR 1337.
    15. Walrave v Koch (case 36/74) [1974] ECR 1405
    16. DeFrenne v Sabeena (case 43/75) [1976] ECR 455
    17. Administrazione Dealla Finanze dello Stato v Simmenthal (case 106/77) [1978] ECR 629
    18. Minister of the Interior v Daniel Cohn-Bendit [1980] 1 CMLR 543; (before the French Conseil D'Etat)
    19. Macarthys Ltd v Smith [1979] 3 All ER 325
    20. Garland v British Rail Engineering Ltd [1982] 2 All ER 402
    21. Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688.
    22. Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891
    23. On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court
    24. Marleasing SA v La Commercial Internacional de Alimentacion SA (case C-106/89) [1990] ECR I-4135
    25. Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357; [1993] 2 CMLR 66
    26. Duke v GEC Reliance Ltd [1988] 1 All ER 626
    27. Litster and others v Forth Dry Dock and Engineering Co Ltd and another [1989] 1 All ER 1134
    28. Factortame Ltd and others v Secretary of State for Transport [1989] 2 All ER 692
    29. Factortame Ltd and others v Secretary of State for Transport (No 2) (Case C-213/89) [1991] 1 All ER 70
    30. R v Secretary of State for Transport, ex parte Factortame (no.2) [1991] 1 All ER 70 (House of Lords)
    31. Thoburn v Sunderland City Council and other appeals [2002] EWHC 195 Admin; [2003] QB 151; [2002] 4 All ER 156
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court

[31] (a) Article 24(1) of the Constitution makes it possible to open up the legal system of the Federal Republic of Germany in such a way that the Federal Republic's exclusive claim to control in its sphere of sovereignty can be withdrawn and room can be given for the direct validity and application of a law from another source within that sphere of the sovereignty. It is true that Article 24 of the Constitution does not itself provide for the direct validity and application of the law established by the international institution, nor does it directly regulate the relationship between such law and domestic law, for example the question of the priority of their respective application. Internal validity and application, as well as the possible internal priority of validity or application of international treaties (including those of the sort in issue here), do not follow directly from general international law. Current international law does not contain any general rule arising out of the agreed practice of States or undoubted legal acceptance to the effect that States are obliged to incorporate their treaties into their internal law and to accord them thereunder priority of validity or application as against the internal law. Internal priority of validity or application only arises by virtue of an application-of-law instruction to that effect under the internal law, and that applies too in the case of treaties the content of which obliges the parties to provide for internal priority of validity or application. Article 24(1), however, makes it possible constitutionally for treaties which transfer sovereign rights to international institutions and the law established by such institutions to be accorded priority of validity and application as against the internal law of the Federal Republic by the appropriate internal application-of-law instruction. That is what took place in the case of the European Community Treaties and the law established on their basis by the Community organs by the passing of the Acts of Accession to the Treaties under Articles 24(1) and 59(2), first sentence, of the Constitution. From the application-of-law instruction of the Act of Accession to the EEC Treaty, which extends to Article 189(2) EEC, arises the immediate validity of the regulations of the Community for the Federal Republic and the precedence of their application over internal law.

[32] (b) The power conferred by Article 24(1) of the Constitution, however, is not without limits under constitutional law. The provision does not confer a power to surrender by way of ceding sovereign rights to international institutions the identity of the prevailing constitutional order of the Federal Republic by breaking into its basic framework, that is, into the structure which makes it up. That applies in particular to legislative instruments of the international institution which, it may be as a result of a corresponding interpretation or development of the underlying treaty law, would undermine essential structural parts of the Constitution. An essential part which cannot be dispensed with and belongs to the basic framework of the constitutional order in force is constituted in any event by the legal principles underlying the provisions of the Constitution on fundamental rights. Article 24(1) of the Constitution, subject to conditions, allows these legal principles to be treated according to context. In so far as sovereign power is accorded to an international institution within the meaning of Article 24(1) which is in a position within the sovereign sphere of the Federal Republic to encroach on the essential content of the fundamental rights recognised by the Constitution it is necessary, if that entails the removal of legal protection existing under the terms of the Constitution, that instead there should be a guarantee of the application of fundamental rights which in substance and effectiveness is essentially similar to the protection of fundamental rights required unconditionally by the Constitution. As a general rule this will require a system of protection of individual rights by independent courts which are given an adequate jurisdiction and, in particular, a power to review and decide on factual and legal questions that is appropriate to the relevant claim to protection of rights, which reach their decisions on the basis of a proper procedure allowing the right to a legal hearing and providing for means of attack or defence appropriate to the subject-matter of the dispute and for the availability of freely chosen expert assistance, and the decisions of which if necessary contain adequate and effective sanctions for the infringement of a fundamental right.

[33] (c) This Court explained in its judgment of 29 May 19741 that having regard to the state of integration which had been reached at that time the standard of fundamental rights under Community law generally binding within the European Communities did not yet show the level of legal certainty for the Court to conclude that that standard would permanently satisfy the fundamental-rights standards of the Constitution, without prejudice to possible modifications, in such a way that the limits imposed by Article 24(1) of the constitution on the application of derived Community law within the sovereign area of the Federal Republic would not be transgressed. It said that the Community still lacked a parliament legitimised by direct democratic means and established by general suffrage, which possessed legislative powers and to which the Community institutions competent to issue legislation were politically fully responsible; in particular the Community still lacked a codified catalogue of fundamental rights; the case law of the European Court as it then stood did not by itself guarantee the necessary legal certainty. So far as that legal certainty remained unachieved in the course of subsequent integration the reservation derived from Article 24 remained in force. This Court accordingly held in the abovementioned judgment: As long as the integration process has not progressed so far that Community law also receives a catalogue of fundamental rights decided on by a parliament and of settled validity which is adequate in comparison with the catalogue of fundamental rights contained in the Constitution, a reference by a court in the Federal Republic of Germany to the Federal Constitutional Court in judicial review proceedings following the obtaining of a ruling of the European Court under Article 177 of the Treaty is admissible and necessary if the German court regards the rule of Community law which is relevant to its decision in the interpretation given by the European Court as inapplicable in the interpretation given by the European Court, because and in so far as it conflicts with one of the fundamental rights in the Constitution. In the case in question it held the reference under Article 100(1) of the Constitution to be admissible but in the circumstances not to be well founded.

[34] In its decision of 25 July 1979 this Chamber expressly left open the question whether or to what extent (having regard to developments which might take place in tl an Community matters) the principles laid down in the judgment of 29 May 1974 could continue to claim unrestricted validity in relation to future references of rules of derived Community law.

[35] (d) In the judgment of this Chamber a measure of protection of fundamental rights has been established in the meantime within the sovereign jurisdiction of the European Communities which in its conception, substance and manner of implementation is essentially comparable with the standards of fundamental rights provided for in the Constitution. All the main institutions of the Community have since acknowledged in a legally significant manner that in the exercise of their powers and the pursuit of the objectives of the Community they will be guided as a legal duty by respect for fundamental rights, in particular as established by the constitutions of member-States and by the European Convention on Human Rights. There are no decisive factors to lead one to conclude that the standard of fundamental rights which has been achieved under Community law is not adequately consolidated and is only of a transitory nature....

[38] The European Court took the essential step (from the viewpoint of the Constitution) in its judgment in the NOLD case where it stated that in relation to the safeguarding of fundamental rights it had to start from the common constitutional traditions of the member-States: 'it cannot therefore allow measures which are incompatible with fundamental rights recognised and guaranteed by the constitutions of those States'....