Skip to main content

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

Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court

The last question relates to the alleged conflict between the Law creating ENEL and Article 11 of the Constitution.

Article 11 is here prayed in aid in so far as it states that Italy agrees, under conditions of parity with other States, to such limitations of sovereignty as are necessary for the establishment of an order that will ensure peace and justice amongst nations; and it will promote and favour international organisations for this purpose.

This means that, given certain circumstances, it is possible to stipulate treaties as a result of which we accept certain limitations to our sovereignty and it is quite lawful to give effect to such treaties by means of an ordinary Law; but this does not result in any deviation from the existing rule relating to the efficacy, within national law, of the obligations undertaken by the State in connection with its relations with other States, since Article 11 did not confer a greater effect upon the ordinary Law that gives effect to a treaty. Nor can we agree with the view according to which any Law containing provisions differing from those of international treaties is unlawful, inasmuch as it is in conflict with Article 11 in so far as it is in conflict with the Law giving effect to the Treaty.

The phenomenon of a conflict of a constitutional provision resulting from the violation of an ordinary Law is not unusual. Quite often this Court has declared unlawful certain provisions of legislative decrees that did not correspond with the Law that granted delegated powers to issue them, relating the cause of illegality to a violation of Article 76 of the Constitution.

But the situation is quite different as regards that part of Article 11 containing the provision which is being considered in this case. Article 76 lays down certain rules regarding the exercise of a delegated legislative function and for this reason non-compliance with the principles of the delegating Law results in violation of Article 76. Article 11, on the other hand, inasmuch as it is considered as a permissive provision, ascribes no particular significance to a Law giving execution to an international treaty as opposed to any other Law.

Nor is there any validity in the other argument, according to which the State, once it has agreed to limitations to its own sovereignty, could not pass any Law withdrawing such limitations and restoring its freedom of action without contradicting the Constitution. Against this can be set our foregoing remarks, from which we are led to believe that the violation of a treaty, even if it results in responsibility by the State at international level, does not detract from the validity of any conflicting Law.

There is no doubt that the State is bound to honour its obligations, just as there is no doubt that an international treaty is fully effective in so far as a Law has given execution to it. But with regard to such Law, there must remain inviolate the prevalence of subsequent laws in accordance with the principles governing the succession of laws in time; it follows that any conflict between the one and the other cannot give rise to any constitutional matter.

From the foregoing we reach the conclusion that for present purposes there is no point in dealing with the character of the E.E.C. and with the consequences that derive from the Law giving effect to the Treaty creating the E.E.C.; nor is it necessary to question whether the Law that is being attacked before us has violated the obligations undertaken by virtue of the Treaty aforesaid. It follows from this that the question regarding the remission of the file to the Court of Justice of the European Community, and the relevant question of jurisdiction, do not even arise.

For all these reasons this Court declares that any question upon the constitutional legality of the Law of 6 December 1962 No. 1643 (creating ENEL), raised by the order before it in connection with Article 3, Article 4, Article 41, Article 43 and Article 67 of the Constitution, is unfounded.