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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

Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat)

Opinion of the Commissaire du Gouvernement:.... The decision under attack is in law based on the provisions of national law and, if it is not for you to put aside its application in favour of the provisions of the Community regulation and the Treaty, the mere wish to verify its conformity with the international undertakings of France cannot justify sending the case to the European Court.

In that hypothesis you cannot, in our opinion, control the conformity of the ordonnance with the Treaty.

To be sure, under Article 55 of the Constitution a treaty which has been duly ratified has, as from its publication, an authority superior to that of statutes. The Constitution thus affirms a preeminence of international law over internal law and numerous voices (nearly all of the academic writers) have been raised to say that a provision which makes our Constitution one of the most receptive to an international legal order should not remain a dead letter.

But the administrative court cannot make the effort which is asked of it without altering, by its mere will, its institutional position.

It may neither criticise nor misconstrue a statute. That consideration has always led it to refuse to examine grounds based Submissions on the constitutional invalidity of a statute (an abundant case law which declares ineffective both those grounds alleging that a statute violates the Constitution and grounds based on violation of the Constitution against a decision taken for the application of a statute and so lawful by virtue of that statute). And what is true for the control of a statute as against the generally superior rules in the Constitution is equally so as against any text which is expressly described, as is an international treaty, as having a value superior to statute. Certainly it is maintained that the traditional abstention of the courts before acts of the legislature would be less justified once our Constitution no longer recognises the supremacy of Parliament. But the Constitution has specifically dealt with the judicial review of legislation by adopting a restrictive view and conferring such review upon the Constitutional Council; above all, while modifying the balance of legislative power and regulatory power, it did not think it good to define in a new way the powers of the courts; the task of the latter remains the subordinate one of applying the statute.

A judge is not qualified to implement a hierarchy between laws, as M. Odent wrote in an article entitled ' L'article 177 du Traite de Rome et la jurisprudence du Conseil d'Etat '.

And he may not rely on the obligation to apply a text of so-called higher validity in order to disregard in a way a subsequent statute. It is also maintained that, in the opening made by the Treaty, a judge should examine the subsequent laws, without criticising them, and if he finds that they are contrary to the Treaty avoid applying them, for if he applies them he would himself be misconstruing Article 55. But you cannot, in our opinion, follow this path. A judge may make a great effort to reconcile them when he is interpreting a statute; he may go so far as to say, when the statute is silent or ambiguous, that it did not intend to breach the international rule; he has indeed always reasoned thus with regard to the principles in the Constitution. But if the legislator has manifested a precise will, if the national statute insinuates itself as a necessary intermediary between the 1968 Treaty and the application required of it, no provision of the Constitution, Article 55 in particular, excuses the judge from respecting that will. It is difficult to imagine that there should be created in all the areas affected by an international treaty whole zones in which the laws would be deprived of effect by the judge, and on the basis of texts which he is not fully entitled to interpret. The argument is enticing in order to encourage the development submissions of a Community legal order; its evolution is more difficult to imagine if it withdraws from the action of the legislator whole sections of the life of the country because treaties have appeared in the area in question, the interpretation of which belongs to the Minister of Foreign Affairs.

The control exercised by the administrative courts thus does not permit this contradiction to be evaded and consequently, while it is neither necessary nor even possible without an interpretation of the Treaty to know if it exists in this case, you should dismiss those plaints based on the violation of the Community regulation as soon as the decision under attack is justified in law in the light of the ordonnance of 19 September 1962.

But that would not amount to giving up efforts to avoid such a situation. It is perfectly conceivable, as we have said, that in the interpretation of statutes the judge should reason with regard to Community law just as he reasons with regard to general principles and start from the idea that the legislator did not intend to derogate from it. The only obstacle to such unofficial collaboration of the national judge in the building of Community law is that it comes up against the problems of interpretation of that law, and that such rearrangements are easier when the powers of interpretation of the judge are undivided. But such was the desire of the negotiators of the Treaty. The present case well illustrates these difficulties since it leads you to be the arbiter between a simple and almost simplistic interpretation, which from the beginning is opposed to the application of the Community regulation, and a more hazardous interpretation which, in the Community spirit, immediately poses problems of interpretation of the Treaty. The effort of interpretation would in any case be frustrated by the redoubled inconvenience of having to compare the national statute, once the European Court has given its reply.

But this case appears in an exceptional context and doubtless recourse to the coercive procedure laid down in Article 169 et seq. of the Treaty when a State misconstrues its obligations is, in a case like this one, the best means for knowing whether the member-States, which have not provided means for leaving the Community, object to the transitional measures of the French State.....

Judgment of the Conseil d'Etat:

[1] The abovementioned application of the Syndicat General des Fabricants de Semoules de France should be regarded as aimed not only against the decision dated 20 December 1963 whereby the Minister of Agriculture authorised the importation into France of 400,000 quintals of grain semolina from Algeria, but also against the decision of the same Minister of 23 January 1964 which stated that that importation was not subject to the levy laid down in E.E.C. Regulation 19.

[2] There is no need to give judgment on the non-suit plea submitted by the Minister of Foreign Affairs and the Minister of Agriculture.

[3] Article 1 of the ordonnance of 19 September 1962 on the customs regime governing trade between Algeria and France, which was promulgated under the powers conferred on the President of the Republic by the Law of 13 April 1962, provides:

'Until the entry into force of the statute provided for in Title II of the declaration of principles regarding economic and financial cooperation of 19 March 1962, goods coming from Algeria remain subjected, in the circumstances previously fixed, to the customs regime which was applicable to them before 3 July 1962 by virtue of Articles 1, 303 and 304 of the Customs Code'.

These provisions, which have force of law under Article 50 General of the Law of 15 January 1963, have maintained, as a transitional I measure as regards the entry into France of goods coming from Algeria, the customs regime which was in force before Algeria gained independence. Under that regime the entry into France of cereal products from Algeria, which was then included in the French customs area, was not subject to customs duties nor would it have been subject to the levy which the decree of 28 July 1962 substituted for those duties in application of E.E.C. Regulation 19. Consequently, the aforementioned provisions of the ordonnance of 19 September 1962 prevent the levy being applied and the possession of the certificate laid down in Article 8 of the decree of 27 January 1962 for the importation of cereals into the French customs area being required when those goods enter the metropolitan territory of France or the territory of its overseas departments. Consequently the complainant syndicate cannot maintain that by taking the attacked decisions the Minister of Agriculture has exceeded his powers.

THE COURT, for these reasons

HEREBY DECIDES:

1. The abovementioned application by the Syndicat General des Fabricants de Semoules de France is dismissed.

2. The Syndicat General des Fabricants de Semoules de France shall bear the costs of the action.

3. The present decision shall be transmitted to the Prime Minister, the Minister of Foreign Affairs, the Minister of Agriculture and the Minister of Economy and Finance.