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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

Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation

[1] Under Article 12 of the EEC Treaty, the member states undertake to refrain from introducing as between themselves any new customs duties on imports and exports or taxes of equivalent effect; and from increasing those which they apply in their trade with one another.

[2] The special import duties, the refund of which, has been claimed by the respondent, were levied by the applicant in pursuance of arretes royaux and ministerial orders, which were all adopted after I January 1958, the date on which the Treaty came into force.'

[3] These arretes royaux were repealed by Article 13 of the arretes royaux of 28 December 1961 and by Article 1 of the arrete royal of 23 October 1965.

[4] Nevertheless the Law of 19 March 1968 ratified with retrospective effect the arretes subsequent to 1 January 1958, under which the special duties, of which the respondent has claimed the refund, were levied. The sole Article of this Law provides that the moneys paid in pursuance of this arrete constitute 'definitive payment' and that this payment is irrevocable and shall not give rise to any claim before any authority whatsoever

[5] The arretes, which imposed special duties on imports of some milk products after 1 January 1958, were contrary to Article 12 of the Treaty.

[6] In so far as the Law of 19 March consolidated the effects of these arretes, it too is contrary to that clause.

[7] Even if assent to a treaty, as required by Article 68 (2) of the Constitution, is given in the form of a statute, the legislative power, by giving this assent, is not carrying out a normative function. The conflict which exists between a legal norm established by an international treaty and a norm established by a subsequent statute, is not a conflict between two statutes.

[8] The rule that a statute repeals a previous statute in so far as there is a conflict between the two, does not apply in the case of a conflict between a treaty and a statute.

[9] In the event of a conflict between a norm of domestic law and a norm of international law which produces direct effects in the internal legal system, the rule established by the treaty shall prevail. The primacy of the treaty results from the very nature of international treaty law.

[10] This is a fortiori the case when a conflict exists, as in the present case, between a norm of internal law and a 'norm' of Community law. The reason is that the treaties which have created Community law have instituted a new legal system in whose favour the Member States have restricted the exercise of their sovereign powers in the areas determined by those treaties.

[11] Article 12 of the Treaty establishing the European Economic Community is immediately effective and confers on individual persons rights which national courts are bound to uphold.

[12] It follows from all these considerations that it was the duty of the judge to set aside the application of provisions of domestic law that are contrary to this Treaty provision.

[13] Having noted that in the present case the norms of Community law and the norms of domestic law were incompatible, the judgment under attack was able to decide, without infringing the legal provisions set out in the application to this Court, that the effects of the Law of 19 March 1968 had been 'stopped in so far as it was in conflict with a directly applicable provision of international treaty law'. In this respect, the grounds of appeal fail for want of a legal basis.