Flaminio Costa v ENEL [1964] ECR 585 (6/64) was a landmark decision of the European Court of Justice which established the supremacyof European Union law over the laws of its member states.

[edit]Facts

Mr. Costa was an Italian citizen opposed to nationalising the Italian energy company ENEL, because he

had shares in it. He refused to pay his electricity bill in protest, and argued that nationalisation

infringed EC law on the State distorting the market.[1] The Italian government believed[dubious – discuss] that this

was not even an issue that could be complained about by a private individual, since it was a national

lawdecision to make. Mr. Costa asked for a preliminary ruling by the European Court of Justice. His

request was recognised by the Milan judge.

[edit]Judgment

The Court ruled partly in favour of the government, because the relevant Treaty rule on an undistorted

market was one on which the Commission alone could challenge the Italian government. As an individual,

Mr Costa had no standing to challenge the decision, because that Treaty provision had no direct effect.

[2] But on the logically prior issue of Mr Costa's ability to raise a point of EC law against a national

government in legal proceeding before the courts in that Member State the ECJ disagreed with the Italian

government. It ruled that EC law would not be effective if Mr Costa could not challenge national law on

the basis of its alleged incompatibility with EC law.

"It follows from all these observations that the law stemming from the treaty, an independent

source of law, could not, because of its special and original nature, be overridden by domestic

legal provisions, however framed, without being deprived of its character as community law and

without the legal basis of the community itself being called into question."[3]

This case is additionally confirmation that under Article 267 of the Treaty on the Functioning of the

EU, a Court has an obligation to refer cases that have reached the highest point of appeal in their

respective country, if there is a question of the application of EU Law. Costa had reached its highest

point of appeal because the amount claimed was less than £2.

[edit]See also

Direct effect

Thoburn v Sunderland City Council

Van Gend en Loos v Nederlandse Administratie der Belastingen

[edit]Notes

[Separation of powers - evidence obtained by torture not admissible in any UK court – government arrangements not lawful]D the Home Secretary who had allowed evidence obtained outside the UK by torture to be used as evidence at a hearing of the Special Immigration Appeals Commission (SIAC). The evidence was used to detain, without trial, 8 men at Belmarsh prison. The argument against the government was that the European Convention forbids torture and therefore any such evidence obtained through such treatment of anyone cannot be admissible in a British court. 

Held: Unanimously, the common law developed over centuries should take precedence over SIAC’s practices. 

Lord Bingham:“But the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.”

D lostComment: The law has existed for hundreds of years that evidence obtained under torture cannot be used in court. The question was whether such evidence was admissible in a Special Immigration Appeals Commission case. It is not. 

The ruling required Home Secretary to review all other cases where evidence used to convict terror suspects was obtained from sources kept secret. 

This was a huge embarrassment for the Government for the second time in a year the Judiciary ruled against the Government’s approach to terrorism. The Home Secretary Charles Clarke tried to play down the

significance of the ruling. The previous humiliation was over the indefinite detention of foreign nationals; such detention was found to be illegal and it forced ministers to draw up fresh legislation to replace it.  

Attorney General v de Keyser’s Royal Hotel (1920)  

[Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]No compensation paid when requisitioned during the war. Lord Denning said that there should have been because the requisitioning had been performed under the Defence Act 1842. 

Bates Case (1606) (The Case of Impositions)

[Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]Monarch imposed tax on currants

Held: King has prerogative power to regulate trade - an aspect of foreign affairs. 

Blackburn v Attorney-General (1971) CA ^[Supremacy of Parliament – Treaty of Rome irrevocable once signed and limits the sovereignty of United Kingdom - but future parliament not bound]C sought declarations that on entry into the Common Market, by signing the Treaty of Rome there would be a

breach of the law because the government would be surrendering, in part, the sovereignty of the Crown in Parliament for ever. It was accepted by the court that signature of the treaty would be irreversible and would limit the sovereignty of the United Kingdom. It was accepted EC regulations and ECJ decisions would automatically become binding on the United Kingdom. Held:  Treaty-making powers rest in the Crown, acting on the advice of its Ministers and their actions can not be challenged or questioned in the courts.  No Parliament could bind its successor, so the Treaty of Rome (which once signed was irrevocable), could be reversed by a subsequent Parliament. Lord Salmon said of Parliament's legislative powers that"...it can enact, amend and repeal any legislation it pleases."

The appeals were dismissed because the questions posed were hypothetical.Also here

Case of Proclamations (1611) [Supremacy of Parliament –

the Royal Prerogative – used today by ministers as Orders in Council]King could not create new offences but in 1617 Lord Coke (pronounced Cook) was dismissed for not trying a case. 

Cheney v Conn[Inspector of Taxes][1968] Chancery Division

^[EC Law - An Act of Parliament cannot be challenged]C, a taxpayer challenged the validity of the Finance Act 1964 because it provided for expenditure on nuclear weapons, contrary to international law (the Geneva Convention was incorporated into UK Law by the Geneva Convention Act 1957). Held: A statute could not be challenged on the grounds that it was illegal, or made for an unlawful purpose, for if this were possible the supremacy of Parliament would be denied.While there was a general presumption that Parliament would not wish to override theUK's international obligations it certainly had the power to do so, where an Act conflicts with a Convention the Act prevails. Ungoed-Thomas J."If the purpose for which a statute may be used is an invalid purpose, then such remedy as there may

be must be directed to dealing with that purpose and not to invalidating the statute itself. What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest from of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal."

C lostComment: This case is sometimes quoted as authority for saying that UK legislation can have precedence over EC Law.

Darnel’s Case (1627) - The case of 5 knights

[Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]Writ of Habeas Corpus was issued but jailer said that the knights were detained by special command of the king. 

Edinburgh & DalkeithRailway Co v Wauchope(1842)  Whole case here 

[Supremacy of Parliament – no judicial challenge of Act of P. allowed]Mr Wauchope claimed that the private Act obtained by the Railway Company should not be applied as it had been passed

without his having notice of the passing of the Act as required by Standing Orders. 

Held: Mr Wauchope was unsuccessful in his claim and Lord Campbell’s statement has subsequently been extensively quoted."All that a court of justice can look to is the parliamentary roll: they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament."

 

Ellen Street Estates Ltd v Minister of Health [1934] CA

[Supremacy of Parliament – no judicial challenge of Act of P. allowed]A similar argument was raised as in Vauxhall Estates as to the provisions for compensation arising under the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Acts 1925 and 1930.

Held: The Housing Acts impliedly repealed the 1919 Act in so far as the later Acts were inconsistent with the

earlier Act.

Maugham LJ:" The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal."

Garland v British Rail[1977] HL ^[EC Law - UK law to be read so as to be consistent with EC Law]D, British Rail gave male employees concessionary travel for themselves and their families which continued after their retirement. C a female employee found that concessions for female staff ended on their retirement.The question of discrimination was referred to the ECJ, which held that there had been discrimination. Held:  There had been an unlawful discrimination. Article 119 of the EEC Treaty(equal pay for men and women) was directly applicable and conferred enforceable rights upon individuals. The Sex Discrimination Act 1975 ought so far as possible to be construed so as to carry

out the obligations of and not to be inconsistent with the EEC Treaty. C won

Hall v Hall (1944) [Supremacy of Parliament – no judicial challenge of Act of P. allowed]A party sought to defeat the other's claim under the Probate Act 1857 to title in a house by claiming that the Act had not received the royal assent as the Stuarts were deprived of the throne in 1649.

Held: The county court judge said he could not ignore a statute that had been acted on for more than eighty years, and that in any event Parliament could validate all titles by passing an Indemnity Act. 

Jackson v Attorney General [2005] HL Whole case here 

[Legislation - Parliament Acts 1911 and 1949 are lawful] The Countryside Alliance, which represented pro-hunt campaigners who wished to continue foxhunting, argued the legislation used to force the ban through in England and Wales - the 1949 Parliament Act - was illegal. The government last November used the Parliament Act to push the hunting ban through following continuous opposition to a ban in the House of

Lords. The ban made hunting with dogs a criminal offence. 

Held: Lord Bingham of Cornhill for their Lordships said it was valid. 

Nine of the 12 Law Lords, rather than the usual 5 heard the case because of its constitutional importance. 

Legislation passed using the Parliament Acts is not subordinate legislation but primary legislation. 

The authority of Picken v British Rail is not doubted by the instant case, which has only proceeded at the invitation of the Attorney General. Picken, was an enquiry into the workings of Parliament where it was said that Parliament had been misled and so, had proceeded on a false basis, the instant case was not such an enquiry. The instant case firstly asked if Acts that created the Hunting Act were “enacted law”. Secondly, a question of law had been raised which had to be resolved by either the courts or Parliament, and because Parliament could not do so it was up to the courts. 

Hunting ban upheld

Lee v Bude & Torrington Junction Rly Co (1871)

[Supremacy of Parliament – no judicial challenge of Act of P. allowed]It was alleged that Parliament had been induced to pass an Act as a result of fraudulent recitals.

Held: Argument rejected.Willes J:"Are we to act as regents over what is done in Parliament with the consent of the Queen, Lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it."

Macmahon v Department of Education and Science[1982] CD

^[Parliamentary sovereignty - effect of EC law -a national of an EEC Member State is entitled to the grant of a mandatory award for education in the UK at the home rate]D, a local education authority refused to pay a grant for a teacher training course to C. C was a citizen of the Irish Republic and because he had not been ordinarily resident in the UK for three years, was refused the grant according to the applicable regulations. C claimed the regulations did not apply to him as they

discriminated against a national of a Member State of the EEC. Held: A reference to the ECJ would not be ordered since it was a matter for the national court whether such discrimination was justified. It was wrong to refuse a grant because C might be less likely to stay on and teach in the UK, because he had not lived in the UK for three years.  It was in direct conflict with the principle of freedom of movement for workers within the community, established in arts. 48, 49 and 59 of the EEC Treaty. C won

Martin v O'Sullivan [1984] CA [Supremacy of Parliament – no judicial challenge of Act of P. allowed]A self-employed litigant argued that the Social Security Act 1975 was invalid as MPs change in status to employed persons (from self employed) meant they were holders of state office for reward and thus disqualified to sit as MPs. Held: There was a fundamental answer to the case, namely, that a court could only look at the parliamentary roll and if it appeared that an Act had passed both Houses of

Parliament it could look no further. 

Pickin v British Railways Board [1974] HL

^[Supremacy of Parliament – no judicial challenge of Act of Parliament allowed]C, a railway enthusiast, bought a few yards land adjoining a disused railway line for ten shillings in 1969. C's intention appears to have been to gain ownership of part of the railway line when it ceased to be used by the railway company.  An 1836 Act stated that in such circumstances the railway land reverted to the ownership of adjoining land owners; Mr Pickin had made himself such an owner. The British Railways Board subsequently claimed it owned the land by virtue of a private Act of Parliament passed in 1968, which cancelled the reversion clause of the 1836 Act.

Mr Pickin sought a declaration that the Act was ineffective on the grounds that the Board had mislead Parliament and that the standing orders of each House (requiring landowners to be notified by a notice in a local newspaper) had not been complied with.

Held: Mr Pickin's claim rejected.Lord Reid:

"the idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution."

C lost

Pickstone v Freemans PLC [1988] HL Whole case here 

 

^[Parliamentary sovereignty - statutory interpretation – constructionist approach - use of Hansard- EC Law takes precedence over UK law]D, a mail order company employed C (and 4 others) in a warehouse where they claimed they did work of equal value to male colleagues, but were paid less. They claimed equal pay, relying on the Equal Pay Act 1970, which had been amended by Equal Pay (Amendment) Regulations 1983. 

Held:  Parliamentary debates could be used in interpreting delegated legislation. UK legislation should be interpreted in accordance with EC Law.  There is a presumption that Parliament will not pass legislation that would conflict with the UK's international obligations. The Regulations of 1983 gave full effect to

the decision in Commission v UK [1982], and Art 119 EEC Treaty. The draft Regulations were not subject to the same Parliamentary process, as a Bill would have been. Therefore, in the context of section 2 of the European Communities Act 1972, it permissible to take into account of the draft Regulations presented by the responsible Minister. C wonAlso here

R v Jordan [1967]  DC [Supremacy of Parliament – no judicial challenge of Act of P. allowed]J imprisoned for an offence under the Race Relations Act 1965.  He applied for legal aid to enable him to apply for habeas corpus on the grounds that the Race Relations Act prohibited free speech. Held: Parliament was supreme and there was no power in the courts to question the validity of an Act of Parliament. 

Application dismissed. 

R (Countryside Alliance and others) v HM Attorney General and another (2005) AC Whole case here 

^[Legislation - Judicial Review - Declaration of Incompatibility HRA and EC Law]Pro-hunting campaigners sought to have the Hunting Act 2004 declared

incompatible with the Human Rights Act 1988. Also, that the court should declare by virtue of theEuropean Communities Act 1972 that the Hunting Act offends European Community law and disapply which they could do by virtue of Case 106/77 Simmenthal [1978]. 

Held: It was within the rational, proportionate and democratic competence of Parliament to enact the Hunting Act 2004 and the court should not intervene. 

No order madeCase upheld in House of Lords, belowComment: Their Lordships were presented with 32 lever arch files of immaculately prepared evidence, 4 mini bundles of “essential reading”, 6 files of necessary and appropriate witness statements, one file of experts' reports and 25 files of exhibits to witness statements, almost all of which they did not read. This is because the proceedings were by way of Judicial Review and not fact finding. They said that the court had to pick its way through a mass of dense undergrowth cultivated by human rights and European legislation and

jurisprudence, it often being hard to see the overgrown wood for the trees. 

R (Countryside Alliance and others) v HM Attorney General and another (2007) HL Whole case here  

 

^[Legislation - Judicial Review - HRA and EC Law]The Countryside Alliance that brought the action claimed the Act violated the fundamental human rights of thousands of people whose livelihood and way of life. Between 6,000 and 8,000 were expected eventually to lose their jobs, and many would also lose the homes that went with the jobs. Others would lose businesses and the commercial “goodwill” attached to them. Held: Lord Bingham said the law had been drawn up and passed in line with the constitution and should not be undone by an interest group.“The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the act achieve through the courts what they could not achieve in Parliament.”

Lord Bingham said, that the Hunting Act 2004 must“be taken to reflect the conscience of a majority of the nation. He also said, “ … the present case seems to

me pre-eminently one in which respect should be shown to what the House of Commons decided.”

Countryside Alliance lostComment: It is the second time an appeal against the Act has been rejected. (The previous attempt failed to satisfy the Lords that the ban was illegal because the Act had been passed using the Parliament Act without the consent of the House of Lords). 

R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett (1988)

[Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]Concerned the refusal issue a passport. 

R v Secretary of State for Home Department exparte Fire Brigades Union(1994) 

[Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]Concerned the payment for criminal injuries paid under the Criminal Injuries Compensation Scheme created in 1964 under prerogative powers.    (It is now governed by the Criminal Justice Act 1988). There had been no commencement date at the time of the Fire

Brigade’s case but Michael Howard introduced a tariff scheme instead of payments at the rate of a tort action.   He was forced to back down by the courts because although there was no commencement date Parliament’s intention was clear. 

R v Secretary of State for the Home Department exparte Bentley (1993)

[Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]Concerned review of the Home Secretary’s powers to issue a posthumous pardon.  [The case of Craig and Bentley... “let them have it!”]  

R v Secretary of State for the Home Department exparte Northumbria Police (1988) 

[Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]Concerned the issue of  CS spray gas.   The Police Act 1964 gave the police powers but it did not exclude the Home Secretary using his prerogative powers. 

The Council of Civil Servants Unions v Minister for the Civil Service (1984) 

[Supremacy of Parliament – the Royal Prerogative – used today by ministers as Orders in Council]House of Lords made it quite clear that

prerogative powers could be reviewed by the courts. 

Vauxhall Estates v Liverpool Corporation [1932] DC

[Supremacy of Parliament – no Parliament can bind a future Parliament]The Acquisition of Land (Assessment of Compensation) Act 1919 S7(1) stated:'The provisions of the Act or order by which the land is authorised to be acquired...shall...have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect..'.

The claimants argued that compensation for land compulsorily acquired from them should be assessed on the basis of the 1919 Act not the Housing Act 1925 as a result of the above words in the 1919 Act.

Held: Even if the Act could be construed as intending to govern future Acts which was doubtful, the relevant provisions must be regarded as being impliedly overridden by the inconsistent provisions of the later Act.Avory J:" Speaking for myself, I should certainly hold, until the contrary were decided that no Act of Parliament can

effectively provide that no future Act shall interfere with its provisions."