Is the Doctrine of Supremacy a prerequisite for the Enforcement of Community Obligations?

Faaizah Momla

1

Supremacy of EU Law

Within the integration organisations, the principle of supremacy2 refers to the idea that the rules and obligations that are established from the treaties are supreme in relation to Member State’s law. In European Union (EU) law, supremacy is highlighted wherein a conflict arises between EU law and a Member State’s national law, in that EU law prevails.3 The view that the principle of supremacy is fundamental to resolving conflicts between Community obligations and domestic legal systems stands to be contested. In examining this thesis, the evolution, and the meaning of the principle of supremacy in EU law will be traced, and the Caribbean Court of Justice’s (CCJ) jurisprudence and CARICOM’s approach to the fundamental principles established in EU law on this topic will be critically examined seriatim.

I. EU Approach

The doctrine of supremacy of law resembles the fundamental rule of international law of pacta sunt servanda which is translated as ‘treaties must be observed.’ By signing onto the EU Treaty, each Member State binds itself to the permanent limitation of its sovereignty in conformity with the provisions of the treaty over the national laws of the State including the fundamental constitutional rules.4 These treaty agreements are binding and must be implemented in good faith.5 Although the principle of supremacy in EU law does not have a formal basis in the Treaty it has significant implications, and extensive meaning. The consequence of this is that the legality of any

1 This Essay has been divided by topics for easy comprehension.

2 Primacy and Supremacy are used interchangeably.

3 Case C-409/06 Winner Wetten v Burgermeisterin der Stadt Bergheim [2010] ECR I-8015 at para 53

4 R v Secretary of State for Transport, ex p Factortame [1990] ECR I-2433, ECJ.

5 Articles 26 and 27 of the Vienna Convention on the Law of Treaties provision from EU law is undisputable, or its effect is unhindered by the domestic laws of a Member State.6 Furthermore, national courts are obliged to interpret national law following EU law.7

This principle was first highlighted in the case of Costa v ENEL8 whereby the Italian court sought to assert that its national legislation should prevail over the EU law. On preliminary reference, the European Court of Justice (ECJ) outlined the nature of the legal system and the fundamental concept of supremacy, stating that if national law could nullify EU law, then it would deprive it of its character as EU law and threaten the legal basis of the EU itself.

Additionally, this doctrine was reinforced by the ECJ, and the implications were demonstrated in Amministrazione delle Finanze v Simmental. 9 Here, the court declared that EU regulations are directly applicable and must be uniform throughout the legal systems of each Member State. This, therefore, creates direct rights and duties for both Member States and their nationals. The ECJ held that the supremacy of EU laws means that the direct applicability of provisions of EU law automatically renders the previous state laws inapplicable. Likewise, the adoption of future legislative measures is precluded if they are incompatible with EU law. From this judgement, the principle of direct applicability is introduced along with the notion of supremacy. As such the relationship between these two doctrines is inquired in relation to supremacy.10

Direct Effect/Direct Applicability

In the case law of the ECJ, the terms direct applicability and direct effect are used interchangeably.11 However, these two concepts are clearly distinct as noted by Kaczorowska12 in her EU textbook, that the principle of direct applicability merely refers to the way in which Community law is considered automatically part of national law but does not necessarily entail enforceability in that legal order. Conversely, direct effect refers to the way in which regional law

6 Case 11/70 International Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125, ECJ.

7 Case C-397-403/01 Pfeiffer and Others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835; Indirect Effect.

8 Case 6/64 [1964] ECR 585

9Case 106/77 [1978] ECR 629

10Craig PP and Búrca GD, EU Law: Text, Cases, and Materials (Oxford University Press 2011)

11 Halsbury’s Laws (2022) vol 47, para 167

12 Alina Kaczorowska, European Union Law, 2nd edn (London: Routledge, 2011) ch 11 is not only part of national law but is also actionable before the courts by private actors. The issue then arises as to if the direct effect is conditional or a consequence for EU law to have supremacy over national law. Granted the doctrines of direct effect and direct applicability seem to be entwined with supremacy as the doctrines build the block for the supremacy of EU law.13

The relationship between direct effect and supremacy was examined by Michael Dougan using two models: the primacy model and the trigger model.14 The primacy model argues that supremacy is independent providing “exclusionary effects” in the national sphere by setting aside rules that are not compatible with Community law. Distinctively, direct effect provides “substitutionary effects” which create rights from the Treaty that are non-existent in the national legal system. Through this distinction, Dougan attempts to divorce these doctrines from each other.

In contrast, the trigger model emphasises that for any provision of Community law to produce an independent effect on the national legal system it is essential that the provision from the Treaty satisfies the criteria of having a direct effect. Evidently, this model demonstrates that the principle of supremacy is a consequence of and is dependent on direct effect. Accordingly, this model signifies the prominence conferred to supremacy by direct effect. This is again affirmed in the Costa15 case which suggests that direct effect is dependent on supremacy.

Although Dougan mentions direct effect only, it can be noted that direct effect, direct applicability, and supremacy are inter-reliant in nature. Although Dougan’s models are not supported by case law, the latter model is more intellectually enriching. For example, if there is an EU provision which is directly applicable, but it somehow clashes with national legislation, the mere concept of supremacy authorizes the national legislation to be set aside. Moreover, the enforcement of EU law in national courts by private actors is granted through the doctrine of direct effect which showcases the superior nature of EU law.16 Consequently, these doctrines allow for European integration to be effective as Member States are obliged to comply with provisions and obligations composed in the treaty.

Pre-emption: Relationship to Supremacy - EU Approach

13 Craig PP and Búrca GD, EU Law: Text, Cases, and Materials (Oxford University Press 2011)

14 Dougan M, “When Worlds Collide! Competing Visions of the Relationship between Direct Effect and Supremacy” (2007) 44 Common Market Law Review 931

15 Case 6/64 [1964] ECR 585

16 Van Gen de Loos Case 26/62 [1963] ECR 1.

In demonstrating that supremacy is not the sole mechanism to resolve conflicts laws the principle of pre-emption is introduced. Article 2(2) of the Treaty on the Functioning of the European Union (TEFU) stipulates that a Member State can exercise competence only to the extent that the Union has not exercised its competence within a specified area.17 This article establishes the exclusive competence over an area which previously had shared competence wherein Member States lose their power to act independently in the area of law.18 Therefore, the principle of pre-emption is tied to supremacy in EU law because the competencies and concurrent powers would be justifiable when the organization acts in accordance.

State Liability- EU Approach

The principle of State liability refers to Member States having liabilities in damages to individuals who have suffered loss as a result of that Member State’s infringement of EU law.19 This doctrine was first highlighted in the Joined cases of Francovich v Italy and Brasserie du Pêcheur SA v Germany20 on the basis of two grounds: the principle of effectiveness and the requirements of Article 4(3) TEU.21 This doctrine demonstrates that the principle of supremacy is not the sole mechanism to resolve conflicts between national and Community law. Although it can be noted that there is no textual basis from the treaties, later cases describe the doctrine as being ‘inherent in the system of the [EU] Treaty’22 highlighting the strong foundation of this doctrine. The joined cases of Brasserie du Pêcheur SA v Germany and R v Secretary of State for Transport, ex parte Factortame Ltd and Others23 mention the right of reparation arises when 1. the infringed rule is intended to confer rights on individuals 2. the breach is sufficiently serious 3. there is a direct

17 Consolidated Version of the Treaty on the Functioning of the European Union [2016] OJ C202/50, art 2(2)

18 Commission v Council Case 22/70 [1971] ECR 263

19 Alina Kaczorowska, European Union Law, 2nd edn (London: Routledge, 2011) ch 12.

20 Joined Cases C-6/90 and C-9/90 Francovich v Italian State and Bonifaci v Italian State [1991] ECR I5357.

21 Article 4(3) of TEU. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.

22 R v Secretary of State for Transport, ex parte Factorme Ltd and Others [1996] ECR I-1029, at p I-1144 [31].

23 C-46/93 and C-48/93 causal link between the breach of the state’s obligation and the damage suffered by the injured parties. The principle of state liability allows for the effective enforcement of Community obligations and enhancing integration within the Community.

Administrative Implementation- EU Approach

Within the EU, there are fundamental principles of EU law which allow for administrative implementation. Although the treaties and their amendments are silent in the issue of priority between national laws and EU law when there is a conflict. Through case law it is evident that the fundamental principles of EU law are present within the application of Community law. As mentioned above, these principles include supremacy, direct effect, direct applicability, preemption of EU law and State liability. These principles are the foundation for the administrative implementation of EU regulations allowing national law to be in accordance with EU regulations. Consequently, the view that supremacy is the only mechanism is incorrect because the doctrines are all inter-reliant on each other.

II. CARICOM Approach: Supremacy

The CCJ in its original jurisdiction will have to decide on whether the adoption and development of the doctrine of supremacy of Community law are essential regarding conflicts with the Revised Treaty of Chaguaramas (RTC). Correspondingly, the acceptance of the concept of supremacy by the Member States remains yet to be seen. The inquiry, nonetheless, arises as to whether the doctrine of supremacy is a prerequisite criterion for regional integration and the exclusive mechanism to resolve conflicts.

In the case of Shanique Myrie v Barbados, 24 this question was raised but the Court avoided answering as it mentioned the implementation would hinder the exercise of sovereignty by the Member States. As a result, the Court did not directly declare the adoption of the supremacy doctrine but merely left room for it. The Court further seemed to embrace the traditional form of supremacy at the Community level rather than the domestic level.25 Although the Court did not mention its approach to this doctrine the basis of supremacy is readily present in CARICOM law.26

The basis of supremacy is demonstrated through the requirements of effectiveness, uniformity,

24 [2013] CCJ 3 (OJ) [69]

25 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 219

26 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 218 non-discrimination, and the binding obligations assumed by member states in relation to Community law.27

Supremacy Sole Mechanism

In RTC there is no explicit mention or support of the principles of direct applicability, direct effect, or pre-emption. As aforementioned these principles are correlated therefore if the CCJ is to embrace the concept of supremacy of Community law it is essential to accept the doctrines. In the event, there is acceptance of these doctrines, it can be asserted that the principle of supremacy is not the only mechanism to resolve conflicts in national and Community law. Hence, the idea of the adoption of the concept of direct applicability, direct effect and pre-emption will be analyzed in a CARICOM context.

Direct Applicability

In the EU, direct applicability goes a step further in that EU law is automatically part of national law and does not require legislative transformation.28 This again demonstrates that supremacy is necessary, but it is not the sole mechanism.

From the onset, Article 9 of the RTC allows for binding legal obligations upon Member States at regional levels. Article 9 can also be interpreted to have a broad meaning as the provisions necessitate Member States to ensure that the obligations are carried out and abstain from measures that prevent the achievement of the objectives of the treaty. Accordingly, the obligation seems to require that member states modify their laws so there is no conflict with the requirements of the RTC.29

In the case of Trinidad Cement Ltd and TCL Guyana Inc v Guyana, 30 the effect of direct applicability developed a step further. Here, the court interpreted the RTC as creating rights and obligations for States as well as allowing correlative rights of nationals to be protected. Nevertheless, there was no mention that these rights are capable of being protected at the national level. Though this is distinctive from the EU concept, the correlative rights emphasise the doctrine of direct applicability in CARICOM at the regional level.

27 Costa v ENEL Case 6/64 [1964] ECR 585

28 Variola v Amministrazione delle Finanze (Case 34/73)

29 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 199

30 Judgment [2009] CCJ 1 (OJ), (2009) 74 WIR 302

In a CARICOM context, the idea of direct applicability existing in domestic law can be considered controversial for numerous reasons. This is because the treaty’s provisions demonstrate and preserve a dualist system of law.31 In other words, this requires treaties to be transformed before they can have binding force in domestic law.32 Subsequently the treaty provisions that have not incurred transformation under national law are incapable of having a binding effect.33 This, therefore, allows for the only acceptable role of the unincorporated treaty to be that of interpretation at the domestic level.

Since direct applicability in CARICOM is not enforceable in domestic courts, it can be noted that this would challenge the supremacy of Community law. For there to be the supremacy of Community law, there should be no barrier at the national level. This would allow the supremacy doctrine to extend to the fundamental rights in Constitution34 suggesting that direct applicability at the national level would be a criterion for supremacy. As such, the quintessential requirement for laws to be transformed hinders the application of regional law which results in the frustration of regional law.

Direct applicability in CARICOM extends to a regional level but if the doctrine of supremacy was to be developed, it would be necessary that direct applicability extends to domestic levels because the doctrines are related chronologically. This would be an issue in the CARICOM context because direct applicability is limited by rules and international treaties. The challenge that CARICOM would experience with direct applicability in domestic law proves that supremacy is not the only mechanism to resolve conflicts.

Direct Effect

The doctrine of direct effect comes from the locus classicus case of Van Gend en Loos v Nederlandse Administratie der Belastingen35 whereby the issue arose as to the direct application of Article 12 of the EEC Treaty to allow individual rights to lay claims in a national court. The Court held the treaty created individual rights that the national courts are to be protected. Therefore,

31 Art 240 of RTC

32 R v Lyons [2003] 1 AC 976 (HL)

33 Linton v Attorney General [2009] ECSC J0629-1.

34 Internationale Handelsgesellschaft (1987) ECR 3969 it can be noted that this concept is a necessary corrective to ensure the supremacy of EU law both at the regional and national levels.

35 Case 26/62 [1963] ECR 1.

In EU law the principle of direct effect allows for dual vigilance at the national and regional levels. Without the principle of direct effect, EU law could have only been efficient according to the constitutional rules of the national legal systems of Member States. Accepting this doctrine, thus allows for uniformity and effectiveness of EU law.

Conversely, in the RTC, there is no mention of this principle. However, there are provisions in the RTC which signify that direct effect is again neither necessary nor possible in the CARICOM treaty.36 This is because under the RTC direct challenges by individuals are capable of being brought before the CCJ.37 CARICOM also does not have the legislative mechanism which enables Community law to be automatically part of the domestic law of Member States. In the event, the doctrine of direct effect allowed for rights to be enforced at a national level all members of CARICOM would be able to adjudicate these claims in their domestic court. It can be noted that the formation of the new legal order enforced before national courts suggests that Community law is supreme.38

In the case of Trinidad Cement Limited v CARICOM, 39 the CCJ indicated that member states had created a new regime with the RTC establishing the rule of law and creating legal accountability. Because of these developments, it can be noted that the doctrine of direct effect is already within Caribbean Community law at the regional level. Additionally, the implementation of direct effect acknowledges significant benefits that would encourage its adoption. It can be stated that for the CCJ to adjudicate all individual claims under the RTC would increase the capacity of the caseload. As such the implementation of the doctrine of direct effect at the national level would assist with the challenge of having to adjudicate numerous cases.

Granted, the CCJ is the main mechanism for treaty obligations, but the challenge arises that this body is the sole interpreter of the rights granted under the treaty. In seeking to retain a balance between the interpretation of national law and regional law the CCJ retains the right to provide

36 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 208

37 RTC Arts 211(1)(d) and 222

38Van Gen en Loos Test. The elements for the test are 1. Clear and precise provision 2. Unconditional 3. Capable of creating rights for individuals.

39 [2009] CCJ 2 (OJ) (2009) 74 WIR advisory opinions40 and referrals 41 Therefore, if there is a conflict between a right that has been granted under the treaty and internal law, the principle of supremacy would highlight that the right from the treaty would prevail42 in which a State may require national law to be disapplied.43

Another challenge that is likely to arise for CARICOM to fully adopt the direct effect approach as most member states have dualist legal systems. The varying systems, therefore, allow different rights in each legal system causing different levels of obligations to be accepted by States.44 Moreover, the principle of direct effect allows for rights at the regional and national levels to be uniform, this uniformity, implies that supremacy alone is incapable of solving the conflicts in the law.

Pre-emption- CARICOM Approach

In CARICOM, this principle is not readily adopted which can be contrasted with the EU. Within CARICOM, regional organisations retain full competence regarding the creation of legal obligations.45 Moreover, CARICOM organs require transformation under Article 240 of the RTC. In the event that the doctrine of supremacy was adopted, pre-emption would also be, signifying that the principle of supremacy is not a standalone doctrine.46 Nonetheless, it is for the CCJ and Member States to decide if these principles are necessary to resolve conflicts with national and Community law, but these are to be further developed.

State Liability- CARICOM Approach

The CCJ has formally adopted the principle of State liability from EU law, which was highlighted in the case of Trinidad Cement Limited and TCL Guyana Inc v Guyana. 47 This case was the first time, the issue of a State being sanctioned arose before the CCJ for the breach of the RTC. Like the other doctrines, the RTC contained no specific provisions dealing with sanctions for the breach

40 Article 212 of the RTC

41 Article 214 of the RTC

42 Variola v Amministrazione delle Finanze [1973] ECR 981; Fundamental principle that the Community legal system is supreme.

43 Case C-287/98 Luxembourg v Berthe Linster and Others [2000] ECR I-6917.

44 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 203

45 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 220.

46 Krislov S, Ehlermann C-D and Weiler J, “The Political Organs and the Decision-Making Process in the United States and the European Community” Integration Through Law, Volume 1: Methods, Tools and Institutions, Book 2: Political Organs, Integration Techniques and Judicial Process of the RTC provisions. However, the Court noted that one of the grounds for the State liability in the EU on the basis of Article 4(3) of the TEU which was almost identical to Article 9 on the General Undertaking and Implementation of the RTC.48 As such, the Court acknowledged the existence of the principle of State liability as a principle of CARICOM law. It can be noted, the CCJ adopting the approach would suggest that it may derive general principles of CARICOM law without any clear textual support from the RTC such as the doctrines of supremacy, direct effect and direct applicability if so required.

47 [2006] CCJ 5 (OJ) 20 August 2009.

However, the doctrine has readily been adopted by the CCJ the burden of proof to establish State liability in individual cases may substantially limit the effectiveness of the general principle.49 Here, the challenge appears to be the burden of proof which will be the same for all CARCIOM Member States.

It can be noted that the doctrine of supremacy would allow for Member States to be held accountable for breaches under the RTC. In other words, if the RTC is the supreme law and there is a breach it is essential that there must be compensation. Again, within this principle it can be noted that the doctrine of supremacy is incapable of application on its own.

Administrative Implementation of Community Law- CARICOM Approach

Administrative implementation as used by the CCJ, describes the way a state official will implement Community law within the national systems even in cases where is no legislation or there is conflicting legislation. In the case of Maurice Tomlinson v Belize and Trinidad and Tobago50 Tomlinson challenged both the national immigration laws of Belize and Trinidad and Tobago as these laws prohibited homosexuals from entering the countries. Tomlinson’s claim failed as the Court held that Tomlinson had no valid reason to assume that his rights will not be respected by the States. In reaching this conclusion, the Court interpreted the national laws in conformity of RTC. Here, it can be mentioned that there was a discord between the administrative of practice and the literal meaning of the legislation as Tomlinson was not refused entry on the basis of his sexual orientation. This case can be used to support the doctrine of supremacy of Community law as national law was interpreted in accordance with the RTC. This conform

48 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 221

49 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 223

50 [2016] CCJ 1 (OJ) interpretation is also known as indirect effect. However, this case can be also used as an obstacle for supremacy as States are excused for the non-transformation of the RTC and decisions of organs of CARICOM 51 In other words, States are allowed to dismiss their obligations under the RTC as there is no enforcement mechanism which mandates for transformation of Community law.

As previously mentioned, direct effect, direct applicability, pre-emption, State liability and supremacy doctrines are interrelated. Therefore, for the principle of supremacy to predominate in resolving the conflicts between national and Community law it must extend its boundaries.52 Consequently, the view that supremacy is the sole mechanism to resolve conflicts is erroneous. For the CCJ to embrace the concept of supremacy of Community law it is imperative to incorporate the doctrines of direct applicability, direct effect, and pre-emption. Currently, the principle of supremacy does not pose a significant threat to the sovereignty of Member States since legal acceptance is a core criterion, but this is to be disputed if the doctrine of supremacy is accepted. 51 Shanique Myrie v Barbados [2013] CCJ 3 (OJ) 52 Wyatt and Dashwood’s European Union Law, 6th edn, 2011, Oxford: Hart Publishing. 279.