How does UK court solve matter if UK law is incompatible with EU law

Dear all,

I was wondering how UK court could solve matter if UK law becomes incompatible with EU law?Thanks

They don't! They merely issue a declaration of incompatibility and refer the case back to the lower courts for a review of the decision reached earlier.

The UK Parliament will then rectify the local law and align it with the EU standpoint.

Reply 2

tehforum

Original post by cephillips

So basically this is nearly correct IMO. firstly the Courts will use S3 powers of the ECA 1972 to try and interpret the law in line with EU law, and tbh they are very creative here, take a quick look at the case of "Factortame" if you dont believe me haha! if they cannot do that, then they will use the S4 Declaration. Interestingly the EU case of Costa v Enel [1964] states that member states of the EU should disapply domestic law in these cases, and that judgement will be highly persuasive to the UK. Just to make it more complicated Denning said in McCarthys v Smith that judges will follow domestic law if expressly told to do so in the statute.

The S4 declaration itself has no legal effect, and it is still up to parliament if they wish to change it or not.

This is just my opinion and will happily own up to it if i'm wrong!

correct.

but in Factortame they "disapplied" the legislation, rather than using creative interpretation.

Reply 3

cephillips

Original post by tehforum

correct.

but in Factortame they "disapplied" the legislation, rather than using creative interpretation.

AH! Thank you for that! I checked my notes and you are quite right, i should have said Anisminic Ltd v Foreign Compensation Commission, with the nullity designation on the "shall not be questions in a court of law"? Not sure if you are familiar with that one?

Reply 4

RumpeIstiltskin

You're confusing the ECA with the Human Rights Act, courts use S3 of the HRA to interpret legislation compatible with the European Convention on Human Rights not EU law. Declarations of incompatibility are also from the HRA not the ECA.

If there is an implied conflict between EU law and domestic law like in Factortame, the courts make a preliminary reference to to European Court of Justice which will say they have to disapply the parts of the national statute which conflicts with EU law.

It is unclear what would happen if there is an express conflict between domestic and EU law since there's never been a scenario where a statute has purported to be valid despite conflicting with EU law. Judges such as Denning in McCarthys and Bingham in Factortame have given suggestions to what might happen; Denning saying effect would have to be given to the domestic statute and Bingham saying it is the duty of the courts to give effect to Union law in all circumstances. It would be a good idea to have a look at some of the academic commentary surrounding this area as well if you're answering a problem question on it.

How does UK court solve matter if UK law is incompatible with EU law

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