Is European Union undermining the sovereignty of its individual member Essay

Is European Union undermining the sovereignty of its individual member states - Essay Example The next case that further emphasized upon the sovereignty principle was Case 11/70 Internanationale Handelsgesellschaft GmbH3, whereby it was stated that even where the case was in respect of fundamental rules that had been established by way of the German Constitution, Community law would prevail over such national laws and rules. Another important case which can be cited in respect of the powers of the courts of the member states to respect the sovereignty of Community Law is Case 106/77 Simmenthal SpA (No.2)4 whereby it was stated that even a court of first instance were under a duty to set aside provisions of national law which were incompatible with Community law. Furthermore, there was no need to wait for the national law to be amended in accordance with the EC law and so the national law could be set aside where it was in conflict with a directly applicable or effective provision of the EC law. The duty to respect sovereignty of EC law was extended to administrative agency wh ich was dealing with a national insurance scheme who were said to have powers to set aside conflicting provision. (Case C-118/00 Larsy v. INASTI)5. It is important to mention here that even thought by virtue of the powers being given to courts and administrative agencies the national measure is held to be inapplicable, the Member State is still held to be under a continuing obligation to repeal the conflicting provisions. The Courts in Case 167/73 Commission v. France (French Merchant Seamen)6 for the sake of legal certainty expressly stated the Member States are under an obligation to repeal the offending or contradicting national provision or rule. A step forward in respect of this can be seen from the fact that even if there is not sufficient certainty as to whether a person has a Community law claim, the supremacy doctrine specifies that the national court should set aside the provisions that may prevent anyone from acquiring the full benefit of Community law, even if this is es tablished later in time. The concept can be seen to have been applied in Case C-213/89 R v. Secretary of State for Transport, ex parte Factortame Ltd and others7 which was a case on Spanish fishermen who claimed that the UK Act prevented them from fishing in British water and therefore was in contradiction and breach of EC Treaty Articles. The fishermen sought interim relief in this respect; however, the problem that arose in this respect was that the courts in UK were not empowered to grant an injunction against the State, thereby suspending an Act of Parliament. The problem in this case was the if interim relief was not provided the Spanish fishermen would have been driven out of business and might have suffered huge losses and therefore a subsequent judgment would not in any way serve their purpose. The ECJ held that the act of Parliament must be set aside and subsequently the House of Lords granted an injunction. There has been a strong reaction by the national courts in respect of the concept of direct effect and supremacy which has been developed by the Court of Justice. The important point that needs to be looked into when determining the way how the EC law enters the Member State is dependent on the fact as to whether the member state is monist or a