ECJ. The present work has been predicated on the idea that, in the contested polity that is the European Union, it is well nigh impossible to square the circle between the prerogatives of the ECJ in the EU on the one hand and the prerogatives of national constitutional courts within their own jurisdictions on the other. Xx Xxxxx put it accordingly:72 Yet, the thesis of the absolute supremacy of Community law, even over national constitutional provisions, is not fully accepted by all national supreme courts. First of all, those courts tend to recognise the privileged position of Community law, not by virtue of the inherent nature of Community law as the Court of Justice would have it, but under the authority of their own national legal order… But when it becomes a matter of deciding a conflict between Community law and a norm of constitutional rank, the theoretical basis matters very much. If the courts (and other national authorities) think that Community law ultimately derives its validity in the domestic order from the authority of the constitution, then they are unlikely to recognise that Community law might prevail over the very foundation from which its legal force derives. More precisely, the typical constitutional provision allowing for the transfer of powers to international organisations (or to the Community specifically) is seen as allowing a priori implicit amendments to other provisions of the constitution, but not as allowing alterations to basic principles of the constitution. [Emphasis supplied.] Such explanation of the situation still subsists today and was reinforced by the decision of the FCC in the Maastricht Treaty case73 (although it is strongly arguable that some later decisions mark a step back from such position).74 However, the conflict is not so xxxxx as one might consider. Admittedly, the FCC’s discussion of the relationship of co-operation is not of itself sufficient to allow for constitutional dialogue75 in the enlarged, post-Lisbon EU any more than it had been in the post-Maastricht EU, although Groussot76 refers to the Maastricht decision as showing that “an indirect dialogue is 72 X. xx Xxxxx, “Community Law and National Constitutional Values” (1991) 2 LIEI 1, at 4. 73 See above at Chapter Three, point E.2.a.-b. 74 Banana Market II, 7 June 2000, 2 BvL 1/97: BVerfGE 102, 147; (2000) 21 HRLJ 251; and Xxxxx, 1 BvR 1036/99, 9 Januar 2001: (2001) 54 NJW 1267; but now cf. Lisbon, BVerfG 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010...
ECJ. Designer’s Guild Limited v. Xxxxxxx Xxxxxxxx (Textiles) Limited [1998] EWHC 349 80 Designer’s Guild Limited v. Xxxxxxx Xxxxxxxx (Textiles) Limited [1999] EWCA Civ Designer’s Guild Limited v. Xxxxxxx Xxxxxxxx (Textiles) Limited [2000] 1 WLR 2416 Xxxxxx Xxxxxxx Xxxxxxx & Others v. Boncrest Limited [2000] Xx X Xxxxxx’x Build x. Xxxxxx Bulk Materials Holding Ltd & Ors [1998] EWCA Civ 1900 Xxxxxx Xxxxxxx Limited v. Restawhile Upholstery (Lancs.) Limited [1976] AC 64 Interlego v. Tyco [1988] RPC 343 XX Xxxxxx Gowns Limited v. Xxxxxx Xxxxxx [1975] FSR 455 Merlet v. Mothercare [1986] RPC 15 Ladbroke (Football) Ltd v. Xxxxxxx Xxxx (Football) Ltd. [1964] 1 WLR 273 Lambretta Clothing Company Limited v. Xxxxx Xxxxx (UK) Ltd. & Next Plc. [2004] EWCA Civ 886 Queen v. Secretary of State for Transport ex parte Factortame C- 221/89 (Factortame) Redaway v Banham [1896] A.C 199 Reckitt & Xxxxxx Ltd v Xxxxxx Inc [1990] 1 All E.R. 873
