“The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law…will be obeyed by the Courts. The same principle, looked at from its negative side may be thus stated : There is no person or body of persons who can, under the English Constitution, make rules which override or derogate from an Act of Parliament ….”
“Whereas the prohibition of quantitative restrictions on the movement of goods and of measures having an equivalent effect is one of the basic principles of the Community; Whereas barriers to trade resulting from technical regulation relating to products may be allowed only where they are necessary in order to be essential requirements and have an objective in the public interest of which they constitute the main guarantee; Whereas it is essential for the Commission to have the necessary information at its disposal before the adoption of technical provisions; whereas, consequently the Member States which are required to facilitate the achievement of its task pursuant to Article 5 of the Treaty must notify it of their projects in the field of technical regulations;…”
“Without prejudice to paragraph 2, Member States shall postpone the adoption of a draft technical regulation for 6 months from the date of the notification referred to in Article 8(1) if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure must be amended in order to eliminate or reduce any barriers which it might create to the free movement of goods.”
“It has come to light that offences under the Act are unenforceable and, accordingly, all affected current prosecutions under the Act should be discontinued and future prosecutions should not be undertaken. …The detailed reasons why the offences under the Act are unenforceable are as follows. It is clear that sections 9 and 10 of the Act and the Regulations are technical regulations which should have been notified to the European Commission under Article 8(1) of the Technical Standards Directive 83/189/EEC. The European Court of Justice has held (see CIA Securities C-194/94) that a breach of this obligation to notify renders the technical regulations concerned inapplicable so that they are unenforceable against individuals. It is also considered that the other offences in the Act (under sections 11 to 14) constitute technical regulations and that these offences are similarly unenforceable against individuals. To reiterate all the offences under the Act are unenforceable because of a failure to notify the Act and the Regulations under the Technical Standards Directive 83/189/EEC. Any existing prosecutions under the Act should not be continued and no new prosecution should be brought until the issue is rectified. In relation to past prosecutions, it is our understanding that there would be no positive obligation on the Government to re-open these; however we would value any comments you may have in this regard.”
“In view of the foregoing considerations, it must be concluded that Directive 83/189 is to be interpreted as meaning that breach of the obligation to notify renders the technical regulations concerned inapplicable, so that they are unenforceable against individuals.”
“According to the case law of the court, the failure to observe the obligation to notify constitutes a procedural defect in the adoption of the technical regulations concerned, and renders the technical regulations inapplicable and therefore unenforceable against individuals (see, in particular, CIA Security International, paragraph 54 and Lemmens at paragraph 33). Individuals may rely on that inapplicability before the national court which must decline to apply a national technical regulation which has not been notified in accordance with Directive 98/34 (see, in particular CIA Security International paragraph 55 and Sapod Audic paragraph 50)”
“It cannot therefore, contrary to the Commission’s contention, be inferred from the judgment in Simmenthal that the incompatibility with Community law of a subsequently adopted rule of national law has the effect of rendering that rule of national law non-existent. Faced with such a situation, the national court is, however, obliged to disapply that rule, provided always that this obligation does not restrict the power of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for protecting the individual rights conferred by Community law.”
“… [I]t is a fundamental principle of the law of the European Union, recognised insection 2(1) of the European Communities Act 1972 , that if national legislation infringes directly enforceable Community rights, the national court is obliged to disapply the offending provisions. The provision is not made void but it must be treated as being (as Lord Bridge of Harwich put it in R v Secretary of State for Transport ex parte Factortame [1990] to AC 85,140) “without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC”.”
“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”
“Acts of the EU Community institutions in principle are presumed to be lawful and accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn”
“The terms used to formulate the law by the judges of the Court of Appeal… have not been happy. They have spoken of orders being void or null for lack of jurisdiction in the court to make them. But you cannot describe as a nullity an order made by a superior court of record, which is what the Crown Court is:section 4(1) of the Courts Act 1971 . Nor is the question really one of jurisdiction: it is a question of whether the court has exceeded its power. An order of the Crown Court once made may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellant tribunal to which the appeal is taken. But the terms used by the courts do not vitiate their reasoning.”
“23 It should be added that the judgment in Kühne & Heitz, to which the national court refers in Question 1(a), is not such as to call into question the foregoing analysis. Even assuming that the principles laid down in that judgment could be transposed into a context which, like that of the main proceedings, relates to a final judicial decision, it should be recalled that that judgment makes the obligation of the body concerned to review a final decision, which would appear to have been adopted in breach of Community law subject, in accordance with Article 10 EC, to the condition, inter alia, that that body should be empowered under national law to reopen that decision (see paragraphs 26 and 28 of that judgment). In this case it is sufficient to note that it is apparent from the reference for a preliminary ruling that that condition has not been satisfied.”
“…Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision even if to do so would make it possible to remedy an infringement of a provision of Community law, regardless of its nature, on the part of the decision at issue…”
“ For the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.”
“31 The applicant in the main proceedings and the Commission observe, however, that the Austrian legislature had excluded, by an unambiguous legislative provision, the taking into account of periods of employment completed in universities of Member States other than the Republic of Austria. 32 They argue that university professors who completed periods of service in such universities had to expect, in those circumstances, that their applications for the recognition of those periods for the purposes of the special length-of-service increment would be unsuccessful. The conduct of the Austrian legislature was therefore such as to deter university professors who were theoretically entitled to that increment from making in due time the application necessary for the right to be implemented.”
“ [t]he guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection … It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.”
“The European Court of Human Rights interprets the Convention in the light of present-day conditions but it is not unaware that differences in treatment between “illegitimate” and “legitimate” children, for example in the matter of patrimonial rights, were for many years regarded as permissible and normal in a large number of Contracting States … Evolution towards equality has been slow and reliance on the Convention to accelerate this evolution was apparently contemplated at a rather late stage … Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that court that annul legislation.”
“…the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that ante-date judgments of the court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional. … Moreover, it has also been accepted, in view of the principle of legal certainty, that a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period.”
“Absolute retroactivity based solely on the notion of an Act being void ab initio so as to render any previous final judicial decision null would lead the Constitution to have dysfunctional effects in the administration of justice…the application [of such] a principle…in the field of criminal law would render null and of no effect final verdicts or decisions affected by an Act which at the time had been presumed or acknowledged to be constitutional and otherwise had been fairly tried. Such unqualified retroactivity would be a denial of justice to the victims of crime and offend against fundamental and just interests of society.”