Transcript AS Level Law

AS Level Law
Sources of Law
European legislation
AS Level Law
What You Need to Know:
• The main institutions of the European Union
• The main types of European Union legislation
(regulations, directives, and decisions)
• The concepts of direct applicability, direct effect,
and indirect effect
What You Need to Discuss:
• The impact of European Union membership on the
national sovereignty of the member states
• The relationship between the English courts and the
Court of Justice of the European Union
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The European Legal Order
• EU established post-WW2 to assist in physical and
economic reconstruction
• main original aims - promote economic development of
member states and improve living standards of Union
citizens
• since expanded to include social and environmental
policy, monetary and political union
• to achieve aims, EU has established its own legal
institutions and laws - a European Legal Order
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European Institutions
• European Council - major policy making body (heads
of government and foreign ministers) - meets at
‘Euro-Summits’
• Council of Ministers - main decision-making and
legislative body. Adopts Union legislation based on
proposals from the Commission and after consulting
the Parliament
• Commission - main executive body. Divided into
Directorates (headed by Commissioners). Proposes
and drafts EU legislation
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• Parliament - has mainly as consultative and
advisory role
• Court of Justice:
 as a constitutional court, provides definitive
interpretations of EU law
 as an administrative court, hears actions against
institutions and member states. Also review validity
of EU legislation (similar, though more extensive, to
UK judicial review of delegated legislation)
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Direct Applicability and Direct Effect
• these two concepts are fundamental to understanding
the impact of EU legislation on member states
• direct applicability - a provision of EU law is DA
where it is automatically part of the law of each
member state. National parliaments cannot reject it,
nor do they have to do anything to incorporate it
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• direct effect - a provision of EU law is directly
effective where it creates individual rights
enforceable in national courts - two forms:
 vertical - creates individual rights against the state
 horizontal - creates individual rights against other
individuals
• this has important consequences for national
sovereignty - see later
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Sources of Union law
• The Treaties:
 these are the primary source of Union law
 establish Union’s aims, institutions and legislative
procedures
 can be seen as the Union’s constitution
 not DA
 can have both H and V DE provided provision is
clear, precise, and unconditional (Van Gend en Loos
[1963])
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Legislation under the Treaties
(Art.249 of the Treaty of Rome)
• Regulations:
 are DA
 binding in their entirety on each member state
 create legislative uniformity
 can have both H and V DE provided ‘Van Gend’
requirements are met (Leonesio v Italy [1973])
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• Directives:
 not DA
 binding as to result to be achieved, but leaves form
and method of implementation to each member state
 create legislative harmony
 can have V DE only, provided ‘Van Gend’
requirements met (Van Duyn v Home Office [1974])
and time-limit for implementation has expired
(Marshall [1986])
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therefore
 cannot rely on a directive against another individual
BUT may still have remedy against state where:
 purpose of the directive was to create individual
rights
 those rights are clear and precise
 causal link between state’s failure to implement
directive and individual’s loss or damage
- ‘indirect effect’ - Francovitch v Italy [1992]
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• Decisions:
 not DA
 used to give instructions to particular member
states, companies and (exceptionally) individuals
 can have V DE only, and only when addressed to a
member state (Grad [1970])
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EU membership and sovereignty
• by virtue of DA and DE, EU can introduce legislation
that automatically forms part of English law, and that
can create individual rights which the English courts
must enforce
• raises the issue of sovereignty - which law, English or
EU, will prevail in cases of conflict?
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The European view:
• if EU objectives are to be achieved, EU law must
prevail over inconsistent national law (Costa v ENEL
[1964])
• member states have, therefore, made a permanent
transfer of some of their sovereign rights to the EU
(Costa)
• in cases of conflict, national courts must give priority
to EU law and disapply inconsistent national law
(Minister of Finance v Simmenthal [1978])
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The UK view:
• s.2(1) ECA’72 incorporates EU law into English law and
provides, where appropriate, for DA and DE
• s.2(4) states that all UK legislation takes effect
subject to EU law with the exception of the ‘72 Act
itself
• this is a modified version of Costa, allowing Parliament
to override EU law by amending/repealing s.2
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• this, together with subsequent case law, indicates:
 English courts will try to resolve inconsistencies
through interpretation (Garland v BR Engineering
[1982])
 If Parliament wishes to enact legislation contrary to
EU law, it must first expressly amend/repeal s.2
(Thoburn v Sunderland City Council [2002]) - without
such express action, the courts will follow EU law
(Macarthys v Smith [1979])
 in exceptional circumstances, the courts may suspend
UK legislation pending guidance from CJEU on an
apparent inconsistency (Factortame [1990])
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therefore
• there has been a temporary and limited suspension of
sovereignty, albeit for an unlimited period
• Parliament retains (under s.2(4)) a residual power to
reassert its full sovereignty
• however, this would mean repudiating EU membership
• as this is unlikely, the transfer (or pooling) of
sovereignty would seem, for all practical purposes, to
be permanent
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UK Courts and the CJEU
• where a question of EU law arises, English courts may
refer that question to the CJEU for a preliminary
ruling. The English court will then decide the case in
light of that ruling
• therefore, CJEU interprets EU law, national courts
apply it
• under Art.234 of the Treaty of Rome, any court may
make a reference where a ruling is necessary to enable
it to give judgement
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• where the court is one from which there is no appeal,
then in such circumstances it must refer the question
to the CJEU
• in deciding whether a ruling is necessary, English
courts use the Bulmer v Bollinger guidelines - e.g. not
necessary where:
 CJEU has previously ruled on the same point
 point is reasonably clear and free from doubt (the
acte clair doctrine)
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Conclusion
• UK membership of EU has had wide-ranging effects
in both creation and application of law
• regarding sovereignty, while the transfer/pooling
could in theory be reversed, this is unlikely to occur in
practice
therefore
• assuming continued UK membership, EU law will play
an increasingly significant role within the English
Legal System
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Revision Headings:
EU - Introduction (Euro Legal Order etc)
EU - Institutions
EU - DA and DE
EU - The Treaties
EU - Regs, Dirs, Decs
EU - Sovereignty - Euro view
EU - Sovereignty - UK view
EU - UK courts and CJEU
EU - Conclusion
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Test Questions:
Using your cards, you should now be able to write a short
paragraph in response to each of the following questions:
•Explain the emergence of the EU.
•Explain the role of the different EU institutions.
•Explain the concepts of direct applicability and direct effect.
•Discuss the Treaties as a source of EU law.
•Discuss the different forms of EU legislation.
•Evaluate the impact on UK sovereignty of EU membership.
•Discuss the relationship between the CJEU and the UK courts.
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Useful Websites:
 BBC News A-Z of Europe –
http://news.bbc.co.uk/1/hi/in_depth/europe/euroglossary/default.stm
 Information on the EU on the Europa website –
http://europa.eu.int/institutions/index_en.htm
 University of California, Berkeley, Library European
Union Internet Resources –
www.lib.berkeley.edu/doemoff/gov_eu.html
 For more information on the European Court of Justice,
visit http://europa.eu.int/cj/en/index.htm