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  1. 1. EUROPEAN LAW REVISION NOTES BACKGROUND INFORMATION The UK joined the EU in 1973. Originally sent up following World War 2, the EU was an attempt by many western European countries to rebuild their economies by working closely together. The idea was that they would be more prosperous when working together. The countries then decided that they would share a common framework of laws in the areas of employment and the trading of goods and services between the countries. Now EU Laws cover other areas such as health and food safety and sex discrimination laws. Attempts to adopt a common criminal law have been strongly resisted by the UK. The EU is currently made up of 27 Member States which include the UK, France & Germany. What do I need to know? • What are the institutions that make law in Europe? • What types of law are passed by them? The law making Institutions EUROPEAN PARLIAMENT • Based in Brussels & Strasbourg. • There are 785 Members of European Parliament who are elected by the citizens of the member state every 5 years. • Main function is to discuss and comment on the proposals put forward by the Commission, but it has no direct law-making authority. • But assent of Parliament is required to any international agreements the Union wishes to enter in. (e.g. admitting new member states) • Has some power over the Union budget. EUROPEAN COMMISSION • 27 commissioners who act independently of national origin (1 commissioner per member state) • Initiates all new EU laws. • Proposes and presents drafts of legislation to the Council. “The commission proposes and the council disposes”. • ‘Guardian of the treaties’ - Checks that the Member States are following the laws. Has a duty to intervene and refer to ECJ. • Responsible for the administration of the Union and has executive powers to implement the Union’s budget. COUNCIL OF MINISTERS
  2. 2. • Made up of representatives from each national Government who will attend meetings related to their national responsibility. • Principal decision making body. • The Council of Ministers is the ‘effective centre of power’. The Heads of State of the EU countries vote on the proposed laws. The Head of states have differing amounts of voting power depending on the size of their country (Qualified Majority Voting). EUROPEAN COURT OF JUSTICE • Function set out in Art 220 of the Treaty of Rome ‘to ensure that in the interpretation and application of the Treaty the law is observed’ • Decides cases involving citizens of the member states. • Enforces EU law in the member states. • Sits in Luxembourg and has 27 judges (one from each MS – those eligible for the highest judicial posts); appointed for 6 years and can be re-appointed. • Full court = 11 judges; also sits in chambers of 5 or 6 • Assisted by 9 Advocates. A-G under Art 223 will research all legal points involved and present the case publically.
  3. 3. Key functions of the ECJ • To ensure that the law is applied uniformly in all MS’s by carrying out 2 functions: a. Hears cases to decide whether MS have failed to fulfill obligations under the treaties (initiated by the commission) e.g. Re Tachographs where the UK failed to implement a regulation on the use of tachographs in road vehicles for the carriage of goods. b. Preliminary rulings Hears references from national courts for preliminary rulings on points of EU Law under Article 234. Article 234 ‘The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of treaties; (b) the validity and interpretation of acts of the institutions of the Union (c) The interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. WHEN MUST A REFERAL BE MADE? • Where there is no appeal from the national court within the national system i.e. the case must be referred from the HLs • Other courts are allowed to make a reference but do not have to. i.e. the CA does not have to refer questions. CASE: Torfaren Borough Council v B&Q (1990) Magistrates Court made a reference on whether the restrictions which then existed on Sunday were in breach of the Treaty of Rome. The ECJ make a preliminary ruling and send the case back to the original court for it to apply the ruling to the facts in the case. DISCRETIONARY REFERRALS Bulmer v Bollinger (1974) CA set out the approach for deciding whether a discretionary referral should be made: • Guidance on the point of law must be necessary to come to a decision in the case • There is no need to refer a question which has already been decided by the ECJ in a previous case • There is no need to refer a point which is reasonably clear and free from doubt; this is known as the ‘acte clair’ doctrine. • The court must consider all the circumstances of the case • The English Court retains the discretion on whether to refer or not. Van Duyn v Home Office (1974) was the first referred case by an English Scourt.
  4. 4. Possible Exam Question (b) In the following situations, consider whether there is a need to make an Article 234 referral to the ECJ. (i) Jacques, a French worker, has been denied entry to the UK. The House of Lords is considering his case. The case concerns free movement of workers under the EC Treaty. [5 marks] (ii) Pam is paid less than male employees for doing the same work. She has brought an equal treatment claim against her employer. An Employment Appeals Tribunal is deciding the case. A reference to the ECJ in Macarthys Ltd v Smith (1980) concerned a similar issue. [5 marks] (iii) Carla has brought a claim in an Employment Tribunal against her employer because they refuse to give her holiday entitlement as required under EC law. [5 marks]
  5. 5. Sources of EU Law  Primary – Treaties, the most important of which is the Treaty of Rome, and other agreements having similar status. – Primary legislation is agreed by direct negotiation between the governments of Member State.  Secondary – legislation passed by the institutions of the Union under Article 234 of the Treaty of Rome Secondary Legislation Decisions Regulations Directives TREATIES  Agreements laid down in treaties are subject to ratification by the national parliaments. (They have to sign them). The same procedure applies for any amendments that are made to the Treaties.  The Treaties also define the role and responsibilities of EU institutions and bodies involved in decision-making processes and the legislative, executive and judicial procedures which characterise Community law and its implementation.  The founding treaties were the Treaty of Paris 1951 and the Treaty of Rome 1957.  The Treaty of Rome (was originally called the EEC treaty) but it was amended in 1992 by the Treaty of Maastricht [The Treaty on European Union ‘TEU’] and its name was changed to the EC Treaty.  The Treaty of Rome created a "new legal order", which means that the body of law was now binding on the institutions of member states and its citizens. The new legal order was set out in Costa v ENEL and Van Gend en Loos.
  6. 6. Van Gend en Loos v Netherlands [1963] ECJ “The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign right, albeit within limited fields." European Constitution  The EC Treaty (the Treaty of Rome as amended) can be seen as the basic constitution of the European Union.  There has been an attempt to have ratified a European Constitution as we have seen but Holland and France refused.  Treaty of Lisbon may be the new constitution LEGAL EFFECT OF THE TREATIES  All treaties signed by our head of Government become part of English law automatically. The UK does not need to enact further legislation to give legal effect to them. European Communities Act 1972 s.2(1)  Direct Effect: The concept of "Direct Effect" is a device used by the ECJ to enable a citizen to use EC law for his personal advantage.  Van Duyn v Home Office – The ECJ held that an individual was entitled to rely on Art 39 giving the right of freedom of movement. – The article had ‘direct effect’ and conferred rights on individuals which could be enforced not only in the ECJ but also in the national courts. – UK citizens can rely on the rights in the Treaty of Rome and other treaties even though those rights may not have been specifically enacted in English law. – Van Gend en Loos – Established the criteria for defining when a particular provision should be directly effective. Such a provision should be • Clear and precise • Unconditional (leaving no discretion to Member State as to implementation); and • Capable of producing rights for individuals (POSSIBLE EXAM QUESTION a) The SOURCE refers to the EC Treaty. Briefly explain how the EC Treaty is part of UK law. [12 marks]
  7. 7. Vertical Direct effect' and 'Horizontal direct effect' Indicate whether the citizen can invoke EC laws against the state (vertically) or against another individual (including a company) (horizontally). 'Vertical Direct Effect'  The provision has effect between citizen and state (or emanation of the state). 'Horizontal Direct Effect'  The provision has effect between citizen and citizen State/emanation of the state Vertical Direct Effect The Citizen can Horizontal Other Citizens (e.g. sue Direct Effect employer) Treaty provisions can produce vertical direct effect if, they are "clear, precise and unconditional" leaving no discretion to Member State as to implementation. Macarthys Ltd v Smith, [1979] ECJ and CA Wendy Smith was able to rely on a treaty provision together with a directive to sue her former employer for equal pay as although there was no breach of English domestic law, the company was in breach of Art 141 of the treaty of Rome and the ECJ confirmed this.
  8. 8. British courts are now prepared to apply European Treaty law directly without referring to the ECJ. Diocese of Hallam Trustee v Connaughton 1996) In another ‘equal pay’ matter, the Employment Appeal Tribunal considered the relevant Article (119) and itself decided that its provisions were wide enough to allow Miss Connaughton to make a claim, saying ‘We are sufficiently satisfied as to the scope of the Article so as to decide this appeal without ... reference to the European Court of Justice’. Treaty provisions create horizontal & vertical direct effect  Defrenne v SABENA (No 2) [1976] ECJ An individual can rely on some Treaty articles to enforce rights against another individual in the national courts. "The prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals." POSSIBLE EXAM QUESTION a) With reference to Source B. Briefly explain with examples the term ‘vertical direct effect’ and ‘horizontal direct [12 marks] (
  9. 9. Secondary sources  Regulations - binding in all the member states  Directives - binding but member states may choose method of implementation  Decisions - binding on those member states to whom they are addressed  Recommendations - not binding  Opinions - not binding  Case Law - binding in all the member states Regulations, Article 249  ‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’. General Application General application means that Regulations apply to all member states often referred to as generally applicable. Directly Applicable Regulations (and Treaty provisions) are "directly applicable" which means they have the force of law within all Member States without them having to be enacted by a member state. "Directly applicable" means that the Member States (UK) need do nothing to implement the law, for example a Regulation is automatically the law of the UK. Regulations produce both horizontal and vertical direct effects The Regulation must be clear, precise and unconditional. Re Tachographs: Commission v United Kingdom (1979)  The ECJ held that the member states (the UK) had no discretion. Art 249 was explicit and meant that regulations were automatically law and that MS’s could not pick and choose. This made sure that all regulations were uniform across the member states. Directives Article 249  "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."  A Directive orders a member state to change its domestic law to comply with EU policy. They are the main way in which harmonisation within member states is reached.  They are, therefore, not 'directly applicable' and the method of implementation is left to the member state with, usually, a time limit for implementation imposed. Directives are often passed by statutory
  10. 10. instrument or an Order in Council. This means as subordinate legislation they are subject to judicial review. Working Time Directive  Issued in 1993  Gave detailed instructions of the maximum number of hours that should be worked, the rest periods and the amount of paid holiday to which workers were entitled.  It should have been implemented by November 1996 but the UK did not implement it until October 1998 with the Working Time Regulations 1998 Directives and Direct Effect Where a MS has not implemented a directive within the time laid down the ECJ has developed the concept of ‘direct effect’. Even if the MS has not implemented the directive or has implemented it in a defective way it will still be directly enforceable by an individual against the MS. Directives produce vertical direct effect if it is clear, precise and unconditional Van Duyn v Home Office [1974] ECJ  Miss Van Duyn, who was refused leave to enter the UK on the grounds of her undesirability, attempted to rely on article 48 of the Treaty, and Art 3 of Directive 64/221, which allowed free movement of workers in the EU.  It was held that the useful effect of directives would be weakened if individuals were prevented from relying on them before national courts. A Directive can be used vertically against a public body but not against a private individual or body. Marshall v Southampton & SW Hampshire AHA [1986] ECJ  Mrs Marshall wanted to continue working at Southampton Teaching Hospital (a public body) and complained that women were required to retire at 60, whereas men, could retire at 65. There was no breach of UK law, but Mrs Marshall could rely on an unimplemented Directive on equal treatment of men and women.  The court confirmed that a directive could only be used against a state or a public body - vertically - and not against another private individual or private body - horizontally. NHS was an emanation of the state and so could use rely on it.
  11. 11. Foster v British Gas [1990] ECJ  A Directive might be invoked against "a body whatever its legal form, which has been made responsible pursuant to a measure adopted by the State for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals."  So, British Gas a recently privatised company was held to be an emanation of the state. Directives & Horizontal Direct Effect Duke v GEC Reliance Ltd (1988) HL  Mrs Duke was not able to rely on an equal treatment directive because her employer was a private company. She could not use the principle of horizontal effect unlike Mrs Marshall who was able to succeed against her employer because they were controlled by the state. Paola Faccini Dori v Recreb Srl (1994)  The Italian Government failed to implement directive 85/447 in respect of consumer rights to cancel certain contracts.  Dori could not rely on the directive in order to claim a right of cancellation against a private trader. The Doctrine of Indirect Effect  Where a Directive has not been implemented by Member State or has been inadequately implemented an individual can take action against another individual by using the concept of “indirect effect” Von Colson v Land Nordrhein-Westfahlen [1984] ECJ  Article 5 EC requires Member States to "take all appropriate measures" to ensure fulfilment of Community obligations. And this means that courts must interpret national law so as to ensure the objectives of Directive are achieved. A Directive cannot of itself impose obligations on private parties Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECJ  Therefore, national courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive. This obligation applies whether the national provisions in question were adopted before or after the Directive;  national courts were 'required' to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved. So, courts must do everything possible to interpret domestic law to comply with Community law.
  12. 12. Actions against the state for failure to implement a directive Francovich v Italy [1991] ECJ  The Italian Government failed to implement a directive aimed at protecting wages of employees whose employer became insolvent. As a result when the firm went into liquidation owing Francovich wages, he sued the State for his financial loss. The ECJ held that he was entitled to compensation. Francovich v Italy [1991] ECJ – Ratio….  ‘Community law required the member states to make good damage caused by a failure to transpose a directive, provided three conditions were fulfilled’… 1. The purpose of the directive had to be to grant rights to individuals; 2. it is possible to identify the content of these rights from the Directive; and 3. there is a causal link between the State's failure to implement the Directive and the damage suffered by the individual.  Therefore the state was liable to compensate for loss as a result of the state’s failure to implement an EU directive within the required time limit. Faccini Dori v Recreb [1995] The Francovich principle was used by Ms Dori who relied on a Council Directive (that had not become part of Italian law) to withdraw from an English language course. The Directive allowed consumers to cancel contracts within seven days if the contract had been made away from business premises - in this case at railway station. Ms Dori could not rely on the Directive against a private body but that she should be able to gain compensation from the Italian state
  13. 13. Decisions Article 249 "A decision shall be binding in its entirety upon those to whom it is addressed."  Community institutions order that a measure be taken in an individual case. The Community institutions can thus require a Member State or an individual to perform or refrain from an action, or can confer rights or impose obligations on them.  The basic characteristics of a decision can be summed up as follows. – It is distinguished from the regulation by being of individual application: the persons to whom it is addressed must be named in it and are the only ones bound by it. – It is distinguished from the directive in that it is binding in its entirety (whereas the directive simply sets out objectives to be attained). – It is directly applicable to those to whom it is addressed. A decision addressed to a Member State may, incidentally, have the same direct effect in relation to the citizen as a directive. Instances in which decisions are used include, for example, the granting or refusal of State aid (Articles 87 and 88 EC), the annulment of agreements or arrangements contrary to fair competition (Article 81 EC) and the imposition of fines or coercive measures. Recommendations (not binding and therefore arguably not law)  In recommendations, the party to whom they are addressed is called on, but not placed under any legal obligation, to behave in a particular way. For example, in cases where the adoption or amendment of a legal or administrative provision in a Member State causes a distortion of competition within the Community, the Commission may recommend to the State concerned such measures as are appropriate to avoid this distortion. Opinions (not binding and therefore arguably not law)  issued by the Community institutions when giving an assessment of a given situation or development in the Community or individual Member States. In some cases, they prepare the way for subsequent, legally binding acts, or are a prerequisite for the institution of proceedings before the Court of Justice. The real significance of recommendations and opinions is political and moral.
  14. 14. Case Law  Rulings on EC law by the European Court of Justice (ECJ) are also a source of law. Case-law includes judgments of the European Court of Justice and of the European Court of First Instance, for example, in response to referrals from the Commission, national courts of the Member States or individuals.  For example: Van Gend En Loos [1963] gave individuals the right to rely on provisions of the Treaty of Rome in their national courts. Type of law Effect Source Treaties Directly applicable Section 2 (1) of the European Communities Have direct effect (both Act 1972 vertically and horizontally) if give Macarthys v Smith (1979) individual rights and are clear, precise and unconditional. Regulations Directly applicable Article 249 of the Treaty of Rome Have direct effect (both vertically and horizontally) if give individual rights and are clear, precise and unconditional. Directives NOT directly applicable. Article 249 of the Treaty Have vertical direct effect of Rome if give individual rights and are clear, precise and Marshall case unconditional. NO horizontal direct Duke v GEC Reliance effect BUT individuals can Francovich v Italian claim against state for Republic. loss caused by failure to implement
  15. 15. EFFECT OF MEMBERSHIP OF THE EU ON ENGLISH LAW • EU Membership brings with it new SOURCES of law – treaties, regulations and directives. • EU law takes precedence over national law. (Van Gend en Loos (1963) & Costa v ENEL (1964) – “the member states have limited their soverign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves” • MS’s including Britain have transferred sovereign rights to a Community created by them. None of the MS’s can rely on their own law when it is in conflict with EU law. • Acts of Parliament will be declared Void by the courts if they conflict with EU law. R v Secretary of State for Transport ex parte Factortame – where the ECJ decided that Britain could not enforce the Merchant Shipping Act 1988 because it contravened the Treaty. • Change in the role of the courts – interpretation is purposive and they can seek guidance from the ECJ under Article 234 • ECJ approach to those who fail to implement European obligations – Brasserie du Pecheur SA v Federation of Republic of Germany (1996) – Government liable for the financial loss suffered as a result of their breach of EU law. Compensation available where: o The rule of community law infringes must be intended to confer rights on individuals o The breach must be sufficiently serious o There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties. BENEFITS OF EU MEMBERSHIP TO ENGLISH LAW • Increase power in the judiciary – they now have greater freedom regarding the interpretation of statutes as they are adopting the purposive approach. • Certain groups are benefited – females, part time workers and employees for example • Lord Denning is of the view that the supremacy of Europe will only be accepted by the courts until Parliament passes an Act to repudiate the treaties – R v Secretary of state for transport ex parte Factortame. • Article 234 referrals make it possible for there to be clear guidance from the ECJ to all courts and tribunals. • The UK still doesn’t operate on an EU legal framework – the judge as an activist/inquisitor and a greater reliance on statute.
  16. 16. DIFFERENCE BETWEEN UK COURTS AND ECJ • ECJ focus on presenting cases on paper • Lawyers required to present their arguments in a written form and far less reliance on oral presentation of a case • Role of the Attorney General – an independent lawyer which is not used in the ELS. • The AG will present findings on the law after the parties have made their submissions. So the court has all aspects of the law presented to them • The deliberations of the judges are secret and where necessary the decision will be made by a majority vote, but ALL judges sign the judgement and so it is not known who if any judge disagreed unlike the dissenting judgements in the ELS • The ECJ is not bound by its previous decision s • The ECJ has wide rights to study extrinsic aids when deciding the meaning of provisions. POSSIBLE EXAM QUESTION (c) Lord Denning in the Source discusses the effect of membership of the European Union on English Law. (i) Describe the effect of European membership on English law using cases to illustrate. [15 marks] (ii) Discuss the benefits of European membership to English law. [12 marks]