AS Level Law

1. AS Level Law Sources of LawEuropean legislation

2. 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

3. AS Level Law 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

4. AS Level Law 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

5. AS Level Law • 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)

6. AS Level Law 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

7. AS Level Law • 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

8. AS Level Law 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])

9. AS Level Law 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])

10. AS Level Law • 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])

11. AS Level Law 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]

12. AS Level Law • 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])

13. AS Level Law 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?

14. AS Level Law 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])

15. AS Level Law 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

16. AS Level Law • 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])

17. AS Level Law 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

18. AS Level Law 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

19. AS Level Law • 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)

20. AS Level Law 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

21. AS Level Law 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

22. AS Level Law 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.

23. AS Level Law Useful Websites: • BBC News A-Z of Europe – http://news.bbc.co.uk/1/hi/in_depth/europe/euro-glossary/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