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    European Law

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    jkjahkjahd987981723
    European Union law has directly impacted the UK legal system. EU law takes precedence over national law under the doctrine of supremacy. The two main sources of EU law are primary law in treaties and secondary law in regulations, directives, and decisions passed by EU institutions. Direct applicability means EU law automatically becomes part of national law, while direct effect allows individuals to enforce rights in national courts against governments or private parties. Brexit may restore some parliamentary sovereignty lost through EU membership, but the extent is still unclear.

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    European Law

    Uploaded by

    jkjahkjahd987981723
    30 views20 pages
    European Union law has directly impacted the UK legal system. EU law takes precedence over national law under the doctrine of supremacy. The two main sources of EU law are primary law in treaties and secondary law in regulations, directives, and decisions passed by EU institutions. Direct applicability means EU law automatically becomes part of national law, while direct effect allows individuals to enforce rights in national courts against governments or private parties. Brexit may restore some parliamentary sovereignty lost through EU membership, but the extent is still unclear.

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    European Union law has directly impacted the UK legal system. EU law takes precedence over national law under the doctrine of supremacy. The two main sources of EU law are primary law in treaties and secondary law in regulations, directives, and decisions passed by EU institutions. Direct applicability means EU law automatically becomes part of national law, while direct effect allows individuals to enforce rights in national courts against governments or private parties. Brexit may restore some parliamentary sovereignty lost through EU membership, but the extent is still unclear.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    30 views20 pages

    European Law

    Uploaded by

    jkjahkjahd987981723
    European Union law has directly impacted the UK legal system. EU law takes precedence over national law under the doctrine of supremacy. The two main sources of EU law are primary law in treaties and secondary law in regulations, directives, and decisions passed by EU institutions. Direct applicability means EU law automatically becomes part of national law, while direct effect allows individuals to enforce rights in national courts against governments or private parties. Brexit may restore some parliamentary sovereignty lost through EU membership, but the extent is still unclear.

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    European Union Law

    Objectives
    • Explain the impact of the European Convention on
    Human Rights on the legal system of England and Wales

    • Explain the main sources of European Law


    • Explain direct applicability and horizontal and vertical
    direct effect

    • Evaluate the effect of European law on the sovereignty of


    parliament

    • Discuss impact of Brexit.


    Sources of European Law

    • There are two main types of EU law; primary and secondary


    • Primary law are mainly the Treaties, the most important of which was
    originally the Treaty of Rome itself
    • Secondary sources are legislation passed by the institutions of the Union
    under Article 288 (Treaty on the Functioning of the European Union)
    • This secondary legislation is of three types:, regulations and directives
    and decisions
    • In addition to these two main sources, case law of the CJEU can also be
    considered a source of 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 Directly


    applicable where it immediately becomes part of the law
    of each member state. National parliaments cannot reject
    it, nor do they have to do anything to incorporate it.
    Direct Effect
    Direct effect - a provision of EU law has direct effect where it creates
    individual rights enforceable in national courts - two main forms of
    direct effect :

    • vertical - creates individual rights against Governments


    • horizontal - creates individual rights against other
    individuals, governments and private organisations

    • Indirect effect – National Courts should interpret national


    law in accordance with relevant EU legislation
    Sources of Union law
    The Treaties:

    • These are the primary source of Union law


    • Treaties establish Union’s aims, institutions and legislative
    procedures

    • Treaties can be seen as the Union’s constitution


    • Treaties can have can have both Horizontal and Vertical
    Direct Effect provided provision is clear, precise, and
    unconditional (Van Gend en Loos [1963]) and see
    Macarthys Ltd v Smith (1979).
    Sources of Union law
    Regulations:

    • Analogy can be made with an English Act of Parliament


    are Direct Applicable
    • Art 288 of TFEU allows the EU the right to create
    regulations
    • Binding in their entirety on each member state

    • Can have both Horizontal and Vertical Direct Effect


    provided ‘Van Gend’ requirements are met (Leonesio v
    Italy [1973])
    Sources of European law
    Directives
    • Not Directly applicable
    • Less precisely worded than regulations
    • Binding as to result to be achieved, but leaves form and
    method of implementation to each member state

    • Can have Vertical Direct Effect only, provided ‘Van Gend’


    requirements met -Van Duyn v Home Office (1974)

    • Vertical direct effect means that they impose obligations on


    the state and not individuals
    Cases to discuss/ research for directives and
    direct effect include:
    • Marshall v Southampton Area Health Authority(1986) – broad definition of ‘state’

    • Von Colson v Land Nordrhein-Westfalen (1984)

    • Marleasing SA v La Comercial Internacional de Alimentacion SA (1990)

    • CIA Security International SA v Signalson (1996)

    • R (on the application of Mayor and Citizens of Westminster CC) v Mayor of London
    (2002)

    • R (on the application of Wells) v Secretary of State for Transport, Local Govt and the
    Regions (2005)
    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,

    • there is a link between state’s failure to implement


    directive and individual’s loss or damage

    - ‘indirect effect’ - Francovitch v Italy [1992]


    Decisions
    • Not Directly applicable

    • A decision may be addressed to a member state, a


    company or a person. For example, granting export
    licenses to companies outside of the EU.

    • Can have Vertical Direct Effect only, and only when


    addressed to a member state (Grad (1970).
    How does EU law affect the UK?

    • Because the EU can introduce legislation that


    automatically forms part of English law, and that creates
    individual rights which the English courts must enforce.

    • This raises the issue of sovereignty - which law, English or


    EU, will prevail where there is conflict?

    • Of course, we now have the Brexit vote. What impact will


    this have? Will Parliamentary sovereignty be restored?
    How does EU law affect the UK?
    • If the EU is to work, EU law must prevail over inconsistent
    national law (Costa v ENEL [1964])

    • Member states have made a 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]).
    The UK

    • s.2(1) European Communities Act 1972


    incorporates EU law into English law

    • s.2(4) states that all UK legislation takes effect


    subject to EU law with the exception of the 1972
    Act itself.
    The UK
    Therefore,
    • If Parliament wishes to enact legislation contrary to EU
    law, it must first expressly amend/repeal s.2 (Thoburn v
    Sunderland City Council (2002) – ‘metric martyrs’) -
    without such express action, the courts will follow EU law
    (Macarthys v Smith [1979])

    • The leading case is R v Secretary of State for Transport,


    ex parte Factortame (1990) duty of a UK court to refuse
    to apply statutes which are conflict with directly effective
    EU law
    • As a result, there has been a temporary and limited
    suspension of sovereignty

    • Parliament retains, under s.2(4) of the ECA 1972 a power


    to reassert its full sovereignty

    • However, this would mean leaving the EU

    • Brexit…?
    Lord Denning
    In Bulmer v Bollinger (1974)
    Denning said:

    ‘The
    ‘Thetreaty
    treatyisislike
    likean
    anincoming
    incomingtide
    tide. .ItItflows
    flows
    into
    intothetheestuaries
    estuariesandandupupthe
    therivers.
    rivers.
    ItItcannot
    cannotbe
    beheldheldback.’
    back.’
    Lord Denning
    In 1996 Denning said:

    ‘No
    ‘Nolonger
    longerisisEuropean
    Europeanlaw
    lawananincoming
    incomingtide tideflowing
    flowing
    up
    upthe
    theestuaries
    estuariesof
    ofEngland.
    England.ItItisisnow
    nowlike
    likeaatidal
    tidalwave
    wave
    bringing
    bringingdown
    downouroursea
    seawalls
    wallsand
    andflowing
    flowinginland
    inlandover
    over
    our
    ourfields
    fieldsand
    andhouses
    houses––to
    tothe
    thedismay
    dismayof ofall.’
    all.’(The
    (The
    Independent
    Independent16th16thJuly
    July1996)
    1996)
    Test Questions
    You should now be able to answer the following:
    • 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 of EU membership on UK sovereignty


    Useful Websites

    https://europa.eu/european-union/index_en

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