EU Sources of Law

EU sources of law, what they do and what direct effect they have.

  • Created by: peronella
  • Created on: 04-12-18 14:32

Treaties

The primary source of EU law is treaties. The most important is the Treaty of Rome, which established the European Union. Lisbon Treaty is also important for the purposes of Brexit.

agreements between all member states, highest source of EU law. set out basic prinicples of EU law and the aims of the EU.

Provisions of treaties are called articles - they outline the general principles of EU law rather than giving detailed rules. The application and interpretation of them is left to the CJEU.

They have both horizontal and vertical direct effect. 

Horizontal direct effect example case: Macarthys Ltd v Smith (1980)

Vertical direct effect example case: Van Gend en Loos (1963)

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Regulations

A secondary source of EU law. 'Binding in every respect and directly applicable in each member state': they apply directly with no intervention from legislative process of the member state. 

Tachographs Commission v UK (1979): EU regulation required tachographs to be installed in all vehicles used for carriage of goods. UK government decided not to implement the regulation, but CJEU held that they had to implement it - they couldn't pick and choose.

Both horizontal and vertical effect.

Horizontal direct effect example case: Antonio Munoz v Frumar Ltd (2002)

Vertical direct effect example case: Leonosio v Italian Ministry of Agriculture (1972) 

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Directives

Secondary source of EU law. The main way in which harmonisation of laws within member states is reached. Formal instructions that require member states to change their national laws within a stated period of time to give effect to the directive. 

They are binding, but manner of implementation is left to the discretion of member states. 

Can cover many topics, inc. company laws, banking, insurance, health and safety of workers and equal rights. 

Have vertical direct effect only - example cases: Marshall v Southampton Health Authority (1986); Van Duyn v Home Office (1974)

Horizontal direct effect does not apply to directives. Example: Duke v GEC Reliance (1982)

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Overcoming the problem of no horizontal direct eff

  • Providing a wide definition of 'the state' or 'emanations of the state'. Example: Foster v British Gas (1990). Central question whether British Gas which was going to be privatised was an 'emanation of the state'. CJEU held it was subject to a degree of state control and providing a public service - therefore it was, and Foster could rely on the Equal Treatment Directive against it. 
  • Interpreting national law in conformity with EU law. Uses purposive approach to interpretation - courts look for purpose of the legislation before interpreting its words. Example: Marleasing (1990) - Spanish complany law conflicted with EU directive - national courts required by CJEU to interpret law 'in every way possible' to reflect text and aims of directive. Also known as Von Colson principle. 
  • Francovich principle: allows individuals the right to compensation from their state if it fails to implement EU law. 
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Horizontal and Vertical Direct effect

Horizontal direct effect: where an individual wishes to enforce an EU law against another individual or private company.

Vertical direct effect: where an individual wishes to enforce an EU law against the state, or 'emanations of the state' such as public bodies or authorities. 

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