- Created by: JM150601
- Created on: 18-09-18 09:34
The European Union
The European Union came into being as the results of several formal agreements, known as the treaties , made between member states. These not only created the community but also formed the sources of EU Law.
These treaties are as follows:
- in 1951 the Treaty of Paris created the European coal and steel community;
- In 1957 the treaties of Rome created the European economic community and Euratom
The Single European Act In 1986
This act was an amendment to the treaty of Rome. It Creates the Single Market
The Treaty on European Union
(Maastricht Treaty) Of which was also an amendment to The treaty of Rome And was incorporated into English law by in 1993.
The Treaty of Amsterdam 1997
There was also an amendment to the treaty of Rome. The Labour government under Tony Blair, signed up to the parts of the social chapter concerning minimum wage and standardisation of working hours for employees. These issues have now become part of the UK law.
The Treaty of Nice 2001
Also an amendment to the treaty of Rome, relating to the implications arising from the proposed enlargement of membership of the European Union.
Primary and Secondary sources of EU law.
Primary sources of EU law are the treaties listed previously, the most important one of which is the Treaty of Rome 1957.
Second sources of EU law are:
The Council and Commission
The council and commission together make:
- regulation which are binding completely and all member states without the state having to do anything to enact the regulation into their own law.
- Directives which are binding as to the results but allow national authorities to choose the form and method.
- decisions which are entirely binding on those to whom they are addressed
What is Regulation?
EU Regulations are defined as: Laws issued by the EU which are binding on member states and automatically apply in each member country.
Such regulations do not have to be adopted in any way by the individual states as article 288 makes it clear that they automatically become more in each member country
This ‘direct applicability’ was tested in Re Tachographs: Commision v United Kingdom (1979)
What are Directives?
EU Directives are defined as: A directive is generally a framework document setting out the minimal standards for all member states to achieve. It does not lay down any specific method for the standards to be incorporated into national laws, but leaves that issue to the national government to decide.
Such standards have to be achieved within a time limit set by the European Commission.
What is Direct Effect?
Direct effect is the principle that Union law may, if appropriately framed, confer rights on individuals which the courts of member states of the European Union are bound to recognise and enforce. That means it is European legislation that does not need English legislation to enforce it
Where member states have not implemented a directive within the given time laid down, the Court of Justice of the European Union has developed the concept of direct effect.
If the purpose of the directive is to grant rights to individuals and that directive is sufficiently clear, it may be directly enforceable by an individual against the Member State. This will be so even though that state has not implemented the directive, or have implemented it in a defective way. The important point is that an individual who is adversely affected by the failure to implement only has rights against the state. This is because of the concepts of vertical direct effect and horizontal direct effect.
What is Vertical Direct Effect?
Vertical direct effect is where the individual can claim against the state even when a directive has not been implemented. This happened in Marshall v Southampton and South west Hampshire area Health Authority in 1986.
Miss Marshall was required to retire at the age of 62 when men doing the same job did not have to retire until 65. Under the sex discrimination act of 1975 in English law this was not discriminatory. However she was able to succeed in action for on fair dismissal by relying on the equal treatment directive. This director had not been fully implemented in the UK but the Court of Justice of the European Union held that it was sufficiently clear and imposed obligations on the member state. This ruling allowed Miss Marshall to succeed in her claim against her employers because her employers were considered ‘an arm of the state’, i.e. they were considered a part of the state.
The equal treatment directive had vertical effect allowing individuals to rely on it and take action against the state.
In simple terms vertical direct effect is enforcing rights on higher bodies than yourself, e.g. the statw.
When National Law and EU Law Conflict
It can occur that EU Law is at variance with national law and when this happens the Court of Justice of the European Union has made it clear on several occasions that EU Law must prevail and that the English Courts must apply such Law even though it conflicts with what has been laid down by the British Parliament.
The Court of Justice of the European Union (1)
They set in full sessions when hearing cases brought by a member state or one of the institutions. In September 1989 a court of first instance was newly created. The court of first instance may hear certain cases brought by national legal persons (i.e. Persons or Corporations). There is a right of appeal to the European Court but only on points of law.
The procedure of the court is unlike that of English courts, being based largely upon the continental legal process. An usual feature is an advocate general (of which there are six) sits on a bench with the judges and after the parties have stated in outline of the case, the case is adjourned for the advocate general to consider the arguments in depth. After this he will deliver an opinion on the law in this case and this cannot be commented on by the parties. The court then gives its decision, which often, but not always, follow the opinion of the advocate general.This is not to be confused With EU Court of Human Rights.
Whilst this is not a feature of English courts it does at least give the judges time to take a considered and learned independent view of the law in that particular case rather than being required to come to a speedy decision on the day of the hearing
The Court of Justice of the European Union (2)
The courts task is to ensure that the law is applied uniformly in all member states and it does this by performing two key functions:
The first is that he is cases to decide whether member states have failed to fill obligations under the treaties. Such actions are usually initiated by the European commission, although they can also be started by another member state. And early example of such case was Re Tachographs: The Commission v UK (1979) in which the UK had to implement a Council regulation on the use of mechanical recordings equipment in road vehicles used for the carriage of goods.
The second function is that it hears references from national courts for preliminary rulings on points of European law
The European Court of Human Rights (1)
The European Court of human rights were set up in 1950. It is separate from the European Union but plays a major part in European law. Recourse to this court may be had by those who feel that they have not received justice in their own country. The decisions of this court can be enforced only by the goodwill of those states signatory to the European convention for the protection of human rights and fundamental freedoms signed in 1950.
The European Court of human rights is a distinct body and should not be confused with the Court of Justice of the European Union. Decisions made by the CJEU are binding on member states of the union and must be followed by the English courts. The European Court of human rights does not bind the English courts but political pressure may be brought to change an unacceptable state of human rights.
Section 2 of the human rights act 1988 requires the court must take into account any judgement, decision or declaration of the European Court of human rights in reaching a decision. Section 3 requires all legislation to be read and given affect as far as possible in a way that is compatible with the Convention rights. Any superior court may make a declaration of incompatibility.
The European Court of Human Rights (2)
Section 6 provides that it is on lawful for public authority to act in any way inconsistent with such Rights, which, if breached, could lead to proceedings in court.
Whereas the human rights act 1998 has had a significant impact on the laws of this country, it can be argued that Parliamentary sovereignty in respect of this act is still maintained because while our courts have to take into account European Court of human rights judgements and interpret legislation, as far as possible, in a way which is compatible with the Convention, they cannot override and existing act of parliament. Instead they issue a declaration of incompatibility.
Issues of European Law
A number of issues have arisen whereby the European Court of Justice has ruled the actions of the United Kingdom to be contrary to the EU law. This problem should be looked under two headings:
- Causes Of Action
- Remedies Avaliable
Causes of Action (1)
Where a member state fails to implement the directive within the timescale set down by the directive, or fails to implemented correctly then the commission has the right to take that member state to the Court of Justice for a rolling that is the case. This has happened to the United Kingdom on a number of occasions.
Where a member state fails to implement a directive within the timescale set down by the directive, or fails to implement it correctly then the commission has the right to take that member state to the Court of Justice for ruling that is the case. This has happened to the United Kingdom on a number of occasions.
The commission v United Kingdom (1983) related to the failure to fully implement the equal pay directive, and the commission V United Kingdom (1994) related to the failure to implement the collective redundancies directive fully. The United Kingdom response was to pass new regulations under the delegated powers of the European Committees Act 1972.
Causes of Action (2)
Where, in case brought before the European Court of Justice on the referral from the National court, the court rules that the law currently applied in the national legal system is in contravention of EU law.
English law cases include the armed forces dismissal of pregnant women which was held to be contrary to the ego equal treatment directive of the EU, although not in breach of the United Kingdom sex discrimination act of 1975. Consequently the sex discrimination act has been amended to reflect this ruling.
The European Court of Justice has jurisdiction to give a preliminary ruling on a question of European law which has been referred to it by a court of the member state. Such rulings may cover the interpretation of the treaty, Acts of community institutions or statutes of bodies established by the council etc.
Finally there is a cause of action against the member state when it passes law which contravenes the laws of the EU. As indicated above, the European communities act 1972 states that community law is to take precedence, and so when the United Kingdom passed the merchant shipping act, 1988, it ran into stormy waters.
Causes of Action (3)
The act, amongst other things, prevented person is not living in the United Kingdom from registering and operating fishing trawlers from the UK ports, thus preventing Spanish and Dutch from having access to British fIslington quotas under the common fisheries policy of the EU.
This was contrary to the fundamental right in the treaty of Rome for all European union citizens to move freely within the EU and establish business anywhere in the EU.
The court of Justice ruled that properly passed on an active UK Statute was in fact illegal under EU law. The Court of Justice ruled that a properly past and enacted UK statute was illegal under EU law. This is a significant move by the European Court and established that when UK law and EU law are in conflict, the EU law prevails.
The European Court of Justice has the power to fine member states which fail to implement European legislative measures.
Firstly, when a directive is capable of direct affect, then the applicant in any case may rely upon it rather than the national law of the member state in order to obtain compensation, and thus bypass the problems in the domestic law not complying with EU law. This happened in the paper mention previously of the pregnant forces personnel who were dismissed. The right to compensation in such cases however is limited to persons who were employed by the public bodies. The leading case on this point is FOSTER V BRITISH GAS (1990)
Secondly in FRANCOVICH AL BONIFACI V ITALIAN REPUBLIC (1991) The European court ruled that when a member state fails to implement a directive properly, or, as in this case, at all, then a citizen who has lost rights as a result may sue the member state for damages. This may lead to governments having to pay very large amount of damages where they have wrongly implemented directives, and a number of cases are pending in the United Kingdom relating to such wrongful implementation.
Thirdly, damages may be claimed against the member state for wrongful actions.
It can be seen that the influence of the European Court of Justice over English law is growing quite enormously. It might be expected then, that the number of cases being referred to the Luxenberg court would be increasing, but this is not necessarily true. The reason for this is the growing acceptance by the English law courts that they can apply EU law principles themselves without referring the case to Luxembourg. Increasingly therefore, English and Scots judges are becoming more Familiar with the intricacies and differences that EU law brings to its own law.
A preliminary ruling is a decision of the European Court of Justice on the interpretation of European Union law, made at the request of a court or tribunal of a European Union member state. Preliminary rulings are final determinations of Union law in question by the EU courts.
Differences Between CJEU And English Courts
When compared with English court there are several major differences in the way the Court of Justice of the European Union operates. First the emphasis is on presenting cases on paper. Lawyers are required to present their arguments in a written form and there is far less reliance on oral presentation of the case this requirement is, of course, partly because of the wide range of languages involved.
A second difference is the use of the advocate general. This independent lawyer is not used in the English system. However in the Court of Justice of the European Union the advocate general he was assigned to the case will present his findings on the law after the parties have made their submissions. The court, therefore, has the advantage of having all aspects of the law presented to them.
The discussions of the judges are secret and where necessary the decision will be made by a majority vote, however when the judgement is delivered it is signed by all judges, so that it is not known if any judges disagreed with the ruling.
The other points to be noted are that the CJEU is not bound by its own previous decisions and that he prefers the purposive approach to interpretation.
Treaties, Regulations and Directives
Treaties: Directly Applicable, have Direct Effect (both horizontally and vertically) if they give individual rights and are clear.
Regulations: Directly Applicable, have Direct Effect (both horizontally and vertically) if they give individual rights and are clear.
Directives: Not Directly Applicable, Have vertical Effect if give individual rights and are clear, No horizontal effect but Individuals can claim against state for loss cause don’t by failure to implement.
Horizontal direct effect
Directives which have not been implemented do not, however, give an individual any rights against other people. So in DUKE V GEC RELIANCE Ltd (1988), Mrs Duke was unable to rely on the equal treatment directive as her employer was a private company. This illustrates that directives do not have horizontal direct effect and this was confirmed further by an Italian case, POALA FACCINI DORI V RECREB Srl (1995), in which the Italian government failed to implement directive in respect of consumer rights to cancel certain contracts. Dori could not rely on the directive in order to claim the right of cancellation.
Clearly it is on fair that these conflicting doctrines of vertical and horizontal affect should give rise to individuals in some cases and not in others. The Court of Justice of the European Union has developed law under which it is possible to take action to claim damages against the member state that failed to implement the European directive. This was determined in FRANCOVICH v ITALIAN REPUBLIC (1991).
In simple terms horizontal direct effect is taking action against people on a similar level to you e.g. an individual or company through the EU courts.
How can the law be influenced?
The main sources of law in the English legal system are acts of Parliament, caselaw and European union laws. Once a lot is made such is the nature of a modern western society that there will become a time when it requires modification or reform. Society does not stand still and so the law supporting the society cannot stand still either – it has to keep pace with changes in society if it is to remain credible.
Parliament can reform the law and in one of four ways:
- Repealing obsolete laws
- Creating new laws
- Consolidating laws past previously to face new situations
- Codifying a number of laws dealing with the same situation
How are reforms in the law initiated?
Statues are in acted by Parliament and the House of Commons has a dominant role in the process. A party with a large majority of seats could in theory and act any statute wishes. However in reality it has to remember that it is beholden to the electorate who gave it power. Not all ideas to reform the law come from members of parliament themselves. Reform of the law can be instigated by the following:
- The Law Commission
- Royal Commission
- Political, Media and Pressure Groups
- Politicians themselves
The Law Commision (1)
The law commission was set up in 1965 by the law commissions act of 1965 to review the law of England and Wales with a view to its systematic development and reform.
The Law Commission aims to make the law:
- more modern
- cheaper to use
The Law Commision has 5 full time Commisioners. The Chairman, who is a high court judge , holds office for 3 years. The other commissioners are experienced judges, barristers, Solicitors or legal academics. They usually hold office for up to 5 years and are appointed by the Lord Chancellor. The law commission works on self initiated project of law reform, as well as project recommended to it by judges, lawyers and government departments. Every few years a program of Law reform has to be submitted to the Lord Chancellor for approval,
The Law Commision (2)
It concentrates on sometimes what is called lawyers law or pure law. In other words it is concerned with meaningful law e.g. criminal law.
The law commission works by researching The area of law that is thought to be in need of reform. It then publishes a consultation paper seeking views on possible reform, the consultation paper will describe the current law set out the problems and look at options for reform.
Following the response to the consultation paper the commission will then tomorrow positive proposals for reform. These will be presented in a report which will also set out the research that led to the conclusions. There will often be a draft bill attached the report with the intention that this is the exact same way in which the new law should be formed. Such a draft bill must, of course, go before Parliament and go through the necessary Parliamentary stages if it is to become law
Codification involves reviewing all the law on the particular topic and then creating a code to cover all the aspects of the law on that topic. The code is likely to include existing law as well as creating new law where the previous law was unsatisfactory. In this way all the law is in one place and is makes the law simpler and easier to find.
The actual definition of codification is reviewing all the law on one topic and creating a complete code of law.
The aim of consolidation is to draw all the existing provisions together in one act. It is different to codification as the law is not reviewed or changed. It is simply brought together in one act. This is needed because in some areas of the law there are a number of statutes, each of which sets out a small part of the total law. This is another way in which the law is being made more accessible.
Up to 2006 the law commission produced about five or six consolidation bills each year. By 2006 they were responsible for 220 consolidation acts.
Another of the law commissions roles is to identify old acts which are no longer used, so that Parliament can repeal these acts. The law commission has been very successful in this. By 2015 that had been 19 statute law (repeals) acts. Over 3000 out of date acts of Parliament have been completely repealed. In addition, part of thousands of others acts have been repealed.
Implementation of the law commissions proposals (1
The more commission has produced over 300 reports proposing reform of the law in a wide variety of areas of law. However in order to be effective those proposals then have to be passed as law by Parliament.
In the first 10 years of its existence the law commission had a high success rate with 85% of its proposals being enacted by Parliament. During the next 10 years, however, only 50% of that suggested reforms became law. This lack of success was due to lack of Parliamentary time, and an apparent disinterest by Parliament in technical law reform. The rate hit an all time low in 1990 when not one of its reforms was enacted by Parliament.
Since then there has been an improvement and there have been three measures to ensure that more reforms are implemented. The three measures are:
- The Law Commision Act 2009 amending the 1965 act, and which place is a requirement on the Lord Chancellor to report to the Parliament annually on the government progress in implementing reports.
Implementation of the law commissions proposals (2
- Protocol agreed between the government and the law commission in 2010. Protocol set out the Minister for the relevant department will provide a response as soon as possible but not later than six months after publication of the report, and will give a final response as soon as possible.
- A dedicated Parliamentary procedure to implement law commission reports. This has operated since 2010 and six acts have been passed through this procedure.
By March 2016 published a total of 217 board reform reports of these 143 (66%) i’ve been implemented in whole or in part and another 8 has been accepted and were awaiting implementation. So clearly the measures paid off.
Whereas the law commission is a permanent body looking into law reform, royal commissions are set up on the basis that they are required to look into an area of law which might need reforming. In addition, where as the law commission is essentially made up of lawyers who have specialist knowledge in a particular area of the law, royal commissions are made up from a range of people who have an interest in the topic at hand. The Royal commission researches into the problem area within a given framework and produces a Report for the government which may or may not be made into legislation.
Where are no recommendations of Royal commission are and acted upon by the government in power at the time this is hugely dependent on their political agenda.
Media and Pressure Groups
This is a good way for the electorate to get involved if they believe a particular area of the law is in need of reform. A great many things Can be achieved by pressure groups and media. For example all it takes is to start a petition and if it gets a certain amount of signatures it has to be debated in the house of commons which could lead to law reform.
Advantages of reform through the law commission
- areas of law are researched by legal experts
- The Law Commision consults before finalising proposals
- whole areas of law can be considered, not just small issues
- reform can simplify an modernise the law
- in the first 10 years of its existence 85% of the Law Commisions proposals were implemented by Parliament.
Disadvantages of reform through the law commission
- the Law Commision has to wait for government to bring in the law it proposes which can take years.
- a major area of criminal law that is still awaiting reform is non fatal offences against a person.
- It can be argued that in 1990 they spent money to reform law but none of it was implemented by Parliament meaning it went to waste.