Constitutional Law 3 - The EU and Brexit Flashcards
What are the three principles related to the Treaty of the European Union?
The Principle of Conferral - art 5.(2) TEU
"The union shall act only within the limits of the competences conferred upon it by the member states in the treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States"
The Principle of Subsidiarity - art. 5(3) TEU
"[…] the union shall act only if and in so far as the objectives of the proposed actions
The principle of Proportionality - Art. 5(4) TEU
"the content and form of Union actions shall not exceed what is necessary to achieve the objectives of the Treaties."
What are the different types of competences for the EU?
Exclusive competences
can only be exercised by the EU, these are competition law, monetary policies and the customs union.
Shared Competences
If you have acted in shared competences, then other member states cannot. The member state cannot act if the EU has already
Supporting competences
both EU and MP can freely legislate.
How has the EU developed as a body and been effectively “constitutionalised?”
EU/EEC started as ‘mere’ international treaty treated under the standard precepts of international law
- Through ECJ’s teleological interpretation of the Treaties, EU legal order has gradually taken on an increasingly constitutional character
- The treaty themselves are silent on these issues
- ECJ were accused as being activists, creating new law instead of interpreting the law
- The ECJ has built the authority of EU law on its own case law rather than the Treaty text
what are the two principles of EU law?
- Direct effect: EU law can be directly enforced by individuals in national court
- Primacy (sometimes called supremacy): EU law takes priority over the application of conflicting national law
what case goes into the principle of direct effect?
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen
Member States AND their nationals are subjects of EU law
* EU law sees all its member states as monist
Direct effect: As a matter of EU law, individuals can directly rely on provisions of EU law in national court proceedings.
Direct effect applies regardless of whether a state is ‘monist’ or ‘dualist’
Direct effect can be both vertical (between private individual and public authority) and horizontal (between two private individuals)
what are the conditions for direct effect to influence EU legal norms?
Only some EU legal norms are capable of direct effect
* Norms must be sufficiently clear, precise, and unconditional
* Must not be subject to additional implementing measures
The rule in Van Gend en Loos (Art. 12 EEC Treaty) met the criteria for direct effect:
Member States shall refrain from introducing between themselves any new customs duties on imports and exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.
what was the significance of Case 43/75 Defrenne v SABENA show about direct effect?
that direct effect is both vertical (between private individuals and public authorities) and horizontal (two private individuals)
What is the significance of primacy in 6/64 Costa v ENEL?
“The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act […] cannot prevail”
Primacy : As a matter of EU law, EU law takes priority over any conflicting national laws.
what are the two contrasting perspectives for primacy regarding EU and UK constitutional law?
As a matter of EU Law:
EU law takes precedence over national law
EU law can be directly invoked by individuals
in national proceedings
As a matter of UK constitutional law:
Parliament can make and unmake any law
whatever and no one may override or set
aside an act of Parliament
International law cannot be invoked by
individuals unless incorporated into the law
of the UK
What can the EU do with the doctrine of primacy to clashing UK legislation?
The doctrine of primacy has led to the judicial review of national legislation for combability with EU law: The ECJ can de facto rule that national legislation should be disapplied
What is the significance of Section 2(1) of the European Communities Act 1972?
Automatically incorporates EU law into UK law.
Ensures that rights, obligations, and remedies under EU treaties are recognised and enforceable in UK courts.
No further enactment required for EU law to take effect.
Dynamic provision: Changes in EU law automatically affect UK law.
How does the European Communities Act 1972 establish the primacy of EU law?
Section 2(4) states that all UK legislation must be interpreted in line with EU law.
ECJ rulings (Costa v ENEL, Internationale Handelsgesellschaft, Simmenthal) confirm that national courts must disapply conflicting national laws.
Challenges traditional UK doctrine of parliamentary sovereignty (AV Dicey)
What was the significance of Macarthy’s Ltd v Smith in the context of EU law?
The claimant sought equal pay under UK law but failed under the Equal Pay Act 1970.
However, Article 119 EEC Treaty prohibited pay discrimination.
The Court of Appeal referred to the ECJ, which ruled in favor of the claimant.
Lord Denning: EU law takes precedence over conflicting UK statutes due to the ECA 1972.
What was the main legal issue in Factortame, and how did the House of Lords resolve it?
The Merchant Shipping Act 1988 restricted non-UK nationals from registering vessels in the UK.
This conflicted with EU law on the freedom of establishment.
The ECJ ruled that national courts must disapply national laws conflicting with EU law.
The House of Lords granted interim relief, setting aside the Merchant Shipping Act.
Lord Bridge: Parliament voluntarily limited its sovereignty in enacting the ECA 1972.
What principle was established in Thoburn v Sunderland regarding constitutional statutes?
The ECA 1972 was recognized as a constitutional statute.
Laws LJ: Constitutional statutes cannot be repealed by implication.
Reinforced the idea that EU law had a special status in the UK legal system.
How did the UK Supreme Court in HS2 [2014] reaffirm the limits of EU law?
The case questioned whether EU law could override fundamental UK constitutional principles.
UKSC held: EU law applies only because of the ECA 1972.
If there is a conflict with a fundamental constitutional principle, UK law prevails.
Lord Neuberger & Lord Mance: Parliament did not intend to allow EU law to override UK constitutional fundamentals.
What challenge does the ECA 1972 pose to the principle from Ellen Street Estates?
Ellen Street Estates: A Parliament cannot bind its successors.
The ECA 1972 effectively bound future Parliaments by making EU law supreme.
What was the effect of repealing the ECA 1972 on UK sovereignty?
The ECA transferred legal power to the EU but not sovereignty.
Repeal of the ECA restored full legislative autonomy to UK institutions.
2011 European Union Act, s.18: EU law applied only because Parliament had legislated for it.
Brexit: Demonstrated that Parliament remained sovereign and could remove EU law’s primacy.
What was the purpose of the European Union (Withdrawal) Act 2018?
Repealed the European Communities Act 1972 (ECA) on exit day.
Provided for legal continuity by retaining most EU law in UK law.
Created the category of retained EU law.
Ensured legal certainty after Brexit.
How did UK law function once EU law was no longer binding?
EU law no longer applied directly.
Retained EU law ensured continuity to prevent legal gaps.
Parliament and ministers could amend, repeal, or replace retained EU law.
What are the main categories of retained EU law?
EU-derived domestic legislation - UK laws implementing EU directives (e.g., Working Time Regulations 1998).
Direct EU legislation - Directly applicable EU regulations copied into UK law (e.g., UK GDPR).
Directly effective rights - Rights previously available under EU law (e.g., equal pay - removed in 2023).
Retained case law & general principles - UK courts continue applying EU case law unless overruled.
What major changes did the 2023 Act introduce?
Removed supremacy of retained EU law.
Renamed retained EU law as assimilated law.
Removed directly effective rights and general principles of EU law.
Gave ministers broad powers to revoke or replace assimilated law.
How could retained EU law be amended?
2018 Act: Ministers had powers to fix legal deficiencies.
2023 Act: Ministers could restate, revoke, or replace retained EU law until June 2026.
Parliament could freely legislate over assimilated law.
How did the principle of EU law supremacy change after Brexit?
Pre-Brexit: EU law overrode conflicting UK law (Factortame, Costa v ENEL).
Post-Brexit: Retained EU law initially retained some primacy.
2023 Act: Supremacy of EU law was abolished entirely.
