EU Law Flashcards
EU treaties
The primary source of EU law is provided by two EU treaties:
(a) The Treaty on the Functioning of the European Union. This is commonly abbreviated as ‘TFEU’.
(b) The Treaty of European Union. This is commonly shortened to the acronym ‘TEU’.
They are both commonly referred to as the EU’s primary legislation. Note. There is one common mistake to avoid here. Students often assume that the European
Convention on Human Rights is an EU treaty. It is not. It never has been. It is overseen by a completely different organisation. Some of its signatories are not even EU members. Article 6(2) TEU does provide the EU with the power to accede to the ECHR but it has not done so to date.
The Charter of Fundamental Rights
The Charter of Fundamental Rights was adopted in 2000 as an authoritative statement of fundamental rights within the EU. It was given formal legal recognition by the Lisbon Treaty of 2007 through the insertion of a new article 6(2) into the TEU.
Article 6(1) TEU provides that the Charter has the same legal status as the treaties. It is, therefore, a primary source of EU law. However, it is more limited in its application than the EU treaties. Article 51 of the Charter makes it clear that it only regulates the activities of the EU, and those of the Member States when they are implementing EU law. Moreover, it does not confer, extend or modify any of the powers of the EU under the treaties. Therefore, the Charter can be used to interpret EU law or to determine the lawfulness of the EU’s
acts or of national measures giving effect to EU law. But it does not provide an independent source of competence for the EU, or an independent legal basis for its activities. Neither does it apply to Member States in purely domestic situations which fall outside of EU law. (See further ‘General principles of EU law’ below.)
Regulations
Article 288 TFEU authorises the EU to undertake certain secondary acts. These constitute legislative acts where they are adopted using a legislative procedure (Article 289(3) TFEU). Regulations are one form of secondary legislation. Article 288 provides that:
A regulation shall have general application. It shall be binding in its entirety and directly
applicable in all Member States. Directly applicable’ means that the regulation applies in the Member States without those
Member States having to enact their own legal measures to implement or give effect to it.
Directives
Directives are a second form of secondary legislation. They are also provided for by article 288 TFEU which states that:
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. This means that, in contrast to regulations, Member States are required to implement directives by enacting their own legal measures to incorporate or to give effect to them in their national law.
The deadline for implementing a directive will normally be specified in the directive itself. Typically, this will be two years after the directive was adopted. If no deadline is specified in the directive, the deadline for implementation will be 20 days after the publication of the directive (Art 297 TFEU).
Decisions
Decisions are another form of secondary act which are provided for by article 288 TFEU. That article states that:
A decision shall be binding in its entirety. A decision which specifies those to whom it is
addressed shall be binding only on them.
Decisions are exactly what their name indicates. For example, the European Commission may make a decision that a company is in breach of EU competition law and may also decide to impose a fine on the offending company. It did so in 2018 when it made a decision that Google was in breach of competition law for abusing its dominant position in certain markets relating to its mobile phone operating system. The Commission decided to impose a fine of €4.34 billion. This is currently the record amount for such a fine. A decision will be considered to be secondary legislation if it was adopted using a legislative procedure (Art 289(3) TFEU).
Tertiary acts
The TFEU provides for two forms of tertiary act:
(a) Delegated acts
Article 290 TFEU enables EU secondary legislation (regulations, directives and decisions) to delegate the power to the European Commission to adopt delegated acts to supplement or amend that secondary legislation.
(b) Implementing acts
Article 291(2) TEU enables legally binding EU acts to confer on the European Commission the power to adopt acts for implementing those legal binding EU acts where uniform conditions for implementation are needed. The power can also be conferred on the Council of the
European Union in certain circumstances.
Tertiary acts may themselves take the form of regulations, directives and decisions.
Note. The European Commission and the Council of the European Union are both institutions of the EU.
Case law
The judgments of the EU courts in the cases they decide also provide a further source of EU law. These have been extremely important in developing and transforming whole areas of EU law. Some of the most important legal principles have derived from case law. The principal courts of the EU are the Court of Justice of the European Union (CJEU) and the General Court. While there is no appeal from the national courts of the Member States to the EU courts, national courts can make preliminary references to the Court of Justice. These are
questions about EU law which are referred to the Court of Justice by the national court. The Court of Justice will make a ruling on the question which was referred to it. This is called a preliminary ruling. The case then returns to the national court to apply the ruling of the Court of Justice.
International agreements/treaties
Article 47 TEU confers legal personality on the EU. This gives it the capacity to act on its own behalf within the realm of public international law, including entering into international agreements (ie international treaties).
Article 216(1) TFEU empowers the EU to be able to enter into international agreements in various circumstances listed in the article. These international agreements are binding upon the EU institutions and the Member States (Art 216(2) TFEU). Other provisions of the TEU and TFEU provide further powers to enter into international agreements in relation to more specific matters. These include agreements on arrangements for
States to withdraw from the EU (Art 50(2) TEU).
Non-binding acts (‘soft law’)
The institutions of the EU may also undertake acts which are not binding on anyone.
* Article 288 TFEU provides for the institutions to be able to make recommendations and to deliver opinions. The article expressly states that these are non-binding.
* Other non-binding acts include communications, declarations, notices, programmes and resolutions.
These acts are colloquially known as ‘soft law’. However, this label is misleading as they are not forms of law at all.
Note. As these forms of soft law are not binding, they are not, in themselves, enforceable in national courts. However, they can be used to aid the interpretation of the other forms of EU law.
General principles of EU Law
Finally, there are certain overarching legal principles which apply generally across EU law. They are known as the general principles of EU law. They are used to aid the interpretation of the more specific rules of EU law, to assess the lawfulness of the activities and secondary legislation of the
EU, and to determine the lawfulness of those activities of the Member States which fall within the scope of EU law. The rights found in the Charter of Fundamental Rights, which was discussed earlier, provide an example. Some of the general principles were specifically laid down by the EU treaties but many were developed by the Court of Justice drawing on legal principles that are common to the Member States, on public international law and on other provisions of the EU treaties. Some of the general principles which were originally developed by the court have now been formally incorporated into the EU treaties.
Examples of general principles include:
* Equality and non-discrimination
This principle includes prohibitions on discrimination on the basis of nationality (Art 18 TFEU), sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation (Art 19 TFEU)
* Respect for fundamental rights (Art 6(3) TEU) This includes the rights found in the European Convention of Human Rights (Art 6(3) TEU) and those in the EU’s Charter of Fundamental Rights (Art 6(1) TEU).
* Proportionality This requires that an act must be suitable and necessary to attain the object pursued and that it must not go further than is necessary to achieve that objective.
Methods of enforcement in national courts
While the case law of the EU courts is legally binding in Member States, the primary, secondary and tertiary legal acts as well as international agreements can also be enforced in national courts. The Court of Justice has developed three different methods for doing so:
* Direct effect requires EU legal acts that satisfy certain criteria to be directly enforced in national courts.
* Indirect effect requires national courts to interpret their national law in a way that is
compatible with EU law, although only in so far as it is possible to do so.
* State liability enables individuals to recover compensation in their national courts from a Member State where they suffered loss as a result of a sufficiently serious breach of EU law by that Member State.
Each of these methods of enforcement is independent from the other two and each method has its own conditions that must be satisfied if it is to be relied upon. It is possible to have a choice as to which method to use if the conditions for more than one is satisfied. However, it is also possible for an EU legal act to be unenforceable in a national court because it does not satisfy the conditions for any of the methods.
The supremacy of EU law
The principle of the supremacy of EU law addresses the question of how conflicts between EU law and the national law of the Member States should be resolved. It directs that where such a conflict arises, national law cannot override EU law. EU law must prevail over the offending national law
instead. Whether or not there is a conflict will depend on the respective requirements of EU law and national law in the first place in the context in which the issue arises. If there is no requirement under EU law for a national court to enforce the particular provision of EU law, no conflict between EU law and national law will arise in that national court.
It is worth noting that the Court of Justice has never used the term ‘supremacy’ to describe the principle. It has preferred to refer to EU law taking precedence over or priority over the national law of the Member States. In more recent years, it has become common to describe the principle
as the primacy of EU law instead.
After the transition period
Following the end of the transition period at the end of December 2020, the application of EU law in the UK is now governed by two different legal regimes:
(a) The Withdrawal Agreement provides for some EU law to continue to apply to certain specific matters in the UK.
(b) The application of the rest of EU law – that which is no longer preserved by the Withdrawal Agreement – is now governed by a separate legal regime.
The Withdrawal Agreement and Parliamentary Sovereignty
As has been noted, the insertion by the EUWA 2020 of ss 1A and 7A into the EUWA 2018 preserves the ability of the courts to disapply statutes where they are incompatible with the Withdrawal
Agreement and with any EU law that is preserved by it. Section 7C also does so by requiring compliance with the obligation in article 4(2) of the Withdrawal Agreement to ensure the disapplication of domestic law which is incompatible with the Withdrawal Agreement. Nevertheless, s 38 of the EUWA 2020 specifically reasserts that Parliament remains sovereign notwithstanding the insertion of these sections into the EUWA 2018. One consequence of this may
be to reinforce the principle in Macarthys Ltd v Smith [1979] All ER 325 and Thoburn v Sunderland City Council [2002] EWHC 195 that Parliament retains the right to override EU law, as well as the Withdrawal Agreement, by using express words or at least specific words that disclose a
deliberate intention to do so.
Legal Regime 1: EU law preserved by the Withdrawal Agreement
The Withdrawal Agreement provides for some EU law (see Note 1) to continue to apply to certain specific matters, such as the rights of Union citizens (see Note 2) and their family members who were resident in the UK at the end of the transition period. The most controversial part of the
Agreement is the Protocol on Ireland/Northern Ireland which is designed to maintain an open border between Northern Ireland and the Republic of Ireland.
The EU law preserved by the Withdrawal Agreement after the end of the transition period is given effect in the UK by s 7A of the EUWA 2018, which is drafted in similar terms to ss 2(1) and 2(4) of the ECA 1972. It follows from this that, in accordance with the principles laid down in the earlier
case law on s 2(4) ECA, the UK courts remain able to disapply statutes where they are incompatible with any EU law which continues to be preserved by the Withdrawal Agreement after the end of the transition period. This is reinforced by s 5(7) of the EUWA 2018 which also serves to preserve the supremacy of EU law in so far as it is required by the Withdrawal
Agreement. Notes.
1 This includes the Charter on Fundamental Rights and the general principles in so far as they are preserved by the Withdrawal Agreement (see Art 2(a) of the Withdrawal Agreement).
2 A Union citizen is any national of a Member State of the EU. There is no direct repetition of the general obligation in s 3(1) ECA to give effect to the decisions of the Court of Justice. Instead, s 7C of the EUWA 2018 (as amended) requires questions as to
the validity, meaning or effect of the following to be decided in accordance with the Withdrawal Agreement:
* The provisions of the EUWA 2018, such as s 7A, which provide for the implementation of the Withdrawal Agreement;
* Anything which is part of domestic law by virtue of those provisions; and
* Anything else which is part of domestic law for the purposes of the Withdrawal Agreement, or because it otherwise falls within the scope of the Withdrawal Agreement.
It follows from this that the validity, meaning and effect of any EU law which is preserved by the Withdrawal Agreement and remains part of domestic UK law as a result must also be decided in accordance with the Withdrawal Agreement.
Section 7C(2) specifically refers to several articles of the Withdrawal Agreement in relation to the obligation under s 7C. These include:
* Article 4 of the Withdrawal Agreement. This requires the Withdrawal Agreement’s provisions, including any EU law preserved by them, to be interpreted in conformity with the case law of the Court of Justice made before the end of the transition period. However, it requires the UK’s
judiciary to have only due regard to such case law decided after the end of the transition period.
* Article 158 of the Withdrawal Agreement. This enables UK courts and tribunals to continue to make preliminary references to the Court of Justice on questions concerning the rights of Union citizens and their family members in cases which commenced at first instance within
eight years of the end of the transition period.
* Article 12 of the Protocol on Ireland/Northern Ireland attached to the Withdrawal Agreement.
This enables preliminary references to be made to the Court of Justice in relation to EU law preserved by the Protocol in Northern Ireland.
