EU Law Flashcards
What is the primary source of EU law?
Treaties
What is a treaty?
A document setting out the broad principles of EU law
Who are all treaties signed by to become part of our English law?
Our head of government
What does the European Communities Act 1972 do to the law?
Makes EU law part of the English law automatically
Who can rely on the principles of the treaties even if they have not been enacted into English law?
All citizens of the EU
What is direct applicability?
Even if it is not part of the EU law citizens can rely on it
What was the case involving a treaty in Van Duyn v Home Office 1974?
The home office refused claimant access to the UK because she was a member of a religious group they wanted to exclude. She argued this went against the TFEU on freedom of movement as she had done nothing to justify exclusion, she was allowed in UK
What can UK citizens rely on the rights of?
TFEU (treaty of the functioning of the EU)
What happened in Macarthus Ltd. v Smith 1980?
Wendy Smiths employers paid her less than her male predecessor for the same job, she was paid £50pw and him £60pw, EJC said she was able to claim that her employer was in breach of TFEU on equal pay for men & women
What happened in Diocese of Hallam Trustee v Connaughton 1996?
Connaughton had been employed as a director of music by D of H. Her final salary was £11,138 but when she left job was advertised for £13,434, the successful candidate was appointed for £20,000. Article 57 TFEU decided Miss Connaughton could make a claim without further appeal to the EJC.
What do the 3 treaty cases show us?
These cases show us that even if a treaty hadn’t been directed into EU law citizens can still rely on them
What are secondary sources of EU law?
Enable Broad principles of treaties to be transformed into concrete law
THEY ARE THE DETAILED FRAMEWORK OF TE TREATY
What are the 2 secondary sources of EU law?
Regulations & directives
How to regulations become applicable on member states?
They are automatically part of English law
What is the aim of a regulation?
To achieve uniformity of law in all member states
When was the direct applicability tested in the UK?
Tachographs Commission v United Kingdom 1979
What happened in Tachographs Commission v United Kingdom 1979?
EU issued a regulation saying tachographs had to be installed in lories. Uk government decided not to implement this and leave decision to lorry owners. Matter was refereed to EJC who said member states could not pick and choose as it was binding
What are directives designed to achieve?
Harmony between member states
What sort of topics are directives made on?
Employment, consumer/company law, insurance, health/safety
What are member states directed to do In a directive?
A certain objective by a date but have flexibility on how to achieve this
Is a directive automatically part of English law?
No, a member state must pass it’s down laws to bring a directive into it’s legal system
what is the usual way the UK implement directives?
By an act of parliament or statutory instrument
Give an example of a directive incorporated into English law
Consumer protection act 1987
Passed by parliament to incorporate a directive on liability for defective products
When is there problems with directives?
When member states have not implemented a directive by the time limit
How have the ECJ dealt with the problem of member states incorporating law by a set date?
Developed the CONCEPT OF DIRECT EFFECT (individuals can rely on I implemented directives)
Why is the concept of direct effect not so simple?
Because of vertical and horizontal effect
What is vertical effect?
If an individual works for the state or an arm of the state they can rely on uninplemented directives
Why do we have the vertical effect?
States should not be able to profit from failing to implement directives properly
What happened in Marshall v Southampton and South West Hampshire Area Health Authority 1986?
Miss Marshall was employed by them and required to retire at 62, men at 65. Under sex discrimination act this was not legal so she sued. However failed as directive was not incorporated into English law, ECJ said she could claim as her employers were an arm of the state
What is the definition of state established in Foster v British Gas plc 1990?
A body, whatever it’s legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public arrive under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals”
What happened in Gibson v East Riding of Yorkshire Council 1999?
Mrs Gibson a part time swimming instructor didn’t get paid for the holidays, the working time directive said she was entitled to 4 weeks paid holiday, the working time directive SHOULD have been implemented and it was held she could have pay as her employers were an arm of the state
What is horizontal direct effect?
Directives don’t have this - directives that have not been implemented by parliament do not give an individual any rights against other people
What happened in Duke v GEC Reliance Ltd 1988?
Mrs Duke was unable to rely on equal treatment directive (not implemented) as her employer was a private company
How did the ECJ solve the problem that some people can claim their rights if directives are implemented but not others?
It said in some circumstances it may be possible for a person to claim damages against it’s member state if they have failed to implement a directive
What happened in Francovich v Italian Republic 1991?
Italian government didn’t implement directive to protect employees wages when employer becomes insolvent. Francovich claimed damages against Italy as his business went into liquidation owing him wages which he should have been allowed
When did the ECJ say it was possible for compensation to be made payable by the state? (3)
1 - if the purpose of the directive had been to grant individual rights
2 - if it had been possible to identify content of those rights
3 - there had been a casual link between breach of states obligations and the damages suffered
What did the ECJ say in R v HM Treasury ex party British Telecommunications plc 1996?
Although a telecommunications directive was incorrectly implemented into EU law, compensation was not payable because the breach of EU law was not serious enough
When a directive hasn’t been incooprerated into English law what do parliament have a duty to do?
Interpret English law of the wording and purpose of any relevant directives
What are national courts required to interpret?
Their national law “in the light of the wording and purpose of the directive”
What is indirect effect?
A national court should interpret their national law as to include the directive relevant that they haven’t implemented
Are decisions made in courts using directives binding?
Yes
What is EU superior to?
National law
What is a good example of the conflict between national and EU law?
Factortame Case 1990
British fishermen said they could fish overseas but Spanish government said they could not fish in their water when they were. The ECJ said the british law could not implement this law so it could not be enforced against the Spanish ships
What is membership of the EU argued to have diluted?
Parliaments sovereignty
Was EU law superior to the UK even before we were a member state?
Yes
What has EU law done for us? (5)
Equal pay for men & women
New regulations on age/sexual discrimination
We have rights to work or set up business in other member states
We have rights to study in other member states
We have a lot more consumer protection rights
What does EU law come before?
Our own domestic law
