EU Law Flashcards
Institutions:
The Council of the European Union
- Made up of representatives from each government in the EU.
- Headed by President, who is in charge for around 6 months. They are one of the representatives and are elected by the other Member States. (take turns to be president).
- Meets 4 times per year to discuss policy (Summit Meetings), can meet more times if there is an emergency.
- No law making power, but they discuss direction of EU, priorities and policy. Takes votes on decisions.
Institutions:
Criticism of Council
- Seen to have an ‘Inner Circle’ of 17 countries who all use Euro Currency. They make agreements without even consulting other MS.
- Constitution of EU was outdated and people disapproved of the way it was run. Originally people refused a new EU Constitution, but the council has now made a Treaty of Lisbon containing most of the new ideas.
- EU has to loan billions to MS in Economic Crisis. Britain is paying Billions of pounds into the EU to support other MS.
- Our current PM isn’t liked by other EU Heads of State, his party don’t support EU membership. This means UK’s opinions are sometimes ignored by others.
- Referendum due in 2017 to decide whether to stay in EU r leave it.
Institutions:
The Commission
- One of the Main institutions. Made up of 28 commissioners, one from each MS.
- Commissioners can be appointed for a 5yr term and can only be removed during the term if a vote by EU Parliament says so.
- Each Commissioner is head of one of the EU departments.g. Economic Affairs or Agriculture.
Functions: Commission has several roles.
- Power behind Union Policy, proposes policies and presents drafts to council for their consideration.
- ‘Guardian’ of Treaties. Ensures they are properly implemented and send MS who haven’t implemented law to the ECJ.
- Responsible for Administration of the Union and implementing the Budget.
Institutions:
Criticism of Commission
- Criticised for being racist, released an advert showing a white woman being threatened by ethnic men with knives.
- Ensuring MS implement law, can be annoying because MS get fined huge amounts by ECJ for this. E.G. Re Tachographs, UK fined for not putting tachographs in lorries.
- Criticised for overspending. Argue that they need 7% more money to pay for contracts already agreed.
- 1999 entire commission resigned when its members were accused of corruption. 1 commissioner had committed several frauds, refused to resign. No way of firing her so they made whole commission resign.
Institutions:
European Parliament
- No direct law making authority, main function is to discuss proposals.
- Members are elected by MS, elections take places every 5yrs.
- Members form political groups with those who have the same views.
- Meets once a month for sessions that can last up to a week.
- Has Standing Committees, they discuss proposals made by Commission and report to Parliament for debate.
- Decisions made by Parliament aren’t binding but can influence Ministers.
- Main Criticism is that Parliament has no real power. However, they are required to assent to any international agreements made.
- Some power over Budget, has final decision on whether to approve or not.
Institutions:
European Court of Justice
- Functions set out under Article 19 TEU.
- Court must ‘ensure interpretation and application of treaty law is observed.’
- Court is in Luxembourg and has 28 judges (1 from each MS). For a full court, 11 judges will sit, can also sit in chambers of 3 or 5.
- Judges appointed from highest judicial posts in their own MS.
- Each judge is appointed for 6yr terms, can be reappointed.
- Judges select one of themselves to be President of Court.
- Court is assisted by 9 Advocates General, also hold office for 6yrs.
- Each case is assigned to an AG, must research all legal points and present case publicly and impartially.
Institutions:
Role of ECJ
Criticism of ECJ
- Ensure law is applied uniformly in all MS.
Does this by: - Hearing Cases to decide whether MS have fulfilled their obligations. (Cases usually sent by Commission).
- Hearing References under Article 267 TFEU from national courts on a point of law.
Also hears MS obligations. Usually cases brought in by Commission, but can be brought in by another MS. e.g. Uk brought case about France refusing to sell UK meat.
Article 267 Referral: Supreme Court in Uk must refer points of law they are unsure about because there is no appeal court above them.
Criticism:
Targeted by Anti-Europeans because it undermines British Political Sovereignty. When Britain joined the EU, they put EU law above British Law. However, we can leave the EU any time, so some people still argue that we are sovereign.
Institutions:
For and Against ECJ
For:
- Without ECJ there would be no way of enforcing obligations of EU Treaties.
- Allows EU Citizens and nations to have equal rights in areas of EU jurisdiction.
- Rulings promote process of EU integration and protect benefits e.g. Free Movement of Goods.
Against:
- Law is fundamental aspect of Parliamentary Sovereignty, EU law shouldn’t be supreme over National law.
- ECJ is slow and cumbersome, can hinder progress through time taken to deliberate. e.g. made Marshall case take 11yrs.
- Imposing EU standards on MS challenges their nations traditional legal practices.
- Cannot enforce judgements against MS e.g. French farmers hijacked UK lorries containing sheep and burned them alive, even though ECJ declared it illegal.
Sources of EU Law:
General Characteristics of ECJ
Advocates General:
Independent Lawyer Not used in Legal System. In ECJ, AG is assigned to the case and presents their findings to judges after parties have made their submissions.
Court has advantage of having all aspects of law presented to them.
One Judgement:
Deliberations of judges are in secret and decision will be made by a majority vote. Judgement will be delivered in written form, signed by all judges in panel. This means it isn’t known which judges disagreed with the majority.
Not Bound By Own Decisions:
Doesn’t have to follow previous decisions and prefers the Purposive Approach to UK’s Literal Rule (Statutory Interpretation).
Extrinsic Material:
Wide rights to use Extrinsic Aids, Can study predatory documents.ECJ is important because its decisions are binding upon UK Courts and their attitude to interpretation is beginning to be adopted by UK too ( Von Colson V Land Nordrhein-Westfalen 1984).
Sources of EU Law:
Law Making Process
- 4 times per yr the heads of MS attend a Summit Meeting as part of European Council. They discuss policy and make decisions on EU’s priorities. President holds office for 2 and a half yrs and can usually get any laws passed. MS must vote on laws but president will have majority of support because he must be voted in by 2 thirds of members (17/28).
- Once the Summit is over, policy decisions are given to the Commission. This is a group of full time representatives from each MS. They work for EU and take minutes of Summit Meetings, turning the desired policies into actual laws.
- Once the Commission has written the laws, they must send them to the European Parliament- who will vote for these laws to be passed. Some may be rejected or sent back to the Commission to be re-written.
- Once the Commission and Parliament have agreed on a proposed law, the next step is for the MS Ministers to meet and vote for the laws to be passed. This is called a Council of the European Union. If the Ministers vote in favour of the law, then it becomes valid. Depending on the type of law, it could be given direct effect or it could have a time frame in which the MS must implement it by.
Treaties
All Treaties signed by our Head of Government become law automatically. This is a result of the European Communities Act 1972 S2(1). This Act gives Treaties Direct Effect, meaning they must be implemented straight away. These Treaties are more supreme than our own national law. This can be seen in Van Gend en Loos V Netherlands 1963- which shows Parliamentary supremacy has been damaged by EU Membership, this is true for any MS.
Direct Effect
This concept is a device used by the ECJ to enable a Citizen to use EU law for their own advantage. This is because it gives them individual rights.
Van Duyn v Home Office 1974- ECJ Held that individual could rely on Article 45 of TFEU to give right to Freedom of Movement.
Van Gend en Loos 1963-
Established criteria for defining which provisions are Directly Effective, must be:
- Clear and Precise
-Unconditional, clear instructions on implementation
- Capable of giving individual rights
Macarthys Ltd V Smith 1980-
Wendy claimed company in breach of Article 157 TFEU because they didn’t pay equal wage for both sexes. Showed British Courts can now apply European Treaty Law Directly rather than waiting for the ECJ to make a ruling.
Regulations
Under Article 288 TFEU, the EU has the power to issue Regulations which are: “Binding… and Directly Applicable”.
Article 288 gives them Direct Effect.
Re Tachographs 1979 (Illustrated Direct Applicability):
UK didn’t implement regulation on installing recording equipment in lorries. They were fined for not implementing the Regulation. Wording of 288 was explicit and meant Regulations were automatically law in all MS.
Direct Effect- If a Regulation is clear and gives rights to Individuals, then it can be relied on by an individual in the UK. They can enforce rights given by a Regulation against both the state and any other person or business. This is always enforceable in National Courts.
Directives
This is the main way in which harmonisation of law within MS is reached. Directives cover many areas of law e.g. banking or equal rights.
Article 288 gives power to the Union to issue Directives. Directives are different to Regulations because they have a time frame. This allows a MS to find ways to work the Directive into their own law. This means Directives have No Direct Effect.
Implementation:
The usual method in the UK is by using Statutory Instruments e.g. Unfair Terms in Consumer Contracts Regulations 1994- implemented Directive that protected consumers from unfair contracts.
Directives can also be implemented other ways e.g. Consumer Protection Act 1987 or by an Order in Council.
Direct Effect:
If a MS hasn’t implemented the Directive in the time given, it can become directly applicable if it gives rights to individuals. This means an Individual who is affected by failure to implement can sue the State.
e.g. Working Time Directive- Issued in 1993, supposed to be implemented in 1996 but was done in 1998.
Vertical Direct Effect
Arm Of State: If you are Funded, Regulated or Controlled by the State.
Foster V British Gas 1990:
Outlined that VDE means a MS cannot take advantage of its own failure to implement a directive. Individuals can sue the state and rely on the directive, they can claim for any damage caused by failure to implement.
Marshall V Southampton and South West Hampshire Area Health Authority 1986:
Marshall required to retire at 62, men could stay until 65. Under Sex Discrimination Act 1975 this was ok, Equal Fair Treatment Directive said it was discrimination, but it hadn’t been implemented yet. ECJ held it was sufficiently clear and gave rights so she could sue the arm of the state.- VDE.
