EU LAW CONTENT Flashcards
Impact of EU law on the UK 3
• While the UK was a Member of the EU it was true to say that the sovereignty of the UK Parliament had been affected.
• EU law had supremacy over UK law.
• As the UK has now left the EU, it seems that Parliament has regained its sovereignty and is free to pass any
law it chooses, whether or not it conflicts with EU law.
• Any EU laws made after 31 January 2020 will not apply to the UK nor will individuals in the UK be able to rely on the rights created by the EU law.
• Whether any EU law passed while the UK was a Member remain in force will depend on whether the UK Parliament passes laws to alter, amend or accept EU law from the time the UK was a Member State. This remains to be seen!
Test for state liability
The European Court of Justice laid down a three stage test that allowed individuals to sue the State for non- implementation of a Directive when vertical direct effect does not cover the situation.
This is:
✓ The purpose of the Directive had to grant rights to individuals;
✓ It had to be possible to identify the content of those rights based on the provisions of the Directive; and
✓ There has to be a causal link between the breach of the State’s obligations and the damage suffered.
State Liability
- It is unfair that the conflicting doctrines of vertical and horizontal direct effect should give rights to individuals in some cases and not others.
- As a result the European Court of Justice has developed another strategy under which it may be possible to take an action to claim damages against the Member State which has failed to implement the European Directive.
Indirect Effect
• Where a Member State has failed to implement a Directive correctly or at all.
Horizontal Direct Effect
• Where a Member State has failed to implement a Directive within the time limit and the claim in NOT against an arms of the State, an individual cannot rely on the Directive against a private employer or individual.
Vertical Direct Effect
• An individual can claim against an emanation of the State (also known as an arm of the State) when a Directive has not been implemented or was implemented in a defective way. • The concept of the State for these purposes is quite wide.
• An ‘arm of the State’ covers a public service under the control of the State. This
could cover hospitals, police and other emergency services.
• This was ruled in the case of Foster v British Gas plc (1990).
• The concept of vertical direct effect means that a Member State cannot use its own failure to comply with EU law to deny an individual their rights if the State had properly implemented the Directive.
• Individuals can rely on the Directive when bringing a claim against the state.
Direct Effect
• Where a Member State has not implemented a Directive either correctly or within the time limit, the European Court of Justice 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 a Member State.
• This will be so even if the Member State has not implemented the Directive, or has 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.
• There are two main types of ‘direct effect.’ These are: ✓ Vertical Direct Effect; and
✓ Horizontal Direct Effect.
Impact of EU law on the UK 2
• In the United Kingdom, where national law has been in conflict with EU law, EU law prevailed.
Factortame Case [1990]
The European Court of Justice decided that Britain could not enforce the Merchant Shipping Act 1988. This Act was passed to protect British fisherman by allowing vessels to register only if 75% of directors and shareholders were British Nationals. It was held that this contravened
theTreaty of Rome.The Act could not be enforced against EU nationals.
Impact of EU Law on the UK
• The European Court of Justice have also made governments of Member states liable for financial loss suffered as a result of their breach of European Law.
Brasserie du Pecheur (1996)
A French company claimed that it was forced to discontinue exports of beer to Germany, because the German authorities considered that the beer did not comply with the purity laws laid down in German law.
R v Secretary of State for Transport, ex parte Factortame (No. 4) (1996)
European fishermen claimed that they had been deprived of the right to fish as a result of the Merchant Shipping Act 1988.
• In both cases there was a claim for compensation from the State concerned.
• The European Court of Justice held that EU law did give the right to compensation provided that three conditions were met; Direct Effect, Indirect Effect or State Liability.
Impact of EU law on the UK
• European law takes precedence over national law.
VanGendenLoosvNederlandseBelasringadministratie(No26/62)[1963] -Rulefirstcreated
The case involved a conflict between Dutch law and European law on customs duty.The Dutch government argued that the European Court of Justice had no jurisdiction to decide whether European law should prevail over national law and that it was for the national law courts to decide. However, the European Court rejected this argument.
Costa v ENEL (1964).
The European Court of Justice held that even if there was a later national law it did not take precedence over the European law.
Decisions
- This does not refer to the decisions made by the European Court of Justice, but to the Decisions issued under the power of Article 288 of the TFEU.
- Such Decisions may be addressed either to a Member State or an individual.
- Article 288 says that Decisions are ‘binding in every respect against those it addresses.’
- This means that the Decision is only binding on the Member State or the individual it applies to.
- For example, if a Decision is made for the United Kingdom, its purpose and obligations will not affect France, Germany, etc.
Directives
• A Directive is a legislative goal that all EU countries must achieve within a certain time frame e.g. Consumer Rights Directive2011/83. MainwayinwhichharmonisationoflawsinMemberStatesisreached.
• It is up to each Member State to write, and bring into effect, its own laws to reach the set goal.
• Directives are usually implemented through a statutory instrument. E.g. the provisions of the Consumer Rights
Directive 2011/83 were implemented by the Payment Surcharges Regulations 2012.
• Can be implemented through an Act of Parliament, e.g. Consumer Protection Act 1987 (which implemented the EU
Directive on liability for defective products)
• Can also be implemented through an Order in Council made by the Privy Council
• Directives are not directly effective so they cannot be relied upon by an individual until they have been enacted by domestic law.
• If a Member State fails to implement a Directive within the time limit, an individual can take the Member State to court for non-implementation.
Regulations
Under Article 288 of the TFEU the European Union has the power to issue EU Regulations which are ‘binding in every respect and directly applicable to each Member State’. e.g. The Unfair Terms in Consumer Contracts Regulations 1994.
• Regulations do not have to be adopted in any way by the individual Member State as Article 288 makes it clear that they automatically become law in each member country. In this way regulations make sure that laws are uniform across all Member states.
Treaties
All Treaties made by the EU automatically became part of UK law. They are directly applicable.
This was as a result of the European Communities Act 1972.
Section 2(1) of the European Communities Act 1972 states that:
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties and all such remedies and procedures from time to time provided under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law and be enforced, allowed and followed accordingly.”
Individuals citizens could rely on the Treaty - Van Duyn v Home Office [1974]
Section 2(1) European Communities Act 1972 is still in force.
Sources of EU Law
Sources of European Law are split into primary and secondary sources of law.
The primary sources of law are mainly the Treaties.
Treaty of the European Union (TEU) and Treaty to the Functioning of the European Union (TFEU).
Secondary sources are legislation which is passed by the institutions of the European Union – The Commission, The Council of the European Union and the European Parliament.
These sources are passed under Article 288 of the TFEU.
Secondary Sources of Law include the following:
Regulations;
Directives; and
Decisions
Structure of the EU
In 2009 the Treaty of Lisbon restructured the European Union.
There are now two treaties setting out the rules of the EU.
These are:
Treaty of European Union (TEU); and
Treaty of the Functioning of the European Union (TFEU).
The European Union is made up of a group of supranational institutions which are in charge of the running and functioning of Europe.
The institutions were originally created by the Treaty of Rome, but they were also restructured in 2009 under the Treaty of Lisbon.
