European Law(R)

Question 1

The European Union is a vast and complex organisation; it has four main institutions which exercise the functions of the Union. They are:

Answer 1

• The Council of the European Union.
• The Commission.
• The European Parliament.
• The European Court of Justice.

Question 2

The Council of the European Union - The Council of Minister.

Answer 2

The government of each member state sends a representative to the Council. The Foreign Minister is usually a country’s main representative but they can send any minister they think is appropriate. This allows for a minister who is responsible for a topic to be able to be represented. The precise membership will vary with the subject being discussed. Twice a year the Government Heads meet in the European Council o Summit to discuss broad matters of policy. The member states take it in turn to provide the President of the Council, each for a six month period. To assist with every day matters the Council is assisted by a Committee of permanent representatives known as the Coreper.
The Council is the principle decision making body of the Union. Voting in the Council is on a weighted basis with each country having a number of votes roughly in proportion to the size of its population. The last summit was held in May 2013 in Brussels, it’s current president is President Herman Van Rompey.

Question 3

The Commission.

Answer 3

This consists of 27 members, one for each state who act independently of their country. The commissioners are appointed for five years and can only be removed during their term of office by a vote of censure by the European Parliament. Each commissioner heads a department with special responsibility for one area of Union policy, e.g. Economic affairs, agriculture, the environment. The UK’s commissioner is Catherine Ashton. The Commission has several functions.

Question 4

Some of the Commissions functions.

Answer 4

• it is the motive power behind Union policy as it proposes policies and presents drafts of legislation to the Council for the Council’s consideration. The relationship between the commission and the council can be summarised by saying, “the Commission proposes and the Council disposes.”
• The Commission is also the guardian of the treaties. It ensures that treaty provisions and other measures adopted by the Union are properly implemented by each member state. If a member state fails to implement a law or has infringed a provision then the Commission has a duty to intervene and if necessary refer the matter to the European Court of Justice which sits in Luxembourg. The Commission has performed this duty very effectively and there have been a number of judgements given by the court against the UK and other member states.
• It is responsible for the administration of the Union and has executive powers to implement the Union budget.

Question 5

The Assembly - Parliament.

Answer 5

Parliament’s main function is to discuss proposals put forward by the Commission, but it has no direct law making authority’s the Members of the European Parliament are directly elected by the people of the Member States in elections which take place once every five years. Within the Parliament members do not operate in national groups, but form political groups with those of the same political allegiance. The Assembly meets on average once a month for a session which will last up to a week. In between members work with standing committees which discuss proposals made by the Commission and then report to the full Parliament for debate. Decisions made by Parliament are not binding, though they will influence the council of Ministers.
The main criticism is that Parliament has no real power, but the agreement of Parliament is required for any international agreements the Union wishes to enter into. This role is important as it decides whether new members should be admitted to the Union. It also has some power over the Union budget, especially in non-compulsory expenditure, where it has the final decision on whether to approve the budget or not.

Question 6

Economic and Social Committee.

Answer 6

This advises the Council and the Commission on economic matters. It is made of representatives of influential interest groups such as manufactures, farmers, employees and businesses. It must be consulted on proposed Union measures and although it’s roles only consultative it exerts a strong influence on the Union decision making process.

Question 7

The European Court of Justice.

Answer 7

It’s function is set out in Article 19 of the treaty of the European Union 1993. It states that the Court must “ensure that in the interpretation and application of the Treaty the law is observed”. The court sits in Luxembourg and has 27 judges, one from each Member State. A full court consists of 11 judges, but they will also sit in chambers of 5s and 3s. Judges are appointed under article 253 of the Treaty of the European Union, each judge appointed must be eligible to hold the highest judicial office in their representative country. So in the UK they would need to be eligible to sit in the Supreme Court. Each judge is appointed for a term of six years and can then sit for a further six years. They then select one of themselves to be President of the Court. The language of the Court is French.

Question 8

Advocate General.

Answer 8

The Court is assisted by nine Advocate General who also hold office for sox years. Each case is assigned to an Advocate General whose task under article 253 is to research all the legal points involved and to “present publicly, with complete impartiality and independence, reasoned conclusions on cases submitted to the Court of Justice with a view to assisting the latter in the performance of its duties.”

Question 9

Ensuring all Law is applied in each Member State.

Answer 9

The court’s task is to ensure that the law is applied uniformly in all Member States and it does this by performing two key functions. The first is that it hears cases to decide whether Member States have failed to fulfil obligations under the treaties. Such actions are usually initiated by the European Commission, although they can be started by other Member States. The second function is that it hears references from national courts for preliminary rulings on points of European Law. This is an important function since rulings made by a the European a Court of Justice are then binding on courts in all Member States. This ensures the law is uniform throughout the European Union.

Question 10

Re Tachographs: The Commission v United Kingdom (1979).

Answer 10

In which the court held that the United Kingdom had to implement a Council Regulation on the use of mechanical recording equipment (Tachographs) in road vehicles used for the carriage of goods.

Question 11

A request for a preliminary ruling is made under Article 267 (TFEU). This says that:

Answer 11

“The Court of Justice shall have jurisdiction to give preliminary ruling concerning:

(a) The interpretation of treaties
(b) The validity and interpretation of acts of the institutions of the Union
(c) The interpretation of the statues of bodies established by an act of the Council, where those statutes so provide.”

Question 12

Article 267.

Answer 12

Article 267 goes on to state that where there is no appeal from the national court within the national system, then such a court must refer points of a European Law to the European Court of Justice. Other national courts are allowed to make an Article 267 reference, but as there is still an appeal available within their own system, such courts do not have to do so. This means that the Supreme Court must refer questions of European Law, since it is the highest appeal court on our system. However, the Court of Appeal does not have to refer questions. It has a choice, it may refer if it wishes or it may decide the case without any referral. The same is true of all the lower courts in the English Court hierarchy. However, even courts at the bottom of the hierarchy can refer questions of law under Article 267, if they feel that a preliminary ruling is necessary to enable a judgement to be given. An example of this was in Torfaen Borough Council v B&Q (1990) when Cwmbran Magistrates’ Court made a reference on whether the restrictions which then existed on Sunday trading were in breach of the Treaty of Rome.
Whenever a reference is made the European Court of Justice only makes a preliminary ruling on the point of law; it does not actually decide the case. The case then returns to the original court for it to apply the ruling to the facts in the case.

Question 13

Discretionary Referrals.

Answer 13

In Bulmer v Bollinger (1974) the a court of Appeal set out the approach to be used when deciding whether a discretionary referral should be made to the European Court of Justice. The guidelines are;

• Guidance on the point of law must be necessary to come to a decision in the case.
• There is no need to refer a question which had already been decided by the European Court of Justice I’m a previous case.
• There is no need to refer a point which is reasonably clear and free from doubt; this is known as the ‘acte clair’ doctrine.
• The Court must consider all the circumstances of the case.
• The English Court retains the discretion on whether to refer or not.

Question 14

Court of First Instance.

Answer 14

Since 1988 there has also existed a Court of a first Instance which was created to relieve the European Court of Justice of some of its heavy workload. This court hears staff cases, i.e. Disputes between the European institutions and their employees. It has 12 judges and operates with panels of six, four or three judges.

Question 15

The Operation of the European Court of Justice.

Answer 15

When compared with English courts there are several major differences in the way the European Court of Justice operates.

Question 16

1) Difference.

Answer 16

1) The emphasis is on presenting cases ‘on paper’. Lawyers are required to present their arguments in a written form and there is far less reliance on oral presentation of a case. This is partly because of the wide range of languages involved, though French is the traditional language of the Court.

Question 17

2) Difference.

Answer 17

2) The second difference is the use of the Advocate General. This independent lawyer is not used in the English system. However in the European Court of Justice the Advocate General who was assigned to the case will present his findings on the law after the parties have. A&e their submissions. The courts, therefore, has the advantage of having all aspects of the law presented to them.

Question 18

3) Difference.

Answer 18

3) The deliberations of the judges are secret and where necessary the decision will be made by a majority vote. However, when the judgement is delivered, again in written form, it is signed by all the judges who formed part of the panel, so that it is not known of any of the judges disagreed with the majority. This contrasts strongly with the English system, whereby a dissenting judge does make his opinion known and explains his reasoning.

Question 19

4) Difference.

Answer 19

4) The European Court of Justice is not bound by its previous decisions and it prefers a purposive approach to interpretation.

Question 20

5) Difference.

Answer 20

5) The court has wide rights to study extrinsic material when deciding the meaning of provisions and may study preparatory documents.

Question 21

European Sources of Law.

Answer 21

These are classed primary and secondary sources of law. Primary sources are mainly the Treaties, the most important of which is the Treaty of Rome itself. Secondary sources are legislation passed by the Institutions of the Union under Article 288 (TFEU). This secondary legislation is of three types: regulations, directives and decisions.

Question 22

Treaties.

Answer 22

All treaties signed by our head of government become part of English law automatically. This is as a result of the European Communities Act 1972 s 2(1).

Question 23

The European Communities Act 1972 s 2(1) which states that:

Answer 23

‘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 for by or 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.’
This not only makes Community law part of our law but also allows individuals to rely on it. Such as I’m the case of Van Duyn v Home Office (1974).

Question 24

Van Duhn v Home Office (1974)

Answer 24

The European Court of Justice held that an individual was entitled to rely on Article 45 giving the right of freedom of movement. The Article had direct effect and conferred rights on individuals which could enforced not only in the European Court of Justice, nut also in the national court. This means that citizens of the United Kingdom are entitled to rely on the rights in the Treaty of arose and other treaties, even though those rights may not have been specifically enacted in English Law. This is illustrated by the case of Macarthys Ltd v Smith (1980).

Question 25

Macarthys Ltd. Smith (1980).

Answer 25

Where a female employee was paid less than a male employee for exactly the same job. As they were not employed at the same time there was no breach of English Law. However, the employee was able to claim that her employer was in breach of Article 157 (TFEU) over equal pay for men and women and this claim was confirmed by the European Court of Justice.
The growing influence of European Law is shown in that British Courts are now prepared to apply European Treaty Law directly rather than wait for European Court of Justice to make a ruling on the point. Am example can be seen in the case of R v Secretary of State ex parte EOC (1994).

Question 26

R v Secretary of State ex parte EOC (1994).

Answer 26

Where the House of Lords decided, without referring the case to the European a Court of Justice, that the longer period of qualifications for redundancy for those working less than 16 hours a week discriminated against women and was contrary to Article 157.

Question 27

Regulations.

Answer 27

Under Article 288 (TFEU) the European Union has the power to issue regulations which are ‘binding in every respect and directly applicable,e in each Member State.’
Such regulations do not have to be adopted in any way by the individual states as Article 288 makes it clear that they automatically become law in each member country. The ‘direct applicability’ point was tested in Re Tachographs: Commission v United Kingdom (1979).

Question 28

Re Tachographs: Commission v United Kingdom (1979).

Answer 28

Where a regulation requiring mechanical recording equipment to be installed in lorries was issued. The United Kingdom government of the day decided not to implement the regulation, but to leave it to lorry owners to decide whether or not to put in such equipment. The European Court of Justice it was held that Member States had no discretion in the case of regulations. The wording of Article 288 was explicit and meant that regulations were automatically law in Member States.

Question 29

Directives.

Answer 29

Directives are the main way in which harmonisation of laws within Member States is reached. As with regulations, it is Article 288 (TFEU) that gives the power to the Union to issue directives. There is, however, a difference from regulations in that Article 288 says such directives, ‘bind any Member State to which they are addressed as to the result to be achieved, while leaving to domestic agencies a competence as to form and means.’
This mean that Member States will pass their own laws to bring directives into effect (or implement them) and such laws have to be brought in within a time limit set by the European Commission. The usual method of implementing directives in the United Kingdom is by Statutory Instrument. An example of a directive is the Working Time Direct.

Question 30

Working Time Direct.

Answer 30

Which was issued in 1993. This directive gave detailed instructions of the maximum number of hours that should be worked, the rest periods and the amount of paid holiday to which the workers were entitled.

Question 31

Introduction.

Answer 31

On 1st January 1973 the United Kingdom gave up her sovereign right to rule and as a result of the European Communities Act 1972 joined the European Union which was then the European Economic Community. European Law then became the highest source of law. The European Economic Community was set by the Treaty of Rome 1957 with six original members; they were Germany, France, Italy, Belgium, Netherlands and Luxembourg. As more countries joined, up to 12 members in 1973, and by 1993 a further six members. In 1993 with the Treaty of European Union the name was changed to European Union. By 2004 a further ten countries had joined, with Bulgaria and Romania joining in 2007 and Croatia joining in July 2013. The Treaty of Lisbon 2009 restructured the European Union making two main treaties to set out its rules and functions these were The Treaty of the European Union 1993 and the Treaty of Lisbon 2009.

Question 32

Direct Effect.

Answer 32

Where Member States have not implemented a directive within the time laid down the European Court of Justice has developed the concept of ‘direct effect’. If the purpose of a directive is to grant rights to individuals and that directive is sufficiently clear, it may be directly enforceable,e by an individual against the Member State. This will be so even though that State has not implemented the directive, or has implemented it in a defective way. Therefore am individual who is adversely affected by the failure to implement only has rights the State. This is because of the concepts of vertical effect and horizontal effect.

Question 33

Vertical Direct Effect.

Answer 33

The concept of State for these purposes is quite wide, as it was ruled by the European Court of Justice in Foster v British Gas plc (1990) that the State was:
‘A body, whatever it’s legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service 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.’
The concept of vertical effect means that a Member State cannot take advantage of its own failure to comply with European Law and implemented a directive. Individuals can rely on the directive when bringing a claim against the State.

Question 34

Marshall v Southampton and South West Hampshire Area Health Authority (1986).

Answer 34

The facts were that Miss Marshall was required to retire at the age of 62 when men doing the same work did not have to retire until age 65. Under English Law this was nothin ruminators. However, she was able to succeed in an action for unfair dismissal by relying on the Equal Treatment Directive. The directive had not been fully implemented in the United Kingdom but the European Court of Justice held that it was sufficiently clear and imposed obligations on the Member State. This ruling allowed Miss Marshall to succeed in her claim against her employers because her employers were considered as being part of the state. The directive has vertical effect allowing her to rely on it to take action against them.

Question 35

Horizontal Direct Effect.

Answer 35

Directives which have not been implemented do not, however, give an individual any rights against other people. So in Duke v GEC Reliance Ltd (1988) Mrs Duke was unable to rely on the Equal Treatment Directive as her employer was a private company. This illustrates that directives do not have horizontal effect.

Question 36

Duty to interpret National Law on the light of Directives.

Answer 36

Even where a directive has not been implemented. National courts have a duty to interpret their national law In the light of wording and purpose of any relevant directive.

Question 37

Lord Denning.

Answer 37

“The treaty is like an incoming tide it flows into the estuaries and up the rivers, it cannot be held back.”

Question 38

Actions against the State for Failure to Implement a Directive.

Answer 38

Clearly it is unfair that these conflicting doctrines of vertical and horizontal effect should give rights to individuals in some cases and not others. 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. This was decided in Francovich v Italian Republic (1991). The European Court of Justice held that ‘community law required the Member States to make good damage caused by a failure to transpose a directive, provided these conditions were fulfilled’. First, the purpose of the directive had to grant rights to individuals. Second, it had to be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, there had to be casual link between the breach of the State’s obligations and the damage suffered.

Question 39

Decisions.

Answer 39

This does not refer to decisions made by the European Court of Justice, but to decisions issued under the power of Article 288. Such decisions may be addressed either to a Member State or am individual. Article 288 says that they are ‘binding in every respect for the addresses make therein’.

Question 40

Conflict between European Law and National Law.

Answer 40

European Law takes precedence over national law. This was first established in Van Gend en Loos(1963). The European Court rejected the argument that the European Court of justice had no jurisdiction to decide whether European Law should prevail over Dutch Law. In Costa v ENEL (1964) the European Court of Justice held that even if there was a latter national law it did not take precedence over the European Law.
This conflict was seen clearly in the Factortame case (1990) the European Court of Justice decided that Britain could not enforce the Merchant Shipping Act 1988. It was held this act contravened the Treaty of Rome. The European Court of Justice held in a later action I’m the joined cases of Brasserie du Pecheur SA v Federation of Republic of Germany and R v Secretary of State for Transport, ex parte Factortame Ltd (No 4) (1996) that governments were liable for financial loss suffered as a result of their breach of European Law provided three conditions were satisfied.

Question 41

Financial loss suffered as a result of their breach of European Law provided three conditions were satisfied:

Answer 41

1) The rule of Community law infringed must be intended to confer rights on individuals.
2) The breach must be sufficiently serious.
3) There must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.

Question 42

Effect of European Law on the Sovereignty of Parliament.

Answer 42

While Britain is member of the European Union it is therefore true to say that the sovereignty of Parliament has been affected and that, in the areas it operates, European law has supremacy over national law.