European Union Law

Question 1

EU treaties

Answer 1

in 2009, the Treaty of Lisbon restructured the EU

there are now 2 treaties setting out the rules of the EU; the TEU and the TFEU

Question 2

main institutions of the EU

Answer 2

council of the european union

european commission

european parliament

court of justice of the european union

Question 3

council of the european union

Answer 3

the principle decision making body of the EU

consists of representatives from each member state

the government of each nation will usually send their foreign minister but membership depends on the context of the agenda and what is being discussed — e.g. minister for agriculture will attend when the issue being discussed involves agriculture

heads of states meet twice a year in a summit to discuss broad matters of policy

decisions usually require a qualified majority in order to be passed:
• 55% is member’s states must vote in favour of the decision — this means at least 16 countries
• proposal is supported by member states representing at least 65% of the total EU population

Question 4

european commission

Answer 4

consists of 28 commissioners, one from each member state

each commissioner is responsible for different areas of EU policy such as agriculture

commissioners should act in the interests of the EU as a whole and be independent of their national origin

each commissioner is appointed for 5 years and can only be removed during this term by a vote of censure by the european parliament

Question 6

the european parliament

Answer 6

consists of MEPs who are directly elected by the electorate of member states in elections that take place every 5 years

number of MEPs from each member state is determined by the size and population of the country

MEPs do not sit in national groups, they form political groups with those of the same political allegiance

Question 7

european parliament — main roles

Answer 7

3 main roles:

• legislative — passes EU laws that have been proposed by the commission, passes laws with the council of the european union
• supervisory — provides democratic scrutiny of all EU institutions
• budgetary — establishes the EU budget with the council

Question 8

court of justice of the european union

Answer 8

sits in Luxembourg

consists of…
• 28 judges, one from each member state
• 11 Advocates General who are special legal advisors that assist the court by producing reasoned opinions — these opinions are not binding but are highly persuasive

11 judges sit in a full court, otherwise the CJEU tends to sit in chambers of 3 or 5 judges

judges are appointed under Article 253 of the TFEU from those who are eligible for appointment to the highest judicial posts in their own country OR who are leading academic lawyers

each judge is appointed for 6 years and can be reappointed for another term of 6 years

Question 9

CJEU: main roles

Answer 9

under article 19 of the TEU, its main role is to ensure that EU law is interpreted and applied uniformly across all member states

does this by performing 2 key functions:

• under article 258 of the TFEU, it hears cases to decide whether member states have failed to fulfil obligations under the treaties
• under article 267 of the TFEU, it hears references from national courts for preliminary rulings on points of EU law

Question 10

CJEU — hears cases to decide whether member states have failed to fulfil obligations under the treaties

Answer 10

such actions are usually initiated by the european commission although they can also be started by another member state

CASE = Re Tachographs

Question 11

CJEU — hears references from national courts for preliminary rulings on points of EU law

Answer 11

if there is no appeal from the national court within the national system, a court must refer points of EU law to the CJEU

other national courts have discretion to make an article 267 reference

whenever a reference is made, the CJEU only makes a preliminary ruling in 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

CASE = Van Duyn v Home Office

Question 12

why is the CJEU important?

Answer 12

it’s decisions are binding on english courts

it’s purposive approach to interpretation is increasingly being followed by english courts

Question 13

sources of EU law

Answer 13

there are primary and secondary sources of EU law

primary sources are mainly the treaties — the most important of which is now the Treaty of the European Union

secondary sources are passed by the institutions of the the EU under article 288 of the TFEU

there are 3 types of secondary legislation; regulations, directives and decisions

Question 14

treaties

Answer 14

treaties are international agreements such as the Maastricht Treaty

they are primary sources of EU law

the UK is still a member of the European Union so any treaties made by the EU are automatically part of UK law as a result of s.2(1) of the European Communities Act 1972

treaty law is directly applicable and does not need an act of parliament to make them into law. therefore, once a treaty is signed, it instantly becomes applicable in the member state

this not only makes EU law part of UK law but also allows individuals to rely on it which is called direct effect

there are two types of direct effect; vertical and horizontal

treaties have both vertical and horizontal direct effect

Question 15

vertical direct effect

Answer 15

means that the individual can use EU legislation to sue the UK or public body

Question 16

horizontal direct effect

Answer 16

means that an individual can use EU legislation against another individual

treaties and regulations have both horizontal and vertical direct effect

Question 17

treaties case example

Answer 17

Macarthys Ltd v Smith

• Smith’s employers paid her less than her male predecessor for exactly the same job
• as the two people were not employed at the same time by the employer, there was no breach of English domestic law
• however, Smith was able to claim that her employers were in breach of article 157 TFEU over equal pay for men and women
• this claim was confirmed by the CJEU

Question 18

regulations

Answer 18

under article 288 of the TFEU, the EU has the power to issue regulations which are “binding in every respect and directly applicable in each member state”

regulations do not have to be adopted as article 288 makes it clear that they automatically become law in each member state

this means that they are directly applicable

prevents member states from picking and choosing which regulations they implement and as a result, laws are uniform across all member states

Question 19

regulations case example

Answer 19

Re Tachographs

• a regulation requiring mechanical recording equipment to be installed lorries was issued
• the UK government of the day decided not to implement the regulation
• when the matter was referred to the CJEU it was held that member states have no discretion in the case of regulations
• the wording of article 288 was explicit and meant that regulations are automatically law in all member states

Question 20

directives

Answer 20

under article 288 TFEU, directives “bind any member state to which there addressed as to the result to be achieved, while leaving to domestic agencies a competence as the form and means”

member states will pass their own laws to bring directives into effect

such laws must be brought in within the time limit set by the European Commission

the usual method of implementing directives in the UK is by statutory instrument, they can also be implemented by other law making methods such as Acts of Parliament or Orders in Council

Question 21

impact of EU law: precedence

Answer 21

EU law has primacy and supremacy over national law — established in Van Gend en Loos

even if there is later national law it does not take precedence over EU law — established in Costa v ENEL and seen in Factortame where the CJEU held that the UK could not enforce the Merchant Shipping Act 1988

sovereignty of the UK parliament is affected as EU law has supremacy over national law BUT each member state has the ultimate right to withdraw from the EU

Question 22

impact of EU law: citizens rights

Answer 22

a citizen of the UK can rely on directly applicable laws contained in treaties and regulations to enforce their rights as they automatically become part of UK law

english courts are bound by the decisions of the CJEU and it’s purposive approach to interpretation is increasingly being followed by english courts

Question 23

impact of EU law: regulations

Answer 23

under article 288 of the TFEU, the EU has the power to issue regulations which are “binding in every respect and directly applicable in each member state”

regulations do not have to be adopted as article 288 makes it clear that they automatically become law in each member state

Question 24

the european commission — main functions

Answer 24

several functions…

• puts forward proposals for new laws to be adopted by parliament and the council — has the “right of initiative”
• guardian of treaties — ensures that treaty provisions and other measures adopted by the EU are properly implemented, if a member state has failed to implement EU law within its own country then the commission has a duty to intervene and refer the matter to the CJEU if necessary
• responsible for the administration of the EU — has executive powers to implement EU budget and supervise how money is spent

Question 25

case example: impact of EU law

Answer 25

Marshall

• Marshall was required to retire at 62 when men doing the same work did not have to retire until 65
• under the Sex Discrimination Act 1975, this was not discriminatory
• however, she was able to succeed in an action for unfair dismissal by relying on the Equal Treatment Directive
• this directive has not been fully implemented in the UK but the CJEU held that it was sufficiently clear and imposed obligations on the member state
• allowed Marshall to succeed in her claim against her employers because her employers were “an arm of the state”, in other words seen as part of the state

Question 26

case example: impact of EU law

Answer 26

CJEU held that is it possible to claim against a member state that has failed to implement a directive

Francovich v Italian Republic

• italian government failed to implement a directive aimed at protecting wages of employees whose employer became insolvent
• francovich’s employers went into liquidation and owed him wages which he was unable to get
• he sued the state for his financial loss and the CJEU held that he was entitled to compensation
• a right to compensation will arise provided three conditions are satisfied:

1. purpose of directive must be to grant rights
2. beach must be sufficiently serious
3. must be a direct link between breach and damage sustained

Question 27

impact of EU law: directives

Answer 27

the CJEU has ruled that if…

• a member state has not implemented a directive within the time laid down
• if the purpose of that directive is to grant rights and if the directive is clear

then it may be directly enforceable by an individual against the member states

however, only a individual who is adversely affected by a failure to implement a directive has rights against the state

vertical direct effect — an individual can use EU legislation and rely on directives to sue the UK or public body

directives that give rise to fundamental human rights such as non discrimination can give rise to horizontal direct effect