European Union Law Flashcards
EU treaties
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
main institutions of the EU
council of the european union
european commission
european parliament
court of justice of the european union
council of the european union
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
european commission
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
the european parliament
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
european parliament — main roles
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
court of justice of the european union
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
CJEU: main roles
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
CJEU — 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 also be started by another member state
CASE = Re Tachographs
CJEU — hears references from national courts for preliminary rulings on points of EU law
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
why is the CJEU important?
it’s decisions are binding on english courts
it’s purposive approach to interpretation is increasingly being followed by english courts
sources of EU law
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
treaties
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
vertical direct effect
means that the individual can use EU legislation to sue the UK or public body
horizontal direct effect
means that an individual can use EU legislation against another individual
treaties and regulations have both horizontal and vertical direct effect
treaties case example
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
regulations
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
regulations case example
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
directives
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
impact of EU law: precedence
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
impact of EU law: citizens rights
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
impact of EU law: regulations
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
the european commission — main functions
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
case example: impact of EU law
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
