Law making: the European Union Flashcards
What was the impact of the EU before Brexit?
Before Brexit, the impact of European Union law on the law of England and Wales was significant and far-reaching. The UK had been a member of the European Union since 1973, and during this time, EU law had become an integral part of the UK’s legal system.
One of the most significant impacts of EU law on the law of England and Wales was the principle of direct effect. This meant that individuals and businesses could rely on EU law in national courts, and that national courts were required to give effect to EU law where it was applicable. This led to the development of a significant body of EU law that applied directly in the UK, including regulations, directives, and case law from the Court of Justice of the European Union (CJEU).
Another significant impact of EU law was the principle of indirect effect. This principle allowed individuals to rely on EU law in national courts, even in cases where the relevant EU law provision was not directly applicable. Indirect effect worked through the interpretation of national law in light of EU law. This meant that national courts were required to interpret national law in a way that was consistent with EU law, where possible. This allowed individuals to rely on EU law principles and rights, even in cases where there was no direct application of EU law.
The principle of supremacy was also a significant feature of the impact of EU law on the law of England and Wales. This meant that EU law took precedence over national law, and that national courts were required to set aside any national law that conflicted with EU law. This led to tension between the UK’s domestic legal system and the EU legal system, particularly in cases where EU law conflicted with long-standing legal principles in the UK.
EU law had a significant impact on specific areas of law in England and Wales, such as employment law, consumer protection, and environmental law. Many of the rights and protections that existed in these areas of law were based on EU law, and the UK’s departure from the EU has created uncertainty around the future of these rights and protections.
Treaties:
The highest forms of law in the EU are the Treaties, which set out the constitution of the EU, but also substantive matters, some give rise to direct effect in national courts. Where the treaty provision has direct effect between two private parties, this is referred to as horizontal direct effect. When it is relied upon against the State, this is known as vertical direct effect. Treaties have immediate effect over the english legal system and cannot be questioned
what are the institutions of the european union?
two treaties set out the rules =
the treaty of the european union
the treaty of the functioning of the European union
the council of the EU
the commission
the european parliament
court of justice of the EU
What is the council?
The Council is an essential EU decision-maker. each country send a respresentative, principle law body using a voting system , must represent 65% of eu population
It negotiates and adopts legislative acts in most cases together with the European Parliament through the ordinary legislative procedure, also known as ‘codecision’. Codecision is used for policy areas where the EU has exclusive or shared competence with the member states. In these cases, the Council legislates on the basis of proposals submitted by the European Commission.
What is the European parliament?
The European Parliament is the EU’s law-making body. It is directly elected by EU voters every 5 years. Directly-elected EU body with legislative, supervisory, and budgetary responsibilities
751 members of the European parliament, proportionate to size of the state. meet approx once a month, can co legislate
decide on international agreements, whether to admit new states
What is the Court of European Justice
The Court of Justice of the European Union (CJEU) or European Court of Justice (ECJ) is the supreme court of the European Union in matters of European Union law. It is one of the EU’s seven institutions and consists of two courts of law: the Court of Justice and the General Court. Its main role is to ensure the observance and uniform application and interpretation of EU law within EU member states and institutions
ensures law is applied fairly/uniformly amongst all member states. hears cases to see if the state has failed to fulfil its obligations
cases are presented on paper
advocate general - not an independent lawyer
ag presents findings after the parties have made their submissions
judges deliberate in private
not bound by previous decisions
What does the European Commission represent?
The European Commission represents the common interests of the EU and is the EU’s main executive body. It uses its ‘right of initiative’ to put forward proposals for new laws, which are scrutinised and adopted by the European Parliament and the Council of the European Union. It also manages EU policies. he European Commission (EC) is part of the executive of the European Union (EU). It operates as a cabinet government, with 28 members of the Commission (directorial system, informally known as “Commissioners”) headed by a President. It includes an administrative body of about 32,000 European civil servants.
each member acts independently of their national origin
appointed for a 5 year term
proposes new laws, ensures treaties are adopted. supervises how money is spent
What are directives?
Directives require legislation to be created within Member States in order to create enforceable legislation that can be directly relied upon in domestic courts. Directives are a legislative act that sets out an objective to be achieved. They are the most common form of EU legal act. Unlike regulations, directives do not apply directly at the national level. Instead, it is up to the individual countries to devise their own laws on how to reach the objectives set out in the directive. Directives form part of the EU’s secondary law and are adopted by the EU institutions in accordance with the treaties.
What are regulations:
Article 288 TFEU empowers the institutions to ‘adopt regulations, directives, decisions, recommendations and opinions. Regulations have general application in the sense that they are directly applicable in all Member States and are binding in their entirety. Regulations are rules of order having the force of law, prescribed by a superior or competent authority, relating to the actions of those under the authority’s control. They are issued by various federal government departments and agencies to carry out the intent of legislation enacted by Congress. Regulations are codified and published so that parties are on notice regarding what is and isn’t legal. these are binding directly on Member States by virtue of agreements that these states have made within EU Treaties
How is the European union set up?
The European Union’s institutional set-up is unique and its decision-making system is constantly evolving. The 7 European institutions, 7 EU bodies and over 30 decentralised agencies are spread across the EU. They work together to address the common interests of the EU and European people. there are a further 20 EU agencies and organisations which carry out specific legal functions and 4 interinstitutional services which support the institutions. All of these establishments have specific roles – from developing EU laws and policy-making to implementing policies and working on specialist areas, such as health, medicine, transport and the environment
what are the sources of european law:
treaties - automatically becomes part of the law for all member states
direct applied - can be applied directly to individual
can be relied on even if it is not enacted.
van duyn v home office - can rely on article 45
macarthys ltd v smith = breach european law
regulations - binding in every respect and directly applicable in each member state, automatically become law
re tachograph: commission v united kingdom - left it to ind. lorry companies to implement equipment
directives - issued by the eu and directs all member states to bring in same laws, uk will normally do this through SIs. direct effect
what are treaties
treaties - automatically becomes part of the law for all member states
direct applied - can be applied directly to individual
can be relied on even if it is not enacted.
van duyn v home office - can rely on article 45
macarthys ltd v smith = breach european law
what are regulations
regulations - binding in every respect and directly applicable in each member state, automatically become law
re tachograph: commission v united kingdom - left it to ind. lorry companies to implement equipment
what are directives
directives - issued by the eu and directs all member states to bring in same laws, uk will normally do this through SIs. direct effect
marshall v southhampton - breached equal treatment directive
what is direct effect?
if the directive has not been implemented an individual can bring an action against the member state
directive ( new law that the member state has to implement themselves through legislation)
given a direct time frame to do this
if fails to do this, can bring a claim directly to the EU against its member state
if they bring the claim against member state, it is vertical direct effect
if they bring a claim against an individual, then it is horizontal direct effect
How does EU law impact on UK law?
Van Gend en loss - EU law has precedent over national law
Costa v ENEL - later national laws do not take precedent over previous EU law
R v Secretary of State for transport = CJEU stated that the UK could not enforce the merchant shipping act as it contravened the treaty of rome
