Module 7 - EU Law making (C8) Flashcards
What is the UK’s current relationship with the European Union?
Although Britain has left the EU, they have not fully left the judiciary; the UK is still subject to the ECtHR and laws can be blocked if incompatible.
> i.e. calls for the return of the Death Penalty would be blocked
What are some examples of the EU blocking decisions made in the UK?
Rwanda Plan
Abu Qatada
What is the European Union?
The European Union is an economic, political and cultural union of 27 member states; established through the Treaty of Maastricht in 1993
When was the EU established originally, and what is its subsequent history?
1951; Germany, France, Italy and Benelux (EC)
> ECSC (Post-WWII agreement to make each country dependent on each other, avoiding conflict and building relations)
> UK, Denmark and Ireland join the EC in 1973
What are the different main institutions of the EU?
European Parliament
European Commission
Council of Ministers
European Court of Justice
What is the European Parliament?
The directly elected legislative body of the EU, representing its citizens and playing a key role in debating, amending, and approving legislation and the EU budget.
What is the structure of the European Parliament?
> Based in Brussels and Strasbourg
751 MEPs elected every 5 years
Discusses and comments on proposals; no direct law-making authority
Has some power over EU budget
What is the structure of the European Commission?
> 27 commissioners; independent of national origin
Initiates all EU laws; proposes and presents legislation
Acts as the “Guardian of the treaties”; duty to intervene + refer to ECJ
Responsible for administration and has executive powers (i.e. budget)
What is the European Commission?
The executive branch of the EU responsible for proposing legislation, enforcing EU law, and managing the day-to-day affairs of the Union.
What is the Council of Ministers?
The main decision-making body where government representatives from each member state meet to adopt legislation and coordinate policies.
What is the structure of the Council of Ministers?
- Principal decision-making body; made up of Heads of States in the EU
> Attends meetings related to national responsibility
> “Effective centre of power”; votes on proposed laws
> Amount of power depends on the size of their country (Qualified Majority Voting; QMV)
What is the structure of the European Court of Justice?
- “in the interpretation and application of the Treaty the law is observed”
> Decides cases, enforces EU law; sits in Luxembourg with 27 judges
> Judges are appointed for six years; can be re-appointed
> Full court of 11 judges; also sits in chambers of 5 or 6
> Assisted by 9 advocates (researches all legal points and presents case)
What is the European Court of Justice?
The highest court in the EU, which interprets EU law and ensures its uniform application across all member states.
What is indirect effect?
The obligation for national courts to interpret domestic law in a manner that ensures the objectives of EU directives are achieved.
What effect does the doctrine of indirect effect have on government, individuals and companies?
If the government fails to implement an EU directive, an individual cannot sue a private company (as they likely did not know that this was supposed to take effect)
> i.e. Duke (1988) and Dori (1994) unable to sue private company
> but Marshall was.
What happened in Dori (1994)?
- Italian Government had failed to implement a directive in respect to consumer rights and the cancellation of contracts; Dori could not rely on the directive in order to claim a right of cancellation against a private trader
What happened in Duke (1988)?
- Duke was not able to rely on an equal treatment directive as the employer was a private company; could not use horizontal effect, unlike Marshall (was able to succeed as the employer was controlled by the state)
In what circumstances can an individual utilise indirect effect in a legal challenge?
If a directive has not been implemented by an MS (Member State), or has been inadequately implemented, an individual can take action against another individual via the concept of ‘indirect effect’
In what cases have individuals challenged governments through the doctrine of indirect effect?
> i.e. Colson (1984); ensured MS’ to take ‘appropriate measures’
or Marleasing (1990); national courts are required to interpret domestic law to ensure that objectives of a Directive are achieved.
e.g. once implemented, all domestic laws must be adapted to fit in with the new directive/legislation.
What happened in Colson (1984)?
- Article 5 of the EC requires MS’ to ‘take all appropriate measures’ to ensure fulfilment of obligations; courts must interpret national law to ensure the objectives of a Directive are achieved.
What happened in Marleasing (1990)?
- National courts must interpret national law in the light of the wording and purpose of the Directive to achieve the result pursued; must interpret domestic law in a way that ensures the objectives are achieved.
What are the two overarching sources of legislation/law in the EU?
Primary legislation
Secondary legislation
What is primary legislation?
Primary legislation; treaties - agreements between member states
> i.e. the Treaty of Rome
What is secondary legislation?
Secondary legislation; sources of law created by other institutions of the Union under the Treaty of Rome
What are the three main examples of secondary legislation in the EU?
Regulations
Directives
Decisions made in court
What are treaties?
- Agreements between different member states; must be applied
What are the main features of treaties?
- Directly applicable in the UK; must be clear, unconditional and precise
- Have direct effect, both horizontally and vertically
What form of legislation are treaties?
Primary legislation.
What is horizontal effect?
The ability of EU law to confer rights or obligations directly on individuals in disputes between private parties.
> countries/companies/individuals suing each other
What is vertical effect?
The capacity of EU law to be enforced by individuals against the state or other public bodies.
> suing upwards (i.e. individuals against companies/countries)
What is direct effect?
A principle whereby certain provisions of EU law create rights that individuals can rely on directly in national courts without additional legislation.
What are three examples of treaties?
Treaty of Rome
Treaty of Paris
Treaty of Maastricht
What did the Treaty of Rome establish in terms of legal order?
Treaty of Rome created a “new legal order”, meaning the body of law was now binding on the institution of member states and citizens
> “new legal order” was set out largely in Van Gend en Loos (1963)
What was Van Gend en Loos (1963)?
Set out the “new legal order” of international law for the “benefit of which the states have limited their sovereign right”; established that the Treaty of Rome was the EU’s basic constitution; gave individuals the right to rely on provisions of the Treaty of Rome in their national courts
> Also established the criteria for defining when a provision should have direct effect; must be clear and precise, unconditional and capable of producing rights for individuals
What did Van Gend en Loos (1963) effectively establish?
- Gave individuals the right to rely on provisions of the Treaty of Rome in their national courts
- Established the doctrine of direct effect
- Established the new legal order of the European Union
What does binding mean?
Refers to legal acts or decisions that are enforceable and must be complied with by the parties to whom they are addressed.
What Act meant that EU law applies to domestic law?
European Communities Act 1972
What is the legal effect of treaties within the UK?
All treaties signed by the head of Government become part of English law automatically (i.e. Human Rights Act 1998)
What was held in Van Duyn v Home Office?
ECJ held that an individual was entitled to freedom of movement
What was the effect of the Treaty of Rome on UK citizens before Brexit, and what is it now?
UK citizens can rely on rights in the Treaty of Rome even though those rights may not have been specifically enacted in English law (no longer binds the UK, but many principles are still embedded)
In terms of direct effect, what did Van Gend en Loos (1963) also establish?
Criteria for defining when a provision should have direct effect; must be clear and precise, unconditional and capable of producing rights for individuals
What are regulations?
Laws that are directly applicable in all member states without the need for national implementing legislation.
What are the features of regulations?
- Acts as a statute; automatically becomes law - must be enacted
- Has both horizontal and vertical direct effect
- Must be unconditional, clear and precise
What is an example of a regulation?
Article 249 of the Treaty of Rome
What is Article 249 of the Treaty of Rome?
Establishes that EU regulations are binding in their entirety and directly applicable in all member states without the need for further national legislation, ensuring uniform application of EU law.
What are directives?
Legislative acts that require member states to achieve a specific result while allowing them the discretion to choose the means of implementation.
> Directs a member state to have a law on a specific area
What is an example of a directive?
Working Time Directive; instructions over number of hours worked, rest periods and paid holiday
> deadline November 1996; led to Working Time Regulations (Oct 1998)
What are the features of directives?
“bind any member state to which they are addressed as to the result to be achieved, while leaving the Member State the form and means of achieving the result”
> States can pass directives within the time limit set by the EC
How were directives usually implemented into British Law?
Directives were usually implemented into British Law via statutory instruments, Acts of Parliament and Orders in Council.
What is a recommendation?
A non-binding statement issued by an EU institution that suggests a course of action without imposing any legal obligation.
What are the features of a recommendation?
A recommendation is not binding, and therefore arguably not law
> Party to whom it is addressed is called on, but not placed under any legal obligation to behave in a particular way
What is an opinion?
A non-binding expression of view by an EU institution that may guide interpretation but is not legally enforceable.
What are the features of an opinion?
An opinion is also non-binding, and therefore arguably not law
> Acts as either a prerequisite to proceedings in the ECJ or prepares the way for subsequent, legally binding Acts
What is the significance of both recommendations and opinions?
The significance of both recommendations and opinions are political and moral, not legal.
What is another source of law in the EU, related to courts?
Rulings in the ECJ (European Court of Justice)
> Can act as an external aid for interpretation
> i.e. Van Gend en Loos (1963)
What does Articlde 249 of the EU say about decisions?
“A decision shall be binding in its entirety upon those whom it is addressed”
> Orders that a measure be taken in an individual case
> Can thus require a MS/individual to perform or refrain from an action, and can confer rights or impose obligations on them
What is a decision?
Legally binding acts issued by EU institutions that are addressed to specific parties and must be followed in their entirety.
What is case law?
The body of legal principles established by judicial decisions, particularly those of the European Court of Justice, which help interpret EU law.
What is one example of a ruling in the ECJ directly impacting EU law?
Van Gend en Loos (1963)
> Established several points related to the Treaty of Rome, such as giving individuals the right to rely on provisions of the Treaty of Rome in their national courts
What is different about the court process in the ECJ, in comparison to UK courts?
- Largely focuses on presenting cases on paper
> Lawyers are required to present their arguments in a written form
> Far less reliance on oral presentation of a case
What is the role of the Advocate General (AG) in the ECJ?
Role of the AG (Advocate General); independent lawyer, not used in the English Legal System (ELS)
> AG will present findings after parties have made submissions; will have all aspects of the law presented to the court
What is the Advocate General?
An independent legal advisor at the Court of Justice of the European Union who presents impartial opinions on cases before the court; while their opinions are not binding, they are highly influential in shaping the court’s decisions.
What is different about the role of judges in the ECJ, in comparison to UK courts?
- Deliberations made by the judge are secret; decision made by a majority
> All judges sign the agreement so unknown which judge disagreed or agreed, unlike the dissenting judgements in the ELS
What is different about binding precedent in the ECJ, compared to UK courts?
ECJ is not bound by its previous decisions (unlike in the ELS, where certain courts are, or where the Practice Statement may have to be used)
Why does the ECJ have wide rights to study extrinsic aids?
ECJ has wide rights to study extrinsic aids, due to the fact of 27 member states, with different culture, traditions and languages
