Sources of European Law

Question 1

Where did the European Union evolve from?

Answer 1

Three “communities” which were established by three international treaties in the 1950s.

The most important of these were the European Economic Community (EEC) which was established by the Treaty of Rome in 1957.

Question 2

When did the UK join the EEC?

Answer 2

Joined in 1973.

Question 3

What does it mean that the UK is a dualist state?

Answer 3

This means that international treaties do not have direct effect in domestic law unless they have been incorporated by legislation.

The provisions of the treaties governing the EEC and the other two European communities therefore had to be incorporated into domestic law by the European Communities Act (‘ECA’) 1972.

Question 4

What Treaty established the EU?

Answer 4

The European Union was established by the Treaty on European Union (‘TEU’) in 1992, better known as the Maastricht Treaty. This introduced a number of structural reforms and renamed the EEC as the European Community (‘EC’).

Question 5

What reforms were introduced to the EU?

Answer 5

Further reforms were introduced over subsequent years which culminated in the Treaty of Lisbon (2007). This established the current structure which is based on two treaties: the TEU and the Treaty on the Functioning of the European Union (‘TFEU’). The latter is an amended and renamed version of the Treaty of Rome.

Question 6

When did the UK leave the EU?

Answer 6

Following a referendum in 2016, the UK left the EU on 31 January 2020. The effect of EU law is now governed by the European Union (Withdrawal) Act 2018, which repealed the ECA 1972 on the same day.

Question 7

To reduce the impact of Brexit, what strategy did the UK adopt?

Answer 7

In order to withdraw from the EU with less legal impact, the strategy adopted has been to retain law that was introduced as a result of the UK’s membership of the EU/ EEC since 1973. This law can now be replaced by new UK legislation, but it remains in force until it is repealed and replaced.

Question 8

What are the two main categories of EU law?

Answer 8

Primary and secondary

Question 9

What is primary EU law?

Answer 9

The Treaty on the European Union (TEU)

AND

The Treaty on the Functioning of the European Union (TFEU)

Question 10

What is secondary EU law?

Answer 10

Regulations, Directives and Decisions

AND

Case law

Question 11

What are Regulations?

Answer 11

They are directly applicable in the legal systems of the Member States and have direct effect.

Question 12

What are Decisions?

Answer 12

These are legally binding only on the parties to whom they are addressed.

Question 13

What are Directives?

Answer 13

These are binding as to the result to be achieve but leave to the national authorities the choice of form and methods.

Question 14

What happens if a MS fails to implement a Directive?

Answer 14

It is not unusual for Member States to fail to implement a directive properly or on time. If this happens, legal proceedings, known as ‘infringement proceedings’, may be started against Member States by the European Commission. They are eventually determined by the CJEU.

Question 15

What methods have been developed to allow individuals to rely on directives that a MS has failed to implement?

Answer 15

1. Direct effect (available if the implementation date has passed)
2. Indirect effect (an obligation on domestic courts to interpret domestic law compatibly with EU law, where possible)
3. State liability (a form of compensation available for a state’s failure as long as it has sufficiently serious consequences).

Question 16

What is jurisprudence?

Answer 16

A further secondary source of EU law is provided by the case law of the Court of Justice (CJEU).

Question 17

What are preliminary references to the CJEU?

Answer 17

Much of the case law of the ECJ/ CJEU derives from preliminary references from the national courts of the Member States, including the courts of England and Wales.

These are provided for by article 267 TFEU which permits national courts to be able to refer questions to the CJEU about the interpretation of EU law and the validity of the acts of the EU institutions, including the secondary legislation produced by them.

Following receipt of the reference, the CJEU will make a ruling on the questions which were referred to it. This is called a preliminary ruling. The ruling is passed to the national court to decide how to apply it.