The English Legal System - Sources of EU Law (Chapter 10)

Question 1

What is the primary source of EU law?

Answer 1

Treaties

Question 2

Which are the two most important treaties that are the primary source of law in the EU?
How can they also be called?

Answer 2

Treaty of the European Union
Treaty on the Functioning of the European Union
Constitutional law of the EU

Question 3

Treaty of the European Union
Treaty on the Functioning of the European Union

Broadly, what do these treaties allow for?

Answer 3

They set the broad policy goals of the EU
Establish institutions that can enact legislation to achieve these goals
Set out the distribution of competencies between the EU and its member states

Question 4

Single most important article in regard to EU law

Answer 4

Art. 288 Treaty of the Functioning of the European Union
It invokes binding secondary legislation and defines the range of Regulations, Directives, Decisions, Recommendations and Opinions

Question 5

Art. 288 Treaty of the Functioning of the European Union considers what to be secondary law? (5)

Answer 5

1) Regulations
2) Directives
3) Decisions
4) Recommendations and Opinions

Question 6

Which secondary law of the EU is binding?

Answer 6

Regulations
Directives
Decisions

NOT Recommendations or Opinions

Question 7

Which of the secondary law is directly applicable?

Answer 7

Only regulations

Question 8

How are regulations implemented in the EU member states?

Answer 8

There is no implementation mechanism, i.e. regulations automatically become law in all member states the moment they enter into force

Question 9

Case which the EC brought enforcement proceedings against the UK for failure to implement a regulation

Answer 9

Reg. 1436/70
Required tachographs to be fitted into commercial vehicles

EC Commission v United Kingdom (Re Tachographs) 1979

Question 10

How are Directives different from Regulations?

Answer 10

They are not directly applicable. Directives require Member States to achieve a certain result/objective, but leave them the discretion as how to achieve its implementation (typically through statutes and statutory instruments)

Question 11

What happens if Directives are not implemented? How can they be enforced?

Answer 11

Individuals can enforce the directives in the national courts. The courts are bound to protect the directives.

Question 12

What is a famous case in which an individual enforced a Directive of the EU before a national court?

Answer 12

Van Duyn v Home Office (1974)
In this case, the European Court of Justice clarified that Directives are directly applicable, otherwise they would not fulfill their purpose.

Question 13

How are Decisions of the EU different from Regulations and Directives?

Answer 13

Decision are addressed to a state, a company or an individual and are binding on the addressee in its entirety. They are binding and have direct effect. They also allow third parties to take legal action against the addressee.

Question 14

What is a famous example of a Decision of the EU against the UK?

Answer 14

Council Decision 86/469, which concerned the adoption of certain protective measures relating to “mad cow” disease in the UK.

Question 15

Are Recommendations and Opinions two different legal sources?

Answer 15

No, they are the same

Question 16

Are Recommendations and Opinions legally binding?

Answer 16

No, but the European Court of Justice held that recommendations cannot be regarded as having no legal effect. The national courts are bound to take recommendations into consideration in order to decide disputes submitted to them.

Question 17

Famous case regarding Recommendations and Opinions

Answer 17

Salvatore Grimaldi v Fonds des Maladies Professionelles, case 322/88

Question 18

Besides primary and secondary law, what supplementary case law exists?

Answer 18

1) International law
2) General principles of law

Question 19

What are general principles of law?

Answer 19

Unwritten sources of law developed by the case law of the Court of Justice, such as equality, human rights, and others.

Question 20

Which approach does the Court of Justice use to interpret and apply legislation?

Answer 20

“Purposive” or “Theological”

Question 21

The Court of Justice uses the “Purposive” or “Theological” approach to interpret and apply legislation. What does that mean?

Answer 21

The Court of Justice interprets the Treaty of Rome and, later, subordinate legislation in accordance with the spirit and ethos behind the Treaty and the fundamental freedoms on which the Community was expressly stated to be based, e.g., prohibition on discrimination on grounds of nationality.

Question 22

What is the opposite approach to “Purposive” or “Theological” interpretation and application of legislation?

Answer 22

Textualism. It’s a formalist theory of statutory interpretation, holding that a statute’s ordinary meaning should govern its interpretation as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law.

Question 23

Most important legal provision for the Court of Justice and General Court

Answer 23

Art. 19 Treaty of the EU
Article 19 charges the Court of Justice with ensuring that the law is observed in the interpretation and application of the Treaty of the EU

Question 24

What are the three main tasks of the Court of Justice?
What additional power came with the Maastricht Treaty?

Answer 24

1) Reviews legality of the acts of the institutions of the EU
2) Ensures that the member states comply with obligations under the treaties
3) Interprets EU laws at the request of the national courts and tribunals

Since the Maastricht Treaty, the Court of Justice has been empowered to impose pecuniary penalties on the Member States which refuse to comply.

Question 25

What is the meaning of pecuniary?

Answer 25

Monetary