The European Union Flashcards
Talk about the Van Gend en Loos (1963) case creating direct effect.
“The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.”
Talk about the Van Gend en Loos (1963) case developing supremacy.
“By creating a Community of unlimited discretion, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane, and, more particularly, real powers stemming from a limitation of sovereignty or transfer of powers from the states to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves” “the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question … the force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty…”
Talk about the Internationale Handelsgesellschaft (1970) case developing supremacy.
“Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law.”
Talk about the Simmenthal (1978) case developing supremacy.
‘[A] national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.’
What did Macarthys Ltd v Smith (1979) say about Parliament and EU law?
‘If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty [of Rome] or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. I do not however envisage any such situation.’
What did Garland v BREL(1983) say about EU law?
‘[I]t is a principle of construction of United Kingdom statutes … that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.’
What did Factortame (1991) say about Parliamentary Sovereignty?
‘[W]hatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.’
What did Wade say about the Factortame quote on parliamentary sovereignty?
‘The truth is, apparently, that so far from containing “nothing in any way novel”, the new doctrine makes sovereignty a freely adjustable commodity whenever Parliament chooses to accept some limitation. … But “voluntary acceptance” goes much deeper into the foundations of the constitution, suggesting by its very novelty that the courts are reformulating the fundamental rules about the effectiveness of Acts of Parliament.’
What does Section 18 of the European Union Act 2011 say?
“Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.”
What was found in Thoburn v Sunderland City Council (2002)?
The 1972 European Communities Act is a constitutional statute and has special status. It trumps other ordinary legislation.
What is ‘hard brexit’?
An end to the free movement of people, departure from the EU single market and a drift away from cooperation with the rest of Europe. They want border control between Northern Ireland and the Republic of Ireland, and believe that any law within EU law is bad law.
What is ‘soft brexit’?
The UK retaining its membership of the single market, maintaining the free movement of people and continued cooperation with Europe on security and terrorism issues.
What is thought to be the government’s plan for Brexit?Explain.
Government plan is to enact a ‘Great Repeal Bill’ to repeal the European Communities Act 1972, but will, at least, preserve the effect of EU law in the UK. Most directives will stay in force by keeping the secondary legislation that enacted them. Directly effective law will cease to exist in the UK and would be unenforceable. But this would be undesirable so it may be possible to retain some of them for a period of time. Heavily time-consuming and expensive to replace all the legislation.
What did the Supreme Court decide in: The Christian Institute and others v The Lord Advocate (2016)?
Part for of the Children and Young Persons (Scotland) Act 2014 was against Scotland’s power (outside its competence as it was a reserved matter for the UK), it was also incompatible with EU law and the ECHR therefore it allowed the appeal. Additionally they gave the Scotland ministers time to give written evidence before they ruled on this matter. The Court disagreed, as they said the Act aimed to promote the welfare of young people which was within their power.
What did the Supreme Court decide in: R (Miller and another) v Sos for Exiting the European Union (2017)?
Did the government need the consent of devolved powers to trigger Article 50? The United Kingdom Government may not initiate withdrawal from the EU without an Act of Parliament of the UK Parliament permitting it to do so. The High Court previously ruled that the Crown’s foreign affairs prerogative may not be used to nullify rights that parliament has enacted through primary legislation. This case was seen as having constitutional significance in deciding the scope of the royal prerogative in foreign affairs. The Supreme Court also ruled that devolved legislatures in Scotland, Wales and Northern Ireland have no right to veto the act. The Court stated that this was a political issue and the courts only deal with legal ones.
