Unit 7: Retained EU Law - Background Flashcards
TRUE OR FALSE:
During the UK’s membership of the European Union, the UK courts could overrule EU laws.
FALSE
because in the case of R v Secretary of State, ex parte Factortame (No 2) [1991] 1 AC 603, the House of Lords confirmed the effect of s2(4) of the European Communities Act 1972 was that directly effective EU laws too precedence over conflicting UK laws.
TRUE OR FALSE:
The European Communities Act 1972 had no impact on the supremacy of the UK Parliament
FALSE This is an area of academic debate, but it is generally accepted that the provisions of the ECA 72 which prioritised EU laws over UK laws did have an impact on supremacy of the UK Parliament. Parliament did, of course, retain ultimate supremacy by being able to repeal the ECA 72, which it did as part of the suite of legislation enacted to effect Brexit.
Which ONE of the following statements about the European Court of Justice (ECJ) is CORRECT?
A) Individuals can appeal to the ECJ from the courts of Member States, on points of EU Law only.
B) The ECJ hears appeals from the General Court on issues of fact or on points of law.
C) The ECJ deals with direct actions taken by the Commission against Member States that breach EU Law.
D) In Article 267 TFEU proceedings the ECJ can assess whether or not a particular national law breaches EU Law.
CORRECT ANSWER C
Article 258 TFEU gives the Commission the right to bring an action against a Member State in the ECJ for failure to fulfil its obligations under EU Law. A is false - the ECJ is not a court of appeal from the courts of Member States. B is false - appeals from the General Court to the ECJ are on points of law only. D is false - in Article 267 TFEU proceedings the ECJ cannot consider the legality or otherwise of national law.
The following sentence describes a type of EU legislation: ‘It is binding on Member States as to the result to be achieved. The way in which it is implemented however is left to the individual Member State.’
What type of legislation is it? Select ONE of the following options.
A) Treaty Article
B) Regulation
C) Decision
D) Directive
CORRECT ANSWER D as the sentence describes a directive. The other types of legislation do not have to be implemented into national law.
A female employee employed in a private sector company in an EU Member State is paid less than a male colleague doing the same. Legislation in the Member State in question permits the company to pay its female employees less than its male. The employee would like to bring a claim against the company in a national court relying on Article 157 TFEU. Article 157 provides for equal pay for equal work or work of equal value.
Which ONE of the following statements is CORRECT?
A) The employee cannot claim equal pay from the company as it is in the private sector, as Article 157 can only be used against a public body.
B) The employee can claim equal pay from the company, as Article 157 can be used against private and public sector bodies.
C) The employee can only sue the state for passing legislation that breaches Article 157, not the company.
D)
The employee cannot claim equal pay from the company before a national court, but must take her claim to the European Court of Justice.
CORRECT ANSWER B
correct as Article 157, as a Treaty article, has both horizontal and vertical direct effect. That means individuals can enforce it against both private sector and public bodies. Under the principle of supremacy of EU law, a directly effective Treaty article will override the contradictory national legislation. Option A is wrong because it incorrectly states that Article 157 only has vertical direct effect.
While the employee might have a claim against the state under the principle of state liability for passing legislation that breaches Article 157 (R v Secretary of State for Transport ex p Factortame (No 2)), option C is wrong because it suggests that it is the only remedy; instead the employee would be best advised to sue her employer. Option D is wrong, as the employee must bring her claim before a national court and not the European Court of Justice.
TRUE or FALSE in relation to the application of EU law in a Member State?
An EU Regulation can only be enforced against a public organisation, for example, a government department or a state hospital.
FALSE
EU Regulations can be enforced against public and private organisations. They have vertical AND horizontal direct effect.
TRUE OR FALSE:
Brexit means that EU laws no longer apply in the UK.
FALSE
there is a large body of EU laws that will continue to apply post Implementation Period completion day (ie when “Brexit” became legally effective).
Prior to implementation period completion day, a woman is paid less that a male colleague doing work of equal value. This is permitted by a (fictitious) Act of Parliament enacted in 2015. The woman claims that the employer newspaper has infringed her right to equal pay for work of equal value under Art 157 Treaty on the Functioning of the EU (“TFEU”).
Can the woman make a claim against her employer relying on Art 157 TFEU?
A) No, because UK Acts of Parliament, whenever enacted, prevail over EU law.
B) No, because rights arising under TFEU are not directly applicable.
C) No, because rights arising under TFEU are not directly effective.
D) Yes, because TFEU rights are directly applicable.
E) Yes, because TFEU rights are directly effective.
CORRECT ANSWER E
Treaty articles will be directly effective assuming they meet the Van Gend en Loos criteria (precise, clear and unconditional, not requiring additional measures), which is the case here. If a Treaty Article has direct effect, it will have vertical and horizontal direct effect, allowing the woman to claim against her employer, whether the employer is an emanation of the state or not. Options B and C are therefore wrong.
Option A is wrong, because s2(1) of the European Communities Act 1972 specified that EU law will take priority in the event of a conflict, and the question is set during the UK’s membership of the EU.
Option D is wrong because although Treaty Articles are directly applicable, it is the direct effect addressed in Option E which would allow the woman to sue her employer.
Prior to the implementation period completion date, the (fictional) Regulation 2010/564 on Banking Capital Restrictions (“the 2010 Regulation”) was passed. In 2015 the UK Parliament passed the (fictional) Banking Act 2015 (“the 2015 Act”). The 2015 Act contains provisions which conflict with the 2010 Regulation, and the High Court is considering a case about the conflict between the two piece of legislation.
How will it decide the case?
A) The 2010 Regulation will be supreme as a result of direct effect.
B) The 2010 Regulation will be supreme as a result of direct applicability.
C) The 2015 Act will be supreme as a result of Parliamentary Supremacy.
D) The 2015 Act will be supreme because it was passed closer to the Brexit referendum.
E) The High Court will have to make a reference to the European Court of Justice to determine the case.
CORRECT ANSWER B
during the UK’s membership of the EU following s2(1) of the European Communities Act 1972, EU law was supreme in the event of a conflict, as here. Regulations were directly applicable, so member states did not need to pass legislation for the laws to take effect. Option C is therefore wrong.
Option A is wrong, as although the Regulation may have direct effect, the direct applicability of the Regulation better explains supremacy on these facts.
Option D is wrong, because the proximity in time to the Brexit referendum has no impact on the relevant law.
Option E is wrong because the facts do not give enough information to determine whether at Article 267 reference to the ECJ would be required in this instance. National courts retain the power to apply EU law to the facts of a case, reference to the ECJ is only required when there is a question about interpretation of the relevant EU law itself.
Following the passing of the European Communities Act 1972 (“ECA 72”), the UK Parliament retained ultimate supremacy.
Which of the statements below best describes whether the statement above is correct?
A) Yes, because UK laws were supreme over EU laws after the passing of the ECA 72.
B) Yes, because the UK Government could veto the passing of laws by the European Parliament.
C) Yes, because the UK Parliament could ultimately repeal the ECA 72.
D) No, because the ECA 72 specified that EU laws were supreme over UK laws in the event of a conflict between the two.
E) No, because the UK parliament did not support leaving the EU, so gave up supremacy politically.
CORRECT ANSWER C
The ECA 72 was repealed by the EU Withdrawal Act 2018, although prior to the Brexit referendum result it had been thought highly unlikely the UK Parliament would repeal the ECA 72 for political reasons.
Option A is wrong because although EU laws were supreme, that is because the UK Parliament chose to allow EU laws to take supremacy, and ultimately repealed the ECA 72.
Option B is wrong because although the UK Government had a limited veto in respect of some legislation, the UK Government is not the UK Parliament (Exec v Legislature).
Option D is wrong because although it correctly states the legal position, as Option C explains the UK Parliament retained ultimate supremacy.
Option E is wrong because the question relates to the legal position, not the political position.
The UK left the EU on 31 January 2020.
Which of the statements below confirms whether this is correct?
A) Yes, because the UK passed the EU (Withdrawal) (No 2) Act 2019, and sought three extensions to the departure date, eventually leaving on 31 January 2020.
B) Yes, because the invocation of Article 50 of the TFEU to leave the UK in 2017 had a 5 year time limit.
C) No, because the UK left the EU upon voting to leave the EU through the Brexit Referendum on 23 June 2016.
D) No, because the UK left the EU on implementation period completion day, 31 December 2020.
E) No, because part of the UK, Northern Ireland, remains part of the EU.
CORRECT ANSWER A
the UK left the EU at 11pm on 31 January 2020. There was a subsequent implementation period during which EU laws still applied in the UK as if the UK were still a member, that implementation period expired at the end of the day on 31 December 2020. Option D is therefore wrong.
Option B is wrong because the time limit for negotiations under Article 50 is two years. In any event, time extensions were agreed between the UK and EU.
Option C is wrong as the Brexit Referendum had no legal power.
Option E is wrong as, although complicated arrangements apply to Northern Ireland given the land border with the EU, Northern Ireland left the EU on 31 January 2020 along with the rest of the UK.
Susanna, a Solicitor, has taken her employers Crabbe & Goyle to the Irish Employment Tribunal (the Republic of Ireland is a member state of the EU), arguing that they are paying her less that Peter, a man doing the same job as Susanna and with identical qualifications. In particular, she refers to Article 157 of the TFEU, which provides that men and women shall receive equal pay for equal work and work of equal value. The Employment Tribunal is unsure of the exact meaning of part of Article 157 TFEU.
Which one of the following statements is correct?
A) The Employment Tribunal is not a national court, so cannot make reference to the ECJ under the Article 267 TFEU procedure.
B) Any national court or tribunal must make a reference to the ECJ under the Article 267 TFEU procedure, if such a reference is “necessary”.
C) Susanna can request the Employment Tribunal to make an Article 267 TFEU reference but has no right to insist that one be made.
D) The ECJ must answer a question asked by a national court in an Article 267 TFEU reference.
E) Member states’ national courts retain supremacy of their laws, so the Irish Employment Tribunal must not refer the question to the ECJ.
CORRECT ANSWER C
Susanna can ask the Employment Tribunal to refer he matter to the ECJ, but it will be for the Employment Tribunal to decide whether to make the reference pursuant to Art 267 TFEU.
Option A is wrong - Article 267 TFEU specifically states that both courts AND tribunals can make references.
Option B is wrong - Article 267 TFEU identifies which courts MUST make a reference in such circumstances. These are courts “against whose decisions there is no judicial remedy under national law”. These are often referred to as “courts of last resort”.
Option D is wring, as the ECJ has discretion whether to respond to a national court’s Art 267 TFEU reference.
Option E is wrong, it is of course open to the Irish Employment Tribunal to seek guidance from the ECJ.
A citizen of an EU member state arrives at the airport and finds their flight has been cancelled and there are no available flights to the citizen’s destination for some time, meaning he will not get to see his family for another month. EU Regulation 261/2004 allows EU citizens to claim compensation and/or assistance from the airline if their flight is cancelled, and the Regulation is clear, precise and unconditional. The airline refuses to assist the citizen.
Which of the statements below best describes how the citizen can seek compensation and/or assistance from the airline that cancelled the citizen’s flight?
A) Regulation 261/2004 has direct effect, so the citizen must take legal action through the European Court of Justice.
B) Regulation 261/2004 has direct effect, allowing the citizen to take legal action against the airline in the national courts of their member state.
C) Regulation 261/2004 has direct effect, but is not directly applicable, so until the citizen’s member state has enacted legislation to bring the Regulation onto the statute book the citizen cannot take action against the airline.
D) Regulation 261/2004 is directly applicable, but does not have horizontal direct effect, so the citizen cannot rely upon it and must petition the member state to take action on behalf of the citizen.
E) Regulation 261/2004 is irrelevant, as the citizen has suffered human rights abuses due to the cancellation of his flight. Article 8 of the ECHR, the right to a private and family life, gives the citizen the right to take action, not EU law.
CORRECT ANSWER B
because EU regulations have direct effect if they meet the Van Gend en Loos test (clear, precise and unconditional), allowing citizens to take action through the national courts of their member state against either the state (vertical direct effect) or other citizens/businesses (horizontal direct effect). Option A is therefore wrong, as the court of first instance will be the national court of the citizen’s member state, although the ECJ could potentially become involved should the matter contain an issue of interpretation of EU law.
Option C is wrong because EU regulations are directly applicable, so EU citizens can rely on the EU regulation without the need for any legislation by the relevant member state.
Option D is wrong because EU regulations do have horizontal direct effect.
Option E is wrong because the citizen may be able to take action under EU law and the ECHR, depending upon how the citizen’s member state brought the ECHR onto it’s statute book.
An EU member state is taking legal action against a large EU-based multinational corporation, but a complex dispute arises on the interpretation of the EU treaty article under which the member state is taking action. The matter is referred to the ECJ, and the Advocate General agrees with the EU member state’s interpretation of the EU treaty article in question.
Which statement below best describes whether the member state will ultimately be successful in the ECJ?
A) Yes, because the Advocate General’s decision is always followed by the ECJ justices.
B) Yes, because the EU member state will always succeed in a dispute with a citizen or business.
C) No, because although the Advocate General’s opinion is highly persuasive, the ECJ justices do not have to follow it.
D) No, because the Advocate General’s role is to advise the business, not the member state which will have it’s own legal team.
E) Yes, because the Advocate General is one of the ECJ justices.
CORRECT ANSWER C
the Advocate General’s initial decision is usually followed by the ECJ, but the court is entitled to decide against the Advocate General having heard the case. Option A is therefore wrong.
Option B is wrong, there is no guarantee that a member state will succeed against a citizen or business.
Option D is wrong, because the role of the Advocate General is to advise the court, not either party. Option E is also therefore wrong, the Advocate General is not a justice of the ECJ.
