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29 Cards in this Set
- Front
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The UK joined the EU (then EEC) in 1973. EU law covers various areas. |
The areas which EU law cover are:
-The removal of barriers to trade, -The free movement of goods and services, -The free movement of persons, -The right to set up a business or provide services, -Social affairs (including employment law), -Consumer protection, -The environment, -Competition law. |
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EU law is supreme. If national law conflicts with EU law then it is EU law that must be applied. This causes a problem with Parliamentary Supremacy as this states.......... |
Parliamentary Supremacy means: -Parliament is the highest law-making body in the UK. -No other law can override the wishes of Parliament. -Parliament cannot bind its successors. -Any later Act of Parliament which contradicts an earlier one impliedly repeals that law. |
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(CASE)
Joining the EU therefore had two consequences for the UK: -Any existing national laws inconsistent with EU laws had to be repealed. -The UK cannot enact laws in the future which are inconsistent with EU law. |
R v. Secretary of State for Transport, ex parte Factortame (No.2) (1990) -direct conflict between the Merchant Shipping Act 1988 and the EC Treaty. -where there is a conflict between national and Community law, s.2(4) of the European Communities Act 1972 modifies parliamentary supremacy. -this allowed the House of Lords to disregard the Merchant Shipping Act 1988 which allowed the Spanish fisherman to carry on fishing. -eventually the relevant parts of the Merchant Shipping Act 1988 was repealed. |
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There is a range of Treaties that affect EU law. These are known as Primary Legislation. |
1957-Treaty of Rome-founding Treaty of the EEC (now EU) and is the main Treaty to refer to. Now the Treaty on the Functioning of the European Union (TFEU) 1986-Single European Act. 1992-Treaty of Maastricht. Now the Treaty on the European Union (TEU) 1997-Treaty of Amsterdam. 1999-Treaty of Nice. 2007-Treaty of Lisbon (also known as The Reform Treaty). Changed the Treaty of Rome and the Maastricht Treaty to the TFEU and the TEU respectively. |
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Secondary Legislation is made by the Institutions under the powers given to them by Article 288 TFEU. -Article 288(1) TFEU: "To exercise the Unions competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions." |
Regulations (Art. 288(2)): Generally applicable - automatically become law in all Member States. Directives (Art. 288(3)): Applicable to all Member States, but require some form of enabling legislation from national parliaments of Member States. Decisions (Art. 288(4)): Binding only on those parties to whom they are addressed. Recommendations and Opinions (Art. 288(5)): Non-binding Acts |
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(CASE)
EU law is supreme. This means EU law needs to be able to be applied in national courts. EU law has been held to be directly enforceable in national courts through the doctrine of direct effect. |
Van Gend en Loos v. Nederlandse Administratie der Belastingen (1963) -this case concerned Article 30 TFEU which prohibited new customs duties being imposed, or existing customs duties being increased. -Van Gend tried to directly enforce the rule in Art. 30 TFEU against the Dutch Government, claiming it gave them a right not to be taxed in this way. -Art. 30 TFEU could be enforced if the following criteria was fulfilled: 1. that is was a clear and unconditional prohibition. 2. that it imposed a duty without any discretion given to the Member States. 3. that it produced direct effects between Member States and citizens. -in this case the criteria was fulfilled and the court found in favour of Van Gend. The above criteria must be fulfilled |
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(CASE)
Does a Directive have direct effect (create rights which an individual can enforce in the national courts)? |
Van Duyn v. Home office (1974) -The UK Government was attempting to exclude Van Duyn, a Dutch national, from the UK because of her membership of an 'undesirable' organisation, the Church of Scientology. Part of this case looked at whether Directive 64/221/EEC could be directly enforced by Van Duyn. -In order for a provision of EU law to have direct effects, it must: 1. be clear and precise; 2. be unconditional/without exceptions; 3. not require any implementation by the Member States. |
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Vertical and Horizontal Direct Effect?
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An EU law is vertically effective when it is enforceable only against the State. It is horizontally effective when it is enforceable against private individuals (people and companies) as well as against the State. -Treaties: Can be both vertically and horizontally effective, depending on the nature of the right being given to the Treaty Article - you need to refer to Van Gend en Loos. -Regulations: Can be both vertically and horizontally effective. -Directives: Vertically effective only - a Directive is an instruction to a Member State to introduce a law into its own legal system. -Decisions: Decisions are addressed to particular parties - so they are enforceable only to those parties. |
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(CASES)
The main thing to note is that Directives do not automatically have direct effects , and so if a person wants to enforce them in a national court, they must make sure certain conditions apply....... |
1. The Directive must give clearly identifiable rights to individuals. Defrenne v. SABENA (No.2) (1979) 2. The time limit for the Member State to implement the Directive must have passed. Pubblico Ministero v. Ratti (1979) 3. The Directive can be enforced only against the State (vertically). Marshall v. Southampton & South West Hampshire Area Health Authority (1986) |
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(CASES)
What are the direct effect criteria for Directives? |
a) The terms of the Directive relied upon must be clear, precise and unconditional. (Van Gend). (even if the provision is not clear it can still be passed to the CJEU for interpretation under Article 267 TFEU (Van Duyn) b) The date for implementation must have expired. (Ratti) c) The person against whom the Directive is pleaded must be the State or a State (public) body |
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(CASE) What is a "public body"? |
Foster v. British Gas (1990) In this case the ECJ defined what could be classed as a "public body, State authority, emanation of the state" and held that British Gas did indeed fall into this category. This was before British Gas became privatised.However, in Griffin v. South West Water Services Ltd (1995), the court held that it was possible for a privatised water company to become a "State authority". |
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(CASE) Individuals cannot rely on Directives against other individuals. However, it may be possible to use the "principle of indirect effect." |
Von Colson and Kamann v. Land Nordrhein-Westfalen (1984). -This case involved two female social workers who were attempting to claim rights under the Equal Treatment Directive. They could not claim rights directly under the Directive, however the ECJ decided that the Directive could still be useful through what became indirect effect. -The ECJ developed what is often referred to as the "Von Colson Principle": that as national courts are part of the State, they are under an obligation to interpret national law in line with EU law. This can mean that an individual can enforce a law from the EU against another individual in a national court. |
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(CASE) So to use indirect effect it is a case of the national courts to interpret the legislation using the purposive approach to try and determine what the Directive was trying to do in the first instance. |
A case where indirect effect was successfully used. Litster v. Forth Dry Dock (1989) -This concerned Directive 77/187/EEC, which was intended to protect workers who were dismissed as a result of a transfer of business. The UK statutory instrument that enacted it required that workers dismissed immediately before the transfer should be protected. The employees in question were dismissed one hour before the transfer, and so on a literal interpretation were not employed immediately before the transfer. -The House of Lords decided that they had to construe the UK Regulations in such a way that it 'accords with the decisions of the European Court upon the corresponding provisions of the Directive to which the Regulation was intended to give effect'. They interpreted the Regulations so that those employees dismissed one hour before transfer were protected, as this was consistent with the wording of the Directive. |
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(CASE) State Liability - to sue the State for its failure to implement a Directive where it was obliged to do so. |
Francovich v. Italy (1991) -This case concerned employees of a bankrupt company who were trying to claim wages arrears, something which was guaranteed by a Directive which Italy had failed to implement. Because they could not sue their former employer (because that would have involved a horizontal effect, not possible with a Directive) they then sued the Italian State, claiming that it was at fault because they could not get a remedy. -The ECJ held that the Italian State would be liable for its failure to implement the Directive if the following three conditions were fulfilled: 1) the Directive gave rights to individuals; 2) those rights were identifiable within the wording of the Directive; and 3) there was a causal link between the failure to implement and the damage caused to the individual. -This has now been applied to all EU law. Subsequent cases have added that the breach must be sufficiently serious in order to apply this principle to all forms of EU law. (When answering a question of this type, make sure to discuss the limitations as well as the extent of how the rules work in practice). |
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The EU has 5 main institutions. These include: European Parliament, Council of the European Union, European Commission, European Council and the Court of Justice of the European Union. |
-European Parliament: (Art. 14 TEU and Arts. 223-234 TFEU) Powers and Duties: Participates in the legislative process. Supervises the European Commission. -Council of the European Union (Council of Ministers): (Art. 16 TEU and Arts. 237-243 TFEU) Powers and Duties: Makes the final decision on legislative proposals, coordinates economic policies of the Member States, delegates power to other Institutions. -European Commission: (Art. 17 TEU and Arts. 244-250 TFEU) Powers and Duties:Enforcer of the Treaties. Drafts legislative proposals and initiates policy once formulated by the Council of Ministers. -European Council: (Art. 15 TEU and Arts. 235 and 236 TFEU) Powers and Duties: Now a Treaty Institution because of the Lisbon amendments. A political Institution that represents the Member States and drives reform in the EU. Does not participate in making legislation. -Court of Justice of the European Union (CJEU): Formally the European Court of Justice (ECJ) Powers and Duties: Hears cases directed to it under the Treaty. Hears appeals on points of law from the General Court (formally the Court of First Instance). Rules on matters of interpretation referred to it by courts of Member States. |
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Links between the Institutions of the EU. |
-Commission and Parliament: Parliament supervises Commission through power of censure and right to ask questions. -Commission and Council of Ministers: Council submits policy to Commission to be legislated upon and delegates power to Commission through Comitology. Commission drafts legislation. -Parliament and Council of Ministers: Parliament is consulted on legislative proposals. Council of Ministers reports to Parliament three times a year on activity. |
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Article 258 TFEU: action taken by the Commission. |
Article 258 TFEU -If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. -If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Cort of Justice of the European Union. -Member states have an obligation to observe and and not contradict EU law under Article 4(3) TEU which states "The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from acts of the Institutions of the Union. |
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Procedures under Article 258 TFEU. |
Informal letter: The Commission communicates informally and in private with a Member State about a potential breach under the Treaty. The Member State has to cooperate under its obligations in Article 4(3) TEU. Formal notice: Formal written letter from the Commission to the Member State. Sets out what they are accused of, and asks them to respond. Member State response: Written response to formal notice. If the Member State fails to respond in two months, the Commission goes on to the next stage anyway. Commission's reasoned opinion: Formal opinion from the Commission stating what the infringement is, and requiring the Member State to fix the problem. Includes a time limit for them to do so (usually two months). Judicial Stage: Once the Commission has exhausted the administrative stage, if the Member State does not comply with its reasoned opinion with the time limit, then the Commission may take the matter to the CJEU. Under Article 260(1) TFEU, if the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take necessary measures to comply with the judgment of the Court of Justice |
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Article 259 TFEU: action by another Member State. |
Under Article 259(1) TFEU, a Member State which considers that another Member State has failed to fulfil an obligation under this Treaty may bring the matter before the Court of Justice. |
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Procedures and problems under Article 259 TFEU. |
Commission Stage: -Complaint brought by 'complainant' Member State. -Right of reply by alleged 'infringer' Member State. -No Commission response within 3 months; or Commission reasoned opinion. Judicial Stage: -Case referred to CJEU. -CJEU decision. Problems under Article 258 TFEU: -Member States may use it as a way of forcing the Commission to take the matter further. |
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Article 260 TFEU: enforcement and fines. |
This requires a second action in the CJEU in order to decide on the fine amount to be imposed upon the Member State. Factors to be taken in to account when deciding the amount to fine are: - the seriousness of the breach and the length of time that has passed since that breach; -the financial size (by GDP) of the Member State; -whether to impose a lump sum fine, or one which increases daily. When the Commission goes through an action under Article 258 TFEU it can get around having to have a second action in the CJEU under Article 260(3) TFEU which states "When the Commission brings a case before the Court pursuant to Article 258 TFEU on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment. Therefore, if an action is about failure to implement a Directive, the Commission may apply for a penalty to be levied against the infringing Member State in the first case, and not have to take the procedure around for a second time." (This prevents the infringing Member State from having a lengthy procedure and having more time before they are forced to implement the new Directive). |
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The EU has two basic rules concerning the Free Movement of Goods between Member States: |
1). There must not be any tariffs or charges imposed on goods moving between Member States. 2). There must not be restrictions affecting quantities of goods moving between Member States. where goods are being moved from one EU country to another. |
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Definition of Goods.
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Goods are interpreted as 'products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions'. Alternatively, goods are considered to be 'manufactured material objects'. |
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How has the Community attempted to remove barriers to trade? |
In two ways: -By provisions in the TFEU itself (Articles 28-32 TFEU on customs duties, Articles 34-36 TFEU on free movement of goods and Article 110 TFEU on taxation) -By the ECJ interpreting widely the Treaty Articles to provide a body of "free trade" law and interpreting narrowly any restrictions and derogations. |
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Article 28 TFEU. |
"The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a customs tariff in their relations with third countries." This means: -the establishment of a common customs tariff, covering Member States relations with non-EU countries. -the setting-up of an internal customs union between Member States, prohibiting not only customs duties on imports and exports between Member States, but also charges having equivalent effect. |
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Article 30 TFEU. |
"Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature." Meaning, Article 30 provides a negative duty on the Member States not to impose customs duties. Member States need not take any action under this Article, but must not impose any new duties on imports and exports. Negative duty: Many rules of EU law do not impose a duty to do something, but rather a duty to NOT do something. Customs duties: Customs duties are those charges that are imposed at the point that the goods cross a national boundary. Because of this they are an obstacle to goods moving from one EU country to another and are prohibited. |
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(CASE) A case concerning custom tariffs |
Van Gend en Loos v. Nederlandse Administratie der Belastingen (1963). -The goods in question were reclassified by the Dutch government so they became subject to a higher rate of duty. The importers attempted to use what is now Article 30 TFEU (was Art. 12) to challenge the new duty in the national courts. -The ECJ (now CJEU) ruled that as the new duty imposed a higher rate of import duty upon the importer, it was a direct contravention of what is now Article 30 TFEU, and that this Article provided a right which could be enforced by individual EU citizens. |
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Article 110 TFEU: prohibition of discriminatory taxation.
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Article 110 TFEU in effect forbids a Member State to impose a tax which discriminates against goods from other Member States. As long as a Member State does not discriminate according to nationality in this way, it is free to impose whatever domestic taxes it sees fit. This provision covers both similar goods and competing goods.
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Main provisions concerning free movement of goods. |
Article 30 TFEU: Prohibition on customs duties and charges having an equivalent effect. Article 34 TFEU: Elimination of quantitative restrictions on imports and measures having an equivalent effect (MEQRs). Article 35 TFEU: Elimination of quantitative restrictions on exports and measures having an equivalent effect (MEQRs). Article 36 TFEU: Derogations from Articles 34-35. |
