european union law sources of law. learning objectives to state and describe the three main sources...
TRANSCRIPT
European Union Law
Sources of Law
Learning Objectives
To state and describe the three main sources of EU law and their functions.
To explain the horizontal and vertical effects of EU law
To explain the differences between direct and indirect effects of EU law
Describe case law to demonstrate the supervisory function of the ECJ
EU law (created by the EU institutions) is binding on all EU Member states.
They must ‘take all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations of this Treaty...’
There are three main sources of EU Law:
PRIMARY LEGISLATION: the Treaties
SECONDARY LEGISLATION: Regulations, Directives, Decisions,
Recommendations and Opinions. RULINGS: on cases brought before the
ECJ.
TREATIES
Agreements amongst all member states
Highest sources of law and form the basis of EU Law
Treaty of RomeTEUTFEU
Treaties have both vertical
And horizontal direct effect.
REGULATIONS
Directly Applicable: become part of domestic law, no intervention is necessary.
Similar to an Act of Parliament, but if there is a conflict with national laws, the regulation prevails.
Regulations have both vertical
And horizontal direct effect
How could this be viewed
positively and negatively?
DIRECTIVES Formal instructions that require the
amendment of national laws for a certain result.
In the UK, directives can either be implemented via statute or delegated legislation under the European Communities Act 1972.
May concern one all or member states.
Directives only have vertical direct effect.
Decisions
Individual act addressed to a specified person, persons or firm.
They are only binding to the party concerned
No need for implementation.
Recommendations and Opinions
Non binding, persuasive value only.Aimed at promoting the implementation of
common practices.
DIRECT EFFECT
Allows and individual to
invoke a provision against the state
Allows individuals to invoke a provision against another individual or a private company.
VerticalDirectEffect
Horizontal Direct Effect
INDIRECT EFFECT
Compels national courts to interpret ‘so far as possible’ legislation in accordance with directives.
The member state has freedom to decide on form so long as it complies with the original aim of the directive.
Von Colson v Land-Westfahlen
ECJ-Supervisory RoleThe ECJ has power under the TFEU for
preliminary ruling procedure which ensures consistency.
Bulmer v Bollinger (1974) set the guidelines for referrals:
1.There is no need to refer a case already decided by the ECJ2.Acte Clair Doctrine.3.Courts must refer when there is no further appeal• See Marshall v Southampton area Health Authority
(1986) for this function in action.
TERMINOLOGY
• Direct Effect= allows individuals to rely upon EU law (even if the member state has not implemented EU law)
• Direct Applicability= automatically binding and immediately part of domestic law
• Persuasive= can be taken into account but doesn't have to be followed
• Domestic law=the national law of the individual member state.
•Vertical direct effect= allows individuals to rely upon European provisions against the State•Horizontal direct effect= allows individuals to rely upon a European provisions against another individual or a private company.•Indirect effect= compels national courts to interpret ‘so far as possible’ national legislation in accordance with the aims of the Directive.
GRADE BOOST:
Include a range of case law to illustrate how the position of EU laws had been decided by the courts:
Defrenne v Sabeena (1976) Facts? Pubblico Ministerio v Ratti (1979) Facts? Costa v ENEL (1964) landmark ruling-facts? R v.Secretary State for Transport, ex parte Factortame (no.2)
(1990) Facts? What did Lord Denning say in regards to supremacy in
Bulmer v Bollinge (1974) ?
GRADE BOOST:
Think about what s.2(1) of the ECA 1972 means in regards to supremacy.
Familiarity with Pickstone v Freemans PLC (1988) & Marleasing (1990) will help you to demonstrate the importance of the Factortame case.