EUROPEAN LAW REVISION NOTES

BACKGROUND INFORMATION
The UK joined the EU in 1973. Originally sent up following World War 2, the
EU was an attempt by many western European countries to rebuild their
economies by working closely together. The idea was that they would be
more prosperous when working together. The countries then decided that
they would share a common framework of laws in the areas of
employment and the trading of goods and services between the countries.
Now EU Laws cover other areas such as health and food safety and sex
discrimination laws. Attempts to adopt a common criminal law have been
strongly resisted by the UK.
The EU is currently made up of 27 Member States which include the UK,
France & Germany.

What do I need to know?

What are the institutions that make law in

Europe?
What types of law are passed by them?
The law making Institutions
EUROPEAN PARLIAMENT
Based in Brussels & Strasbourg.
There are 785 Members of European
Parliament who are elected by the citizens of
the member state every 5 years.
Main function is to discuss and comment on
the proposals put forward by the Commission,
but it has no direct law-making authority.
But assent of Parliament is required to any international
agreements the Union wishes to enter in. (e.g. admitting new
member states)
Has some power over the Union budget.
EUROPEAN COMMISSION
27 commissioners who act independently of national origin (1
commissioner per member state)
Initiates all new EU laws.
Proposes and presents drafts of legislation to the Council. The
commission proposes and the council disposes.

Guardian of the treaties - Checks that the Member States are

following the laws. Has a duty to intervene and refer to ECJ.
Responsible for the administration of the Union and has
executive powers to implement the Unions budget.

COUNCIL OF MINISTERS
Made up of representatives from each national Government
who will attend meetings related to their national
responsibility.
Principal decision making body.
The Council of Ministers is the effective centre of power. The
Heads of State of the EU countries vote on the proposed laws.
The Head of states have differing amounts of voting power
depending on the size of their country (Qualified Majority
Voting).
EUROPEAN COURT OF JUSTICE
Function set out in Art 220 of the Treaty of Rome to ensure
that in the interpretation and application of the Treaty the law
is observed
Decides cases involving citizens of the member
states.
Enforces EU law in the member states.
Sits in Luxembourg and has 27 judges (one
from each MS those eligible for the highest
judicial posts); appointed for 6 years and can be re-appointed.
Full court = 11 judges; also sits in chambers of 5 or 6
Assisted by 9 Advocates. A-G under Art 223 will research all
legal points involved and present the case publically.

Key functions of the ECJ

To ensure that the law is applied uniformly in all MSs by

carrying out 2 functions:
a. Hears cases to decide whether MS have failed to fulfill
obligations under the treaties (initiated by the
commission) e.g. Re Tachographs where the UK failed to
implement a regulation on the use of tachographs in
road vehicles for the carriage of goods.
b. Preliminary rulings Hears references from national
courts for preliminary rulings on points of EU Law under
Article 234.

Article 234
The Court of Justice shall have jurisdiction to give preliminary
rulings concerning:
(a) the interpretation of treaties;
(b)the validity and interpretation of acts of the institutions of the
Union
(c) The interpretation of the statutes of bodies established by an
act of the Council, where those statutes so provide.
WHEN MUST A REFERAL BE MADE?

Where there is no appeal from the national court within the

national system i.e. the case must be referred from the HLs
Other courts are allowed to make a reference but do not have
to. i.e. the CA does not have to refer questions.

CASE: Torfaren Borough Council v B&Q (1990) Magistrates

Court made a reference on whether the restrictions which then
existed on Sunday were in breach of the Treaty of Rome.
The ECJ make a preliminary ruling and send the case back to
the original court for it to apply the ruling to the facts in the
case.
DISCRETIONARY REFERRALS
Bulmer v Bollinger (1974) CA set out the approach for deciding
whether a discretionary referral should be made:

Guidance on the point of law must be necessary to come to a

decision in the case
There is no need to refer a question which has already been
decided by the ECJ in a previous case
There is no need to refer a point which is reasonably clear and
free from doubt; this is known as the acte clair doctrine.

The court must consider all the circumstances of the case

The English Court retains the discretion on whether to refer or
not.
Van Duyn v Home Office (1974) was the first referred case by
an English Scourt.

Sources of EU Law

Primary
Treaties, the most important of which is the Treaty of
Rome, and other agreements having similar status.
Primary legislation is agreed by direct negotiation
between the governments of Member State.
Secondary
legislation passed by the institutions of the Union under
Article 234 of the Treaty of Rome

Secondary Legislation

Regulations
Directives

Decisions

TREATIES

Agreements laid down in treaties are subject to ratification by

the national parliaments. (They have to sign them). The same
procedure applies for any amendments that are made to the
Treaties.
The Treaties also define the role and responsibilities of EU
institutions and bodies involved in decision-making processes
and the legislative, executive and judicial procedures which
characterise Community law and its implementation.
The founding treaties were the Treaty of Paris 1951 and the
Treaty of Rome 1957.
The Treaty of Rome (was originally called the EEC treaty) but it
was amended in 1992 by the Treaty of Maastricht [The Treaty

on European Union TEU] and its name was changed to the EC

Treaty.
The Treaty of Rome created a "new legal order", which means
that the body of law was now binding on the institutions of
member states and its citizens. The new legal order was set
out in Costa v ENEL and Van Gend en Loos.
Van Gend en Loos v Netherlands [1963] ECJ
The Community constitutes a new legal order of international law
for the benefit of which the states have limited their sovereign right,
albeit within limited fields."
European Constitution
The EC Treaty (the Treaty of Rome as amended) can be seen
as the basic constitution of the European Union.
There has been an attempt to have ratified a European
Constitution as we have seen but Holland and France refused.
Treaty of Lisbon may be the new constitution
LEGAL EFFECT OF THE TREATIES

All treaties signed by our head of Government become part

of English law automatically. The UK does not need to
enact further legislation to give legal effect to them.
European Communities Act 1972 s.2(1)
Direct Effect: The concept of "Direct Effect" is a device used
by the ECJ to enable a citizen to use EC law for his personal
advantage.
Van Duyn v Home Office
The ECJ held that an individual was entitled to rely on
Art 39 giving the right of freedom of movement.
The article had direct effect and conferred rights on
individuals which could be enforced not only in the ECJ
but also in the national courts.
UK citizens can rely on the rights in the Treaty of Rome
and other treaties even though those rights may not
have been specifically enacted in English law.
Van Gend en Loos
Established the criteria for defining when a particular
provision should be directly effective. Such a provision
should be
Clear and precise
Unconditional (leaving no discretion to
Member State as to implementation); and
Capable of producing rights for individuals

Vertical Direct effect' and 'Horizontal direct effect'

Indicate whether the citizen can invoke EC laws against
the state (vertically) or against another individual
(including a company) (horizontally).
'Vertical Direct Effect'
The provision has effect between citizen and state (or
emanation of the state).
'Horizontal Direct Effect'
The provision has effect between citizen and citizen

State/emanation of the state

Vertical Direct Effect

The Citizen can sue

Horizontal Direct Effect

Other Citizens (e.g. employer)

Treaty provisions can produce vertical direct effect if, they

are "clear, precise and unconditional" leaving no discretion
to Member State as to implementation.
Macarthys Ltd v Smith, [1979] ECJ and CA
Wendy Smith was able to rely on a treaty provision
together with a directive to sue her former employer for
equal pay as although there was no breach of English
domestic law, the company was in breach of Art 141 of the
treaty of Rome and the ECJ confirmed this.

British courts are now prepared to apply European Treaty

law directly without referring to the ECJ.
Diocese of Hallam Trustee v Connaughton 1996)
In another equal pay matter, the Employment Appeal Tribunal
considered the relevant Article (119) and itself decided that its
provisions were wide enough to allow Miss Connaughton to make a
claim, saying We are sufficiently satisfied as to the scope of the
Article so as to decide this appeal without ... reference to the
European Court of Justice.
Treaty provisions create horizontal & vertical direct effect
Defrenne v SABENA (No 2) [1976] ECJ
An individual can rely on some Treaty articles to enforce rights
against another individual in the national courts.
"The prohibition on discrimination between men and women
applies not only to the action of public authorities, but also
extends to all agreements which are intended to regulate paid
labour collectively, as well as to contracts between individuals."

Secondary sources
Regulations - binding in all the member states
Directives - binding but member states may choose method
of implementation
Decisions - binding on those member states to whom they
are addressed
Recommendations - not binding
Opinions - not binding
Case Law - binding in all the member states

Regulations, Article 249

A regulation shall have general application. It shall be
binding in its entirety and directly applicable in all
Member States.
General Application
General application means that Regulations apply to all
member states often referred to as generally applicable.
Directly Applicable
Regulations (and Treaty provisions) are "directly applicable"
which means they have the force of law within all Member
States without them having to be enacted by a member
state. "Directly applicable" means that the Member States
(UK) need do nothing to implement the law, for example a
Regulation is automatically the law of the UK.
Regulations produce both horizontal and vertical direct
effects
The Regulation must be clear, precise and unconditional.
Re Tachographs: Commission v United Kingdom (1979)
The ECJ held that the member states (the UK) had no
discretion. Art 249 was explicit and meant that regulations
were automatically law and that MSs could not pick and
choose. This made sure that all regulations were uniform
across the member states.

Directives Article 249

"A directive shall be binding, as to the result to be
achieved, upon each Member State to which it is
addressed, but shall leave to the national authorities
the choice of form and methods."

 A Directive orders a member state to change its domestic law

to comply with EU policy. They are the main way in which
harmonisation within member states is reached.
They are, therefore, not 'directly applicable' and the method of
implementation is left to the member state with, usually, a
time limit for implementation imposed. Directives are often
passed by statutory instrument or an Order in Council. This
means as subordinate legislation they are subject to judicial
review.
Working Time Directive
Issued in 1993
Gave detailed instructions of the maximum number of hours
that should be worked, the rest periods and the amount of
paid holiday to which workers were entitled.
It should have been implemented by November 1996 but the
UK did not implement it until October 1998 with the Working
Time Regulations 1998

Directives and Direct Effect

Where a MS has not implemented a directive within the time laid
down the ECJ has developed the concept of direct effect.
Even if the MS has not implemented the directive or has
implemented it in a defective way it will still be directly
enforceable by an individual against the MS.
Directives produce vertical direct effect if it is clear, precise
and unconditional
Van Duyn v Home Office [1974] ECJ
Miss Van Duyn, who was refused leave to enter the UK on the
grounds of her undesirability, attempted to rely on article 48
of the Treaty, and Art 3 of Directive 64/221, which allowed free
movement of workers in the EU.
It was held that the useful effect of directives would be
weakened if individuals were prevented from relying on them
before national courts.
A Directive can be used vertically against a public body but
not against a private individual or body.
Marshall v Southampton & SW Hampshire AHA [1986] ECJ
Mrs Marshall wanted to continue working at Southampton
Teaching Hospital (a public body) and complained that women
were required to retire at 60, whereas men, could retire at 65.

There was no breach of UK law, but Mrs Marshall could rely on

an unimplemented Directive on equal treatment of men and
women.
The court confirmed that a directive could only be used
against a state or a public body - vertically - and not against
another private individual or private body - horizontally. NHS
was an emanation of the state and so could use rely on it.

Foster v British Gas [1990] ECJ

A Directive might be invoked against "a body whatever its
legal form, which has been made responsible pursuant to a
measure adopted by the State for providing a public service
under the control of the State and has for that purpose special
powers beyond those which result from the normal rules
applicable in relations between individuals."
So, British Gas a recently privatised company was held to be
an emanation of the state.

Directives & Horizontal Direct Effect

Duke v GEC Reliance Ltd (1988) HL
Mrs Duke was not able to rely on an equal treatment directive
because her employer was a private company. She could not
use the principle of horizontal effect unlike Mrs Marshall who
was able to succeed against her employer because they were
controlled by the state.
Paola Faccini Dori v Recreb Srl (1994)
The Italian Government failed to implement directive 85/447
in respect of consumer rights to cancel certain contracts.
Dori could not rely on the directive in order to claim a right of
cancellation against a private trader.

The Doctrine of Indirect Effect

Where a Directive has not been implemented by Member
State or has been inadequately implemented an individual can
take action against another individual by using the concept
of indirect effect
Von Colson v Land Nordrhein-Westfahlen [1984] ECJ
Article 5 EC requires Member States to "take all appropriate
measures" to ensure fulfilment of Community obligations. And
this means that courts must interpret national law so as to
ensure the objectives of Directive are achieved.
A Directive cannot of itself impose obligations on private
parties
Marleasing SA v La Comercial Internacional de Alimentacion
SA [1990] ECJ
Therefore, national courts must as far as possible interpret
national law in the light of the wording and purpose of the
Directive in order to achieve the result pursued by the
Directive. This obligation applies whether the national

provisions in question were adopted before or after the

Directive;
national courts were 'required' to interpret domestic law in
such a way as to ensure that the objectives of the Directive
were achieved. So, courts must do everything possible to
interpret domestic law to comply with Community law.

Actions against the state for failure to implement a

directive
Francovich v Italy [1991] ECJ
The Italian Government failed to implement a directive aimed
at protecting wages of employees whose employer became
insolvent. As a result when the firm went into liquidation
owing Francovich wages, he sued the State for his financial
loss. The ECJ held that he was entitled to compensation.
Francovich v Italy [1991] ECJ Ratio.
Community law required the member states to make good
damage caused by a failure to transpose a directive, provided
three conditions were fulfilled
1. The purpose of the directive had to be to grant
rights to individuals;
2. it is possible to identify the content of these rights
from the Directive; and
3. there is a causal link between the State's failure to
implement the Directive and the damage suffered by
the individual.
Therefore the state was liable to compensate for loss as a
result of the states failure to implement an EU directive within
the required time limit.
Faccini Dori v Recreb [1995]
The Francovich principle was used by Ms Dori who relied on a
Council Directive (that had not become part of Italian law) to
withdraw from an English language course. The Directive allowed
consumers to cancel contracts within seven days if the contract had
been made away from business premises - in this case at railway
station. Ms Dori could not rely on the Directive against a private
body but that she should be able to gain compensation from the
Italian state

Decisions Article 249

"A decision shall be binding in its entirety upon those to
whom it is addressed."
Community institutions order that a measure be taken in an
individual case. The Community institutions can thus require a
Member State or an individual to perform or refrain from an
action, or can confer rights or impose obligations on them.
The basic characteristics of a decision can be summed up as
follows.
It is distinguished from the regulation by being of
individual application: the persons to whom it is
addressed must be named in it and are the only ones
bound by it.
It is distinguished from the directive in that it is binding
in its entirety (whereas the directive simply sets out
objectives to be attained).
It is directly applicable to those to whom it is addressed.
A decision addressed to a Member State may,
incidentally, have the same direct effect in relation to
the citizen as a directive. Instances in which decisions
are used include, for example, the granting or refusal of
State aid (Articles 87 and 88 EC), the annulment of
agreements
or
arrangements
contrary
to
fair
competition (Article 81 EC) and the imposition of fines or
coercive measures.

Recommendations (not binding and therefore

arguably not law)
In recommendations, the party to whom they are addressed is
called on, but not placed under any legal obligation, to behave
in a particular way. For example, in cases where the adoption
or amendment of a legal or administrative provision in a
Member State causes a distortion of competition within the
Community, the Commission may recommend to the State
concerned such measures as are appropriate to avoid this
distortion.

Opinions (not binding and therefore arguably

not law)
issued by the Community institutions when giving an
assessment of a given situation or development in the
Community or individual Member States. In some cases, they
prepare the way for subsequent, legally binding acts, or are a
prerequisite for the institution of proceedings before the Court

of Justice. The real significance of recommendations and

opinions is political and moral.

Case Law
Rulings on EC law by the European Court of Justice (ECJ) are
also a source of law. Case-law includes judgments of the
European Court of Justice and of the European Court of First
Instance, for example, in response to referrals from the
Commission, national courts of the Member States or
individuals.
For example: Van Gend En Loos [1963] gave individuals the
right to rely on provisions of the Treaty of Rome in their
national courts.
Type of law
Treaties

Regulations

Directives

Effect
Directly applicable

Source
Section 2 (1) of the
European
Have direct effect Communities
Act
(both vertically and 1972
horizontally) if give
individual rights and Macarthys v Smith
are clear, precise (1979)
and unconditional.
Directly applicable
Article 249 of the
Treaty of Rome
Have direct effect
(both vertically and
horizontally) if give
individual rights and
are clear, precise
and unconditional.
NOT
directly Article 249 of the
applicable.
Treaty of Rome
Have vertical direct
effect
if
give Marshall case
individual rights and
are clear, precise
and unconditional.
Duke v GEC Reliance
Francovich v Italian
NO horizontal direct Republic.
effect
BUT
individuals can claim
against state for loss
caused by failure to
implement

EFFECT OF MEMBERSHIP OF THE EU ON ENGLISH LAW

EU Membership brings with it new SOURCES of law treaties,

regulations and directives.
EU law takes precedence over national law. (Van Gend en Loos
(1963) & Costa v ENEL (1964) the member states have limited
their soverign rights, albeit within limited fields, and have thus
created a body of law which binds both their nationals and
themselves
MSs including Britain have transferred sovereign rights to a
Community created by them. None of the MSs can rely on their
own law when it is in conflict with EU law.
Acts of Parliament will be declared Void by the courts if they
conflict with EU law. R v Secretary of State for Transport ex parte
Factortame where the ECJ decided that Britain could not enforce
the Merchant Shipping Act 1988 because it contravened the
Treaty.
Change in the role of the courts interpretation is purposive and
they can seek guidance from the ECJ under Article 234
ECJ approach to those who fail to implement European
obligations Brasserie du Pecheur SA v Federation of Republic of
Germany (1996) Government liable for the financial loss
suffered as a result of their breach of EU law. Compensation
available where:
o The rule of community law infringes must be intended to
confer rights on individuals
o The breach must be sufficiently serious
o There must be a direct causal link between the breach of
the obligation resting on the state and the damage
sustained by the injured parties.

BENEFITS OF EU MEMBERSHIP TO ENGLISH LAW

Increase power in the judiciary they now have greater freedom

regarding the interpretation of statutes as they are adopting the
purposive approach.
Certain groups are benefited females, part time workers and
employees for example
Lord Denning is of the view that the supremacy of Europe will
only be accepted by the courts until Parliament passes an Act to
repudiate the treaties R v Secretary of state for transport ex
parte Factortame.
Article 234 referrals make it possible for there to be clear
guidance from the ECJ to all courts and tribunals.
The UK still doesnt operate on an EU legal framework the judge
as an activist/inquisitor and a greater reliance on statute.

DIFFERENCE BETWEEN UK COURTS AND ECJ

ECJ focus on presenting cases on paper

Lawyers required to present their arguments in a written form
and far less reliance on oral presentation of a case
Role of the Attorney General an independent lawyer which is
not used in the ELS.
The AG will present findings on the law after the parties have
made their submissions. So the court has all aspects of the law
presented to them
The deliberations of the judges are secret and where necessary
the decision will be made by a majority vote, but ALL judges sign
the judgement and so it is not known who if any judge disagreed
unlike the dissenting judgements in the ELS
The ECJ is not bound by its previous decision s
The ECJ has wide rights to study extrinsic aids when deciding the
meaning of provisions.