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

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.

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 Rome TEU TFEU 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 May concern one all or member states. Directives only have vertical direct effect.

Decisions Individual act(s) 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.

All of these sources of law can have one of two effects: Direct Effect (vertical or horizontal direct effect) Indirect Effect

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. Vertical Direct Effect 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 Role The 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 ECJ 2.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.

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.

Essay a) Explain the role of the European Court of Justice (10 marks) b) Discuss the effect of European law on the law of England and Wales (15 marks)

The essay plan(s) drafted in class will be a guide only. It is essential you supplement your own learning with additional reading and looks at cases in additional to what we mention in class. General points to remember: Highlight you cases and uses of legislation. Think about the layout of your work and pay attention to basic grammar and spelling. Proof read your work. REMEMBER STRUCTURE: Intro/body/conclusion.

Question A (10 marks) The structure of the ECJ: Judges-how many, what do they do, who are they supported by? Who is the ECJ assisted by? What’s its role & aim? What does it do for the member states? Case referrals. What are the supervisory/judicial roles and what does that mean for member states? Case referrals. Are the decisions of the ECJ binding? As well as thinking about the answers to the above questions/points, it’s always important to talk about the consequences to the member states.

Question B (15 marks) SOVERIGNTY What happens in a situation of conflict? Case referrals: Factortame (1990) Sources of law-What are they and how do they affect the UK? How can these sources of law be used by an individual? Horizontal/vertical direct effects; examples of. Indirect effect; examples of. As well as thinking about the answers to the above questions/points, it’s always important to talk about the consequences to the UK.