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European Law

Chapter Summary

Nadia Lixian

on 4 September 2011

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Transcript of European Law

ELS Chapter 5:
European Law European Union: Just as goods can
now move freely throughout the EU,
so can workers.
No need work permit,
no problem with immigration controls Further aims: 27 member states
Formerly known as European Economic Community (EEC) Aims: free movement of goods and people
improve economic strength
abolition of trade barriers Increasing political unity
Single currency (Euro)
Joint defence and foreign policies
Inter-gov co-operation on justice and home affairs Neat! Modernising The EU Original structure
became out-of date.
Inadequate to cope with
expanded membership. Lisbon Treaty: planned reforms,
pragmatic and minimalist! Oh no! What to do? Put a star to this! 6 European Institutions European Commission
Council of Ministers
European Council
European Parliament of the European Union
European Court of Justice
European Central Bank Helllll-oohh! This is very important! summary by nadia The European Commission 27 members (Commissioners)
must be nationals of member states
2 each from the larger states (France, Germany, Spain, Italy, UK) and 1 each from the rest.
HOWEVER, do not represent own countries, role is to represent the interests of EU overall Role of
The Commission UPHOLD EU law
INVESTIGATE breaches by member states
NEGOTIATE trade agreements and the accession of new members
DRAW annual draft budget for EU. What's NOT the role of The Commission? Fraud, mismanagement and nepotism (that's something like favortism/ pilih kasih)
Which is why in 1999, all the Commissioners were forced to resign. HAH! The European Council Members: President of Commission + 27 heads of state of member countries
Meets twice a year, same power as Council of Ministers
Key decisions affecting future direction of Europe made at meetings (twice a year)
Presidency of Council held by each member state, in rotation (6months) President of European Council will be elected by a qualified majority for a term of 2.5 years (that's two-and-a-half, not twenty-five years)
Role of President: Ensuring representation of EU on issues concerning common foreign and security policy Former British PM Tony Blair was considered for this position, but was found too controversial due to his involvement in instigating the Iraq War. The Council Of Ministers This is The European Commission Building, which is nothing more than blackness in our counterfeit textbooks. Represents interests of individual member states
Plays important role in passing of legislation
No permanent membership
One member from each country (national gov ministers) chosen according to subject under discussion, ,matters of farming= Ministers of Agriculture
Council meets most weeks to agree legislation and policy 1. 2. 3. The European Parliament 736 MEPs, directly elected in own countries
Britain: 72 MEPs, elections every 5 years 4. Lisbon Treaty has increased powers of European Parliament Why? To strengthen democratic powers within Europe. i.e. uphold, investigate, negotiate, draw! European Parliament
European Commission Exercises SUPERVISORY power over COMMISSION (Right to veto appointment of Commission as a whole/ sack the whole Commission like in 1999.)
The Commission must make annual report to Parliament
The Commission has to submit each proposed budget of EU to the Parliament for approval European Parliament
other EU institutions Parliament reports on the Council 3 times a year
President of the Council is obliged to address Parliament once a year, followed by a debate
Parliament brings action against EU institutions for failure to implement EU law. Parliament appoints an OMBUDSMAN who investigates complaints of maladministration by EU institutions from individuals and MEPs as such. European Court of Justice Consists of ECJ, General Court and Civil Service Tribunal
Do not confuse with European Court of Human Rights!
Has 27 judges, assisted by 8 Advocates General, both chosen from those who are eligible for the highest judicial posts in their own countries
Produce opinions on cases assigned to them, suggesting conclusions
These are NOT binding, but nevertheless followed by the court (used as a point of reference)
Majority of cases brought to ECJ by member states and institutions of the Community, or referred to it by national courts.
Has two seperate functions: JUDICIAL role (deciding disputes) and a SUPERVISORY role. 5. Judicial Role of ECJ ECJ hears disputes between parties, 2 categories:
proceedings against member states
proceedings against European institutions

"Proceeding" is kind of a fancy word for "lawsuit" or "legal action" Example: Re Tachographs: EC Commission v UK

ECJ upheld complaint against UK for failing to implement Euro regulation that made it compulsory for lorries carrying dangerous goods to be fitted with tachographs. Proceedings against member states may be brought by the Commission/ other member states. They involve alleged breaches of Euro Law Proceedings against EU institutions may be brought by member states, other EU institutions, individual citizens/organizations on grounds that proper procedures have not been followed/ provisions infringe Euro Treaty/ powers have been misused Example: United Kingdom v Council of the European Union

UK sought directive on 48-hour working week annulled on the basis that it had been unlawfully adopted by the council. This was unsuccessful. Supervisory Role of ECJ According to Art.267 of the Treaty on the Functioning of the European Union, member states may refer a question on EU law to the ECJ, to ensure that the law is interpreted in the SAME WAY throughout Europe
This procedure (can be referred to as Art. 267 procedure) is expensive and time consuming, can delay decision of case for up to nine months

Review judges' exercise of discretion to refer case under Art 267. Bulmer v Bollinger: Lord Denning: Bringing a case to the ECJ is costly and time-consuming! >=(
No reference to ECJ should be made
where it would not be conclusive of the case (ECJ's judgement does not provide clear conclusion, so it's like spending time and money just to be back at square one)
where there had been a previous ruling on the same point (UK courts had already made a decision on a similar case in the past, so it's like DUH: similar facts, similar case, similar decision!)
where the court considers that point to be reasonably clear and free of doubt (decision is so damn obvious)
where the facts of the case had not yet been decided (to wait for clear facts to be submitted to the case before concluding that it's too complicated for UK courts and kicking it to ECJ)

These are also known as DENNING'S BULMER GUIDELINES Denning's real intention is to uphold Parliamentary sovereignty! Sneaky. Critics of Denning's Bulmer Guidelines say it is cheaper and quicker to refer a point at an early stage, than to drag the case up through the English courts. Eat that, Denning! The judiciary still uses Denning's Bulmer Guidelines. So why is there now greater willingness to refer cases under the Art 267 procedure? panoramic view of Euro law
compare legislation in different member states' languages
purposive approach Example of the use of Art 267 procedure Marshall v Southampton and South West Hampshire Area Health Authority omg how to remember?? Marshall required to retire at 62, though she wished to continue till 65. Claimed that Authority was discriminating against women by adopting policy that women should retire before men. National court made reference to ECJ, ECJ found conflict with UK law, UK changed legislation to conform. European Central Bank HQ in Frankfurt, Germany
Responsible for ECONOMIC and MONETARY policy of the 16 Member Sates that use Euro (Eurozone)
maintain price stability within Eurozone (keep inflation below 2%)
responsible for fixing interest rate within Eurozone 6. Making European Legislation Council of Ministers + Commission + Euro Parliament = make EU legislation

Three systems of voting in Council to pass legislation:
unanimity (all vote yes)
simple majority (yes>no)
qualified majority (bigger state, more votes, certain number of votes required to pass legislation) Controversial! The voting procedures have been controversial, because where unanimity is not required, a member state can be forced to abide a legislation it did not agree to. This is seen as compromising NATIONAL SOVEREIGNTY. However, unanimity makes it difficult to get things done quickly.
These people don't like waiting around. as such. Types of European Legislation T R D D reaties egulations irectives ecisions all but Directives have direct applicability, meaning to immediately become part of the common law. Treaties International treaties agreed between all member states i.e. Maastricht Treaty
Rome Treaty Rome Treaty (also known as Treaty on the Functioning of the EU but "Rome Treaty" is a times easier to remember) Art 157 provides equal pay for male and female workers, as in Macarthys Ltd v Smith Regulations the nearest Euro law comes to an English Act of Parliament
become part of national law as soon as they come into force
without need for each country to make own legislation
must be applied even if member state has already passe legislation which is conflicting (Leonesio v Italian Ministry for Agriculture and Forestry, Leonesio complied with EU regulations which could not be overriden by Italian Law. BILLION Directives less precisely worded than reuglations
aim to set out broad objectives
leaves member states to create own detailed legislation (like a Do-it-yourself structure for making legislation)
it was initially thought to have no direct effect until the member state completed the Do-it-yourself structure and made it domestic legislation, but this is FALSE, as direct effect is essential if the EU is to ensure the member states actually implement directives. The case that established direct effect for directives:
Van Duyn v Home Office
Home Office refused to allow Van Duyn into UK because she was a Scientologist (that's a very strange religion often described as a cult) and this religion was excluded from the country at the time.
Van Duyn argued that this was against the Treaty of Rome (freedom of movement). UK Gov pointed out that the Treaty allowed exceptions, but Van Duyn referred a later directive that indicated that the "exception" was not justified. This directive had direct effect and UK was forced to comply. Directives have VERTICAL DIRECT EFFECT (direct effect for individuals against gov) but NOT horizontal direct effect (against other individuals and organizations)
Another example would be the case where a woman was suing a health authority (even thought that was not considered as her going against the Gov, the health authority is seen as a public body, therefore it is direct vertical effect). Remember the case? 1. 2. 3. What about
INDIRECT EFFECT? Marleasing SA v La Comercial Internacional de Alimentacion SA
(referred to as "Marleasing" because the case name is just too damn long)
Marleasing said that La Comercial had intention of defrauding creditors and sought to have its articles declared void (meaning not valid anymore)
Spanish contract law allowed thi, but EU's directive did not.

ECJ maintained that national courts had to interpret directives in line with their wording and purpose (sort of like purposive approach).
It is unclear how far directives with indirect effect go with national courts, but it is suggested that it only applies where national law is AMBIGUOUS/ where there is a CONFLICT. However, where national law is clear, it is unlikely that member states override that law. Who to follow??? Directives act as a shield, not a sword i.e. they are relied upon to provide defense, but NOT right of action. (protective in nature towards individual rights)
R v Secretary of State for Transport, Local Gov and the Regions.
private company planned to reopen quarry in environmentally sensitive area (Company: we want to dig a big mining pit in a place where mit would be dangerous to dig a big mining pit!)
no environmental impact assessment had been carried out by the state as required in a Directive (State: wait! we didn't test to see what would happen if you dig a big mining pit in a place where it would be dangerous to dig a big mining pit!
Local resident asked State to remove/modify the permission while the assessment was carried out but State refused. (Resident: HEY! Stop the project while you guys test the place where it would be dangerous to dig a big mining pit!) (State: HAHA NO.)
Case against the State was brought up and court had to consider if the resident could rely on the directive.
Court: you can't use Directive as a sword to impose obligations on a private individual. BUT you can use it as a shield!
Quarry owners had to stop work until the environmental impact assessment was completed. Decisions May be addressed to a state, a person or a company
Binding only on receipient
Examples: granting/refusing export licences to companies from outside EU 4. Recommendations & Opinions May be issued by Council/Commission, but not binding. How does EU law affect the UK? New sources of Law
Role of the courts
The future... New Sources of Law Joining the EU created new and important sources of law for UK. English law should conform with EU law
European law is SUPREME: now takes precedence over all domestic sources of law.
UK law incompatible with European law on equal treatment of male and female workers, forced to change the law. PUT A STAR TO IT! Role of the Courts Because EU law takes precedence over domestic law, role of the courts has also changed in UK. Statutes were the highest form of law and judges had NO right to refuse them. Now, they SHOULD refuse if the statute CONFLICTS European Law.
In Factortame,
UK gov passed Merchant Shipping Act 1988 to prevent Spanish fishermen from taking advantage of the British quota.
Spanish challenged the Act: it conflicted EU laws (European Communities Act) and House of Lords agreed. This was seen as compromising the rights of UK Parliament/ attack on parliamentary supremacy.
House of Lords dismissed these claims: NO, IT'S NOT LIKE THAT!
They pointed out that it was very clear that joining EU would mean giving up some degree of sovereignty over domestic law and this was voluntary.
Any national law in conflict with EU law has to be overridden. The Future... Bulmer v Bollinger
Lord Denning: "The Treaty is like an incoming tide...it cannot be held back" Denning was extremely old at that time and was probably a little soft in the head. Denning meant that the Treaty was too powerful and it threatened UK's parliamentary supremacy. LORD SCARMAN disagreed, stating that there was a difference in apporach between the ELS and EU law. Lord Scar Man? Real Lord Scarman What Scarman was referring to was that the English law is very tightly-written and precise while EU law sets out broad principles to be followed. As a result, EU law takes a very purposive approach and this will influence UK judges more, hence lead to more creative judicial decision-making.

I didn't really understand the last page of this chapter. Oh well. THE END
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