Sources of EU law and its impacts to English legal system
European Union is an organization formed by some European countries that cater for economic, political, military and other common factors affecting the member states. European Union law was initially referred to as European Community Law. EU law is a body of court judgments, treaties and law which acts together with other legal systems in the European Union member states. The law is highly respected in the member countries and in case of conflict whether economic, political or those involving human rights, the law is given priority over the national law in the member countries. EU law is generally categorized into three categories namely; primary law, secondary law and supplementary law (Reich 2005).
The primary law basically comes from the treaties that form the European Union. These are the treaties on the EU and the treaty in functioning of EU. The treaties are directly negotiated and agreed between the governments of the member states. The founder treaties of EU are the Paris treaty of 1951 and the Rome treaty of 1957. After adequate negotiation, the agreements are laid down in form of treaties that are subject to ratification by the parliaments of the member states (Reich 2005).These treaties define the role of the member countries, institutions found in the EU, bodies involved in decision making processes and legislation, executive and other practices that constitute community law and its implementation. The primary law includes law governing the amending of EU treaties, the protocols annexed to the founding treaties and to the amending treaties and the treaties on new member states ‘accession to the EU. The power giving treaties set broad policy goals and then establishes institutions that have a main role of ensuring that those goals are achieved by enacting legislation. The legislative acts of the EU come in two forms and directives (Snyder 2000).
Regulations normally become law in all the EU member states immediately after they come into force (Snyder 2000). They normally do not require any implementing measures and they override conflicting domestic provision in each member state. On the other hand, directives require the member states to achieve a certain result while leaving them cautious as to how to achieve the result. It the obligation of the member states to decide on how to implement these directives. Since EU legislation comes from the decisions made at the EU level and its implementation occurs at a national level, the purpose of the European Court of Justice ensures that application and interpretation of EU laws does not differ between member states.
Secondary law constitute of agreements and acts signed by the member countries to govern their activity in to achieve a given pre determined goal. The unilateral acts can be divided into two categories such as those listed in article 288of the treaty on the functioning of the EU and those not listed in article 288 on the treaty on the functioning of the EU. Unilateral acts include regulations, decisions, opinions, recommendations and directives found in the article 288 of the EU treaty on functioning (Snyder 2000).Those not found in the article include acts such as communications and recommendations and white and green papers. Convention and agreements are grouped together. They include international agreements signed by the EU and individual country outside the organization; inter institutional agreements between EU institutions and agreements between member states (Aziz 2004).
The last category of EU law is the supplementary law. This refers to the general unwritten principles of law developed by the case law of the court of justice. Other than the case law of the Court of Justice, EU law constitutes of supplementary that enable its court to bridge the gaps left by primary and secondary law. They include the international law and other general principles of law such as custom and its legal usage. The general principles of law established by the case law of the court of justice allow the court to implement rules in different domains of which the treaties do not give and legal provision or directive. Generally, the EU law governs matters pertaining legal principles, freedom, social justice, fundamental rights, competition law and criminal law within the member countries (Snyder 2000).
For instance, there are four freedoms provided by the EU which include freedom of movement of goods, free movement of capital, services and persons. Competitive law is formed to control economic activities among the member countries to prevent some of the members from distorting the set economic rules and regulations. Major economic activities controlled by the competitive law include, public sector regulation, mergers and acquisition, collusion and cartels dominance and monopoly in economic activities among the member states. The law also provides guidelines on how to handle criminal matters among the member countries or those involving a member country and a non member country (Reich 2005).The social chapter of the European Law provides for equality of men and women in all the member countries. They ensure that no one is discriminated either on gender basis at all social places which include work places. On the basis of legal supremacy, the EU laws are above other laws in individual member countries. They act as the overall control of the legal systems in its member countries. Lastly, the European law provides fundamental rights that protect the rights of individuals from member countries. For instance, an individual can sue an organization for violation of human rights as long as the organization is located in the country which is a member of EU (Aziz 2004).
The English legal system refers to the legal system that regulates all the legal matters in the United Kingdom. Joining of the United Kingdom to the European Union made the community law to be applicable in this country. However this applicability has immense effects to the British legal system. According to the European act of 1972, it provided that from 1st January 1973 the UK had new sources of law. However, unlike other member countries, theses sources of law are concerned with areas that the European Union has concerns. These areas include agriculture, companies, fishing, competition, free movement of goods and workers, consumer policy, education, health and environment. The union Laws has not competencies over the UK in economic and social areas (Snyder 2000). The primary EU treaties (primary laws) and the rulings of the European court of justice also have reasonable effect on English law.
One of the major effects of the European law to English legal system is on direct applicability or direct effect. For instance, the British constitution establishes that parliament is sovereign. This means that no other law in Britain that are above laws made by the government. Relative to its sovereignty it is clear that Parliament is the highest legislative authority in UK: only Parliament can create law, No court in UK can impede or restrict Parliament’s law making ability. Parliament can make whatever laws it wants, and the courts must apply that law, Parliament’s sphere of legislation has no limits; it can legislate on any matter of its choosing (E.g. retrospective legislation) and No parliament can bind a future Parliament. Therefore, Parliament can make or cancel any law it chooses, and the courts must enforce it. However, membership of the EC has compromised this principle (Reich 2005).
According to the primary law of the European community set in the treaty of Rome in 1957, all the primary laws of the treaty affect all the member country and Great Britain is not exceptional. Treaty of Rome is superior to all domestic laws and other laws from individual states should concur with it. This contradicts the sovereignty of the Britain Parliament which is believed to be above other legal systems (Aziz 2004). Since there is conflict between the treaty and the Britain parliament, a ruling can be made in favour of the European Union Law making the parliament to appear inferior and not sovereign as stated by the British constitution. There are some circumstances when a judge may misapply the provisions of an English statute under the Treaty of Rome. This is in order to give priority to Community law and to comply with the doctrine of direct applicability (Aziz 2004). On the other this judgement could be having some negative impacts to the citizens of Britain but they are left with no option but to adhere to EU laws for sake of the whole community.
According to section two of the European communities, act of 1972, any legislation made by the parliament of the member countries whether before or after the formation of the EU act must be amended to comply with the requirements of the community law. Consequently, English law should be interpreted and have effect subject to the principle that EC law is supreme; this means that EC law now takes precedence over all domestic sources of law (Aziz 2004). The case of R v Secretary of State for Transport ex parte Factortame (1990) that went to the ECJ from the House of Lords makes it clear that the English courts must apply EC law which is directly effective even if it conflicts with English law. In this case the House of Lords struck down parts of the Merchant Shipping Act 1988, which held to conflict with the Treaty of Rome. It was the first time that British judges overturned a statute (Aziz 2004).
The case was significant as the ECJ said that national courts were to ignore any national law that ran contrary to European law. Therefore, it is clear that the European law has made the English legal system to become less effective since it cannon make its own ruling without considering the legal provisions stipulated by the EU laws on certain issues. Any doubt as to the primacy of EC law over national law was resolved by the European Court of Justice in Costa v ENEL (1964). The primacy of EC law prevails even where the domestic law is penal in nature, thus creating a defence of reliance on European Community law (Pubblico Ministero v Ratti Case 1974) (Snyder 2000).
EU law also affect the way English legal system addresses the rights of Britain United Kingdom citizens. Basically, the areas affected include those dealing with rights of the employees, female workers and children. For instance, in the case of R v Secretary of State for Employment ex parte Equal Opportunities Commission (1994), the House of Lords found that parts of the Employment Protection (Consolidation) Act 1978 were incompatible with EC law on equal treatment for male and female employees, because the Act gave part-time workers fewer rights than full-timers (Aziz 2004).
Since most part-time workers were women, this was held to discriminate on the basis of sex, and the UK Government was forced to change the law, and greatly improve the rights of part-time workers. The Art. 141 EC Treaty provides that “Each member state shall ensure and maintain the application of the principle that men and women should receive equal pay for equal work" (Great Britain: Parliament: House of Lords: European Union Committee 2010)
Under Article 177 of the Treaty of Rome, the European Court is the supreme tribunal for the interpretation of European Community law. Section 3 of the European Communities Act 1972 states that questions as to the validity, meaning or effect of Community legislation are to be decided in accordance with the principles laid down by the European Court. In the light of these provisions, Lord Denning stated that when interpreting European law, English courts should take the same approach as the European Court would (Gillespie 2007). Generally, joining of the United Kingdom to the European Union community has resulted to a substantial change in the English legal systems. Domestic laws made by the parliaments of the individual member states, including Britain are less influential in their respective countries since they must conform to legal requirements stipulated by the European Union law. This has led to several changes in the English legal system in favour of the community law.