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8.1.3 The European Union Lecture - Hands on Examples

The following scenario aims to test your knowledge of the topics covered in the chapter on European Union Law. The answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Scenario

Part A:  The European Commission propose a Regulation that is approved by the Parliament and the Council in 2013 which provides that all citizens in European Union Member States shall be entitled to a minimum full time contract of work of 35 hours a week. The aim of the regulation is to outlaw zero hour's contracts and guarantee a minimum number of hours for full time work.  In 2015, the UK Parliament passes the Minimum Full Time Hours Act 2015. This Act provides for a minimum hours’ contract for full time work at 28 hours per week.

In 2016, Barbara works for Shorts Direct as a full time staff member. She has a contract, which guarantees her 28 hours work a week. Barbara objects and requests a minimum of 35 hours a week, relying upon the EU Regulation. Shorts Direct rely on the Minimum Full Time Hours Act. Advise Barbara as to whether the EU Regulation or the Minimum Full Time Hours Act 2015 determines her rights.

Part B: Explain the procedure that the UK must follow in order to leave the European Union and no longer be bound by EU law. Be careful to distinguish between the legal and political process involved in withdrawing from the EU.

Suggested Answers

A) This question might look straightforward, but there are a number of elements to the answer. The UK courts have jurisdiction to interpret and apply an Act of Parliament, once it has received assent by the House of Lords, House of Commons and the Royal Assent. There are a number of cases you might want to refer to here, including Stockdale v Hansard [1837] Eng R 487 and Pickin v British Railways Board [1974] AC 765 HL.

The underlying question is whether section 2 European Communities Act 1972 is subject to express or implied repeal, which would enable the UK Parliament to pass legislation in contravention of an EU regulation. You should explain the rules of express and implied repeal by reference to Vauxhall Estates Ltd v Liverpool Corporation [1932]KDB and Ellen Street Estates v Minister of Health [1934] 1 KB 590, [1934] All ER Rep 385. You should consider whether a provision of an Act of Parliament can protect a statute from amendment or repeal.

You need to consider the supremacy of EU law, as provided for in section 2 European Communities Act 1972. You should also consider the views of the House of Lords in Factortame Ltd and others v Secretary of State for Transport (Factortame No.1) [1990 2 AC 85, HL which makes clear that domestic law must be set aside if necessary to give effect to a provision of EU law.

You should also refer to Thoburn v Sunderland City Council [2002] EWHC 195 Admin, where it was confirmed that the EC Act 1972 incorporated all rights and obligations created by EU law into UK law and that inconsistent legislation must be set aside. The EC Act 1972 is a constitutional statute and as such cannot be repealed by implication, only by express provision of Parliament.

Taking this into account the court is likely to disapply the provisions of the 2015 Act in favour of the EU Regulation and Barbara should be able to require a minimum of 35 hours work per week when employed on a full time employment contract.

B) This is an overview of the process, the exact political agreements that will be reached between the UK politicians and the remaining 27 Member States is to be determined. In law however, since the UK has carried out a referendum and voted to leave the EU, the next state of the process is to invoked Article 50 of the Lisbon Treaty. Article 50(1) provides that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements", it then goes on to describe the states of a Member State withdrawing from the EU. The remaining 27 EU Member States need to discuss the conditions of the withdrawal.

Political negotiations need to take place between the EU and UK in order to agree upon the UK's future relationship with the EU, in particular in relation to issues of immigration and trade between the UK and EU Member States. A draft of this agreement will be reviewed by the European Council; it needs the approval of 20 of the 27 remaining member states and ratification by the European Parliament.

If the requisite number of states do not agree, the period of negotiations of the draft agreement can be extended. At this point EU Treaties and thus EU law will cease to apply in the United Kingdom.  This leaves the UK with a large amount of European law which is currently in force in the UK which will need to be addressed by Parliament. Directives have been incorporated by virtue of Acts of Parliament, but Regulations, which have direct effect, need to be accepted into UK law until Parliament can decide which parts of EU law it will retain and which will be amended or repealed.

Finally, Parliament must repeal the European Communities Act 1972, thus removing the obligation of the UK to subsume its parliamentary supremacy to European Union law. UK courts are no longer bound by decisions of the CJEU.


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