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8.1.2 The European Union Lecture

A. Introduction

The European Economic Community (EEC) was established in 1957 between its original six Member States. The UK became a member in 1973 by virtue of the European Communities Act 1972. Attempts were made even at this early stage to challenge entry to the EEC, on the grounds that membership would undermine Parliamentary Sovereignty. A national referendum was held in 1975 on the UK's continued membership of the EEC. The renegotiation of the EC Treaty at Maastricht in 1992 also led to further challenges in UK courts.

B. European Union Institutions


Table 8.1 European Union Institutions

EU Institution

Description

The European Council

The European Council is made up of the heads of state of government of each of the Member States as well as the European Council President and the President of the European Commission. The Council of the EU, the European Parliament and the European Commissions are the EU law making and decision-making bodies.

The Commission

The Commission has one member for each Member State. Each commissioner has the responsibility for a specific area of activity. The European Council nominates the Presented of the Commission, who is voted for by members of the European Parliament (MEPs).

The Commission acts under the political guidance of the President and has two principal functions: to propose legislation and to ensure that EU laws are implemented and applied. The Commission can bring proceedings against EU institutions or Member States that are in breach of their obligations under EU law.

Enforcement proceedings have been brought against the UK, including

C-382/92, Re Business Transfers: EC Commission v UK [1994] ECR I-2435, where the UK failed to implement directives.

The Council of the European Union

The Council is made up of political representatives from Member States and meets in ten different configurations. The Presidency rotates between Member States. The Council makes policy and approves legislative initiatives proposed by the Commission. The Council's deliberations were not made in public until the Lisbon Treaty, the non-legislative business is still conducted in private.

The Qualified Majority Voting Procedure - certain policy changes require simple majorities whereas others require unanimity, such as social protection of workers.

The Council of the EU is comprised of Member States' government representatives. Various members of government would attend these meetings depending on the issue to be discussed. The European Commission is comprised of representatives that have been appointed rather than elected and represent the EU itself.

European Parliament

MEPs are elected for five-year periods through elections in the Member States. There are 766 seats in the unicameral Parliament. Larger states have more seats. Elections are based on the regional list system, the country is divided into 11 electoral regions and votes are cast for registered parties rather than candidates.

The TEU now provides that the Parliament and the Council jointly exercise legislative functions; legislative instruments require approval of both the Council and the Parliament.

The Commission prepares a draft budget each year and presents it for approval to both the Parliament and the Council.

Court of Justice of the European Union

The function of the CJEU is to 'ensure that in the interpretation and application of Treaties the law is observed'.

Every three years there is partial replacement of the judges and A-G's, although they are eligible for re-election.

The Court of First Instance (or General Court) hears a defined class of cases, with a right of appeal to the CJEU.

Article 263 TFEU provides that cases may be brought before the CJEU in one of three ways:

  1. The Commission may bring proceedings against a Members State for failure to comply with a Treaty obligation.
  2. A state may initiate a proceeding against another state, first with an opinion of the Commission.
  3. A Member State may challenge the legality of a legal instrument in proceedings against an EU institution.

Article 267 TFEU the CJEU has jurisdiction to give preliminary rulings on the interpretation of Treaties. Reference can be made by the courts in Member States - O'Brien v Department of Constitutional Affairs [2010] UKSC 34, [2011] 1 CMLR 36. The Court of Justice and the Court of First Instance are the higher court and lower courts respectively for the purposes of EU law.

C. European Union Law

The EU is different from other international law in that it has created a new legal order. There are five main sources of EU law:-

  • Treaties
  • Regulations
  • Directives
  • Decisions
  • International agreements

Table 8.2 Sources of European Union Law

Source of Law

Description

Treaty

The highest forms of law in the EU are the Treaties, which set out the constitution of the EU, but also substantive matters, some give rise to direct effect in national courts - Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62. Not all Treaty provisions have direct effect. Where the treaty provision has direct effect between two private parties, this is referred to as horizontal direct effect. When it is relied upon against the State, this is known as vertical direct effect.

Regulations

Article 288 TFEU.  Regulations have general application in the sense that they are directly applicable in all Member States and are binding in their entirety - Case 93/71 Leonesio v Italian Ministry for Agriculture [1972] ECR 287. Regulations have horizontal as well as vertical direct effect.

Directives

Directives require legislation to be created within Member States in order to create enforceable and directly relied upon in domestic courts (Art.288). The default position must be that directives do not have any direct effect. There are exceptions to this rule. Only the parts of the directive that are sufficiently clear and conditional can have direct effect (Case 41/74 Van Duyn v Home Office (No.2) (1974) ECR 1337).

Directives can only have vertical and not horizontal direct effect - Cases 152/84 Marshall v Southampton and South West Hampshire AHA [1986] ECR 723.

The CJEU has categorised the scope of public bodies broadly:

  • Publically run hospitals [Cases 152/84 Marshall v Southampton and South West Hampshire AHA [1986] ECR 723]
  • Nationalised utility companies [Foster v British Gas plc [1991] 2 AC 306]
  • Privatised utility companies [Griffin v South West Water Services Ltd [1995] IRLR 15]

Decisions

Are binding in their entirety as regards those to whom they are addressed.

Recommendations and Opinions

These have no binding force.

D. EU Law and the British Constitutional Law

The UK is a dualist state with respect to international law, so it is bound by international law only once there is a piece of legislation in the UK that incorporates the international agreement into law. Monist states on the contrary are those in which ratified international treaties become domestic law without any further action beyond the state ratifying the relevant treaty. 

The Treaty of Rome was drafted to enable Member States to incorporate Community law into their domestic legal systems and importantly there were penalties though the European Court of Justice (ECJ) for those who failed to do so. The UK Parliament enacted the European Communities Act 1972 (EC Act) in order to give effect to community law in the UK.

Section 3 EC Act provides that questions as to the meaning of a provision of a Treaty is to be treated as a matter of law and either referred to the CJEU or determined in accordance with decisions of the European Court. The CJEU does not interpret the domestic jurisdictions national laws, it makes rulings as to the meaning of provisions of EU law where domestic courts are in doubt and refer a question on a point of EU law to it for a ruling.

The ECJ has at certain times expanded the terms of European legal supremacy beyond that which had been understood during negotiations around European Treaties.

The UK courts have thus had to acknowledge the supremacy of EU law over domestic law and whether the EC Act 1972 actually does bind future Parliaments - Lister v Forth Dry Dock and Engineering Ltd [1990] 1 AC 546. EU law has a unique constitutional impact since it compels domestic courts to enforce EU law even when it conflicts with a provision of domestic law.

Referring back to Blackburn v Attorney-General [1971], does this mean that the UK has limited its parliamentary supremacy for all times? Since the UK has now voted to leave the European Union, this is clearly not the case, but the courts were challenged with making decisions on this basis.

The EC Act 1972 is thus capable of repeal and Parliament has not bound its successors. This makes Factortame an expression of the rules of Parliamentary sovereignty, Parliament has not bound its successors with the EC Act 1972, and hence it was possible for the British Public to vote on the 23rd June 2016 to leave the EU.

E. European Union Act 2011 and the Lisbon Treaty

In the Lisbon Treaty, the EU drew a clearer line between the competencies of Member States and those of the EU.

Lord Denning noted in Bulmer (HP) Ltd v J Bollinger SA [1974] Ch 401 at 418-9, that the impact of EU law was like an incoming tide flowing up the UK legal system. Burns considers that tide to be more of a Tsunami, particularly in the light of the Lisbon Treaty. The Treaty amends the TEU; Article 1 states that the Union shall replace the European Community.

Article 35 TEU provides that 'any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements'. This provision clarifies the position of the UK that it is able to pass legislation that repeals the EC Act 1972 in order to withdraw the country from the EU.

The European Union Act 2011 brought into the law the requirement that any proposal that sought to transfer power from the UK to the EU be put to a referendum of the UK electorate, before the UK government was to be empowered to enter into such a treaty. It provided that any further extension of EU powers would be approved by an Act of Parliament and by a referendum.

Section 2 provides that no Treaty amendment of the TEU or TFEU shall be ratified unless an Act of Parliament approves it and either a referendum condition or exemption condition is met. The exemption condition would need an Act dispensing with the need for a referendum. Section 3 applies similar arrangements to the simplified revision procedure for making amendments to the TFEU under Article 48(6) TEU.   The purpose of the EU Act 2011 in constitutional terms is that it effectively retinas the balance of power between the EU and the UK and means that any ceding of power to the EU would have required a referendum in favour of doing so by a referendum of the British electorate.

F. The European Union Referendum and Brexit

The referendum was held on 23rd June 2016 and the UK voted to leave the EU. There is currently a lot of debate about what leaving the EU will mean for the UK, in particular how Britain will trade with other countries that remain in the EU and the situation of EU nationals who are resident in the UK.

For the UK to leave the EU, it must invoke Article 50 of the Lisbon Treaty, which occurred in 2017. The government is also required to enact a repeal Bill that will end the primacy of EU law in the UK; the Bill will incorporate all EU law into UK law (that is not already implemented through legislation) after which the government will need to decide which pieces of legislation to retain and which to repeal or amend. The terms of Britain's exit from the EU will need to be agreed by the other 27 members of the European Union. EU law will remain static in the UK until it leaves the EU. The UK will need to repeal the European Communities Act 1972 in order to complete its departure from the EU.


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