Law Express: EU Law

Ewan Kirk

• Publisher: Pearson
• Year: 2021
• ISBN:
  9781292295640
• Edition: 7
• Topic: Jura
• Subtopic: Rechtserziehung

Revise with the help of the UK's bestselling law revision series.

Designed for students, this book will help you:

• Understand how to review essential cases, statutes, and legal terms
  
  

• Learn how to assess and approach the subject by using expert advice
  
  

• Learn how to lead further discussions
  
  

Find additional support on our Law Express companion website, which contains a host of extra resources to provide you with pre-exam guidance.

Visit go.pearson.com/uk/lawexpress

Ewan Kirk is a Senior Lecturer and Course Director of the LLB (Hons) Law course in the School of Law at Birmingham City University.

1

Sources and application of EU law, and the membership of the EU

Revision checklist

Essential points you should know:

• Primary and secondary sources of EU law, and how they are created
• That EU law is supreme, and must be adhered to, even in the light of contradictory domestic law
• The rules of direct applicability and direct effect, and how they affect the ability to enforce EU law in national courts
• The principle of State liability for non-implementation of EU law, its consequences for States and individuals, and its link to enforcement proceedings against Member States (see Chapter 3 for details)
• How the UK judiciary has applied the above rules, in the light of the constitutional system of the UK
• How this affects the rights and duties of individual citizens
• How a Member State of the EU can join and leave the organisation, and how this affects the above issues of direct effect and supremacy

Topic map

Long Description

The topic map is as follows. Forms of E U legislation, Supremacy of E U law, Direct applicability and direct effects, Indirect effects, State liability for non implementation. Forms of E U legislation include Primary and secondary. Primary includes Treaties. Secondary includes Regulations, Directives, Decisions, Recommendations, and Opinions. Supremacy of E U law includes Parliamentary supremacy, Dealing with inconsistent laws, and Effect of joining slash leaving the E U. Direct applicability and direct effects include Vertical slash horizontal effects.

A printable version of this topic map is available from go.pearson.com/uk/lawexpress

Introduction

The operation of the EU is based upon its laws.

These laws are created either through amendments to the treaties (which have to be done by agreement of all the Member States in intergovernmental conferences), or through the legislative powers given to the institutions (see Chapter 2) and are enforceable in the countries of the EU, and in some circumstances are enforceable against citizens of those Member States (see the discussion of direct effects below).

The purpose of this chapter is to examine the sources of EU law, and to discuss the system under which they are enforceable. Ultimately, the purpose of this is to examine the effect that these rules have upon Member States, and therefore the consequences of membership. To this end, there are several main issues:

• the supremacy of EU law in Member States’ jurisdictions;
• the enforceability of those laws directly by individuals in national courts;
• the difference between the ways in which those laws are treated, and the extent to which they apply to different parties in legal disputes.

The EU is unusual in international law. Normally, it is very difficult to enforce laws upon signatory States of international agreements; however, the EU has built up a significant body of legislation and case law, referred to as the acquis communitaire – basically the existing law of the Union. States can be held to account for non-implementation through a system which is a key strength of the Union (this is dealt with in Chapter 3) and individuals in certain situations can directly enforce rights given to them under EU law.

The effect of this has been to create a supranational body of law which, unlike many international laws, has an enforcement mechanism to ensure that the laws are followed, as well as the political will within the EU organisation itself to ensure that laws are strictly adhered to.

‘Supranational’ refers to law which is made above the level of national governments (‘supra’ meaning ‘above’). EU law is considered to be supranational because it is law which, although made with the involvement of Member States of the EU, is considered to be at a level above national level.

This chapter will also consider the effect that EU law has upon its Member States. Membership of the EU involves the obligation to adhere to EU law, and the way that EU law affects national legal systems also needs to be considered. This is also important because the effect of the laws of the EU is different for Member States than it is for third-party countries, and therefore we should also consider the changing effect of the EU upon the UK as part of the Brexit process.

Assessment advice

This area is very broad, and therefore there is a wide range of assessment questions which could be asked regarding sources of law and the effect of that law on EU Member States. These may range from problem questions concerning direct effects through to essay questions on the supremacy of EU law. All these questions have one thing in common – they concern the way in which EU law affects the law of Member States; in particular, the UK. You will also potentially see a change in the type of questions asked regarding the UK inside the EU to those where the UK is a third-party country outside the EU.

This is an area of law that has been developed through the case law. It is very important to make sure you are familiar with the key cases that have developed the law here. Examiners will not mark you very highly if you cannot demonstrate a good knowledge of relevant key cases: this chapter will highlight a lot of them. In addition, you should bear in mind that this area is not just about reiterating facts, but that you should be mindful that your examiner will most likely be looking for analysis too.

Forms of EU legislation

EU law falls broadly into two categories, primary legislation and secondary legislation:

• Primary legislation comes in the form of Treaties.
• Secondary legislation comes in the form of legislation made under the law-making powers given to the Institutions under Article 288 Treaty on the Functioning of the European Union (TFEU).

Limited competence of EU law

One thing to remember about the EU is that it has what is referred to as ‘limited competence’. This means that there are only some areas of law where the right to take action has been passed onto the EU through the treaties by the Member States. These areas are easy to determine, because they are listed in the TFEU, in Articles 3-6 of that treaty. Areas of exclusive competence are contained in Article 3, where the EU has been granted the exclusive right to make law in those areas. The other Articles govern shared competence with the Member States, supporting competence, or ...