Law Express: EU Law

Ewan Kirk

• Publisher: Pearson
• Year: 2018
• ISBN:
  9781292210605
• Edition: 6

Revise with the help of the UK’s bestselling law revision series. · Review essential cases, statutes, and legal terms before exams.
· Assess and approach the subject by using expert advice.
· Gain higher marks with tips for advanced thinking and further discussions.
· Avoid common pitfalls with Don’t be tempted to.
· Practice answering sample questions and discover additional resources on the Companion website.

Chapter 1

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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 organization, and how this affects the above issues of direct effect and supremacy

Topic map

A printable version of this topic map is available from www.pearsoned.co.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 pretty 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 ‘supra-national’ 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.

KEY DEFINITION: Supra-national

‘Supra-national’ refers to law which is made above the level of national governments (‘supra’ meaning ‘above’). EU Law is considered to be supra-national 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.

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.

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.

Sample question

Could you answer this question? Below is a typical essay question that could arise on this topic. Guidelines on answering the question are included at the end of this chapter, whilst a sample problem question and guidance on tackling it can be found on the companion website.

ESSAY QUESTION

‘It is true that by Article 189 [then 249, now Art. 288] regulations are directly applicable and may therefore certainly produce direct effects by virtue of their nature as law. However, it does not follow from this that other categories of legal measures mentioned in that Article could never produce similar effects.’

Case 9/70 Franz Grad v Finanzamt Traustein [1970] ECR 825 at 837

Discuss.

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 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. All other areas are still governed by the Member States themselves, and these areas still form the majority of the legal competence of the Member States. This is important to remember when considering the types of legislation, and also the effect that legislation at EU level has upon the supremacy of EU law.

Primary legislation

Don’t be tempted to …

Take care not to confuse the different Treaties with each other. There is now a range of Treaties that affect EU law. However, their place is easy to understand, as follows:

• The Treaty of Rome is the founding Treaty of the European Economic Community (now European Union) and is the main Treaty to refer to. Where this book refers to ‘the Treaty’, then it is this Treaty which is meant. The Treaty of Lisbon has changed the name of this Treaty, and it is now referred to as the Treaty on the Functioning of the European Union (TFEU).
• The Single European Act, Maastricht Treaty (Treaty on European Union), Amsterdam Treaty, Treaty of Nice and Lisbon Treaty have all amended the Treaty of Rome, and therefore usually you will not need to refer to them directly (with the exception of the Maastricht Treaty which was a more significant amendment than others). Any changes these Treaties have made are included in the most up-to-date version of the Treaty of Rome on the Europa website: http://europa.eu/.
• Bear in mind that the Treaty on European Union (TEU) has now been given greater significance by the changes made by the Lisbon Treaty, and therefore the TFEU is no longer the only Treaty to which you will commonly need to refer. Many of the key treaty articles are now contained in the TEU. The core primary aim of the EU is now contained in a combination of the TFEU and the TEU.

The order of the...