Public Law 1 - Examining the European Union in Public Law
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Public Law
Institution
University Of Sussex (UoS)
This document provides an in-depth examination of the European Union (EU) within the context of Public Law. It offers a comprehensive analysis of the legal framework, institutions, and decision-making processes of the EU. Topics covered include the EU's constitutional structure, legislative powers,...
public law i constitutional and administrative law
topic 1 constitutional law without a codified constitution topic 2 foundational principles topic 3 parliament topic 4 executive governmen
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University of Sussex (UoS)
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Public Law
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- Only if the HoL is democratically legitimate can they have the moral authority
to challenge poor legislation from the first Chamber
Brief Note 5:
Introduction:
● EU is legally and politically separate from the council of Europe
● UK has a dualist approach to international law
● Dualist approach… UK does not have to comply with international law obligations
until they are implemented by parliament into national law
Scope and mode of integration:
● The place or scope of the EU is not easily dealt with in terms of constitutions
allocating a place for the EU
● Typically powers are divided amongst states in a federal system or levels of territorial
government
Fields of activity in the EU are extensive and include:
● Agriculture
● Commerce
● Environmental industrial and competition policies
For countries that have the euro, monetary policy is decided by the European central bank
Also increasing competition in justice and home affairs (e.g. visas, asylum and immigration)
Acquis communautaire… existing bodies of EU law (treaties, legislation, and case law)
These are fields within which the EU has the legal power to act
The EU is competence based, meaning there it may only act in areas of its competence
The majority of EU legislation is enacted via treaties
3 major treaties exist:
1. TEU… basic treaty of the European Union, sets out the constitution of the EU
2. TFEU… treaty of the functioning of the European Union, focused on the actual
functioning and operational rules
, 3. Charter… sets out inalienable rights for citizens of the member states of the EU
These treaties also give power to the EU to create delegated or secondary legislation, there
are 2 means of doing this:
1. Directives… direct member states to change or create laws in order to comply, non
binding unless addressed to the member state
2. Regulations… automatically binding
These both produce direct effect (see below)
When joining the EU, the starting point is accepting the whole acquis with any derogation
having to be negotiated specifically, and EU law should have primacy in MS
Changes to EU law should be in the direction of more, not less integration
The European Communities Act is the piece of legislation which incorporates EU law into UK
law
Intergovernmenalism… decisions are made by negotiation and bargaining between national
governments which pursue national interests (council represents)
Suranationalism… decisions are made by European institutions which are supposed to
define and promote a general European interest (commission represents)
European Union courts:
● CJEU and general court each have 28 judges but also 8 advocates general who give
opinions about the cases brought before the court
● Usually the advocates and judges have the same opinions but sometimes different
reasoning for coming to these conclusions
● Preliminary rulings important for maintaining uniformity of application of EU law by
national courts (e.g. Van Gend en Loos and Costa cases)
● National courts apply CJEU rulings to facts of cases, not vice versa
● CJEU the only court that has the power to declare EU legislation invalid, national
courts cannot do so
● EU recognizes fundamental rights
Preliminary reference procedure… any court may ask the EUCJ for an interpretation,
however, for courts of last avenue (the SC) it is necessary to do so before making a ruling
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