Lecture notes
Lecture notes Law (LLB)
- Module
- (LLB)
- Institution
- University Of Winchester (UoW)
everything you will need in detail regarding UK and EU membership in public law module
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Part 1- UK & EU membershipRelevant constitutional issues
- Parliamentary sovereignty; generally, this part of the lecture builds on our understanding of
sovereignty
- Rule of law;
- Royal prerogative
- Separation of powers? Roel of the judiciary.
1. What is the EU
- 1. Origins of the EU
- Post WWII
- The idea that war between France and Germany should become not only unthinkable but
‘materially impossible’
- Three communities- European coal & steel community, the European atomic energy community,
European community.
- Treaty of Rome 1957
- 2. Initial members of the EU
- France, west Germany (east Germany was under the control of the USSR|), italy, the
netherlands, belgium, luxembourg, britian took part in discussions, but fundamentally never
wholly understood the project. Preferred to maintain links with the commonwealth, wanted to
purse a “one would economic system”, with the £ as a key currency.
2. What did Britain join?
- EEC in the 1970s
- Although the EU has changed significantly since the 1970s, its essential features have remained
the same.
- The European council
- The council
- The European parliament (formerly European assembly)
- The commission
- The court of justice of the European union
Different types of EU law
- “the treaties” – treaties have been revised regularly since the treaty of Rome. Maastricht treaty
created the European union, of which the EC (former name of the EEC) was part.
- Treaty of Lisbon; fundamental rationalisation of the treaties. – treaty on European union- creates
the institutions, their powers, and structures of the EU. – treaty on the functioning of the
European union.- creates the rules of the union. i.e. that custom duties are banned when moving
goods across between EU member states.
- Regulations- passed by the EU institutions; regulations are “directly applicable’; are binding in
their in their entirety on member states; without the member states doing anything to their legal
system… 5,000 regulations
- Directives- need to be ‘implemented’ by member states in their own domestic law. Binding on
member states as to the ‘result to achieved”. 15,000 directives…
- Decisions- made by the commission, are binding on the parties involved.
Supremacy
- In costa v ENEL [1946] ECR 585, the ECJ held that EU law was supreme, over the domestic law of
each member state.
- Costa was an Italian, opposed to the nationalisation of the electricity sector. He was a
shareholder in an electricity company, in protest he refused to pay his bill.
- When challenged, costa argued that the nationalisation was contrary to Italian law, but also
provisions of the EU law.
- Italian government argued that the Italian courts was required to apply Italian law only.
- ECJ held that the treaties contained rights, which individuals could enforce in national court ; and
that EU law prevails over national law.
, - Simmenthal SpA [1968] ECR 629
- Italian law required an inspection fee to be paid when importing beef from France. Simmenthal
argued that the fee was a barrier to free trade within the EU (free movement of goods). The
Italian government argued that because the Italian law requiring the fee was passed more
recently than the EU treaty, it should take precedence over EU law. ECJ: held that EU should
prevail over national law.
Direct effect
- If EU law is supreme, can it be directly enforced in courts of member state? YES- van gen den
loos [1963] ECR 1- EU law constitutes a ‘new legal order in international law’.
- Direct effect means that the EU law can be directly enforced by EU citizens against member
states in domestic courts. -provisions of the treaty; regulations; directives?
3. The uks membership of the EU
Reminder of sovereignty…
- Parliamentary sovereignty (lecture 6)- dicey-
- Parliamentary sovereignty means neither more nor less than this, namely that parliament has,
under the English constitution, the right to make or unmake and law whatever; and further that
no person or body is recognised by the law of England as having a right to override or set aside
the legislation of parliament.
Breaking dicey down
- - “the right to make or unmake any law whatsoever”- positive limb
- “no person or body is recognised… as having the right to override or set aside the legislation of
parliament” – negative limb.
- Follows from this, no parliament can bind future parliaments.
European communities act 1972
- The UK joined the EEC (now EU) 1st January 1973.
- How can eu law be incorporated into eu law?
- Negotiating Britains entry into the EU was part of the royal prerogative.
- Parliamentary sovereignty means that an international treaty is not effective within domestic
law. – it may be binding in international law but that is a different matter.
- Section 2 – (1) “all such rights, powers, liabilities, obligations and restrictions from time to time
created or arising by or under the treaties, and all such remedies and procedures from time to
time provided for by or under the treaties, as in accordance with the treaties are without further
enactment to be given legal effect or used in the united kingdom shall be recognised and
available in law…
- This means that eu law is automatically part of UK domestic law
4. Supremacy of EU law?
R v secretary of state for transport, ex parte factorame (no 1) [1990] 2 AC 85
R c secretary of state for transport, ex parte factorame (no 2) [1991} 1 AC 603
- Factortame ltd, a uk company, but with Spanish directors, owned fishing vessels registered as
british under the merchant shipping act 1894.
- However, the merchant shipping act 1988, required that all vessels had to be re-registered. They
could only be registered as british is the following requirements were met, under s14. – the
vessel is british- owned; the vessels is managed, and its operations are directed and controlled
from within the uk and factortame did not qualify; the directors were Spanish and ran the
company from spain.
- Factortame argued that the requirements for british ownership and direction were contrart to
EU law, so the 1988 act contravened EU law, which was enforced in the uk courts under the
European communities act 1972.- the high court referred the question to the ECJ.
- Factortame also argued that they should get interim relief preventing the law from being applied
to them, until the ECJ denied the issue. – the high court granted this, but this was overturned by
the court of appeal and house of lords, on the basis that ordinarily you could not get an
injunction against the crown.- the house of lords sent this question to the ECJ.
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