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Lecture notes Year 1 EU Law (Lecture and PBL Notes)
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Complete set of Year 1 Lecture and PBL Notes
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EU LawEU Legislation
Some basic principles
Supremacy of EU law
Foundational Principle
Purpose of EU: single market, integration, breaking down barriers to movement between
member states
If EU laws were not supreme, member states would be more able to put up barriers
Main cases on supremacy of EU law:
o Case 6/64 Costa v ENEL [1964] ECR 614
o Case 26/62 Van Gend en Loos [1963] ECR 1
Conferral
Supremacy of EU law vs UK Parliamentary sovereignty
For now, there is the principle of conferral:
o Member states have agreed, some issues are better dealt with as a group, so powers
on these topics are conferred to the EU
National Courts as EU Courts
National judges are empowered and required to:
o Give effect to EU law in their own courts
o Interpret national law in line with EU law
o Set aside national provisions which conflict with EU law
Sources of EU law
Treaties: TEU, TFEU (These are primary sources of EU law, and are the basis of all EU
actions)1
General principles (some are in the treaties and some have developed in case law from early
treaty articles)
Types of secondary EU law2 (Set out in Art 288 TFEU)
‘To exercise Union’s competences, the institutions shall adopt regulations, directives,
decisions, recommendations and opinions’
o Regulations – binding legislative act which must be applied entirely across the EU
o Directives – sets out the goal that all EU countries must achieve. It is up to the individual
member states to decide how they will reach this goal (the directive will contain a
deadline by which the directive must be implemented. It is usually 2 years)
o Decisions – binding on those to whom it is addressed, eg an EU country or individual
company
o Recommendations – Not binding. A way of EU institutions to make their views known
without having any legally binding consequences, however national courts are bound to
take them into consideration in order to decide disputes (C-322/88 Grimaldi)
o Opinions – Allows EU institutions to make a statement without imposing any legal
obligation on those to whom it is addressed. While laws are being made the committees
can give opinions on specific regional, economic or social viewpoint
1
https://europa.eu/european-union/law_en
2
https://europa.eu/european-union/eu-law/legal-acts_en
,Supremacy and the Principle of Conferral
European Communities Act 1972 – Technically Parliament is supreme over the EU because it
chose to confer power on the EU through s.2, and can revoke these powers. In practicality
the EU is supreme:
o S.2(1) says UK must enforce all rights resulting by or under EU Treaties and without
any further enactment to be given legal effect
o S.2(4) says English law should be interpreted and have effect subject to the principle
that European is supreme, this means that European law now takes precedence over
all domestic sources of law
Art 4(1) TEU
In accordance with article 5, powers not conferred on the EU remain with the member state
Art 5 TEU
Sets out the limits of the EU using power conferred by member states
‘[t]he limits of Union competences are governed by the principle of conferral [while] the use
of Union competences is governed by the principles of subsidiarity and proportionality’
o Conferral – EU is only supreme in areas of law where powers are conferred on the
Union, for example by the European Communities Act 1972. The principle of
conferral requires that the Union ‘act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set
out therein. Competences not conferred upon the Union in the Treaties remain with
the Member States’ (Article 5(2) TEU)
o Subsidiary – The EU should only act when it would be better for them to. Transport
is an area of shared competence. It would be more appropriate if local authorities
set speed limits on specific London streets than if the EU were to. Article 5(3) TEU
states the EU institutions ‘shall act only if and in so far as the objectives of the
proposed action cannot be sufficiently achieved by the Member States, either at
central level or at regional and local level, but can rather, by reason of the scale or
effects of the proposed action, be better achieved at Union level’
o Proportionality – Article 5(4) TEU – ‘Under the principle of proportionality, the
content and form of Union action shall not exceed what is necessary to achieve the
objectives of the Treaties.’
Art 2 TFEU
- provides the 3 types of ‘competence’ resulting from conferral of powers to the EU:
1. ‘Exclusive competence’ – areas where only the EU Institutions may act (that is, take
decisions which have a legal impact)
2. ‘Shared competence’ – areas where both the EU and member states may act. The
member state can only act if the EU has:
- not yet exercised its right to act, or
- decided to cease exercising its right to act
When the EU should act, cease to act, or when to allow member states to act is
governed by the principles of ‘subsidiary’ and ‘proportionality’
3. ‘support, supplement or co-ordinate’ - areas where member states have the right to
act but the EU may ‘support, supplement or co-ordinate’ the acts of the Member
State
Arts 3 – 6 TFEU
Sets out which areas of policy fall under each type of competence:
, Art 3 – exclusive competence – customs union / competition rules necessary for functioning
of common market / monetary policy of member states in the Euro / conservation of marine
biological resources under common fisheries policy / common commercial policy
Art 4 – shared competence - internal market / social policy, for the aspects defined in this
Treaty / economic, social and territorial cohesion / agriculture and fisheries, excluding the
conservation of marine biological resources / environment / consumer protection /
transport / trans-European networks / energy / area of freedom, security and justice /
common safety concerns in public health matters, for the aspects defined in this Treaty.
Art 6 – support, supplement or co-ordinate - protection and improvement of human
health / industry / culture / tourism / education, vocational training, youth and sport / civil
protection / administrative co-operation.
EU law as UK law: Duties and powers of national courts
Duty of sincere co-operation Art4(3) TEU
Union member states shall, in mutual respect, assist each other in carrying out tasks which
flow from the Treaties
Member states shall take any appropriate measure, general or particular, to ensure
fulfilment of the obligations arising out of treaties or resulting from the acts of the
institutions of the Union
The member states shall facilitate the achievement of the Union’s tasks and refrain from any
measure which could jeopardise the attainment of the Union’s objectives
Direct Applicability
The measure automatically forms part of national legal order, without need for further
transposition (eg EU Regulations are directly applicable. EU Directives are not)
Direct Effect
Case 26/62 Van Gend en Loos
1. ‘Union is new legal order. Member states have limited their sovereign rights, within
limited fields’
2. ‘ Independently of the legislation of the member states, [Union] law therefore not
only imposes obligations on individuals, but is also intended to confer upon them
rights which become part of their legal heritage
Individuals can derive rights directly from EU law
Individuals can rely on a measure and invoke it before national courts
Direct effect depends on the type of legislation/ measure and its characteristics
Conditions for direct effect – from Case 26/62 Van Gend en Loos:
1. Provision must be sufficiently precise and clear
2. Must be unconditional
3. Must not be dependent on further action taken by EU or national authorities
(however, for EU Directives, the implementation period must have expired without
the member state implementing it fully into national law)
Case 43/75 Defranne v Sabena shows direct effect in practice
- Involved Art 157 TFEU: ‘Each member state shall ensure that the principle of
equal pay for male and female workers for equal work or work of equal value is
applied’
- Female cabin crew required to retire at a certain age, and men were not. This
would make her lose earnings and pension. Brought it to court under Art157 on
, discrimination. The court decided this article could be directly applied because it
was a clear case of discrimination
It is possible for EU law to be either directly applicable, or directly effective, or both
For example, an EU regulation (which is directly applicable) may not contain provisions
which are sufficiently clear and precise to grant immediate rights to individuals to enforce in
national courts, therefore rendering it not directly effective
An EU Directive (which is not directly applicable) may contain provisions which are
sufficiently clear, and if the implementation period has expired without the member state
implementing it into national law, then it may become directly effective
Indirect Effect
There is a duty to interpret all national law in line with EU law
Case 14/83 Von Colson [1984] – domestic law must be interpreted by national courts in light
of the wording and purpose of a Directive in order to achieve the result required by the
directive ‘in so far as it is given discretion to do so under national law’
Case 106/89 Marleasing [1990] – widened the scope – national courts must go as far as
possible in interpreting national law in light of the wording and purpose of the Directive in
order to achieve the result pursued by the directive
Case 322/88 Grimaldi – Recommendations are not intended to produce binding effects, so
they cannot create rights. However, national courts are bound to take them into
consideration in order to decide disputes
Case C-397/01 Pfeiffer [2005] – shows doctrine of indirect effect. There is a duty on Member
States to interpret national law in accordance with EU law, including directives. Pfeiffer
argued his 49 working hours, created by a collective agreement, violated the Working Time
Directive (which set a limit at 48 hours). The Court said the directive could only be avoided
by an individual opt out rather than a collective agreement.
Duty to disapply national law that is incompatible with EU law
Case , Amministrazione delle Finanze dello Stato v Simmenthal SpA (1978)
(Simmenthal) – national court is called upon to apply Union Law under a duty to give full
effect to these provisions. Doesn’t have to wait for any new legislation. Any judge at any
level, including tribunals, can set aside national law
o The CJEU said that a national court should dis-apply conflicting national legislation,
even in situations where they have no domestic jurisdiction to do so (in Italy this
function was only to be carried out by the Constitutional Court). Where conflict
arises between national and EU law, the national court is required to give immediate
effect to EU law, and not wait for a ruling from the Constitutional Court 3
Case 6/64 Costa v ENEL [1964] ECR 585 - Where domestic and EU law conflict/contradict
each other, the EU law will always take precedence. This is because EU law is an
independent source of law, and cannot be overridden by domestic law. If this was not the
case then the union’s ability to meet its objectives would be undermined
Supremacy has past and future effect:
3
Understanding European Union law Davies, Karen (Law teacher), author. Sixth edition., London : Routledge
2015 chapter5
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