EU LAW FULL Lecture Notes PDF

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EU LAW FULL LECTURE NOTESIntroduction to EU LawThe membership and aims of the EU, the EU Law-making institutions, creation of EU Law and the sources of EU LawContextThe European Union (EU) is an international organisation formed between many European countries. Member States joined the EU to work to...

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EU LAW FULL LECTURE NOTES Introduction to EU Law The membership and aims of the EU, the EU Law-making institutions, creation of EU Law and the sources of EU Law Context The European Union (EU) is an international organisation formed between many European countries. Member States joined the EU to work together, particularly in matters affecting the economy and involving social issues. The EU has its own set of governing institutions and its own system of law. The British electorate voted to leave the EU in the 2016 EU Referendum. One of the consequences of this decision is that the European Union (Withdrawal Act 2018) has been passed, which will convert EU Law, as it exists at the date the UK leaves the EU, into UK law (defined as ‘retained EU law’). The UK Parliament will then decide which EU-derived laws to retain and which ones it will repeal. This will take many years to complete, so it is important that you have a clear understanding of the key concepts of EU Law. At present the UK is a Member State and is subject to EU Law, though is currently due to leave by 31 January 2020. Sometimes English lawyers have to interpret and apply EU Law in order to advise a client correctly. Lawyers with a sound knowledge of EU Law will also be in a good position to advise their clients about the impact of withdrawal from the EU. 1. How many Member States are there currently in the EU? 28 COUNTRY EU MEMBER Malta

Yes

Lithuania

Yes

Sweden

Yes

France

Yes

Poland

Yes

Estonia

Yes

Portugal

Yes

The Netherlands Ireland

Yes Yes

Slovenia

Yes

Denmark

Yes

Luxembourg

Yes

Romania

Yes

Latvia

Yes

United Kingdom

Yes - No

Croatia

Yes

Belgium

Yes

Greece

Yes

Slovakia

Yes

Italy

Yes

Cyprus

Yes

Germany

Yes

Hungary

Yes

Bulgaria

Yes

Czech Republic

Yes

Finland

Yes

Spain

Yes

Austria

Yes

2.1 Original six countries  Belgium,  Germany,  France,  Italy,  Luxembourg,  The Netherlands

2.2 Candidate countries  Albania  Turkey  Serbia  Macedonia  Iceland – but changed its mind. 2.3 Potential candidate countries

Don’t have the stable enough conditions economically. – Bosnia and Kosovo 3. AIMS AND ROLE OF THE EU EU law applies to member states. 3.1 Aims of the EU

Article 3(1) TEU (Treaty of European Union) The Union’s aim is to promote peace, its values and the well-being of its peoples. 3.2 Values of the EU Article 2 TEU Respect for human dignity Freedom Democracy Equality The rule of law Respect for human rights, including the rights of minorities. 3.3 How can the EU affect our daily life? Activity 3 How can the EU affect our daily life? Human rights, consumer trade, free travel

1. INSTITUTIONS OF THE EU 4.1 Council of the European Union  A minister from each EU member state government, depending on the topic this will change. The council co-ordinates the economic policies of the member states. It also takes part in the decision making process of creating EU Law.  It has a qualified voting procedure. It must be 55% of member states voting in favour. They must represent at least 65% of the population of EU. 4.2 European Council  This consists of the heads of every member state E.G our Prime Minister.  This makes key political decisions about the EU. 4.3 European Commission  Proposes new EU law.  Ensures member states comply with their obligations under EU law.  Commissioners are independent of national loyalties. 4.4 European Parliament  The only directly elected institution.  It is a simple majority vote

CREATING EU LAW 5.1 Ordinary legislative procedure  European Parliament has power to propose amendments and veto legislation.  Commission drafts law and the parliament decides if they want to amend, reject or use the law. 5.2 Special legislative procedure  Consultation procedure is not democratic – the council consults the European parliament but it can ignore what the parliament wants.  Consent/assent procedure – Both the Parliament and council must agree. The European Parliament cannot amend the law. SOURCE OF LAW

IN ENGLISH LAW

IN EU LAW

PRIMARY LEGISLATION

Act of Parliament

Treaty between member states – The treaty on the European Union (Sets out the general aims and structure of the EU) and the Treaty on the functioning of the European Union (details the substantive law of the EU) (TEU // TFEU)

SOURCE OF LAW

SECONDARY LEGISLATION

IN ENGLISH LAW

Statutory Instrument

IN EU LAW Regulation – An EU regulation. These have general application throughout the EU and are binding. These are directly applicable to all member states. Directive – These are binding to each member state addressed. Require the legislation of each member state to enact them. Used where social, cultural, political and/or administrative differences between member states mean that a ‘one size fits all’ law would be inappropriate.

Decision – Legally binding. Made by an agreement between parliament and the council . These apply to those persons to whom they are addressed and are binding in their entirety. They don’t require the legislatures of member states to enact them to have legal effect.

Recommendation – Not legally binding but have political weight and are frequently followed.

Opinion – Not legally binding

SOURCE OF LAW CASE LAW

IN ENGLISH LAW

Judgment of Supreme Court Judgment of Court of Appeal

IN EU LAW

Judgement of the ECJ the (European Court of Justice) – follows a civil law system. the

SOURCE OF LAW

IN ENGLISH LAW

IN EU LAW

INTERNATIONAL LAW

Treaty between UK Treaty between and another country another country.

EU

and

7.5 EU Secondary Legislation – Regulations and Directives Article 288 TFEU ‘A Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.’ - A regulation becomes part of the law of the member state without the need for any further national law to be passed. A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave it to the national authorities the choice of form and methods.’ - They are not directly applicable and have to be implemented.

The European Court of Justice (‘ECJ’): the Article 267 TFEU reference procedure Context National courts in the Member States deal with questions of EU Law in a range of situations. EU Law must be applied and interpreted consistently throughout the EU. Individuals and businesses must be confident that they are subject to the same EU laws in the various Member States. Sometimes national courts have to deal with a difficult question of EU Law. If it is unclear what a particular EU Law means, a national court can ask the ECJ. Article 267 TFEU gives national courts the power to refer questions about EU Law to the European Court of Justice (ECJ). The ECJ will then answer these questions. The national courts, in all the Member States, must follow the ECJ’s decision. The Article 267 TFEU reference procedure ensures that EU Law is interpreted consistently throughout the EU. The ECJ has given guidance to the national courts about when to make a reference. The ECJ cannot compel a national court to make a reference. It is for the national courts to decide whether or not to refer a question of EU Law to the ECJ. 1. THE EUROPEAN COURT OF JUSTICE (‘ECJ’) – INTRODUCTION

Activity 1 – European Union courts Which ONE of the following courts is NOT a European Union court? A. The General Court B. The European Court of Justice C. The European Court of Human Rights

1.1 1.1 1.1 1.1 1.1 1.1

ECJ judges and the Advocate-General  The ECJ is the supreme authority on EU law and interprets EU law.  Can deal with disputes between member states and institutions.  1 Judge (senior judge from each) from each member state but 5 judges at the most give their judgement on a case.  The advocate general gives a reasoned opinion about a case although the ECJ judges don’t have to follow this. 1.2 Civil law legal system 

Based on a written code that the judges then interpret which is the TFEU.

 

This is a framework treaty that contains general rules that is then interpreted and added to by secondary legislation. This uses a purposive approach. ECJ is not bound by precedent rules.

2. WHAT DOES THE ECJ DO?  Interpret EU Law o Gives an authoritive ruling which must be followed.  Enforce EU Law o If a country fails to follow this rule, the European commission will take action on the member state through the ECJ. The ECJ can fine the member state if the judgement is not followed.  Declare EU Law is invalid o If a piece of EU law was wrong, the ECJ only can decide whether this is abolished.  Ensure the EU takes action  Sanction an EU institution o ECJ can review the actions of the institution. Key points  The ECJ answers questions on EU Law referred to it by Member States’ courts  The ECJ can hear a case where the Commission is taking an action against a Member State. This may have arisen because the Member State has failed to comply with EU Law.  The ECJ can review the actions of the other EU institutions such as the European Parliament, the European Commission and the Council.  There is no right of appeal from national courts to the ECJ. 3. ARTICLE 267 TFEU – reference procedure  Ensures that national courts refer questions to the ECJ of EU law.  The national courts have to follow the judgement. Article 267 TFEU extract (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; ECJ interprets EU law. 3.1 When can the ECJ refuse to answer a question? 

Questions of EU Law only

Not national law Case 6/64 Costa V ENEL [1964] ECR 585

‘We will not answer questions on national law, only EU’ The question rephrased it so it would be a question about EU law.  Sufficient factual background Must be enough context behind the facts. The ECJ will not answer questions about facts.  Absence of a genuine dispute Must be genuine 3.2 WHO CAN MAKE A REFERENCE TO THE ECJ? Article 267 TFEU extract Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Can be supreme court to magistrates court. 3.2.1 Meaning of ‘any court or tribunal’ • • • •

ET is a ‘court or tribunal’ Meets most of the Dorsch criteria. Deals with all employment disputes Hears both sides of case

Dorsch Consult Ingenieurgesellschaft (case C-54/96)[1997]ECR I – 4961 

The body is established by law – the organisation has been set up by a legal provision such as a statute or statutory instrument.



It is permanent – Not a one-off dispute and has the power to deal with future disputes.



It has compulsory jurisdiction – Parties to the dispute must go to these to deal with disputes



Both sides of the dispute get an opportunity to present their case



It applies rules of law – deals with the law not the facts of the case. The inquiry deals with the facts of the case.



It is independent – make their own decisions

3.3 IS IT NECESSARY TO ASK THE ECJ TO ANSWER THE QUESTION OF EU LAW? Article 267 TFEU extract

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give a judgment, request the Court to give a ruling thereon. Is it going to help the national court decide the outcome of the dispute? 3.3.1 CILFIT criteria The question is not relevant to the outcome of the case – no need to refer it.  A previous ECJ decision has already dealt with the same point Case 28-30/62 Da Costa en Schaake NV v Nederlandse Belastingadministratie [1963] ECR 31 If it is likely that the ECJ can change its mind then it can be referred to again. 



The answer to the question is obvious and it is also obvious to courts in other Member States – doctrine of lacte clair

 If any of these are true then it is not necessary to ask 3.4 DO NATIONAL COURTS HAVE A CHOICE WHETHER TO REFER A QUESTION OF EU LAW TO THE ECJ? Article 267 TFEU extract Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give a judgment, request the Court to give a ruling thereon. – Permissive courts have a choice. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decision there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.’ – mandatory courts are a must. 3.4.1 Courts with mandatory jurisdiction MUST refer  Supreme court is a mandatory court as it cannot be appealed any higher. Some lower courts can refuse leave to appeal and therefore become mandatory. 3.4.2 What if a court with mandatory jurisdiction refused to refer?  Austrian final court did not make reference to the ECJ when it should have done.  State liability claim was possible  Claimant sues government in national court. Case C-224/01 Kőbler v Austria [2003] ECR I-10239. 3.4.3 Courts with permissive jurisdiction MAY refer



Can take a lot of time for the ECJ to provide judgement therefore some courts try and interpret this law themselves.

3.5 COURTS WITH PERMISSIVE JURISDICTION – when should they exercise their discretion to refer? Need to consider both ECJ and UK guidelines which are very persuasive. 3.5.1 Information Note on references from national courts for a preliminary ruling – the ECJ guidelines  



Not bound by national precedent o Lower court cannot be prevented by a higher court to make a reference. May refer at any stage of the proceedings o Sort out the facts of the case and settle questions of national law first. Questions of validity of EU Law must refer

3.5.2 UK Guidelines R v International Stock Exchange, ex parte Else Ltd [1993] 2 CMLR 67  Is the decision on EU law critical? If so, refer unless:  National court can resolve the issue with complete confidence.  Remember the ECJ’s greater expertise. 4.

Summary of Large Group

Is body a court or tribunal? – Dorsch criteria All courts must ask if the decision is necessary? – CILFIT criteria If yes, courts of final instance must refer Courts subject to appeal must also ask – if reference is appropriate in court’s discretion? - ECJ guidelines and UK guidelines – ex. P Else. The ECJ decision is binding on all member states Nature and effect of EU law: supremacy, direct effect, indirect effect and state liability Context EU law is part of the law of the Member States. If there is conflict between EU law and national law, EU law takes priority. It is supreme to national law. Some EU legislation requires Member States to take action and implement it before it becomes part of national law. Other types of EU legislation are effective automatically without any action by the Member States. This type of EU law is directly applicable. It does not need to be implemented by the Member States. Individuals and businesses can enforce their EU law rights in the national This principle is called direct effect.

courts.

An individual cannot use direct effect to enforce a directive against another individual, such as a private sector employer. This can cause unfairness as employees in the public sector are able to use direct effect to enforce a directive against their employer. The ECJ has developed the principle of indirect effect to address this unfairness. Indirect effect does have its limitations and the ECJ has also developed the principle of state liability to enable an individual to enforce their EU law rights. It permits individuals to take action against the government who has failed to implement, or has incorrectly implemented, a directive. 5. SUPREMACY OF EU LAW EU law is supreme to national law if there is a conflict between the two 5.1 How has the ECJ developed the concept of supremacy? Supremacy is key to EU law and it must be applied in the same way to all member states. Supremacy has been developed by case law. 5.2 Conflict between EU law and earlier national law 

Van Gend en Loos v Nederlandse Administratie der Belastingen (case 26/62) [1963] ECR 1



Enforced before Holland was a member state. Member States have agreed to ‘limit their sovereign rights’. If there is a conflict between EU law and an earlier national law, EU law takes priority.

5.3 Conflict between EU law and later national law 

Costa v ENEL (case 6/64) [1964] ECR 585



Member States should not pass laws which conflict with EU law and if they do, EU law will take priority. If there is a conflict between EU law and a later national law, EU law takes priority.

5.4 Conflict between EU Law and national constitutional law 

Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide und Futtermittel (case 11/70) [1970] ECR 1125



EU Law should be applied equally in all Member States. If there is a conflict between EU Law and conflicting national constitutional law, EU Law takes priority. Germany has a written constitution .

5.5 What happens if an EU Law conflicts with an English Law? 

The European Communities Act 1972 – When the UK joined, a statute had to be passed to enact the EU law.



European Union (Withdrawal) Act 2018 - Retained EU law will have priority over other pre-exit UK legislation, though not over post-exit UK legislation – EU law only takes priority over old English law, not any new acts.

6. ENFORCING EU RIGHTS – DIRECT EFFECT 

Example – Regulation 261/2004



Direct effect – EU Law gives rights to individuals which they can enforce in their national courts Directly applicable - EU Law automatically forms part of national law - just because it is applicable doesn’t mean that it has a direct effect.



2.2 Treaty Articles and EU Regulations are directly applicable 7. DIRECT EFFECT – TREATY ARTICLES •

Van Gend en Loos v Nederlandse Administratie der Belastingen (case 26/62) [1963] ECR 1 – wanted to claim back a sum of customs duty - Article 30 TFEU prohibits MSs from charging customs duties when goods are imported from one MS to another.

  

Sufficiently clear Precise Unconditional – member states don’t have to set up an organisation to do something first before we have the EU law right

8.   

DIRECT EFFECT – EU REGULATIONS Sufficiently clear Precise Unconditional

9. VERTICAL AND HORIZONTAL DIRECT EFFECT 

Vertical direct effect – EU Law can be enforced against the State includin...