1.  Laws and how they are made…

2.  Primary o Treaties, the most important of which is the Treaty of Rome, and other agreements having similar status. o Primary legislation is agreed by direct negotiation between the governments of Member State.  Secondary o legislation passed by the institutions of the Union under Article 234 of the Treaty of Rome Regulations Directives Decisions

3. SECONDARY LEGISLATION REGULATIONSDIRECTIVESDECISIONS

4.  Remember, these are Primary Legislation  Agreements laid down in treaties are subject to ratification by the national parliaments. (They have to sign them). o The same procedure applies for any amendments that are made to the Treaties.  The Treaties also define the role and responsibilities of EU institutions and bodies involved in decision-making processes  They also state the legislative, executive and judicial procedures which characterise Community law and its implementation.

5.  The founding treaties were the Treaty of Paris 1951 and the Treaty of Rome 1957.  The Treaty of Rome 1957 was amended in 1992 by The Treaty on European Union (‘TEU’) and its name was changed to The EC Treaty.  The Treaty of Rome created a "new legal order" which means that the European body of law was now binding on the institutions of member states and its citizens.  The Articles of the Treaties are binding and directly applicable which means that they are automatically part of our law

6.  The new legal order was set out in Van Gend en Loos [1963]. o “The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign right, albeit within limited fields."  The ECJ said that a provision of a Treaty can be relied upon in a national court against a national government.  The EC Treaty (formerly the Treaty of Rome) is the closest thing there is to a single European Constitution o What is a constitution supposed to set out? o Rights and responsibilities of both state and citizen

7.  All treaties signed by our head of Government become part of English law automatically.  European Communities Act 1972 s.2(1) - The UK does not need to enact further legislation to give legal effect to them.  Direct Effect: The concept of "Direct Effect" is a device used by the ECJ to enable a citizen to use EU law to enforce his rights in the court  Van Duyn v Home Office (1975) o The UK tried to stop someone who had links to Scientology from entering the UK. The ECJ held that an individual was entitled to rely on the right of freedom of movement for workers. o The particular article was in a treaty and had therefore ‘direct effect’ and conferred rights on individuals which could be enforced not only in the ECJ but also in the national courts. o UK citizens can rely on the rights in the Treaty of Rome and other treaties even though those rights may not have been specifically enacted in English law.

8.  Direct applicability = can be treated as part of national law automatically and overrides any national law that conflicts  Direct effect = practical power for citizens to be able to enforce their rights in the national courts

9.  Established the criteria for defining when a particular provision should have direct effect.  Such a provision should be: 1.Clear and precise 2.Member state does not have to do anything to implement it; and 3.Actually gives an individual a right they can rely on

10.  'Vertical Direct Effect' o The provision has effect between citizen and state (or emanation of the state).  'Horizontal Direct Effect' o The provision has effect between citizen and citizen

12.  Treaty provisions can produce vertical direct effect if, they are "clear, precise and unconditional" leaving no discretion to Member State as to implementation.  Van Gend en Loos (1963): o Breach by the Netherlands of the EC Treaty relating to free movement of goods. Charged an extra tax to import glue from Germany. o Breach could be enforced directly against the state (the Netherlands) by its citizens in the National Court

13.  Treaty provisions create horizontal & vertical direct effect  Defrenne v SABENA [1975] An individual can rely on some Treaty articles to enforce rights against another individual in the national courts.  Air hostesses getting paid differently to cabin stewards, in Belgian airline.  "The prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals."

14.  Macarthys Ltd v Smith [1979]  Wendy Smith was able to rely on a treaty provision together with a directive to sue her former employer for equal pay as although there was no breach of English domestic law, the company was in breach of Art 141 of the treaty of Rome and the ECJ confirmed this.

15.  British courts are now prepared to apply European Treaty law directly without referring to the ECJ.  Diocese of Hallam Trustee v Connaughton (1996) o In another ‘equal pay’ matter, the Employment Appeal Tribunal considered the relevant Article (119) and itself decided that its provisions were wide enough to allow Miss Connaughton to make a claim, saying : ‘We are sufficiently satisfied as to the scope of the Article so as to decide this appeal without... reference to the European Court of Justice’.

16.  Regulations - binding in all the member states  Directives - binding but member states may choose method of implementation  Decisions - binding on those member states to whom they are addressed  Recommendations - not binding  Opinions - not binding  Case Law - binding in all the member states

17.  ‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’. - Art 288 Treaty of the Formation of the European Union (TFEU)  The Member States (UK) need do nothing to implement the law, for example a Regulation is automatically the law of the UK – they are both generally and directly applicable  “General Application”  General application means that Regulations apply to all member states - often referred to as generally applicable.  “Directly Applicable”  This means they have the force of law within all Member States without them having to be enacted by a member state.

18.  Regulations produce both horizontal and vertical direct effects  The Regulation must be clear, precise and unconditional.  Re Tachographs: Commission v United Kingdom (1979)  A regulation stated that all lorries carrying certain types of goods had to have a recording device which measured speed and time driven, to ensure that drivers took appropriate breaks  UK refused to implement this  The ECJ held that the member states (the UK) had no discretion.  Art 288 TFEU was very clear and meant that regulations were automatically law and that MS’s could not pick and choose.  This made sure that all regulations were uniform across the member states.

19.  "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.“ - Art 288 Treaty of the Formation of the European Union (TFEU)  A Directive orders a member state to change its domestic law to comply with EU policy.  They are the main way in which harmonisation within member states is reached.  They are, therefore, not 'directly applicable'  The method of implementation is left to the member state with, usually, a time limit for implementation imposed.

20.  Directives are often passed by statutory instrument or an Order in Council. This means as delegated legislation they are subject to judicial review.  Working Time Directive  Issued in 1993  Gave detailed instructions of the maximum number of hours that should be worked, the rest periods and the amount of paid holiday to which workers were entitled.  It should have been implemented by November 1996 but the UK did not implement it until October 1998 with the Working Time Regulations 1998

21.  Where a MS has not implemented a directive within the time laid down the ECJ has developed the concept of ‘direct effect’.  Even if the MS has not implemented the directive or has implemented it in a defective way it will still be directly enforceable by an individual against the MS. o What type of effect would this be?  Directives produce vertical direct effect if it is clear, precise and unconditional (Van Duyn V Home Office (1975))

22.  A Directive can be used vertically against a public body but not against a private individual or body.  Marshall v Southampton & SW Hampshire AHA [1986] (ECJ)  Mrs Marshall wanted to continue working at Southampton Teaching Hospital (a public body) and complained that women were required to retire at 60, whereas men, could retire at 65.  There was no breach of UK law, but Mrs Marshall could rely on an unimplemented Directive on equal treatment of men and women.  The court confirmed that a directive could only be used against a state or a public body - vertically - and not against another private individual or private body - horizontally. NHS was an emanation of the state and so could use rely on it.

23.  Duke v GEC Reliance Ltd (1988) (HL)  Mrs Duke was not able to rely on an equal treatment directive because her employer was a private company.  She could not use the principle of horizontal effect unlike Mrs Marshall who was able to succeed against her employer because they were controlled by the state.

24.  Where a Directive has not been implemented by Member State or has been inadequately implemented an individual can take action against another individual by using the concept of “indirect effect”  A Directive cannot of itself impose obligations on directly private parties e.g. employers or individuals but….  Marleasing SA v La Comercial Internacional de Alimentacion SA [1990]  National courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive.  This obligation applies whether the national provisions in question were adopted before or after the Directive  National courts are 'required' to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved. So, courts must do everything possible to interpret domestic law to comply with Community law.

25.  Francovich v Italy [1991] ECJ  The Italian Government failed to implement a directive aimed at protecting wages of employees whose employer went bankrupt  As a result when the firm went into liquidation owing Francovich wages, he sued the State for his financial loss.  The ECJ held that he was entitled to compensation.  ‘Community law required the member states to make good damage caused by a failure to transpose a directive, provided three conditions were fulfilled’… 1. The purpose of the directive had to be to grant rights to individuals; 2. it is possible to identify the content of these rights from the Directive; and 3. there is a causal link between the State's failure to implement the Directive and the damage suffered by the individual.

26.  "A decision shall be binding in its entirety upon those to whom it is addressed.“ (Art 288 Treaty of the Formation of the European Union (TFEU)  Community institutions order that a measure or a set of steps be taken in an individual case.  The Community institutions can therefore require a Member State or an individual, to perform or refrain from an action, or can confer rights or impose obligations on them.

27.  The basic characteristics of a decision can be summed up as follows: o It is distinguished from the regulation by being of individual application: the persons to whom it is addressed must be named in it and are the only ones bound by it. o It is distinguished from the directive in that it is binding in its entirety (whereas the directive simply sets out objectives to be attained). o It is directly applicable to those to whom it is addressed

28.  Recommendations (not binding and therefore arguably not law)  In recommendations, the party to whom they are addressed is called on, but not placed under any legal obligation, to behave in a particular way.  For example, in cases where the adoption or amendment of a legal or administrative provision in a Member State causes a distortion of competition within the Community, the Commission may recommend to the State concerned such measures as are appropriate to avoid this distortion.

29.  Opinions (not binding and therefore arguably not law)  Issued by the Community institutions when giving an assessment of a given situation or development in the Community or individual Member States.  In some cases, they prepare the way for subsequent, legally binding acts, or are a prerequisite for the institution of proceedings before the Court of Justice.  The real significance of recommendations and opinions is political and moral.

30.  EU Membership brings with it new SOURCES of law – treaties, regulations and directives.  EU law takes precedence over national law. (Van Gend en Loos (1963))– “the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves”  MS’s including Britain have transferred sovereign rights to a Community created by them. None of the MS’s can rely on their own law when it is in conflict with EU law.  Acts of Parliament will be declared Void by the courts if they conflict with EU law. R v Secretary of State for Transport ex parte Factortame – where the ECJ decided that Britain could not enforce the Merchant Shipping Act 1988 because it contravened the Treaty.  Change in the role of the courts – interpretation is purposive and they can seek guidance from the ECJ under Article 234

31.  Increase power in the judiciary – they now have greater freedom regarding the interpretation of statutes as they are adopting the purposive approach.  Certain groups are benefited – females, part time workers and employees for example  Lord Denning is of the view that the supremacy of Europe will only be accepted by the courts until Parliament passes an Act to repudiate the treaties – R v Secretary of state for transport ex parte Factortame.  Article 234 referrals make it possible for there to be clear guidance from the ECJ to all courts and tribunals.  The UK still doesn’t operate on an EU legal framework – the judge as an activist/inquisitor and a greater reliance on statute.

32.  “Community legislation is a critical source of law in Europe. To be better understood and correctly implemented, it is essential to ensure that it is well drafted. It must be regarded as an essential part of English and Welsh Law. No-one can seriously doubt that the law of the EU and the case law of the ECHR are now established parts of English and Welsh law.” (a) Explain the importance of the European Community legislation in English and Welsh law. [14] (b) Assess the impact of declarations of incompatibility in judgments regarding human rights matters in England and Wales. [11]  “ European law is a source of law within the EU. It can apply both vertically and horizontally. Different elements are directly applicable and have direct effect on the law of England and Wales” (a) Explain what is meant by direct applicability in European law. [14] (b) Using your knowledge of statutory interpretation, consider whether an offence has been committed in the situations set out below. [11]