1. Law LA2: European Law European Law Unit 2 AS

2. Explain the impact of the European Convention on Human Rights on the legal system of England & Wales – please see Lesson plan & PowerPoint for AS Unit 1 – Legal Values –the European Convention on Human Rights & Human Rights Act 1998 Explain the main sources of European Law Explain direct applicability and horizontal and vertical direct effect Evaluate the effect of European law on the sovereignty of parliament Objectives Law LA2: European Law

3. Direct Applicability and Direct Effect Law LA2: European Law these two concepts are fundamental to understanding the impact of EU legislation on member states direct applicability - a provision of EU law is Directly applicable where it immediately becomes part of the law of each member state. National parliaments cannot reject it, nor do they have to do anything to incorporate it

4. direct effect - a provision of EU law has direct effect where it creates individual rights enforceable in national courts - two main forms of direct effect : Law LA2: European Law vertical - creates individual rights against Governments horizontal - creates individual rights against other individuals, governments & private organisations Indirect effect – National Courts should interpret national law in accordance with relevant EU legislation Direct Effect

5. Sources of Union law The Treaties: Law LA2: European Law These are the primary source of Union law. Treaties establish Union’s aims, institutions and legislative procedures. Treaties can be seen as the Union’s constitution. Treaties can have can have both Horizontal and Vertical Direct Effect provided provision is clear, precise, and unconditional (Van Gend en Loos [1963]) and see Macarthys Ltd v Smith (1979).

6. Legislation under the Treaties (Art.249 of the Treaty of Rome) Regulations: Law LA2: European Law Analogy can be made with an English Act of Parliament are Direct Applicable Binding in their entirety on each member state Can have both Horizontal and Vertical Direct Effect provided ‘Van Gend’ requirements are met (Leonesio v Italy [1973])

7. Directives Law LA2: European Law Not Directly applicable Less precisely worded than regulations Binding as to result to be achieved, but leaves form and method of implementation to each member state Can have Vertical Direct Effect only, provided ‘Van Gend’ requirements met -Van Duyn v Home Office (1974) Vertical direct effect means that they impose obligations on the state and not individuals

8. Cases Law LA2: European Law Marshall v Southampton Area Health Authority(1986) – broad definition of ‘state’ Von Colson v Land Nordrhein-Westfalen (1984) Marleasing SA v La Comercial Internacional de Alimentacion SA (1990) CIA Security International SA v Signalson (1996) R (on the application of Mayor and Citizens of Westminster CC) v Mayor of London (2002) R (on the application of Wells) v Secretary of State for Transport, Local Govt and the Regions (2005) Cases to discuss / research for directives & direct effect include:

9. Therefore, - ‘indirect effect’ - Francovitch v Italy [1992] Law LA2: European Law purpose of the directive was to create individual rights, those rights are clear and precise, there is a link between state’s failure to implement directive and individual’s loss or damage cannot rely on a directive against another individual BUT may still have remedy against state where:

10. Decisions Law LA2: European Law not Directly applicable A decision may be addressed to a member state, a company or a person. For example, granting export licenses to companies outside of the EU can have Vertical Direct Effect only, and only when addressed to a member state (Grad (1970)

11. Recommendations & Opinions  Not binding law Law LA2: European Law

12. How does EU law affect the UK? Law LA2: European Law Because the EU can introduce legislation that automatically forms part of English law, and that creates individual rights which the English courts must enforce – This raises the issue of sovereignty - which law, English or EU, will prevail where there is conflict?

13. Law LA2: European Law if the EU is to work, EU law must prevail over inconsistent national law (Costa v ENEL [1964]) member states have made a transfer of some of their sovereign rights to the EU (Costa) in cases of conflict, national courts must give priority to EU law and disapply inconsistent national law (Minister of Finance v Simmenthal [1978]) How does EU law affect the UK?

14. The UK Law LA2: European Law s.2(1) European Communities Act 1972 incorporates EU law into English law s.2(4) states that all UK legislation takes effect subject to EU law with the exception of the 1972 Act itself

15. Therefore, Law LA2: European Law If Parliament wishes to enact legislation contrary to EU law, it must first expressly amend/repeal s.2 (Thoburn v Sunderland City Council (2002) – ‘metric martyrs’) - without such express action, the courts will follow EU law (Macarthys v Smith [1979]) The leading case is R v Secretary of State for Transport,ex parte Factortame (1990) duty of a UK court to refuse to apply statutes which are conflict with directly effective EU law The UK

16. Law LA2: European Law As a result, there has been a temporary and limited suspension of sovereignty Parliament retains, under s.2(4) of the ECA 1972 a power to reassert its full sovereignty However, this would mean leaving the EU This is unlikely, the transfer of sovereignty would seem to be permanent

17. Conclusion Therefore, assuming continued UK membership, EU law will play an increasingly significant role within the English Legal System Law LA2: European Law UK membership of EU has had wide-ranging effects Regarding sovereignty, while the transfer could in theory be reversed, this is unlikely to occur in practice

18. In Bulmer v Bollinger (1974) Denning said: Lord Denning Law LA2: European Law ‘The treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.’ ‘The treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.’

19. In 1996 Denning said: ‘No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses – to the dismay of all.’ (The Independent 16th July 1996) Law LA2: European Law Lord Denning

20. Test Questions You should now be able to answer the following: Law LA2: European Law Explain the concepts of direct applicability and direct effect. Discuss the Treaties as a source of EU law. Discuss the different forms of EU legislation. Evaluate the impact of EU membership on UK sovereignty

21. Useful Websites Law LA2: European Law http://europa.eu/institutions/ www.eur-lex.eurpoa.eu/en/index