E.U Law

Question 1

What are the two main types of E.U legislation?

Answer 1

1) Primary

2) Secondary

Question 2

What does Primary Legislation include?

Answer 2

Mainly the Treaties - the most important of which was originally the Treaty of Rome itself

Question 3

What is Secondary Legislation? What are the three types?

Answer 3

• Legislation passed by the institutions of the union under Article 288 (Treaty on the Functioning of the European Union)
• Consists of three types:
  
  • Regulations
  • Directives
  • Decisions

Question 4

What does it mean when E.U law is directly applicable?

Answer 4

It immediately becomes part of the law of each member state

Question 5

How does Direct Applicability work? (2)

Answer 5

• National Parliaments cannot reject it, but they don’t have to do anything to incorporate it either
• It is applicable in the exact way it was drafted by the E.U (automatic)

Question 6

To what legislation does direct applicability apply?

Answer 6

Primary Legislation

Question 7

What does it mean when E.U law has direct effect? (2)

Answer 7

• Still applies to E.U countries
• The countries have discretion in creating the most appropriate laws in their own legal systems to bring the law into effect

Question 8

When does Direct Effect apply? What does it apply to?

Answer 8

• When a provision of E.U law creates individual rights that are enforceable in national courts
• To Secondary Legislation

Question 9

What are the two main forms of Direct Effect?

Answer 9

• Horizontal

- Vertical

Question 10

What happens if the government fails to adopt a directive?

Answer 10

They can be sued

Question 11

Why do things become difficult when it comes to those working for a private company in terms of Vertical Direct Effect?

Answer 11

The government is not responsible for those working for a private company

Question 12

In what case was the general principle of state responsibility for compliance with EU law developed by the ECJ?

Answer 12

• Francovich

Question 13

What are the Francovich Principles? (3)

Answer 13

• The proof that the directive did confer a ‘right’
• The fact that the directive was clear about said ‘right’
• The fact that the claimant suffered financial loss as a direct result

Question 14

Horizontal Direct Effect means a person can use E.U legislation against who?

Answer 14

• An individual

NOT THE STATE

Question 15

What does Vertical Direct Effect do?

Answer 15

• Creates individual rights against the government

Question 16

What is a good example case for the use of Vertical Direct Effect?

Answer 16

• Foster v British Gas

Question 17

What’s Vertical Direct Effect in a nutshell?

Answer 17

• If the government has failed to adopt a directive into national law and one has suffered a loss of the right established by the directive, they can sue the government

Question 18

What is Indirect Effect?

Answer 18

• Where national courts have to interpret national law in line with an unimplemented or badly implemented directive of the E.U

Question 19

Where does Indirect Effect come from?

Answer 19

• The failure of a member state to implement a directive, and direct effect cannot apply because the party against whom the directive is sought to be enforced is a private entity (or fails to meet the conditions that would give it direct effect)

Question 20

What are the four sources of Union law?

Answer 20

• The Treaties
• Regulations
• Directives
• Decisions

Question 21

Describe Treaties. Primary or secondary? What do they establish?
Do they have direct applicability or direct effect?
What direct effect can they have?

Answer 21

• Primary source of Union law
• Establish Union aims, institutions and legislative procedures
• Basically like the Union’s constitution
• Directly applicable
• Can have both horizontal and vertical direct effect providing that the Treaty has been breached

Question 22

Describe Regulations (3)

Answer 22

• Binding, primary piece of legislation
• Directly applicable
• Can have both horizontal and vertical direct effect provided that the Van Gend en Loos requirements are met

Question 23

What are the Van Gend en Loos requirements? (3)

Answer 23

• Provision must be sufficiently clear and precise
• Provision must be unconditional/non-dependent
• There must be an identifiable right granted by the Treaty

Question 24

Describe Directives (4)

Answer 24

• Not directly applicable
• Have direct effect
• Can have vertical direct effect
• Can have horizontal direct effect provided that the Francovich principles apply

Question 25

Describe Decisions. Are they directly applicable? Who may they be addressed to? Can they have direct effect?

Answer 25

- Not directly applicable - May be addressed to a member state, company or person e.g granting export licenses to companies outside the E.U - Can have vertical direct effect only, and only when addressed to a member state

Question 26

What happened in Van Gend en Loos (1963)? (4)

Answer 26

- Postal and transportation company imported urea formaldehyde from West Germany to the Netherlands - The authorities charged a tariff on the import - Van Gend en Loos objected, stating that it was a clear violation of Article 12 of the Treaty of Rome - The case held - direct applicability

Question 27

What happened in McCarthys Ltd v Smith (1979)? (4)

Answer 27

- Smith worked for McCarthys and was paid £50 a week when a former male employee had been paid £60 a week for the same job - Smith said this was unlawful under the Equal Pay Act 1970, or the Treaty of the European Community Article 119 - McCarthys argued that she had no claim because the Equal Pay Act did not allow for comparisons with former employees - E.U law did allow for such a comparison, and overrode the UK statute as it was from a Treaty, making it directly applicable

Question 28

What happened in Marshall v Southampton Area Health Authority (1986)? (5)

Answer 28

- Senior dietitian dismissed from her job, despite wanting to work until 65 - Dismissed solely because she had 'reached the retirement age' which was 60 for women and 65 for men - She claimed her dismissal violated the Equal Treatment Directive 1976 - She suffered financial loss and the satisfaction of working as a result of the government failing to implement the directive so was able to sue the government through vertical direct effect

Question 29

What happened in Van Duyn v the Home Office (1975)? (3)

Answer 29

- Van Duyn was a Dutch national associated with Scientology - She was refused entry to the UK because of this association - As she was denied entry on the basis of religion, it was unlawful

Question 30

What did Van Duyn v the Home Office (1975) prove?

Answer 30

- That a directive can have vertical direct effect if unimplemented or implemented incorrectly in order to prevent negative effects on individuals

Question 31

How does E.U law affect the UK? (2)

Answer 31

- The European Communities Act 1972 incorporates E.U law into English law. It states that all UK legislation takes effect subject to E.U law with the exception of the 1972 Act itself - If the E.U passes a law that opposes the national law of a member state, the member state must repeal their law

Question 32

What was held in R v Secretary of State for Transport, ex parte Factortame (1990)? (4)

Answer 32

``` The Act (the Merchant Shipping Act 1988) was in breach of the Treaty of Rome 1972, as it was discriminating on the basis of nationality - The case held and confirmed the UK's subordination to E.U law ```

Question 33

When was the European Union formed?

Answer 33

- 1993

Question 34

What is the E.U made up of? (5)

Answer 34

- The Commission - The Council - European Parliament - The Court of Justice of the European Union - The European Court of First Instance

Question 35

Describe the Commission (2)

Answer 35

- Main executive body | - Headed by 28 commissioners who are appointed by member states for 5 years

Question 36

What does the Commission do? (4)

Answer 36

- Proposes and drafts E.U legislation - Negotiates trade agreements - Draws up annual budget - Ensures that member states uphold E.U law

Question 37

Describe the Council (3)

Answer 37

- Main decision making and legislative body - Most powerful of the institutions - No permanent membership

Question 38

What does the Council do? (2)

Answer 38

- Represents the interests of individual member states - Adopts union legislation based on proposals from the Commission and after consulting the Parliament, puts forward finished ideas for law

Question 39

Describe the European Parliament. What is its role? How are its members elected?

Answer 39

- Mainly consultative and advisory role | - Members elected in their own countries (MEPs) every 5 years

Question 40

What does the European Parliament do? What role does it exercise? What power does it have?

Answer 40

- Exercises a supervisory role over the Commission - Has the power to veto the appointment of the Commission and dismiss the whole Commission - Reports on the Council 3 times a year

Question 41

Describe the Court of Justice of the European Union. Where does it sit? Who makes it up? What is its role?

Answer 41

- Sits in Luxembourg - 28 judges appointed for 6 years - Constitutional court - Judicial and Supervisory role

Question 42

What does the European Court of Justice do? (2)

Answer 42

- Supervises the application of E.U law | - Provides definitive interpretations of E.U law

Question 43

Describe the judicial role of the ECJ. Example case?

Answer 43

- Hears disputes against member states and cases against European Institutions e.g Re Tachographs: EC Commission v UK (1979)

Question 44

Describe the supervisory role of the ECJ (4) | Mandatory references? Discretionary references? What does the referral system ensure?

Answer 44

- Article 267 of the Treaty on the Functioning of the European Union means that any court can refer a question on E.U law to the ECJ - Mandatory references are compulsory - Discretionary references are optional - The referral system ensures that the law is interpreted the same throughout the E.U

Question 45

What are the Bulmer v Bollinger guidelines? When are they used? (5)

Answer 45

- In deciding whether a referral is necessary, English courts use these guidelines. A referral is not necessary where: - The ECJ has previously ruled on the same point - The point is reasonably clear and free from doubt (acte clair) - The facts of the case have not been decided - It would not be conclusive of the case

Question 46

Describe the European Court of First Instance. When was it established? What is its aim? Jurisdiction?

Answer 46

- Established in 1988 - Its aim is to reduce the workload of the ECJ - Limited jurisdiction

Question 47

What does the European Court of First Instance do?

Answer 47

- Deals with mainly internal litigation

Question 48

What happened in Re Tachographs EC Commission v UK (1979)? (4)

Answer 48

- There was a regulation that required all heavy goods vehicles to be fitted with a tachograph machine to limit the number of hours a driver is allowed on the road without a break - Regulations are primary legislation, meaning that they are directly applicable - The UK didn't bring this law into effect and so breached the treaty - The case held and the ECJ forced the UK to implement the law

Question 49

What happened in Von Colson v Land Nordhein Westfalen (1984)? (4)

Answer 49

- Two women had applied to work as social workers in a German prison - The officials in charge of recruitment refused to appoint them on the basis of gender - The women claimed that they should be granted a contract of employment or damages under Article 6 of Directive 76/207 - It was held that the Directive did not satisfy the requirements for direct effect, but was indirectly effective instead

Question 50

What is a good example case for indirect effect?

Answer 50

- Von Colson v Land Nordhein Westfalen (1984)

Question 51

What happened in Foster v British Gas (1990)? (3)

Answer 51

- Mrs Foster claimed that her forcible retirement at the age of 60 contravened the Equal Treatment Directive, as her male counterparts could work for an additional 5 years - In order to assert this claim, as directives only have vertical direct effect, Mrs Foster would have to prove that British Gas was an organ of the state - The answer was yes. The organisation was publicly run and was responsible for a public service, making it an organ of the state

Question 52

Who has a role in making E.U law? (3)

Answer 52

- The Council - The Commission - European Parliament

Question 53

How does all E.U legislation start?

Answer 53

- With a proposal from the Commission

Question 54

What are the Van Gend En Loos Requirements for?

Answer 54

- establishing the direct effect of primary EU law