The European Union (originally the European Economic Community) was founded in 1957 with six members. The United Kingdom joined in 1973 and by 1995 Union membership increased to 15. Another ten countries joined on 1 May 2004 and two more countries in 2007, making a total of 27 Member States.
The founding treaty was the Treaty of Rome 1957. This has now been replaced with two treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
5.1.1 The Council of the European Union
1 The Council is attended by a government representative of each Member State who must be ‘at ministerial level, authorised to commit the government of that Member State’ (Article 16 TEU).
2 The Presidency is held by each Member State in rotation for a period of six months.
3 The Council is the principal decision-making body of the Union.
4 Sensitive areas such as taxation and social security must be decided by a unanimous vote.
5 For most other matters decisions are made by a qualified majority on a weighted voting basis. Each state has a set number of votes based on its population size.
5.1.2 The Commission
1 There are 27 Commissioners who are appointed for a five-year term, one from each Member State.
2 Commissioners must act in the best interests of the Union. They must ‘refrain from any activity incompatible with their duties’ (Article 245 TFEU).
3 The Commission is the motivating force behind Union policy. It proposes policies and presents drafts of legislation to the Council for consideration by the Council.
4 The Commission is also the ‘guardian of the treaties’ and ensures that treaty provisions and other measures are implemented by Member States.
5 The Commission may refer an infringement by a Member State to the European Court of Justice (Article 258 TFEU).
6 It also has investigative powers over alleged infringements (Article 245 TFEU).
7 It is responsible for the administration of the Union and has executive powers to implement the Union’s budget.
1 Members of the Parliament are elected by the citizens of the Member States. Elections take place once every five years. There are 78 MEPs from the UK.
2 The Parliament has no direct law-making authority. Its role is to discuss proposals and put questions to the Council and the Commission.
3 However, it has some important control functions. It has power to dismiss the Commission by passing a vote of censure (Article 234 TFEU). In 1999 the entire Commission resigned to forestall such a censure vote.
4 The Parliament has some power over the budget, especially on nonnecessary expenditure.
5 Under Article 228 TFEU, the Parliament may appoint an Ombudsman to receive complaints of maladminstration by the Union institutions. The first Ombudsman was appointed in 1995.
5.1.4 Other representative bodies
1 The Economic and Social Committee advises the Commission and the Council on economic matters.
2 It consists of ‘representatives of organisations of employers, of the employed, and of other parties’ representative of civil society, notably in socioeconomic, civic, professional and cultural areas’ (Article 300 TFEU).
3 The Committee of the Regions advises the Commission and the Council on regional matters.
5.1.5 The Court of Justice of the European Union
1 The function of the court is ‘to ensure that in the interpretation and application of the Treaty the law is observed’ (Article 19 TEU).
2 There are 27 judges (one from each Member State) who are appointed from those eligible for appointment to the highest judicial posts in their own country (Article 252 TFEU).
3 The court is assisted by eight Advocates-General whose task is to research all the legal points involved and ‘to present publicly, with complete impartiality and independence, reasoned conclusions on cases submitted to the Court of Justice with a view to assisting the latter in the performance of its duties’ (Article 253 TFEU).
4 The court has wide jurisdiction over Union law. It hears cases brought by the institutions, Member States or individuals alleging a breach of Union law. A main area here is the role of the Commission in bringing cases against Member States.
5 It also hears cases referred by courts in any Member State for a preliminary ruling on a point of Union law (Article 267 TFEU).
6 Such referrals are mandatory where no further appeal is possible in the Member State’s court system and discretionary from any other court.
7 The Court of Justice of the European Union operates in a different way to English courts. The main differences are:
• cases are presented on paper with only limited oral argument;
• an Advocate-General is used to present an independent view of the law;
• judgments are always given in a written form as the decision of the whole court; it is never revealed if there were any dissenting judges;
• the court is not bound by its own previous decisions;
• the court uses the purposive approach to interpretation.
Source |
Effect |
Cases |
Treaties Directly applicable |
Have both vertical and horizontal direct effect |
Van Duyn (1974) Macarthys v Smith (1980) |
Regulations Art 288 TFEU |
Directly applicable Have both vertical and horizontal direct effect |
Re Tachographs (1979) Leonesio (1972) |
Directives Art 288 TFEU |
Have vertical direct effect Do NOT have horizontal direct effect Can sue State under Francovich principle |
Marshall (1986) Duke v GEC (1988) Francovich (1991) |
Recommendations and opinions Art 288 TFEU |
‘Soft’ law Must be taken into considertation when interpreting law |
Grimaldi (1989) |
Effect of the different sources of law
1 Treaties are the primary source of European Union law.
2 All Treaties are ‘without further enactment to be given legal effect or used in the United Kingdom’ (s 2(1) European Communities Act 1972).
3 Treaties are therefore directly applicable and, where a Treaty creates individual rights, then those rights can be relied on by an individual (Van Duyn v Home Office (1974), Macarthys Ltd v Smith (1980)).
5.2.2 Regulations
1 Regulations are issued under Article 288 TFEU.
2 This makes the effect of Regulations ‘binding in every respect and directly applicable in each Member State’.
3 Member States must enforce Regulations; they have no choice over whether to bring them into effect (Commission v UK: Re Tachographs (1979)).
4 Regulations have vertical and horizontal direct effect. This means that citizens may rely on them both against the State and against other private individuals or bodies (Leonesio v Ministero dell’Agricoltura (1972)).
5.2.3 Directives
1 Directives are issued under Article 288 TFEU.
2 Directives ‘bind any Member State to which they are addressed as to the result to be achieved, while leaving to domestic agencies a competence as to form and means’.
3 They are issued with a time limit for implementation in the Member States. If a Directive is not implemented it will have vertical direct effect when the time limit for implementation expires. So where the Directive creates individual rights, those rights may be relied on against the State or an ‘arm of the State’ (Marshall v Southampton and South West Hampshire Area Health Authority (1986)).
4 The concept of an ‘arm of the State’ is a body that has been made responsible for providing a public service under the control of the State (Foster v British Gas plc (1990)).
5 However, Directives that have not been implemented do not have horizontal direct effect. They cannot be relied on against private individuals or bodies (Duke v GEC Reliance Ltd (1988), Dori v Recreb Srl (1994)).
6 Where a Directive has not been implemented, an individual who suffers loss as a result of the non-implementation may sue the State for their breach of Community law (Francovich v Italian Republic (1991)).
7 In Dori v Recreb Srl (1994) the European Court of Justice held that compensation would be payable where:
• the purpose of the Directive was to grant rights to individuals;
• those rights could be identified from the Directive;
• there was a causal link between the breach of the State’s obligations and the damage suffered.
8 In R v HM Treasury, ex parte British Telecommunications plc (1996) the court said that compensation would be payable only where the breach was sufficiently serious.
5.2.4 Recommendations and Opinions
1 These are also issued under Article 288 TFEU. Neither creates enforceable rights.
2 However, national courts are bound to take them into consideration when interpreting national law adopted to give effect to a Recommendation (Grimaldi v Fondes des Maladies Professionelles (1989)).
3 This effect is known as ‘soft law’, as opposed to the ‘hard law’ effect of legislation with binding force.
5.3 Effect on sovereignty of Parliament
5.3.1 Conflict between EU law and national law
1 In Van Gend en Loos (1963), where there was a conflict between the Treaty of Rome and an earlier Dutch law, the European Court of Justice said that ‘the Member States have limited their sovereign rights, albeit within limited fields, and have created a body of law which binds both their nationals and themselves’.
2 In Costa v ENEL (1964) there was a conflict between a number of Treaty provisions and a later Italian law, which under Italian law would take priority. The European Court of Justice held that ‘The reception, within the laws of each Member State, of provisions having a Community source … has as a corollary the impossibility, for the Member State, to give preference to a unilateral and subsequent measure …’.
3 In Internationale Handelsgesellschaft mbH (1970) the court held that an EU regulation that conflicted with the German constitution took precedence over the German law.
4 In Simmenthal SpA (No 2) (1979) the court stated that national courts are under a duty to give full effect to the provisions of EU law and, if necessary, should refuse to apply national laws that conflict with EU law.
5.3.2 Sovereignty of Parliament
1 The fact that EU takes precedence over national law means that while the UK is a member of the Union, Parliament is no longer the supreme law-maker.
2 This was stressed when the validity of the Merchant Shipping Act 1988 was successfully challenged as it conflicted with the Treaty of Rome (R v Secretary of State for Transport, ex parte Factortame (1990)).
3 Domestic courts are under a duty to apply EU law in preference to national law.
5.2 |
|
|
Key Facts The UK refused to allow a member of the Church of Scientology to enter the country. This contravened the freedom of movement of workers under what was then Art 39 of the Treaty of Rome, but the UK relied on the right to derogate on the grounds of public policy as contained in Directive 64/221. It was held that the Treaty conferred individual rights which could be relied on, but, in the circumstance of this case, the UK could derogate from those rights. |
|
Key Law Individuals can rely in English law on rights given by the Treaties setting out European Union Law. |
5.2 |
Macarthys v Smith [1979] WLR 1189 |
|
Key Facts A woman discovered that she was being paid less than her less-qualified male predecessor in the job. She was the only one doing that work in the company and therefore could not rely on English law as there was no male comparator. She claimed discrimination under what was then Art 141 of the Treaty of Rome (as worded prior to the reworking of the Treaty under the Treaty of Amsterdam). It was held that the she could rely directly on the Treaty. |
|
Key Law Primary legislation (treaties) of the European Union which conferred rights on individuals was of direct effect and could be relied on, even when national law was contrary to EU law. |
5.2 |
|
|
Key Law Council Regulation EEC/1463/70 made it compulsory for tachographs (mechanical recording equipment) to be fitted to certain types of vehicle. The UK brought the regulation into effect through a Statutory Instrument which provided for a voluntary system of fitting tachographs. It was held that the fitting was compulsory. EU Regulations are directly binding in their entirety. They cannot be applied by Member States in an incomplete or selective manner. |
5.2 |
Marshall v Southampton and South West Hampshire Area Health Authority [1986] 2 All ER 584 |
|
Key Facts The applicant, a woman, had been forced to retire before the age of 65, while men were allowed to work until that age. A reference was made to the European Court of Justice (now the Court of Justice of the European Union) on the point of whether this amounted to discrimination under the Equal Access Directive 76/207. The court held that the rights conferred by the Directive could be relied on as against the State. |
|
Key Law Directives have vertical direct effect. |
5.2 |
Grimaldi v Fond des Maladies Professionelles [1989] ECR 4407 |
|
Key Facts A Belgian tribunal made a reference to the European Court of Justice as to the standing of a Commission recommendation. It was held that national courts, when deciding a case, must take relevant recommendations into account. |
|
Key Law Recommendations do not have binding effect but must be taken into account. |
5.3.1 |
Van Gend en Loos v Nederlandse Administratie [1963] ECR 1 |
|
Key Facts It was held that a re-classification of import duties by the Dutch Government contravened the then Art 12 of the Treaty of Rome. |
|
Key Law EU law takes precedence over national law. |
