Ch.2: European Union Law and Human Rights Law

Who are the personnel of the General Court (EGC)?

- Judges appointed by agreement among the member states. - At least one judge per state.

When did the UK become a member of the European Economic Community (the EEC, as it then was)?

1 January 1973

Who are the personnel in the European Court of Justice?

- Judges appointed by agreement among the member states. - One judge per state. - Assisted by Advocates-General.

When does a provision of EU law have VERTICAL direct effect?

- A provision of EU law has VERTICAL direct effect if it is enforceable against a member state in its own courts. - In the United Kingdom this means that vertically directly effective provisions can be enforced against the United Kingdom itself, as well as against local authorities, health authorities (Marshall v Southampton and South West Hampshire Area Health Authority (No. 2) [1994] QB 126, CJEC) and nationalised industries (Foster v British Gas plc [1991] 1 QB 405, CJEC).

When does a provision of EU law have HORIZONTAL direct effect?

- A provision of EU law has horizontal direct effect if it can be enforced against another individual.

What is the difference between 'directly applicable' and 'directly effective'?

- A provision of EU law will be directly applicable if it automatically becomes part of the law of a member state without the need for the member state to enact any legislation itself. - A provision of EU law will be directly effective if (and only if) it creates rights which individuals may rely upon in their national courts and are enforceable by those courts. - Thus, direct applicability is concerned with the incorporation of EU law into the legal system of a member state, whereas direct effect is concerned with its enforceability.

Do Treaty Articles have vertical direct effect or horizontal direct effect?

- All Treaty Articles have vertical direct effect following the case of Van Gend en Loos v Nederlandse Administratie der Belastingen. - Treaty Articles may also have horizontal direct effect (Defrenne v Sabena (No. 2) [1976] ECR 455, CJEC) - Therefore, Treaty Articles can be enforced directly in UK courts, regardless of any other domestic legislation.

Do Directives have vertical direct effect or horizontal direct effect?

- Article 288 TFEU demonstrates that Directives are fundamentally different from Regulations. - Directives are 'binding as to the result to be achieved, upon each member state to wish it is addressed, but shall leave to the national authority the choice of form and methods'. - In other words, Directives tell member states what needs to be done, but leave the states to decide what provisions of domestic law to enact in order to implement that Direct. - There is usually a specified period of time for the member states to implement any given Directive. Therefore: - Directives are not directly applicable; - Directives do not have horizontal direct effect; - However, Directives may have vertical direct effect if: - they satisfy the Van Gend criteria; - the time for implementation has passed (Pubblico Ministero v Ratti Case 148/78 [1979] ECR 1629, CJEC) - A member state which has failed to implement a Directive may be liable to compensate individuals who have suffered as a result (Francovich v Italian Republic [1991] ECR I-4845, CJEC). - In other words, if an individual has lost out because of defective implementation of a Directive, they may be able to 'sue the state' for the loss.

Do Regulations have vertical direct effect or horizontal direct effect?

- Article 288 TFEU states that a Regulation shall 'have general application' and shall be 'binding in its entirety and directly applicable in all member states'. - Therefore, subject to satisfying the VAN GEND criteria, Regulations, like Treaty Articles, have both vertical (Leonesio v Italian Ministry of Agriculture Case 93/71 [1972] ECR 287, CJEC) and horizontal (Antonio Munoz Cia SA v Frumer Ltd Case C-253/00 [2002] ECR-I/7289, CJEC) direct effect.

What is the composition and function of the General Court (formerly Court of First Instance)?

- Comprises judges appointed by the member states. - As its former name suggests, hears a wide variety of EU cases at first instance.

What is the composition and function of the Court of Justice of the European Union (commonly 'European Court of Justice', 'ECJ' and 'CJEC')?

- Comprises one judge from each member state (appointed for a renewable six-year term) and eight Advocates-General (who produce opinions on the cases for the assistance of the judges, highlighting the legal issues and suggesting possible outcomes). - Hears appeals on points of law from the General Court. - Sits in Luxembourg.

What is the composition and function of the European Commission?

- Formulates policies which are consistent with the EU Treaties; sets the EU budget; part of the legislative process. Members (called Commissioners) are politicians appointed by each of the 27 members states for a five-year period. - They represent the interests of the EU and not their respective member states. - Ensures member states comply with EU law and can bring states before the Court of Justice.

Where there is conflict between EU law and the law of member states, which law prevails?

- From the point of view of the EU, where there is a conflict between EU law and the law of member states, then EU law

What is the composition and function of the European Parliament?

- Has a maximum of 751 members (known as MEPs). - Each member state is allocated a number of seats based on its population and MEPs are directly elected by citizens of each member state (every five years in the UK). - The Commission and Council may consult the Parliament. - In exceptional circumstances the Parliament can veto legislation. - It supervises the Commission (and can appoint and dismiss it as a whole). - It can also bring actions against other EU institutions.

What is the composition and function of the Council of Ministers/European Council?

- Main law-making body of the Community which represents the interests of the individual member states. - The European Council comprises the 27 heads of state from the member states with the President of the Council. - The President is appointed for a two-and-a-half-year term. - Membership of the Council of Ministers fluctuates: members are chosen by each member state depending on the subject matter of the debate. - It does not therefore have a permanent membership.

What is the jurisdiction of the General Court (EGC, previously CFI)?

- The Court of First Instance (CFI) was set up by the Single European Act 1986 in an attempt to cope with the increasing caseload of the ECJ. - As its name suggests, it hears a wide variety of EU cases at first instance brought by individuals rather than by member states. - There is a right to appeal to the ECJ on matters of law. - It became known as the General Court (EGC) from 1 December 2010.

What are the different institutions that carry out the tasks of the EU set out in Article 13 TEU?

- The European Commission - The Council of Ministers/European Council - The European Parliament - The Court of Justice of the European Union - The General Court - The European Central Bank - The Court of Auditors.

What are treaties? What do they establish?

- The Treaties of the EU are a set of agreements between member states that establish its institutions (and their powers), its procedures (including the legislative process) and its objectives. - In some instances, they create rights and obligations. - They are primary sources of EU law and are superior to all other forms of law (EU or national) and cannot be changed without the unanimous agreement of all member states.

When was the Treaty of Lisbon ratified by the UK? By what Act?

- The Treaty of Lisbon was ratified by the UK on 19 June 2008 by the European Union (Amendment) Act 2008 and came into force on 1 December 2009.

What are the two key treaties?

- The Treaty on European Union (TEU; Maastricht) - The Treaty on the Functioning of the European Union (TFEU; Treaty of Rome) - These have been changed by the various amending Treaties (such as Amsterdam, Nice and Lisbon) as the scope of the EU has changed over time. The most recent of these was the Lisbon Treaty, which resulted from the EU's expansion to include more member states.

What are the four main sources of EU law?

- Treaties - Regulations - Directives - Decisions

What is the difference between Articles, Regulations and Directives?

- Treaty Articles are the basic principles upon which EU law is founded. - These set out a broad framework and establish the fundamental legal concepts, often in very general terms. - The Articles are supplemented by Regulations which provide the next level of detail - however, since Regulations are immediately directly applicable, then by virtue of section 2(1) of the European Communities Act 1972 they do not require any further legislative work for their implementation. - Directives often provide the real detail on a given area; here it is recognised that individual member states may need to implement them in slightly different ways, to reflect their own national cultures or customs. - Therefore, as long as the objective of the Directive is met, each state is given discretion as to how it is implemented in its domestic law. - Many pieces of important and influential UK legislation have arisen from the implementation of EU Directives, such as the Equal Pay Act 1970 and the Sex Discrimination Act 1975.

What are the Treaties of the EU?

- Treaty of Rome 1957 (Treaty on the Functioning of the European Union - TFEU) - Single European Act 1985 - Maastricht Treaty 1992 (Treaty on European Union, TEU) - Treaty of Amsterdam 1996 - Treaty of Nice 2001 - Lisbon Treaty 2009 Although they are primarily concerned with they way in which the EU operates and the relationships between member states, they can also affect individuals directly.

What does a DECISION do?

A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

What does a DIRECTIVE do?

A directive shall be binding, as to the result to be achieved, upon each Member State to which it addresses, but shall leave to the national authorities the choice of form and methods.

What does a REGULATION do?

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

What is the contents of Section 2(1) of the European Communities Act 1972?

All such rights, powers, liabilities, obligations, and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly. This means that EU law, irrespective of whether it arises from treaties or Community regulations and whether it has already been made or is to be made in the future is directly applicable in the United Kingdom. Moreover, section 2(4) of the Act provides that any 'enactment' passed or to be passed in the United Kingdom must be interpreted with applicable EU law in mind.

What is the contents of Section 2(4) of the European Communities Act 1972?

Any enactment passed or to be passed... shall be construed and have effect subject to the foregoing provisions of this section.

What does Article 188 TFEU provide in relation to decisions of the ECJ and direct effect?

Article 288 TFEU provides that a decision of the ECJ is 'binding in its entirety upon those to whom it is addressed, who may be either individuals or member states.' Thus they are not directly applicable, but are capable of having direct effect.

What did Article 288 TFEU set out?

Article 288 TFEU sets out the different types of EU legal instrument: Article 288 TFEU - To exercise the Union's competences, the institutions shall adopt REGULATIONS, DIRECTIVES, DECISIONS, RECOMMENDATIONS and OPINIONS. - A REGULATION shall have general application. It shall be binding in its entirety and directly applicable in all Member States. - A DIRECTIVE shall be binding, as to the result to be achieved, upon each Member State to which it addresses, but shall leave to the national authorities the choice of form and methods. - A DECISION shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. - RECOMMENDATIONS and OPINIONS shall have no binding force.

What had to be put in place by the UK Parliament in order fulfil their Community obligations?

European Communities Act 1972

What do RECOMMENDATIONS and OPINIONS do?

Recommendations and opinions shall have no binding force.

What does ECHR stand for and is it part of EU law?

The European Convention on Human Rights and Fundamental Freedoms (ECHR) is, like EU Treaties, an international treaty. It is NOT part of EU law (even though EU member states have signed up to the ECHR)

What is the jurisdiction of the European Court of Justice (ECJ/CJEC)?

The European Court of Justice (ECJ/CJEC) primarily: - Gives 'preliminary rulings'. - National courts may make interim references under Article 267 TFEU directly to the ECJ if they need clarification on how a particular piece of EU legislation should be interpreted. - The need for such references will arise during the course of a domestic action, typically in the Supreme Court. - In other words, if a court cannot make a ruling because it is unsure how to construe a piece of EU legislation, then it can effectively suspend the proceedings before it to ask the ECJ for its opinion. - Hears actions against member states for failure to meet Treaty obligations. - These actions may be brought by the European Commission (Article 258 TFEU) or by one member state against another (Article 259 TFEU). - The ECJ may impose fines as a result (Article 260 TFEU).

What did the Treaty of Lisbon amend? What were the most significant changes?

The Treaty of Lisbon amended the Treaty on European Union and the Treaty of Rome (the Treaty Establishing the European Community), which was renamed the Treaty on the Functioning of the European Union. It's most significant changes included: - the creation of a long-term President of the European Council - more qualified majority voting in the Council of Ministers - increased involvement of the European Parliament in the legislative process - the Charter of Fundamental Rights being given the status of a legally binding instrument.