EUROPEAN UNION

The accession of the United Kingdom to membership of the European Communities meant that Community Law became applicable in this country. This applicability affects the British legal system.

The European Communities Act 1972 provided that from 1 January 1973 the UK had new sources of law: The European Communities Treaties themselves (Primary Laws), plus the various types of legislation made by the EEC (Secondary Laws). Rulings of the European Court of Justice also affect English law. These are sources of law only in the areas in which the European Community is concerned, which currently comprise agriculture and fishing, companies, competition, free movement of workers and goods, education, consumer policy, health, and environment. However, EC has not competencies over the UK in economic and social areas.

 1. DIRECT APPLICABILITY. DIRECT EFFECT.

 1.1. PRIMARY LAWS.

The British constitution convention establishes that Parliament is sovereign. It means that laws made by the Parliament takes precedence over that laws made from any other source. There are four factors derivative from this sovereignty:

      1.      Parliament is the highest legislative authority in UK: only             Parliament can create law.

2.      No court in UK can impede or restrict Parliament’s law making ability. Parliament can make whatever laws it wants, and the courts must apply that law.

3.      Parliament’s sphere of legislation has no limits; it can legislate on any matter of its choosing (E.g. retrospective legislation).

4.      No parliament can bind a future Parliament.

Therefore, Parliament can make or cancel any law it chooses, and the courts must enforce it. However, membership of the EC has compromised this principle.

The EEC was set up by the Treaty of Rome in 1957, which is part of the primary laws of the EEC –it’s the constitution of the EEC- and the most important European law that affects GB. But Treaty of Rome presents constitutional problems for the British Parliament. The Treaty of Rome is superior to all domestic laws, and if there is a conflict between Parliament and Treaty of Rome the latter prevails. Therefore, this contradicts the constitutional convention that the Parliament is sovereign.

There are some circumstances when a judge may disapply the provisions of an English statute under the Treaty of Rome. This is in order to give priority to Community law and to comply with the doctrine of direct applicability.

Section 2 of the European Communities Act 1972 provides that all parliamentary legislation -whether passed before or after the European Communities Act- must be construed and applied in accordance with Community law. English law should be interpreted and have effect subject to the principle that EC law is supreme; this means that EC law now takes precedence over all domestic sources of law. The case of R v Secretary of State for Transport ex parte Factortame (1990), that went to the ECJ from the House of Lords, makes it clear that the English courts must apply EC law which is directly effective even if it conflicts with English law. In this case the House of Lords struck down parts of the Merchant Shipping Act 1988, that held to conflict with the Treaty of Rome. It was the first time that British judges overturned a statute. The case was significant as the ECJ said that national courts were to ignore any national law that ran contrary to European law. Any doubt as to the primacy of EC law over national law was resolved by the European Court of Justice in Costa v ENEL (1964). The primacy of EC law prevails even where the domestic law is penal in nature, thus creating a defence of reliance on European Community law (Pubblico Ministero v Ratti Case (1974)).

EC Act 1972 has also had a profound effect on the rights of citizens in this country, and in particular, on the rights of employees, especially female workers. For example, in R v Secretary of State for Employment ex parte Equal Opportunities Commission (1994), the House of Lords found that parts of the Employment Protection (Consolidation) Act 1978 were incompatible with EC law on equal treatment for male and female employees, because the Act gave part-time workers fewer rights than full-timers. Since most part-time workers were women, this was held to discriminate on the basis of sex, and the UK Government was forced to change the law, and greatly improve the rights of part-time workers. The Art. 141 EC Treaty provides that “Each member state shall... ensure and ... maintain the application of the principle that men and women should receive equal pay for equal work”.

Treaties are the highest source of EC law and they automatically become part of domestic law. Provisions contained in the treaties and regulations enacted by the Council of the European Community are of “direct applicability”, by which is meant that they become part of the law of a member state without further intervention by the member state. This is an exception in the UK: signing a treaty does not mean that this treaty instantly becomes a law, and only when Parliament produces legislation to enact the treaty commitments, those commitments become law. So citizens cannot rely on them in proceedings brought in UK courts. But treaties set up in the European Communities are directly applicable in British courts and can be relied on to create rights and duties just like an English statute.

Additionally, Treaties create some rights and obligations. For example: The case of Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) decided that if a Treaty provision is unconditional, clear and precise as to the rights or obligations it creates, and leaves member states no discretion on implementing it, it can be used by individuals in their own national courts, just as if it came from a statute passed by the national parliament. This is described as having direct effect.

There are two types of direct effect: vertical direct effect means that an individual can use a provision of EU law against a state body (the armed forces, the police, regulatory bodies, colleges and universities, etc); and horizontal direct effect gives individual rights against other people and organisations. Treaty provisions that are unconditional, clear and precise, and allow no discretion on implementation, have both horizontal and vertical direct effect. Directly effective Treaty provisions take precedence over any national law that conflicts with them. For example, Art. 119 of the EEC Treaty provides that “men and women shall receive equal pay for equal work”. In Macarthys v Smith (1979), Art. 119 was held to give a woman in the UK the right to claim the same wages as were paid to the male predecessor in her job, even though she had no such right under the UK equal pay legislation passed in 1970, before the UK joined the Communities.

In Marshall v Southampton Health Authority (1986) and in Johnstone v Chief Constable of the Royal Ulster Constabulary (1987) the European court of Justice ruled respectively that employees of the National Health Service, and those of constitutionally independent authorities responsible for maintaining law and order, could invoke provisions contained in directives against their employers in the basis that they were agents of the national authority.

The horizontal direct effect of Treaty provisions has been recognised by the European Court of Justice in decision such as Warave and Koch v Union Cycliste Internationale (1974) and Defrenne v SABENA (1976).

1.2. SECONDARY LEGISLATION.

Regulations are community laws very similar to an English Act of Parliament. An European regulation is effective immediately in national law. They become part of the law of each member nation as soon as they come into force, without the need for each country to make its own legislation. Art. 189 of the EC Treaty provides that regulations are “directly applicable” in all Member States.

Regulations must be applied even if the member state has already passed legislation that conflicts with them. In Leonesio v Italian Ministry of Agriculture (1973), a regulation to encourage reduced dairy production stated that a cash premium should be payable to farmers who slaughtered cows and agreed not to produce milk for five years. Leonesio had fulfilled this requirement, but was refused payment because the Italian constitution required legislation to authorise government expenditure. The ECJ said that only Leonesio had satisfied the conditions, and that he was entitled to the payment; the Italian government could not use its own laws to block that right.

Regulations have also effective horizontally and vertically.

Directives have to be integrated into national law to have effect. Directives are not directly applicable in that they require further enactment by a member state before they can take effect within its domestic law. Member states have no discretion as regards the object to be achieved by the implementation of the directive, but do have discretion as to how that objective is to be achieved. In the UK the implementation of a directive may take the form of primary or delegated legislation as appropriate. Euro-directives apply directly even if a member state has not legislated for that directive. Directives have only effective vertically.

Decisions are effective immediately in national law. A decision may be addressed to a state, a person or a company and is binding only on the recipient. They have effective vertically only.

 2. RULINGS OF THE EUROPEAN COURT OF JUSTICE.

Under Article 177 of the Treaty of Rome, the European Court is the supreme tribunal for the interpretation of European Community law. Section 3 of the European Communities Act 1972 states that questions as to the validity, meaning or effect of Community legislation are to be decided in accordance with the principles laid down by the European Court. In the light of these provisions, Lord Denning stated that when interpreting European law, English courts should take the same approach as the European Court would.

Art. 177 Treaty of Rome 1957 may be of use to any national court in any one of the 15 member states, when the issue they are dealing with in court involves the consideration of some aspect of European law. It allows the national court to ask the ECJ a question or questions either on the interpretation of EU law or on the validity of EU law. When a national court does this, the proceedings in court are suspended until the preliminary ruling on the point in question has been made. It can take two years or more for a preliminary ruling to be made. The national court then takes the interpretation and continues the case applying the interpretation to the facts of the case. Whereas most UK domestic courts have a discretion as to whether to approach the ECJ for a ruling on a matter of interpretation or validity, the House of Lords has no such discretion. If the case before it raises such issues, it has to refer the case to the ECJ. Any court can make a reference to the ECJ direct.

There are many request for preliminary rulings, because EU directives and regulations are written in quite general terms, with few definitions, which means that there will be scope for ambiguities when these are considered in UK courts. When the UK Parliament implements directives by drafting Acts of Parliament, an attempt is made to make the language less ambiguous and more definitions are provided, but this in itself can cause problems which may lead to the need for a preliminary ruling.

3. CRITICS.

The main objections of ECJ power are made by conservatives. They believe ECJ erodes Parliamentary Sovereignty. Norman Lamont opposes the increasing power of the ECJ, arguing that despite GB has a veto over other European policy, there is no one over the ECJ’s decisions. The ECJ does not simply decide on the consistency of application of EU law in member states, It makes law which has the strength and status of EU law and is superior to British law. The ECJ has extended the EU’s ability to interfere in the affairs of the British Government.

Malcolm Rifkind (foreign Secretary in 1996) wanted to push for amendments to the Treaty of Rome to prevent the ECJ from abusing its powers. He wanted to prevent the Court from making law and instead it should simply interpret it.

The arguments against Treaty of Rome are based on the profound impact on constitution that the European laws have. Lady Thatcher argued that in effect, all European law became binding on the British people despite that law never having been scrutinised or debated by the British Parliament.

Conservatives said that to suppress nationality in favour of a centralised Europe would be extremely damaging. Parliament cannot refuse to accept EU law, nor debate it, nor repeal it, unless Parliament were to cancel the 1972 Act.

Lord Denning in Bulmer Ltd v J. Bollinger (1974) accused the EC court of interfering with parliamentary sovereignty in the absence of express authority conferred by the EEC treaty. He suggested such judgements ought to be ratified by the British Government before they become law.

In the other hand, supporters of the EU argue that the question of surrendering to EU is irrelevant in the modern world. All countries are being affected by the globalisation of the world economy quite irrespective of the EU and all countries are having to surrender some of their sovereignty anyway. Modern states cannot be self-sufficient. All states are now interdependent. Sovereignty is said to be pooled rather than surrendered. They also argue that sovereignty ultimately rest with the British Parliament, which has voluntary transferred a portion of its sovereignty to the EC.

The John Major’s attempts to preserve Parliament sovereignty were in two main ways. Firstly he used, in the Maastricht treaty, the method of variable geometry, that allow a number of member states to negotiate exemptions from treaty provisions. It allows member states to opt out of EU obligation. The most important was the GB’s opt-out of a single currency and the social chapter. Major also initiated the idea of subsidiarity as a way to prevent further erosion of Parliamentary Sovereignty. EU allows decisions to be “taken as closely as possible to the citizen”. It means that member states should control that areas which do not fall within the exclusive competence of the EU. But this is very vague.

 4. CONCLUSION.

British legal system cannot be treated as static. It is continuously responding to changes that take place in society as a whole. To deny the relevance of European law in the English legal system course would not only be restrictive; it would be wrong to the extent that it ignored an increasingly important factor in the formation and determination of UK law.

In addition, the European Community law is supranational; that is, it does not replace domestic law.

Furthermore, some people think that all the laws in the UK will emanate from Europe (rather than just some laws), but this will be the case if the UK becomes part of a federal Europe. The European Union is not becoming a federation of states, as some people think. I think that Europe will not become overtly federal, so the UK will still legislate primarily for itself. UK will continue being a traditional “nation state”.

All the attempts to preserve Parliament sovereignty, such John Major’s one, entail a multi-track Europe. This multi-speed Europe, which makes difference between all the member states, would be able to relegate Great Britain to an European “second division”, not being able to be competitive with the rest of the European members.

   MERCEDES SÁNCHEZ HERREROS