European Union Law

Sources of Law

Learning Objectives

To state and describe the three main sources of EU law and their functions.

To explain the horizontal and vertical effects of EU law

To explain the differences between direct and indirect effects of EU law

Describe case law to demonstrate the supervisory function of the ECJ

EU law (created by the EU institutions) is binding on all EU Member states.

They must ‘take all appropriate measures, whether general or

particular, to ensure fulfilment of the obligations of this Treaty...’

There are three main sources of EU Law:

PRIMARY LEGISLATION: the Treaties

SECONDARY LEGISLATION: Regulations, Directives, Decisions,

Recommendations and Opinions. RULINGS: on cases brought before the

ECJ.

TREATIES

Agreements amongst all member states

Highest sources of law and form the basis of EU Law

Treaty of RomeTEUTFEU

Treaties have both vertical

And horizontal direct effect.

REGULATIONS

Directly Applicable: become part of domestic law, no intervention is necessary.

Similar to an Act of Parliament, but if there is a conflict with national laws, the regulation prevails.

Regulations have both vertical

And horizontal direct effect

How could this be viewed

positively and negatively?

DIRECTIVES Formal instructions that require the

amendment of national laws for a certain result.

In the UK, directives can either be implemented via statute or delegated legislation under the European Communities Act 1972.

May concern one all or member states.

Directives only have vertical direct effect.

Decisions

Individual act addressed to a specified person, persons or firm.

They are only binding to the party concerned

No need for implementation.

Recommendations and Opinions

Non binding, persuasive value only.Aimed at promoting the implementation of

common practices.

DIRECT EFFECT

Allows and individual to

invoke a provision against the state

Allows individuals to invoke a provision against another individual or a private company.

VerticalDirectEffect

Horizontal Direct Effect

INDIRECT EFFECT

Compels national courts to interpret ‘so far as possible’ legislation in accordance with directives.

The member state has freedom to decide on form so long as it complies with the original aim of the directive.

Von Colson v Land-Westfahlen

ECJ-Supervisory RoleThe ECJ has power under the TFEU for

preliminary ruling procedure which ensures consistency.

Bulmer v Bollinger (1974) set the guidelines for referrals:

1.There is no need to refer a case already decided by the ECJ2.Acte Clair Doctrine.3.Courts must refer when there is no further appeal• See Marshall v Southampton area Health Authority

(1986) for this function in action.

TERMINOLOGY

• Direct Effect= allows individuals to rely upon EU law (even if the member state has not implemented EU law)

• Direct Applicability= automatically binding and immediately part of domestic law

• Persuasive= can be taken into account but doesn't have to be followed

• Domestic law=the national law of the individual member state.

•Vertical direct effect= allows individuals to rely upon European provisions against the State•Horizontal direct effect= allows individuals to rely upon a European provisions against another individual or a private company.•Indirect effect= compels national courts to interpret ‘so far as possible’ national legislation in accordance with the aims of the Directive.

GRADE BOOST:

Include a range of case law to illustrate how the position of EU laws had been decided by the courts:

Defrenne v Sabeena (1976) Facts? Pubblico Ministerio v Ratti (1979) Facts? Costa v ENEL (1964) landmark ruling-facts? R v.Secretary State for Transport, ex parte Factortame (no.2)

(1990) Facts? What did Lord Denning say in regards to supremacy in

Bulmer v Bollinge (1974) ?

GRADE BOOST:

Think about what s.2(1) of the ECA 1972 means in regards to supremacy.

Familiarity with Pickstone v Freemans PLC (1988) & Marleasing (1990) will help you to demonstrate the importance of the Factortame case.