The European Union (AQA A-Level Law): Revision Notes
The European Union
This will be assessed in Paper 3.
Background to the UK and the EU
The European Union (EU) was formed in 1957 as a supranational organization designed to promote economic cooperation and political integration among European countries. The UK joined the EU in 1973 by signing the Treaty of Rome, which established the legal framework for EU membership.
Before the UK could adopt EU law, Parliament had to give its consent. This was achieved through the European Communities Act 1972, which was passed following a national referendum. This Act provided the legal basis for EU law to apply in the UK and allowed EU institutions to have authority within the UK legal system.
It is important to understand that EU law was not imposed upon the UK against its will. The UK was a senior and influential member of the EU, participating fully in the creation of new EU laws and having as much say in legislative matters as any other Member State.
In 2016, following another referendum, the UK voted to leave the EU. This process, known as Brexit, resulted in the UK's formal departure from the EU on 31 January 2020. The withdrawal ended the UK's obligations under EU law and restored full legislative sovereignty to the UK Parliament.
The institutions of the EU and their functions
The EU operated through four main institutions, each with distinct roles and responsibilities in the law-making and administrative processes.
The Council
The Council of the European Union served as the principal law-making body of the EU. It was responsible for adopting EU legislation, often working alongside the European Parliament in the co-legislative process.
The Council's membership was unique in that it varied depending on the subject matter under discussion. Each Member State sent a representative to the Council, typically the Foreign Minister. However, when specific policy areas were being debated, the relevant minister from each country would attend. For example, when agricultural policy was on the agenda, the Ministers for Agriculture from each Member State would participate in the Council's deliberations.
Voting in the Council operated through a qualified majority (also known as a double majority) system. For a proposal to pass, two conditions had to be met simultaneously: at least 55% of Member States had to vote in favour, and these states had to represent at least 65% of the total EU population. This voting mechanism ensured that both the number of countries and their population size were taken into account, preventing larger states from dominating or smaller states from blocking necessary reforms.
The Commission
The European Commission functioned as the EU's executive arm and administrative body. Its primary role was to propose new laws for consideration by the Parliament and Council. The Commission was responsible for drafting legislative proposals and ensuring they aligned with EU treaties and objectives.
Beyond its legislative role, the Commission administered the day-to-day operations of the EU. It oversaw the implementation of EU policies and ensured that Member States properly fulfilled their obligations under EU treaties. If a Member State failed to implement EU law correctly, the Commission could refer the matter to the Court of Justice of the European Union for enforcement action.
The Commission also managed the EU's budget and supervised how funds were allocated and spent across various EU programmes and initiatives.
Each Member State appointed one Commissioner to serve in the Commission. These Commissioners were required to act independently of their national governments and serve the interests of the EU as a whole. They were appointed for five-year terms and could only be removed during their tenure through a vote of censure by the European Parliament. Each Commissioner headed a specific department responsible for a particular area of EU policy, such as agriculture, trade, or competition law.
The European Parliament
The European Parliament was the directly elected legislative body of the EU, consisting of 751 Members of the European Parliament (MEPs). Elections took place every five years, with citizens from all Member States voting for their representatives. The number of MEPs from each country was determined by the size of that country's population, ensuring proportional representation.
MEPs formed political groups based on their political allegiance rather than their nationality, creating transnational party groupings such as the European People's Party or the Party of European Socialists. The Parliament met once a month for plenary sessions where the full membership debated and voted on legislation.
Much of the Parliament's work occurred in standing committees, which examined proposals made by the Commission in detail before reporting back to the full Parliament for debate. These committees specialized in different policy areas and conducted thorough scrutiny of legislative proposals.
The European Parliament gained significant powers over time, eventually achieving co-legislative status with the Council. This meant it could approve or reject legislative proposals on an equal footing with the Council. The Parliament also decided on international agreements, voted on the admission of new Member States, reviewed the Commission's work programme, and could request that the Commission propose specific legislation.
The Court of Justice of the European Union
The Court of Justice of the European Union (CJEU) served as the supreme judicial authority for interpreting and applying EU law. The Court had two main functions that were crucial for maintaining legal uniformity across the EU.
First, the CJEU determined whether Member States had failed to fulfill their obligations under EU law. Cases such as Re Tachographs: The Commission v United Kingdom (1979) demonstrated the Court's power to enforce EU regulations against Member States that failed to implement them properly.
Second, and perhaps most importantly, the CJEU heard preliminary references from national courts seeking clarification on points of EU law. When a national court encountered a question about the interpretation or validity of EU law, it could (and sometimes was required to) refer that question to the CJEU for a definitive ruling. The CJEU's rulings on these references were binding on courts in all Member States, ensuring that EU law was interpreted and applied uniformly throughout the Union. The case of Factortame v Secretary of State for Transport (1990) exemplified this process and its significance.
The Court sat in Luxembourg and included one judge from each Member State. For cases requiring a full court, 11 judges would sit together. For other matters, the Court could sit in smaller chambers of five or three judges, depending on the complexity and importance of the case.
The Court was assisted by 11 Advocates General, who played a unique role in the judicial process. An Advocate General would take a case, conduct independent research, and present an impartial opinion on the legal issues to the Court. While not binding, these opinions often influenced the Court's final judgment.
Sources of EU law
EU law derived from three primary sources, each with different legal characteristics and effects within Member States.
Treaties
Treaties constituted the primary legislation of the EU and formed the constitutional foundation of the Union. They set out the fundamental principles, objectives, and institutional framework of the EU. The most important treaties included the Treaty of Rome, which established the European Economic Community, and subsequent treaties such as the Maastricht Treaty and the Lisbon Treaty.
Treaties automatically became part of each Member State's domestic law without requiring further national legislation. In the UK, before Brexit, Section 2(1) of the European Communities Act 1972 provided the legal mechanism allowing individuals to directly rely on treaty provisions in national courts. This meant that if a treaty provision was clear, precise, and unconditional, individuals could invoke it in legal proceedings.
Key cases demonstrating the effect of treaties included Van Duyn v Home Office (1974), which established that treaty provisions on free movement could be directly enforced by individuals. Macarthys Ltd v Smith (1980) and Diocese of Hallam Trustee v Connaughton (1996) both dealt with the equal pay provisions of the Treaty of Rome, showing how treaty rights could be invoked even when national law did not provide equivalent protection.
Regulations
Regulations were a form of secondary EU legislation that had general application across all Member States. They were binding in their entirety and directly applicable, meaning they automatically became part of national law without requiring any implementation measures by Member States.
Once a regulation was adopted by the EU institutions, it immediately created rights and obligations for individuals, businesses, and governments throughout the EU. Member States could not choose whether or how to implement regulations – they applied automatically and uniformly.
Case Demonstration: Re Tachographs
Re Tachographs: The Commission v United Kingdom (1979) illustrated the binding nature of regulations. In this case, the UK had failed to enforce regulations requiring certain vehicles to be fitted with tachographs (devices recording driving time). The CJEU held that the UK was in breach of its obligations, and the regulations had to be enforced despite the UK's reluctance to do so.
Directives
Directives represented a more flexible form of EU legislation. Unlike regulations, directives were not directly applicable in Member States. Instead, they set out objectives that Member States were required to achieve, while leaving the choice of form and methods to national authorities.
Each directive specified a time limit within which Member States had to implement it into their national law. In the UK, directives were typically implemented through delegated legislation, such as statutory instruments, rather than primary legislation.
The effect of directives was more complex than treaties or regulations, particularly regarding their enforceability by individuals. Two important concepts emerged from case law:
Vertical direct effect allowed individuals to rely on directive provisions against the state or state bodies, even if the directive had not been properly implemented. This principle was established in Marshall v Southampton and South West Hampshire Area Health Authority (1986), where a woman challenged discriminatory retirement ages imposed by a health authority (a state body). The CJEU held that she could rely on the Equal Treatment Directive against her employer because it was an emanation of the state.
Horizontal direct effect was more limited. Generally, directives could not be enforced by individuals against other private individuals or companies. However, Francovich v Italian Republic (1991) established that if a Member State failed to implement a directive, it could be held liable to pay compensation to individuals who suffered loss as a result of that failure. Additionally, Von Colson v Land Nordrhein-Westfalen (1984) introduced the principle of indirect effect, requiring national courts to interpret domestic law in accordance with EU directives wherever possible, making directives "almost horizontally effective" in practice.
The impact of EU law on the law of England and Wales
EU membership had profound implications for the English legal system, affecting both the court structure and methods of legal interpretation.
Impact on the court hierarchy
While the UK was an EU member, the Supreme Court's position as the highest court was qualified by its relationship with the CJEU. When the Supreme Court encountered questions of EU law, it was required to refer those questions to the CJEU for a preliminary ruling. This meant that on matters of EU law, the CJEU effectively sat above the Supreme Court in the judicial hierarchy.
Lower courts in England and Wales also had the power to make preliminary references to the CJEU when they encountered unclear points of EU law, though they were not always required to do so. This system ensured that EU law was interpreted consistently across all Member States.
Impact on statutory interpretation
The CJEU's approach to interpreting EU law significantly influenced how English courts interpreted domestic legislation, particularly when implementing EU directives. In Von Colson v Land Nordrhein-Westfalen (1984), the CJEU stated that national courts were required to interpret their national law in the light of the wording and the purpose of the directive. This purposive approach contrasted with the more literal interpretation traditionally favoured by English courts.
English courts adopted this methodology when dealing with legislation that implemented EU law, looking at the purpose and objectives of the relevant EU provisions rather than simply the literal meaning of the domestic statute. This influenced broader interpretive practices in English law.
Impact on parliamentary supremacy
The most significant constitutional impact of EU membership concerned the doctrine of parliamentary supremacy, which traditionally held that Parliament could make or unmake any law and that no Parliament could bind its successors.
Section 2 of the European Communities Act 1972 provided that where EU law existed on a particular subject, it could override any inconsistent UK law, including Acts of Parliament. This principle was dramatically illustrated in the Factortame v Secretary of State for Transport (1990) cases, where the CJEU held that the Merchant Shipping Act 1988 (an Act of Parliament) was contrary to EU law and had to be disapplied.
This appeared to represent a fundamental limitation on parliamentary supremacy, as an Act of Parliament was being overridden by EU law. However, the constitutional position was more nuanced. Parliament had voluntarily accepted the supremacy of EU law by passing the European Communities Act 1972. Importantly, Parliament retained the power to repeal this Act, which it ultimately did through the Brexit process (the Great Repeal Bill).
The Brexit process demonstrated that parliamentary supremacy was preserved in a formal sense – Parliament retained its ultimate authority to withdraw from the EU and repeal the European Communities Act. Nevertheless, while the UK was an EU member, EU law did have practical supremacy over domestic law in areas covered by EU competence.
Key cases on EU law
Understanding the following cases is essential for grasping how EU law operated in practice:
Re Tachographs: The Commission v United Kingdom (1979)
Facts: EU regulations required certain vehicles to be fitted with tachographs (devices that record driving time and rest periods). The UK government was not enforcing these regulations.
Relevant area: Role of the CJEU; effect of regulations
Ratio decidendi: The CJEU held that regulations must be enforced by Member States. The UK was in breach of its obligations under EU law by failing to enforce the tachograph regulations. This case demonstrated that regulations are binding and directly applicable in all Member States.
Factortame v Secretary of State for Transport (1990)
Facts: These were multiple related cases concerning fishing rights and the Merchant Shipping Act 1988. Spanish fishermen using British-registered vessels challenged UK legislation that restricted their fishing rights, claiming it violated EU law on freedom of establishment and free movement.
Relevant area: Supremacy of EU law over national law
Ratio decidendi: The House of Lords (now Supreme Court) referred the case to the CJEU, which held that the Merchant Shipping Act 1988 conflicted with EU law. As a result, the Act had to be disapplied. This case established the clear supremacy of EU law over Acts of Parliament during the UK's membership.
Van Duyn v Home Office (1974)
Facts: Yvonne Van Duyn, a Dutch national, wished to enter the UK to work for the Church of Scientology. The UK government refused her entry on public policy grounds because it considered the Church of Scientology undesirable.
Relevant area: Effect of treaties; direct effect of treaty provisions
Ratio decidendi: The CJEU held that Article 48 of the Treaty (concerning free movement of workers) had direct effect and could be relied upon by individuals in national courts. However, the Court also held that a Member State is precluded from refusing its own nationals the right of entry or residence, meaning the UK's refusal was justified only because Van Duyn was not a UK national.
Macarthys Ltd v Smith (1980)
Facts: Wendy Smith claimed equal pay with a male predecessor who had previously held her position but was no longer employed by the company. UK law on equal pay did not cover comparisons with former employees.
Relevant area: Effect of treaties; equal pay under Article 119
Ratio decidendi: The Court of Appeal referred the case to the CJEU, which held that Article 119 of the Treaty of Rome (equal pay provision) was not confined to situations where men and women were contemporaneously doing equal work. Smith could compare her pay with that of her male predecessor. This showed that EU law could provide greater rights than domestic legislation.
Diocese of Hallam Trustee v Connaughton (1996)
Facts: The case involved very similar facts to Macarthys Ltd v Smith (1980) – a claim for equal pay with a predecessor of the opposite sex.
Relevant area: Effect of treaties; equal pay
Ratio decidendi: Following the precedent in Macarthys, the court held that the principle of equal pay under EU law applied to comparisons with predecessors as well as current employees.
Marshall v Southampton and South West Hampshire Area Health Authority (1986)
Facts: Helen Marshall challenged the different retirement ages applied to men and women by her employer, a health authority. She was required to retire at 60, while men could work until 65. This was contrary to the Equal Treatment Directive.
Relevant area: Vertical direct effect of directives
Ratio decidendi: The CJEU held that directives can have vertical direct effect, meaning individuals can rely on them against the state or state bodies (such as health authorities), even if the directive has not been properly implemented into national law. However, the Court also confirmed that directives do not have horizontal direct effect – they cannot be enforced against private employers or individuals.
Francovich v Italian Republic (1991)
Facts: Italy had failed to implement directives designed to protect workers when their employers became insolvent. Francovich suffered financial loss when his employer went bankrupt and he received no compensation that would have been available had the directive been implemented.
Relevant area: State liability for failure to implement directives
Ratio decidendi: The CJEU established a new principle: if a Member State fails to implement a directive, it can be held liable to compensate individuals who suffer loss as a result of that failure. This created an alternative remedy when directives lacked horizontal direct effect. The state must impose directives properly to avoid being liable for the consequences of non-implementation.
Von Colson v Land Nordrhein-Westfalen (1984)
Facts: Von Colson, a female German national, was refused employment at a prison solely on the basis of her gender, which was contrary to the Equal Treatment Directive. German law provided only minimal compensation for such discrimination.
Relevant area: Indirect effect of directives; purposive interpretation
Ratio decidendi: The CJEU held that national courts have a duty to interpret national law in accordance with EU directives wherever possible. This principle of "indirect effect" means that directives become almost horizontally effective in practice, as courts must interpret domestic law to achieve the directive's objectives even in disputes between private parties. This was a significant development in giving practical effect to directives.
Key points:
- The UK joined the EU in 1973 and left on 31 January 2020 following Brexit
- The four main EU institutions were: the Council (principal law-making body), the Commission (proposes laws and administers the EU), the European Parliament (directly elected, co-legislates with the Council), and the Court of Justice of the European Union (interprets EU law and ensures uniform application)
- There were three sources of EU law: treaties (primary legislation, automatically applicable), regulations (binding and directly applicable in all Member States), and directives (require Member States to implement them within a set timeframe)
- EU law had supremacy over domestic UK law, including Acts of Parliament, while the UK was a member (see Factortame)
- Directives have vertical direct effect (can be enforced against the state) but generally lack horizontal direct effect (cannot be enforced against private parties), though Von Colson established indirect effect through purposive interpretation
Key terms:
- Vertical direct effect: an individual can claim against the state even if the directive is not yet implemented
- Horizontal direct effect: directives give an individual rights against other people, provided they have been implemented
- Qualified majority: a voting system requiring both 55% of Member States and states representing 65% of the EU population to support a proposal
- Parliamentary supremacy: the constitutional principle that Parliament can make or unmake any law – seemingly limited by EU membership but preserved through Parliament's power to repeal the European Communities Act
Critical cases:
- Factortame (1990) – EU law supremacy over Acts of Parliament
- Marshall (1986) – vertical direct effect of directives
- Francovich (1991) – state liability for failure to implement directives
- Von Colson (1984) – indirect effect through purposive interpretation