European Union Law (OCR A-Level Law): Revision Notes
Impact of EU Law on the Law of England and Wales
Introduction
During the UK's membership of the European Union, EU law formed a significant part of the English and Welsh legal systems. This created a hierarchical relationship between domestic law and EU law, with important implications for the court structure, statutory interpretation, and the traditional doctrine of parliamentary supremacy.
This hierarchical relationship fundamentally changed how English and Welsh courts operated, creating a system where domestic courts had to defer to European courts on matters of EU law interpretation.
EU law and the English court structure
While the UK was a member of the EU, the Supreme Court had a mandatory duty to refer questions concerning EU law to the Court of Justice of the European Union (CJEU). This meant that when cases involved points of EU law that required clarification or interpretation, the highest domestic court could not make a final determination without seeking guidance from the European court.
The CJEU's influence extended beyond simply answering referred questions. English courts adopted the CJEU's interpretative approach when dealing with EU-related matters. This principle was established in Von Colson v Land Nordrhein-Westfalen (1984), where the CJEU stated that national courts must interpret their domestic law in light of the wording and purpose of EU directives. This requirement fundamentally altered how judges approached statutory interpretation in cases involving EU law.
The Von Colson principle created an interpretative obligation that effectively gave EU directives indirect horizontal effect, even though they technically lacked direct horizontal effect. This is a crucial distinction for understanding how EU law operated in practice.
Supremacy of EU law
Section 2 of the European Communities Act 1972
The European Communities Act 1972 was the key piece of legislation that incorporated EU law into the UK legal system. Section 2 of this Act established a crucial principle: where EU law existed on a particular subject, it would take precedence over any conflicting UK law, including Acts of Parliament.
This supremacy was demonstrated in the landmark case of Factortame v Secretary of State for Transport (1990). The case concerned the Merchant Shipping Act 1988, which imposed restrictions on fishing rights. The courts held that this Act of Parliament contradicted EU law and therefore could not be enforced. This was a significant moment in English legal history, as it showed that EU law could effectively override an Act of Parliament.
The Factortame Decision
Factortame (1990) was groundbreaking because it represented the first time an English court had disapplied an Act of Parliament. This challenged centuries of constitutional tradition regarding parliamentary supremacy and demonstrated the practical supremacy of EU law during the UK's membership.
Parliamentary supremacy and Brexit
At first glance, the supremacy of EU law appeared to represent a major limitation on the traditional doctrine of parliamentary supremacy – the constitutional principle that Parliament is the highest source of law and can make or unmake any law. However, Parliament ultimately retained its sovereignty through its power to repeal the European Communities Act 1972.
This power was exercised through the Brexit process, when Parliament passed what became known as the Great Repeal Bill (formally the European Union (Withdrawal) Act 2018). This demonstrated that Parliament's supremacy was never truly lost; rather, it had voluntarily chosen to accept EU law supremacy and retained the ability to end that arrangement.
The Brexit process proved that parliamentary supremacy had been temporarily limited by Parliament's own choice, not permanently abolished. Parliament could always reclaim its full sovereignty by repealing the European Communities Act 1972, which it ultimately did.
Key cases on EU law
Understanding the impact of EU law requires familiarity with several important cases that established fundamental principles.
Re Tachographs: The Commission v United Kingdom (1979)
Facts: The UK government was failing to enforce EU regulations requiring certain vehicles to be fitted with tachographs (devices that record driving time and speed).
Legal principle: This case established the role of the ECJ (now CJEU) in ensuring member states comply with EU regulations. The Court had the power to enforce EU law even when national governments were reluctant to implement it.
Judgment: The EU successfully enforced the regulations, compelling the UK to ensure compliance.
Factortame v Secretary of State for Transport (1990)
Facts: This series of cases involved Spanish fishing boat owners who challenged the Merchant Shipping Act 1988, which restricted their ability to register vessels in the UK and thus limited their fishing rights. The restriction conflicted with EU principles of free movement of trade.
Legal principle: This case definitively established the supremacy of EU law over UK legislation, including Acts of Parliament.
Judgment: The Merchant Shipping Act 1988 had to be repealed because it conflicted with EU law. The House of Lords (now Supreme Court) accepted that EU law took precedence.
Significance for exam: This case is crucial for understanding how EU law challenged traditional concepts of parliamentary sovereignty. Always reference Factortame when discussing the supremacy of EU law over domestic legislation.
Van Duyn v Home Office (1974)
Facts: Van Duyn, a Dutch national, wanted to enter the UK to work for the Church of Scientology. The Home Office refused her entry on public policy grounds.
Legal principle: This case concerned the effect of treaties on national law. It established that EU treaty provisions on free movement could be directly enforced by individuals against member states (known as vertical direct effect).
Judgment: The CJEU ruled that a state cannot refuse its own nationals the right of entry or residence. However, it accepted that member states could restrict the entry of nationals from other member states on genuine public policy grounds.
Van Duyn demonstrates that while treaty provisions have direct effect, this right is not absolute. Member states retain some discretion to restrict rights on grounds such as public policy, public security, or public health.
Macarthys Ltd v Smith (1980)
Facts: A female employee claimed she should receive equal pay with a male employee who had previously held her position but was no longer employed by the company at the same time as her.
Legal principle: This case interpreted the effect of treaties, specifically Article 119 of the Treaty of Rome on equal pay.
Judgment: The Court of Appeal held that the principle of equal pay for equal work is not confined to situations where men and women are working contemporaneously for the same employer. The equal pay principle applies even when comparing pay with a predecessor of the opposite sex.
Diocese of Hallam Trustee v Connaughton (1996)
Facts: This case involved very similar circumstances to Macarthys Ltd v Smith (1980), with a claim for equal pay with a predecessor of the opposite sex.
Legal principle: As above – concerning the effect of treaties on equal pay.
Judgment: The court followed the precedent set in Macarthys, reaffirming that equal pay provisions apply to successors and predecessors, not just contemporaneous workers.
Marshall v Southampton and South West Hampshire Area Health Authority (1986)
Facts: Marshall challenged the different compulsory retirement ages for men and women imposed by her employer, a health authority.
Legal principle: This case addressed the conflict between national law and EU law and established important limitations on the effect of EU directives.
Judgment: The CJEU ruled that while Marshall could enforce the Equal Treatment Directive against her public sector employer (vertical effect), EU directives do not have horizontal effect. This means individuals cannot rely on directives to sue private employers or individuals – directives can only be enforced against the state or state bodies.
Exam tip: Understanding the distinction between vertical and horizontal effect is essential for problem questions involving enforcement of EU directives. Remember: vertical effect works (individual vs. state), but horizontal effect does not (individual vs. individual or private company).
Francovich v Italian Republic (1991)
Facts: Italy had failed to implement EU directives designed to protect workers when their employers became insolvent. Francovich and others suffered loss as a result of this failure.
Legal principle: This case established the effect of directives and created the principle of state liability.
Judgment: Member states must implement directives correctly and on time. If they fail to do so, they can be held liable to compensate individuals who suffer loss as a result of that failure. This created an important enforcement mechanism for EU law.
Significance: This principle incentivised member states to implement directives properly, as failure to do so could result in substantial compensation claims.
The Francovich principle filled an important gap in EU law enforcement. Where a directive lacked horizontal effect and a member state failed to implement it properly, individuals could still obtain a remedy through state liability claims.
Von Colson v Land Nordrhein-Westfalen (1984)
Facts: Von Colson, a female German national, was refused employment at a prison because of her gender, which violated the EU Equal Treatment Directive. German law provided only minimal compensation for discrimination.
Legal principle: This case established the indirect horizontal effect of directives through the principle of sympathetic interpretation.
Judgment: The CJEU held that national courts have a duty to interpret their domestic law in accordance with EU law, including directives. This means that even though directives cannot be directly enforced horizontally (following Marshall), they become almost horizontally effective through the interpretative obligation placed on national courts.
Exam significance: This case is crucial for understanding how EU law influenced judicial interpretation and effectively extended the reach of directives beyond their technical limitations. Von Colson created "indirect horizontal effect" – a way for directives to influence private disputes even without formal horizontal direct effect.
Summary of key legal principles
| Principle | Explanation | Key case |
|---|---|---|
| Supremacy of EU law | EU law takes precedence over conflicting national law, including Acts of Parliament | Factortame (1990) |
| Referral duty | Supreme Court must refer EU law questions to CJEU | General principle during membership |
| Interpretative obligation | Courts must interpret national law in light of EU directives | Von Colson (1984) |
| Direct effect of treaties | Treaty provisions can be enforced by individuals against states | Van Duyn (1974), Macarthys (1980) |
| Vertical but not horizontal effect of directives | Directives can be enforced against state bodies but not private parties | Marshall (1986) |
| State liability | States are liable for losses caused by failure to implement directives | Francovich (1991) |
| Parliamentary supremacy retained | Parliament maintained power to repeal European Communities Act 1972 | Brexit/Great Repeal Bill |
Evaluation: strengths and weaknesses
The relationship between EU law and UK domestic law created both advantages and challenges for the English and Welsh legal systems.
Strengths of EU law supremacy:
Positive Aspects
- Ensured consistent application of EU law across all member states
- Provided effective enforcement mechanisms through CJEU and national courts
- Protected individual rights through direct effect and state liability principles
- Created legal certainty through uniform interpretation
Weaknesses and criticisms:
Critical Perspectives
- Appeared to undermine parliamentary sovereignty, a fundamental constitutional principle
- Created complexity in the legal system with overlapping jurisdictions
- Some critics argued it represented an undemocratic transfer of law-making power
- The limitation on horizontal effect of directives created inconsistency between public and private sector workers' rights
Brexit and reform:
The UK's withdrawal from the EU fundamentally altered this legal landscape. The European Union (Withdrawal) Act 2018 ended the supremacy of EU law and the CJEU's jurisdiction over UK courts. However, it retained existing EU law as domestic law (known as "retained EU law"), which can now be amended or repealed by Parliament.
This demonstrates that parliamentary supremacy has been fully restored, with Parliament now able to modify or remove any aspect of former EU law without external constraint.
Exam technique guidance
For problem questions:
When approaching problem questions involving EU law, follow this systematic approach:
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Identify whether the case involves a treaty provision or directive
- Treaties have full direct effect
- Directives have limitations
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Determine if direct effect applies
- Is the provision sufficiently clear, precise and unconditional?
- Can it be relied upon by individuals?
-
Consider whether enforcement is vertical or horizontal
- Vertical: individual vs. state or state body (allowed)
- Horizontal: individual vs. private party (generally not allowed)
-
For directives, remember Marshall
- No horizontal effect, BUT
- Consider Von Colson's interpretative obligation as an alternative route
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If a state has failed to implement a directive
- Consider Francovich state liability
- Has the individual suffered loss?
- Was the directive intended to confer rights?
For essay questions:
Structure your essays around these key analytical points:
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Discuss the tension between EU law supremacy and parliamentary sovereignty
- Was parliamentary sovereignty truly limited or merely suspended?
- Use Factortame as the key illustration
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Evaluate how Brexit resolved this tension
- Did Brexit reassert parliamentary supremacy?
- What is the status of retained EU law?
-
Consider the practical impact
- Rights protection before and after Brexit
- Legal certainty and predictability
- Access to remedies
-
Analyse the distinction between vertical and horizontal effect
- Why does this distinction exist?
- Is it justifiable or does it create unfairness?
Command word: Analyse
When asked to "analyse," you must:
- Break down the relationship between EU law and domestic law into its component parts
- Examine the mechanisms through which EU law was enforced (direct effect, indirect effect, state liability)
- Explain the reasoning in key cases like Factortame and Von Colson
- Show the connections between different principles
Command word: Evaluate
When asked to "evaluate," you must:
- Consider strengths and weaknesses of EU law supremacy
- Assess whether parliamentary sovereignty was truly limited or voluntarily restricted
- Discuss the impact of Brexit on the principles established
- Make judgments about the effectiveness and fairness of the system
- Provide balanced arguments with supporting evidence
Key Points to Remember:
-
EU law supremacy: During EU membership, EU law took precedence over UK law, including Acts of Parliament (Factortame 1990)
-
Parliamentary sovereignty preserved: Parliament retained ultimate supremacy through its power to repeal the European Communities Act 1972, exercised through Brexit
-
Interpretative obligation: Von Colson (1984) required courts to interpret national law in light of EU directives, creating "indirect horizontal effect"
-
Direct effect limitations: Treaties have full direct effect; directives only have vertical effect (Marshall 1986) but not horizontal effect
-
State liability: Member states are liable for losses caused by failure to implement directives correctly (Francovich 1991)
Key terms: CJEU, Section 2 European Communities Act 1972, supremacy, direct effect, vertical effect, horizontal effect, interpretative obligation, state liability, parliamentary sovereignty
Critical cases: Factortame (supremacy), Von Colson (interpretation), Marshall (no horizontal effect), Francovich (state liability), Van Duyn (treaty direct effect)