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European Court of Justice – There are 15 judges (1 from each member state) and 9 Advocate General. The judges do not make the actual decision but set out the facts and provide a written opinion at the end of a case; this is very influential and is usually followed in the final judgement. Its main function is to ensure the law is observed.
Regulations
These are known as secondary sources of law.
Regulations are the most important source of Community law in that they are the chosen form when legislating for the whole Community, without going through any national channels. “It is defined as general application, binding in its entirety and directly applicable in all member states”. In Re Tachographs: EC Commissions v UK (1979), regulations was issued that tachographs to be installed in all road vehicles that were transporting goods. The U.K. government decided to give lorry owners a choice whether to install them or not. It was held by the ECJ that U.K. must apply regulations. The treaty makes clear regulations are directly applicable.
Directives
“Directives shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. This shows that directives lay down an objective and then leave it to the individual Member State to decide how best to achieve it. In the U.K., this may take the form of an Act of Parliament, as with the Consumer Protection Act 1987 or by other methods available such as statutory instrument. Directives must be implemented within a set time limit. In Marshall v Southampton Health Authority (1986), the plaintiff was forced to retire at the age of 62 from her employment with the National Health Service. This was a breach of the Equal Treatment Directive 1976, but the Sex Discrimination Act 1975 excluded matters to retirement from its provisions. The Court said the plaintiff was entitled to succeed, and could use the provisions of the Directive against her employer because the U.K. had not properly implemented the directive
Decisions
Decisions are addressed to specific Member States, individuals, or companies, which are binding in their entirety upon those to whom they are addressed. They are most commonly used where the Commission has reached the conclusion that an undertaking is acting contrary to the competition policy of the Community under Article 85-86 E.C, in Conegate v HM Customs (1986), the U.K. customs prevented German inflatable dolls being imported to the U.K., as they were deemed indecent. The ECJ held that the U.K. contravened Community Law, as the U.K did not prohibit manufacture of such products.
Parliamentary Sovereignty
Reformation
King Henry VIII (r. 1509-1547) of England did the one Act of Supremacy he wanted to divorce his wife, Catherine of Aragon. As the Pope would not annul the marriage, Henry sought to make himself Head of the Church in England. This Parliamentary Act from 1534 gave legal sanction to Henry's assumption of those religious powers.
In the Factortame Case (1988), The Merchant Shipping Act 1988 contained provisions under which fishing licences were granted only to boats whose owners and crews were predominantly British. The ECJ said the Act violated Article, 52 of EC Treaty, which guarantees citizens of any member states the freedom to establish their business anywhere in the Community, and the U.K. government were obliged to amend the legislation.
An important point was made by Lord Bridge who said that suggestions that this was a 'novel and dangerous invasion by a Community institution of the sovereignty of the UK Parliament'. it was misconceived as supremacy of EC law over that of the Member States was well established, if not in the Treaty then in the case law of the Community, long before the UK joined. Therefore, whatever limitation of its sovereignty Parliament accepted when enacting the ECA 1972 was voluntary. He pointed out that it was clear under the UK Act that it is the duty of the courts to override any national law found to be in conflict with any directly effective Community law. He also said that Parliament has always 'accepted the obligation to make appropriate and prompt amendments' to its own legislation when it was found by the ECJ to be defective in implementing EC Directives.
In Bulmer v Bollinger 1974 Lord Denning also pointed out although he added that the UK could avoid loss of supremacy by repealing the ECA. This is legally possible but politically unlikely.
The price for a say in the future of Europe, including the UK, lies in the grouping of what is left of national sovereignties.
The decision in the Factortame case is only one in a line of cases showing a willingness by the ECJ to recognise that Community law gives rights as well as imposing obligations and that it does so in relation not only to member states but also to EU citizens, thus increasing the protection of individual rights.
Bibliography
European Union Law, Second edition, Mike Cuthbert.
Law of the European Union, second edition, Penelope Kent
http:/www.europarl.org.uk
Class handouts Anne Reddington
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