The second role which is the supervisory derives from Article 267 of the Treaty on the functioning of the European Union; Article 267 provides that any court or tribunal in a member state may refer a question on EU law to the ECJ, a decision on that question is necessary to enable it to give judgement. The aim of this referral system is to ensure that ht law is interpreted in the same way throughout the European Union. A reference must be made if the national courts are one from which there is no further appeal. In the United Kingdom, the Supreme Court must refer such questions, while the smaller courts usually have some discretion about whether or not to do so. The Article 267 procedure is expensive and time consuming, it often delays a decision on the case usually for, around nine months, and so lower courts have been put off using it. Attempts have therefore been made to set down rules by which a court can determine whether or not a referral to the ECJ would be appropriate. The judiciary still uses Lord Denning Bulmer Guidelines; lower courts now have a greater willingness to refer to Art.267 procedure. In the case of Customs and Excise Commissioners v APs Samex (1983), Bingham J pointed out that, in interpreting European law, the Court of Justice has certain advantages over national courts; it can take a panoramic view of the whole of European law, compare the legislation as it is written in different member states languages, and it is experienced in the purposive approach to interpretation for which European legislation was designed. It also has the ability to allow member states to make their views on as issue known. It is therefore better placed than a national court to decide issues of interpretation.
There are three main types of EU law, and these are regulations, treaties and directives. Regulations are made by the EU. They are applicable throughout the EU, usually to people in general and 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. A case to illustrate this is, Leonesio v Italian Ministry for Agriculture and Forestry (1973). In this case, regulation to encourage reduced dairy production stated that a cash premium should be paid to farmers who slaughtered cows and agreed not to produce milk for nine years. Leonesio had fulfilled this requirement, but was refused payment because the Italian constitution required legislation to authorise government expenditure. The ECJ said that once Leonesio had satisfied the conditions stated in the EU regulations, he was entitled to the payment; the Italian Government could not use its own laws to block that right.
The second are international agreements that are related to as treaties. By entering into a treaty, the government of the United Kingdom is undertaking to implement the laws which are the subject matter of the treaty. The founding treaties are the Treaty of European Union and the Treaty of the Functioning of the European Union. These treaties have been amended over the years and their article numbers changed as the EU expanded. The provisions can create rights and obligations. Treaty provisions have direct effect if they are unconditional, clear and precise and impose an obligation member states to implement them. An example of a directly effective provision is Art.157 of the Treaty on the functioning of the European Union. This provides for ‘equal pay for male and female workers for equal value’. In the case of Macrthys Ltd v Smith (1979), Art 157 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 European Union.
The last type of European law are in the form of directives, they are less precisely worded than regulations because they aim to set out clear objectives leaving the member states to create their own detailed legislation in order to put those objectives into practice. As a result, it was originally assumed by most member states that directives could not have direct effect and would not create individual rights until they had been translated in domestic legislation. However the ECJ has consistently refused to accept this view, arguing that direct effect is absolutely necessary if the EU is to ensure that member states implement directives. The case which initially established that directives have direct effect was Van Dugh v Home Office (1974). The Home Office had refused Duyn permission to enter the UK because she was a member of a certain religious group called scientologists which the Government did not want in the country at the time. Van argued that her exclusion was contrary to provisions of the Treaty of Rome on freedom of movement. When the Government responded by pointed out that the Treaty allowed exceptions on public policy grounds, Van Duyn then relied on a later directive which said that public policy could only be changed on the basis of personal conduct, and Van Duyn herself had done nothing to justify exclusion. The case was referred to the ECJ, which found that the obligation conferred on the Government was clear and unconditional, and so created enforceable rights.
The concept Parliament Sovereignty means that the law Parliament makes takes precedence over law originally from any other source. The European Communities Act 1972 had a major effect on parliamentary sovereignty because when the UK joined the EU, EU laws took precedence over UK laws. They have to refuse to apply statues which are in conflict with EU law meaning that the UK parliament cannot put rules in place which directly conflict with EU law. This position is clearly reflected in section 2 of the European Communities Act 1972 which provides that; ‘as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly’. In R v Secretary of State for Transport, ex parte Factor tame (1990). The fishing policy decided by member states in 1983 allowed member states to limit fishing within 12 miles of their own shores to boats from their own country, and left the remainder of the seas around the European Community open to fishing boats from any member state. To preserve stocks of fish, each state was given a quota of fish, and required not to exceed it. Shortly after the new rules were in place, the UK Government became concerned that Spanish fishing boats were registering as British vessels, so that their catches counted against British quota rather than Spanish. The UK Government therefore passed the Merchant Shipping Act 1988, which contained provisions to prevent the Spanish trawlers taking advantage of the British quota. Spanish boat owners challenged the Act, claiming it was in conflict with EU law on the freedom to set up business anywhere in Europe, and the House of Lords agreed. They said S.2(4) of the European Communities Act has precisely the same effect as if a section was included in the 1988 Act saying, that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable community rights of nations of any member state. The decision was criticised as comprising the rights of the UK Parliament to make law for the UK. It was pointed out by the House of Lords that joining the European Union meant the UK had to give up some degree of sovereignty.