The Treaty of Rome was modified by following treaties and was re-named through the Treaty of European Union as the “Treaty establishing the European Community”. The Treaty is divided into 200 segments, which are referred to as ‘Articles’. These Articles set down the structure of European Community law in areas such as; migration of workers and free trade.
The structures, which are formed by the Articles, are filled out by a great amount of secondary legislation, which describe how the basic principles in the Articles will work in practice. The most significant sources of secondary legislation are; regulations and directives, however, sources of secondary legislation also include decisions, recommendations and opinions.
Regulations have precedence and are directly applicable to all member states, which in effect means that it overrides domestic legislation. The member states are not expected to supplement their internal laws in order to implement Regulations. It is essential that rules are identical in all member states. An example of a recognised Regulation is Regulation 1408/71, which deals with the entitlement for social security benefit for all EU nationals’ when they are in any other member states. Regulations can be relied upon by individuals in any court based in their country.
Although Regulations are directly applicable to all member states, this is not to say that such regulations take direct effect. Direct effect means when the provisions of EU law is ‘directly effective’ creating individual rights that are enforceable in national courts. There are two forms which are; vertical effect, whereby individuals can use European law against the state or horizontal effect, which is when an individual can use the law against another person. All regulations must satisfy the Van Gend en Loos criteria, which is clear, precise and unconditional.
A Directive sets out objectives that are to be followed by the EU member states. However, they are left with the freedom of choosing their own preferred avenues to fulfil the set objectives. In the EU Directive Article 249 it is provided that; “A directive 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”.
Although the member states are able to choose their own methods of meeting the directive objectives, if they are not met within the set timescale and fail to do so after much time then the European Commission is inclined to initiate proceedings in the European Court of Justice against the countries involved. This was established in the case of Francovich –v- Italy (1991).
The European Court of Justice has formed guidelines, through their case law, for member state judges directing them on how to address cases in a situation where directives have not been incorporated into national law or have been formed incorrectly.
As the legal structure of every member state varies, the process of putting directives into effect is also different. For example, in the United Kingdom, the directives are mainly brought into effect through statutory instruments. However, as some directives bring about major changes to the law, Parliament has to pass a separate Act in order to incorporate the changes.
(b) The English legal system can no longer be considered on its own, but has to be understood within the context of its institutions.
What are the institutions referred to and what is their impact on the English Legal System.
When the Treaty of Rome (1957) was amended by the in 1986, it allowed privileges, such as freedom of movement for workers, however, at the same time the member states assigned part of their ‘decision-making’ powers over to the European Institutions. The decision making institutions of the European Union comprise of; the Council of Ministers, European Commission, European Parliament and the European Court of Justice.
The Council of Ministers is the main legislative body and is made up of ministers who represent and operate in the interest of their state. Although the Council is made up of 15 members, there are other members who are assigned to represent their state in different fields, such as agriculture, social affairs and transport.
The Council is responsible for addressing and concluding important issues, which mainly concern proposals made from the European Commission. As well as making decisions, they are also responsible for issuing regulations and directives. They represent the interests of many national governments, however, since the effect of the Maastricht Treaty, the European Parliament now has an active part in the ‘law making process’.
After every six months the presidency for the EU rotates in alphabetical order of member states. The country holding the EU presidency also supervises the Council of Ministers during that period.
The European Commission is responsible for making sure that the ‘measures in the Treaties are carried out’. The Commission is considered to be an executive organisation similar to the civil service. There are 20 members of the European Commission and are known as commissioners. They are nominated for a period of five years by the government of each member state. The United Kingdom usually selects two commissioners; one from the government and the other from the opposition. The president for the European Commission is normally elected by the governments of member states.
The European Commission is based in Brussels and acts only in the interest of the European Union. They are only accountable to the European Parliament and cannot take directions from any national government or body, such as the Council of Ministers. The European Commission’s objectives are; administrating the everyday function of the European Union, investigating member states for breach of EU law and purposing legislation to the Council of Ministers.
The European Parliament is made up of publicly elected members (MEPs) from member states. The elections take place every five years and there are 629 members. The European Parliament is set up into political groups as opposed to national groups, for example, the MEPs must decide which group they wish to belong to by choosing from; the Socialist Group, the Christian Democratic Group or the Green Group.
After the Single European Act 1986 came into effect, the European Parliament was able to play an active part in ‘law making’. The Parliament has a supplementary role with the Council and Commission. They advise on proposals put forward by the Commission and provide their views on the laws that the Council are to adopt. Parliament acts as a second stage in law making and must be conferred by Council before legislation is passed. Although Parliament can put forward proposals, they can be unanimously rejected.
The Parliament holds powers to investigate and direct questions to either the Council or Commission in order to determine whether the institutes are fulfilling their duties. They also hold the power to reject the whole Commission or put forward a veto against new members. This right was exercised in 1999 when Parliament dismissed the Commission after discovering that fraudulent activities had taken place.
The European Court of Justice is composed of 15 judges and 9 Advocate-General, who are appointed by member state governments. The court does not actually make decisions in cases, but lays down facts and provide their documented opinion in the matter. The cases brought on by individual must process through the relevant domestic courts before being referred to the Court of Justice. The English courts usually refer to the Bulmer v Bollinger guidelines before referring matters to the European Court. The court holds the authority to defy, interpret and implement Community law through cases and through preliminary decisions, requested by national courts.
The other functions implemented by the Court of Justice include; examining the actions carried out by EU institutions and taking action against member states that have breached EU law. There are two forms of action adopted by the court; action directly against Members states, which involves the court playing a judicial role; or preliminary ruling in which the court has a supervisory role.
Although the British Parliament has authority within its own region, after becoming a member of the European Community (Union) in 1973, they limited their overall powers. They are under a duty to prepare legislation so that when put into practice the law falls under the guidelines arising from the EU membership. Even though Parliament is able to amend or eradicate legislation, if it does not act in accordance with the requirements of the European law then it must be declared invalid and ineffective. This was elaborated in the case of Bossa v Nordstress Ltd [1998] EAT. If national law conflicts with Community law then it must be overruled, this situation appeared in the case of Simmenthal v Commission [1980] ECJ.
The British parliament had not been able to give up their supremacy easily and took time in accepting the notion of being an EU member. However, in order to up hold their membership they had to allow EU law to prevail where English law proved to be inconsistent with EU objectives. This was established in the case of Costa v ENEL (1964). Although European law has been incorporated into English law through section 2(1) of the European Communities Act (1972), judges are able to overcome any inconsistencies within English law through interpretation. Section 2(4) provides that UK legislation takes effect subject to EU law but with the exception of the European Communities Act itself, therefore judges tend to refer to this act when trying to prevail over EU law.
However, if the courts are unable to use the Act to their advantage then they must allow EU law to prevail. The Court of Appeal referred the case of Macarthys Ltd v Smith (1979) to the European Court of Justice, as it was argued by Smith that her employers had been in breech of the Equal Pay Act. The court of justice ruled that they were in breach of Treaty Article relating to equal pay. Lord Denning provided:
[that if Parliament] 'deliberately passes an Act' contrary to the EC Treaties, it would be the duty of the UK courts to follow the Act’
"In construing our statute, we are entitled to look to the Treaty as an aid to its construction, and even more, not only as an aid but as an overriding force. If…our legislation is deficient - or inconsistent with Community law…then it is our bounden duty to give priority to Community law."
Although British Parliament retains the power to reassert its sovereignty it would inevitably mean giving up their EU membership, which is quite unlikely.
