• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
    • View my saved documents

    In what ways does the new European Union legal order differ from the common law jurisdiction? To what extent do you think the machinery of the new legal order is effective in achieving its objectives?

    Extracts from this document...

    Introduction

    * In what ways does the new European Union legal order differ from the common law jurisdiction? To what extent do you think the machinery of the new legal order is effective in achieving its objectives? The main sources of law in the common law jurisdiction are statutes and the doctrine of judicial precedent. In the European Union (EU) the main sources of law are the treaties and various forms of secondary legislation (regulations, directives, and decisions), judicial precedent does not apply in the EU. As of 1st January 1973 EU law has had effect in the UK as a result of the European Communities Act 1972. The EU does not have a formal constitution as such, but the EC Treaty confers powers and duties on the institutions. The European Court of Justice (ECJ) has referred to 'a new legal order' in a number of cases. This 'new legal order' is characterised by the concepts of direct effect and the supremacy of EU law over national law. The case of Van Gend en Loos (1963)1 establishes the 'new legal order' most clearly, where the court created a famous statement2. The case of Van Gend en Loos (1963)3 was the first in a long line of rulings from the ECJ that developed the doctrine of supremacy of EU law over national law. The case of Costa v. ...read more.

    Middle

    Certain paragraphs in pieces of secondary legislation must not be considered in seclusion, but within context of the whole instrument. There is said to be a lack of precision in some EU provisions and references to the 'framework of community law' as in Costa v. ENEL (1964) 21 are not uncommon. This is in obvious contrast to the common law system where courts look to the meaning of the words before them, in their immediate context. The main teleological approach requires the judge to look to the purpose or object of the text before him. This approach gives the judges the most leniency in their interpretation, as they can even look to the aims of the treaties and the community as a whole. The main purposes of teleological interpretation are as follows; * To promote the objective for which the provision was made. * To prevent unacceptable consequences flowing from a literal interpretation of the wording. * To fill gaps in the legal order. The statement22 of the court in CILFIT (1982)23 illustrates clearly how the courts look to EU law as a whole. A statement24 from Bosch v. De Geus (1962)25 is also noteworthy. Using teleological interpretation the Court's often make decisions, ignoring express words of EU legislation. This is done to; * Strengthen the EU's structure. * Increase scope and effectiveness of EU law. ...read more.

    Conclusion

    Article two has regard to economic activities and harmonious development, obviously the mechanism of direct effect is plays a role in ensuring this. As I have shown the ECJ are willing to expand the law here to ensure development of the law is harmonious in all Member States. Article ten is the solidarity principle, this contains a positive burden to support EU law, and a negative burden to not adopt law opposed to the development of EU law. The principle of state liability as first mentioned in Francovich, Bonifaci and others v. Italy (1991)39 acts as an incentive to states to implement and comply with EU law. Articles twelve and thirteen have regard to discrimination in a number of forms. Article 12 has direct effect, whilst Article 13 does not. A successful claim under Article requires a unanimous decision from the Council of Ministers, it is clear to see the potential of this Article is limited. Due to the mechanisms of direct effect and direct applicability and some creative interpretation by the ECJ, both in preliminary rulings and case judgements all the basic principles relating to; * Free movement of goods and persons. * s*x and nationality discrimination. * Competition policy. May now be invoked by individuals before their national courts. The legal order is still developing and thus so is the body of legislation surrounding it. So far there have not been any horrendous mistakes or problems on the road to achieving the objectives of the legal order. ...read more.

    The above preview is unformatted text

    This student written piece of work is one of many that can be found in our AS and A Level European Union section.

    Found what you're looking for?

    • Start learning 29% faster today
    • 150,000+ documents available
    • Just £6.99 a month

    or


    Not the one? Search for your essay title...
    • Join over 1.2 million students every month
    • Accelerate your learning by 29%
    • Unlimited access from just £6.99 per month

    See related essaysSee related essays

    Related AS and A Level European Union essays

    1. Marked by a teacher

      To what extent has the European Union been successful in "establishing" a coherent European ...

      These two ideas of speaking with one voice in the world affairs are as old as the European integration process itself. (Europa(b)) But the EU has made less progress in dealing with foreign policy than in creating a single market.

    2. Success of New Imperialism

      otherwise might have prevented the often rapid European conquest and colonization of African states. Of course, another factor not to be neglected in explaining the successful European imperial expansion in Africa is the role of European diplomacy or specifically, the West African Conference.

    1. can the European Parliament be regarded as an effective legislative

      While this is a quite considerable legislative power, it can be overruled by a majority vote at the council and so does not amount to a veto power. While this is true the fact still remains that the co-operation procedure does give quite a lot of legislative power to the

    2. To what extent was the fall of Olivares due to the Union of Arms?The ...

      Olivares was not wise enough to foresee the problems ahead, most notably the greater emphasis it was to have on regionalism26. Had Olivares been more prepared to compromise then the outcome might have been a success. One can deduce, therefore that Darby detects fundamental flaws in Olivares' character, rather than in the concept of the Union.

    1. 'Economic Integration within the European Union: Have MNEs driven the Commission's decision to adopt ...

      comm., 12th April 2006; Flower and Ebbers, 2002). Therefore, I will now present the rational supporting this argument at both levels, and will then present arguments contradicting this. Rapid growth since the early 1990s in both trade and investment, including a steady increase in foreign direct investment (FDI), has also influenced the EU's decision to adopt IFRS.

    2. What does citizenship mean in the European context?

      We have long understood that often the debate between these two extremes is not a debate of opposites but of equals -- equals in their inability to understand political and social organization in non Statal, national terms. In their political imagination, those closest in their views to the likes of,

    1. Economic and political integration between the member states of the European Union means that ...

      This currency was than later named Euro who was firstly mentioned in 1969 at the European Summit in The Hague. 10 years later in 1979 the process was re-launched with the creation of the European Monetary System (EMS), which constituted an unprecedented transfer of monetary autonomy.

    2. Cultural Factors Relating to Fraternities

      Although fraternity culture does have its ugly faces, it also offers some good features. Fraternities offer positive cultural aspects such as the building of character, unity, and trust. Hazing can build character because nothing builds character like hardship and adversity.

    • Over 160,000 pieces
      of student written work
    • Annotated by
      experienced teachers
    • Ideas and feedback to
      improve your own work