EU law

Every Member State is bound by the laws of the EU as soon as it becomes a member. Article 10 of the Treaty impresses an obligation on all Member States, ensuring they satisfy obligations under the Treaty. As the UK has a Dualist legal system, this created problems. Any international agreements signed by the UK government can only become Law when legislation is enacted in the UK to ratify the agreement. Community law overrides UK law, as stated in Section 2 (1) of the European Communities Act 1972.

Law of the EU is Directly Applicable if the UK recognises it as a part of its Law. Regulations and Treaties become part of UK Law and are therefore directly applicable. Directives however are not as there must be a piece of UK legislation implementing it to become part of UK law. EU Law is directly effective as it can be enforced in a UK court. Direct Effect can be partitioned into two types; horizontal direct effect and vertical direct effect. Law that is vertically effective is only enforced against the State; however horizontal direct effect is the concept of Community Law being enforceable against individuals; either people or companies. Directives are only vertically effective, Unlike Regulations and Treaties which are both vertically and horizontally effective. From the unambiguous wording of Article 249 of the Treaty, it is clear that Directives are not to be directly applicable by the same token as Regulations. Decisions however are only enforceable against the parties to which they are addressed. As Directives are commands to a State for the introduction of law into the State's own Law, they are only able in having vertical effect. Directives are not automatically directly effective and conditions apply regarding their enforcement in a National Court.

The principle of Direct effect was developed from the case of Van Gend en Loos2, where Van Gend attempted to enforce rule from Article 25 of the Treaty against the Dutch Government, and from this three criteria were identified as needed to be satisfied for Van Gend to be successful; Clear and unconditional prohibition, a duty was imposed without discretion to Member States and that there was a product of Direct Effect between Member States and their citizens.

The scope of direct effect was limited by the Court of Justice, only to provisions that were sufficiently precise and unconditional, deriving from the case of Van Duyn v Home Office3. It was stated that for a provision of Community law to be directly effective, it must be clear and precise, unconditional and without exceptions and not require Member States to implement it in any way. Rules portraying these characteristics are regarded as being directly effective and are actionable even in the absence of national implementing measures, where these are required.

Subsequent to these cases, Pubblico Ministero v Ratti4 highlighted the condition that the date for the Directive's implementation must have passed. If both of these conditions are satisfied under a directive one more condition must be satisfied. In Marshall v Southampton and South West Hampshire Area Health Authority5 the Court of Justice stated a directive could only be enforced against the state, and that the State is the State despite the purpose it executes. Subsequent to the Marshall case, Foster v British Gas6, the ECJ held that any body providing a public service under state control, which possesses special powers exceeding those normally applicable, would be an emanation of the state. Deriving from the Foster case, three important cases have considered the 'emanation of the state' concept, and the application of the test put down in Foster. One case being National Union of Teachers v The Governing Body of St Mary's Church of England (Aided) Junior School7 held that the State should be defined broadly, and schools and other educational establishments were part of the State. If the further tests under Foster are satisfied, then a Directive is Directly Effective.

Case 29/84, para 23

2 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) ECR 1 Case 26/62

3 (1974) ECR 1337 Case 41/74

4 (1979) ECR 1629 Case 148/78

5 (1986) ECR 723 Case 152/84

6 (1990) ECR I-3313 Case C-188/89

7 [1997] IRLR 630