The Council does have some legislative initiative as under Article 208 EC, it can propose that the Commission formulate legislation in certain areas and can also delegate powers to the Commission to pass further regulations in certain areas. However, the main power of the Council is in its role in legislation. As almost all legislation has to be voted on by the Council then it holds more power in passing legislation than the other bodies, but the extent of this has been altered by later treaties after Rome which make way for an increasing balance of power between the Council and the European Parliament.
The European Parliament is the only directly elected institute of the EC. The MEP’s are elected for 5 year terms and the number of MEP’s for each state depends on their population size, the UK has 87. From the outset the European Parliament was given no real legislative power as it was meant only as a consultative body however every Treaty since Rome has come some way to increasing the power and importance of the EP. The main ways that the Parliament now helps legislate are through the procedures set out in Articles 251 and 252. The first being the Co-operation procedure and the latter being the Co-Decision procedure. Through the co-decision procedure the EP is given two readings on any proposed measure, before and after the council adopts its uniform position. The procedure also empowers the EP to make amendments to the proposed legislation and by a absolute majority can prevent legislation from being passed. As a result of the ToA and TN a much higher proportion of legislation is made through the co-decision procedure, thus the power of the EP in legislation has increased ever since its inception. The EP also holds an important role in scrutinising the Council and Commission, this has been introduced as an attempt to improve the democratic functioning of the Community Institutions.
So through a combination of the Commission, Council and EP the legislation of the Community is made but it is the European Court of Justice that has played a most important role in interpreting these rules and shaping Community policy by its decisions. The court is comprised of one judge for each member state sitting in chambers of 3 or 5 judges or in grand chamber of 11. The court is assisted by 8 advocates-general whose duty it is to make reasoned submissions on cases brought before the court and including a legal assessment of the matter for determination. The ECJ rules on actions of members states as regards Treaty implications and can also give preliminary rulings on interpretation of the Treaty, acts and other matter for domestic courts. In the UK both Lord Bingham and Lord Denning have given opinions on when references should be made to the ECJ.
The court has distanced EC law from other international law as upon accession to the EU the member states have transferred certain sovereign rights to the community creating an autonomous legal system in which the subjects are the states and its individuals. As will be explained later the ECJ has been fundamental in determining the wide reaching effect of EC law in domestic courts through its decisions thus widely effecting policy but can be briefly summarised in four principles of the court.
- EC law penetrates into the national legal systems and must be applied by national courts.
- Individuals may rely on upon EC law in national courts as giving rise to rights which domestic courts are bound to protect.
- Accordingly EC law takes precedence over conflicting national law.
- Bodies of the EC member states are responsible for reversing violations of EC law affecting individuals.
Attached to the ECJ is also the court of first instance which hears and determines a defined class of cases to take pressure off the ECJ, although rulings from the CFI do have a right of appeal to the ECJ.
Having considered the main institutions of the Community, it is necessary to examine the EC laws and their legal effects. There are various forms of rules that come from the community, but the major forms are the actual Treaties, Regulations, Directives and Decisions. The highest form of EC law are those obligations and rights that arise directly out of the Treaties, mainly of Rome, Maastricht, Amsterdam and Nice and including the Single European Act. These rules set out how the Community operates and also basic substantive principles and obligations of the Community. The Commission ensures that member states fulfil their treaty obligations and if they fail to do so conflicts will be settled in the ECJ. However, it was the ECJ that has really influenced the way in which EC law operates by ruling that obligations and rights arising from the Treaties are directly enforceable in domestic courts.
The decision in Van gend en loos dealt with whether individuals could take action against the state for breaching an EC obligation that prevented rises in import charges. The court made a ground breaking decision by arguing from first principles that the Treaty of Rome meant that the EC constitutes a new legal order in international law and that the EC imposes obligations on individuals and confers rights on them. Thus the direct effect here was creating individual rights which domestic courts must protect without requiring legislative intervention by the relevant state. This has been termed the ‘vertical’ direct effect of Treaty Articles. However this doctrine was further expanded by the ECJ in Defrenne v Sabena where it was extended to include a ‘horizontal’ direct effect. The court held that Article 119 which establishes the principle that men and women should receive equal pay for work, was directly effective in proceedings by an individual against a private company. Once again the court referred to the Treaty and the vision of the kind of legal community that the Treaties seemed designed to create.
This principle has also been enforced in the UK as in the case of Conegate ltd v C&A, after a referral to the ECJ, the court ruled that they accepted the judgement of the ECJ that the relative treaty article against qualitative restrictions on imports between member states was directly effective in the UK domestic courts. An important proviso was set in place by the ECJ, in that there are certain criteria for a treaty article to have direct effect, namely it being clear and unconditional. In R v Flynn it was held in the CA that a certain EC Treaty provision could not be directly effective as it did not meet these criteria.
Apart from obligations arising directly from the Treaty the Community institutions can form separate legislation, mainly in the form of Regulations, Directives and Decisions. Regulations are binding in their entirety on all member states and under Article 249 it is implied that these are directly applicable. The obligations and rights conferred upon states by regulations also have direct effect the same as Treaty obligations and rights. This was upheld most recently in the case of Munoz v Fruma that regulations did have direct effect under Article 249.
Decisions of the EC are binding only on the parties concerned and have no direct effect. These are an effective form of legislation when the need is only to alter a very specific situation that may arise.
The most controversial area where the ECJ has vastly increased the scope of EC policy in the form the direct effect doctrine has been in the jurisdiction of EC directives. Directives do not have to be addressed to all member states. They are binding in their objective but leave a choice of form and method to the member states. There will be either a stated period of time for application otherwise the convention is that it will be enforced twenty days after assent has been given.
Article 249 states that in order for a directive to enter the domestic law it is necessary for the member state to implement the EC law. It would seem that considering that in Van Gend en Loos one of the criteria for direct effect is that the measure must not require further legislation by the state then directives should not have direct effect. However, the ECJ has made a clear policy decision to allow vertical direct effect for directives. The case law is substantial in this area but the main decisions are quite clear. In Van Duyn v Home Office the ECJ ruled that a directive did confer rights on the individual which were legally enforceable before a domestic court. This is a clear example of judicial activism by the ECJ to ensure directives have the full force of law.
This direct effect was made conditional in Ratti v publico minsterio that it was only enforceable after the time limit for implementation had expired. However, while directives were given vertical direct effect by Van Duyn, it was ruled in Marshall v AHA that the equal treatment directive did have direct effect vertically as a directive imposes obligations on the state rather than the individual, but as a result of this then a provision of a directive could not be relied upon against an individual thus ruling that directives do not have horizontal direct effect. The ruling in Marshall also created an interesting effect in that employees of the state can rely on EC directives against their employers however employees of private companies can not. This ruling was also clarified in Foster v British Gas when the ECJ created the rules for what constituted a public body or an ‘emanation of the state’. These include providing a public service and having its policy directed by the state. In the UK this also includes privatised bodies that run public services.
Another important doctrine that has been developed by the ECJ is that of indirect effect. This has been referred to has direct effect by the back door in certain writings. The decision of the court in Van Colson was based on Article 5 EC which imposes a duty on member states to take all appropriate measure to ensure the fulfilment of EC obligations. The court ruled that in the even that a directive did not satisfy the criteria for direct effect, a national court is nevertheless obliged to interpret their national law in the light of the wording and purpose of the relevant directive. This was qualified by a statement in the judgment that this should be carried out as far as the court is given the discretion under national law. The directive in question can also be unimplemented by the state, this was confirmed in Marleasing.
In the UK the House of Lords did not accept this in the case of Duke v Reliance where the house held that they were not bound to distort the meaning of a British Statute in order to enforce against an individual an EC directive which has no direct effect between individuals. However, this decision was overturned in Webb v EMO where the house ruled that English courts should construe a statute to comply with a directive regardless of when the directive was made.
The doctrines of direct and indirect effect created by the ECJ are so important as they mean that the EC is no longer just an association of states or an international organisation, but that the EC is moving towards what some already call a confederation of states. This is important when trying to understand the extent to which the laws of the EC effect the law of the member states and their citizens.