Mohammed Loonat W200 TMA03 W2917585
2 (4) provides for the supremacy of Community legislation by providing that Acts of Parliament are to be construed and have effect subject to community provisions.
This subsequently put a different perspective on the UK's supremacy. Law making powers shifted from our national parliament to the community institutions whose legislation from Treaties (primary legislation), Secondary legislation, and case law from ECJ all took precedence over our domestic law.
Joining the EC created new sources of law for the UK and important ones. Where UK law and community law conflict, the treaty-based law of the community would prevail. An example of this Francovich v Italian State (1992)
EC law supersedes the law passed by Parliament, should the two conflicts.Member states are also obliged to compensate any of their individual citizens who suffer loss in consequence of the breach.EC law had profound effects on UK citizen's rights, particularly for female employees:R v secretary of state for employment ex parte equal opportunities commission (1994),
The Act gave fewer rights to part-time workers than full-time workers and most part-time workers were female, this was held to discriminate on the basis of sex.
UK government was forced to change the law, and greatly improve rights of part-time workers.
Mohammed Loonat W200 TMA03 W2917585
A treaty can require UK legislation from parliament to enact it. There are also parts of treaties that are directly applicable in British Courts and can be relied upon to create rights and duties like an English Statute.
Treaties have direct effect on the UK legal system; there are two types of direct effect.Vertical direct effect- obligations imposed upon the state, individual can enforce against a state body.Horizontal direct effect- Individuals can enforce against each other.
Article 249 of EC treaty now provides that European Parliament, Council and Commission may make three types of binding secondary legislation:
Regulations- used to induce major changes in Community law applicable throughout the community Bind member states
Directives- require member state to introduce legislation to bring about the desired effect within a specified time limit-Binding-National authorities choice of form and methods
Decisions-Addressed to an individual member state or individual in breech of community law.
Britain is bound by the legislation formed by the community institutions.
ECJ is now the highest court in the hierarchy. It does not have an appellate function, but under preliminary ruling it can interpret EC law on behalf of national courts, under Article 249 Treaty of Amstedam. Its decisions are binding upon the fifteen member states.
Mohammed Loonat W200 TMA03 W2917585
The most striking recognition of the supremacy of Community law over English Law can be seen in the Factortame case concerning the Merchant Shipping Act 1988 which.Required British- registered fishing boats fishing for British quotas to be British owned and managed.The British statute was held to contravene the treaty provisions prohibiting discrimination on the grounds of nationality.Article 177 (234) EC treaty.Thus community law prevailed.UK was then obliged to compensate any of their individual citizens who suffer loss in consequence of the breech of EC law.
Some would argue that Parliament has therefore shifted its sovereignty. However Parliament was a voluntary signatory to the treaties, therefore the process could always be reversed. Should national law expressly, deliberately conflict with European Communities Act 1972, traditional view of Parliamentary supremacy should prevail.
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.
1) EC law penetrates into the national legal systems and must be applied by national courts.
Mohammed Loonat W200 TMA03 W2917585
2) Individuals may rely on upon EC law in national courts as giving rise to rights which domestic courts are bound to protect.
3) Accordingly EC law takes precedence over conflicting national law.
4) Bodies of the EC member states are responsible for reversing violations of EC law affecting individuals.
To conclude, as with all things, there are advantages and disadvantages to being part of the EU. Some advantages are: it provides legal rather than military disputes; it allows all EU citizens protection throughout the EU and no dissenting judgements mean no judge can be seen to be bias in favour of nationality of any party. Disadvantages include: the time factors involved before a ruling is made could cause injustice in an urgent case, (it can take eighteen months to get a ruling); the overloading of the ECJ, which leads to more delays and the expense involved could restrict some individuals. Effects of UK membership have been extensive and practical. For example, preventing unlawful restrictions on imports of certain goods, discriminatory taxation on wine . In the future we can expect the EU to have a considerable impact on English law. Britain can not afford to be insular in its approach.
Bibliography
Stephen Weatherhill, Cases & Materials on EU Law
Nigel Foster, Blackstone’s EC Legislation 2003- 2004 14th Edition
Hilaire Barnett, Constitutional & Administrative Law 4th
