#3588 - The Eu - Constitutional Law

The EU essentially dates back to 1951 with the Treaty of Paris, but did not become known as the EU as we know it until 1992 under the Maastrict treaty.

The Legislative/Administrative Bodies of the EU:

• Council – these are the real legislators. They look at economic policy and also approve initiatives put forward by the Commission.

• Commission – they initiate proposals for legislation, and ensure treaty provisions etc. are adequately implemented. There is one commissioner from each member state and each is responsible for a specific area – currently the UK is responsible for external relations.

• Parliament – the number of representatives in Parliament depends on a member state’s population. Note that Parliament does not actually have a lot of power, but in some areas Parliament needs to give its assent for something to become law.

• European Court of Justice – focus on the interpretation of the treaty.

Sources of EU law:

• Treaties – are directly effective by virtue of a state’s membership in the EU. The concept of direct effect means that the provisions are binding on everyone by virtue of their existence in EU law. The principle was established in Van Gend en Loos.

• Regulations – are directly effective and need to be the same in all member states – ‘binding in its entirety’

• Directives – are not directly effective as such, but are ‘binding as to the result to be achieved’. Member states are allowed to achieve the aims of directives in their own way. The EU recognises that different states may need to approach the issue in different ways, for political, social and economic reasons. More on directives below.

Enforcing Directives:

Direct effect:

• The intention is that directives will be enacted through a country’s own law. However, where they fail to do this, the EU finds a way of having its will done.

• Directives, if not implemented by their expiry date or implemented inadequately, are thus directly effective against the state only. This is established in Ratti. This is known as the estoppal principle – directives should not be horizontally effective, because it is the failing of the state that they are not law, and thus only the state can be held liable for thus. The state should not be able to avoid its obligation under EU law.

• The definition of the state has been debated. Case law suggests that it is quite a wide interpretation, and includes anyone who “has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state” – Foster v British Gas.

• Note that the directive must be sufficiently clear and precise, unconditional, and intended to confer an individual right (Van Gend en Loos).

• There is no horizontal direct effect (between private citizens) – this is demonstrated by Marshall and Duke, which concerned whether C had a claim under equality protection – one did an one did not, because one was employed by the state and another one was. However, sometimes there will be incidental direct effect where there will be an effect on the legal position between two private individuals because of one’s claim against the state to do or not do something (seen in Delena Wells).

Indirect effect:

• This doctrine is established in Article 4(3) TEU.

• It allows for horizontal effect of directives if there is a law on the member state’s books which can be interpreted in a manner consistent with the Directive.

• The leading case law on this is Van Colson and Marleasing.

• Note that this interpretation should occur ‘as far as is reasonably possible’.

State liability:

• This is a last resort scheme. The leading cases are Francovich and Faccini Dori. It is used when there is no law that can be interpreted in order to allow indirect effect.

• Note that this differs to the other two forms of redress because it does not provide the claimant with the legal solution they were seeking to have enforced, but instead compensates the claimants for the fact that that legal redress was not available.

• It must be shown:

  • The directive was sufficiently clear and precise

  • It was intended to confer an individual right

  • The claimant’s loss was caused by the government breach

  • The breach was sufficiently serious (this can be a saving grace for member states, as there may be a variety of mitigating factors)

‘General principle of EU law’ – the Mangold question

• It was suggested in the German case of Mangold, that where the directive embodied a ‘general principle of EU law’ it may be given horizontal direct effect. In the above case the principle was equality and non-discrimination.

• This area has not been explored by the courts, but if affirmed properly it could have a very wide scope.

Theory/criticism on directives:

• Precnal argues that direct effect being a side effect of a failure on member states’ part does not sit well with the rationale of EU law, namely legal order.

• Dashwood argues that the case law has created a situation where Directives are essentially directly effective, like treaties and regulations – they are meant to be a different kind of legislation!

EU Supremacy:

• There is an inherent tension between EU supremacy and parliamentary sovereignty – both asserts its own sovereignty, but obviously there can only be one sovereign legislator. The European Communities Act 1972 is the source of this tension – it gives EU law sovereignty. Some argue that because Parliament passed this law, they can just repeal it and so Parliament is still sovereign, but whether this is so plain in reality is up for debate.

• The important sections are 2(1) and 2(4). Debate exists over whether together they create a principle of harmonisation or one of priotity.

• This was first suggested in Van Gend en Loos but was properly established in Costa v ENEL. ‘The transfer by the states from their domestic legal system….carries with it a permanent limitation on their sovereign rights against which a subsequent unilateral act incompatible with the concept of the community cannot prevail”.

• EU supremacy was cemented in the case of Simmenthal, and was reluctantly accept in the UK in the case of Garland.

The Factortame litigation:

• One of the longest and most significant series of litigation in constitutional law. No 1 and 2 are the most important on the supremacy question.

• Spanish fishermen were told they could not...