EU Law

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  • EU law
    • The institutions of the EU
      • The council of the EU/ministers
        • Law making
      • The Commission
        • Consists of 27 commissioners who are supposed to act independently of their national origin
        • They are appointed for a 5 year term
          • They can only be removed during this time by a vote of censure by the EU parliament
          • Each commissioner heads a department with special responsibility for one area of Union Policy
        • There are several functions:
          • It is the motive power behind Union policy as it proposes policies and and presents drafts of legislation to the Council
          • It is also the guardian of the treaties.  It makes sure that they are properley implemented by the EU
          • It is responsible for the administration of the Union and has executive powers to implement the unions budget
        • There is a commissioner per member state
        • Policy making & enforcement
      • The European Parliament
        • Law making
        • 51% majority needed when voting on laws
        • 751 MEP's - no. of MEP's proportionate to size of country
      • The European Court of Justice
    • The Council of Ministers
      • The foreign minister is the countries main representative
        • However, if there is meeting on agriculture, the minister for agriculture will go
      • Twice a year, ministers meet in the European court to have a summit about many things
      • The member states take it in turns to provide a president of the council, each for a six month period
      • Voting in the council is weighted with each country having a number of votes roughly in proportion with its population
    • The Assembly
      • its main function is to discuss proposals put forward by the commission
      • The members are elected by the member states every 5 years
      • The assembly meets about once a month for meetings that can last up to a week
      • It has no real power
    • Economic and social commitee
      • This advises the council and committee on economic matters
      • It is made up of representatives of influential interest groups such as farmers, employees and businesses
      • It has a strong influence on the unions decision making process
    • The European Court of Justice
      • Its function is to 'ensure that in the interpretation and application of the treaty the law is observed'
      • The court sits in luxemburg and has 27 judges, one from each member state
        • In a full court 11 judges will sit
        • They are appointed under article 253
        • Each judge is appointed for a term of six years
        • The court is assisted by nine advocates general who hold office for 6 years
          • They have to research all legal points involved and present their conclusions with complete impartiality and independance
      • Key functions
        • to ensure that the law is applied uniformly in all member states
          • They hear cases to decide whether a member state has failed to fulfil obligations under the treaties
          • The commission vs UK
            • The UK had to implement a council regulation on the use of tachographs in road vehicles used for the carriage of goods
        • Preliminary rulings
          • It hears references from national courts for preliminary rulings on points of European law
          • All the decisions that the European court of justice makes are binding on courts in member states
          • Mandatory preliminary rulings - only apply to the supreme court
          • Discretionary preliminary ruling - lower courts have a choice
          • Costa v ENEL
            • The italian governemnt nationalised its energy companies
              • Costa refused to pay his energy bills
          • Factortame
            • Only UK fishing boats were allowed to fish in UK waters under the merchant fishing act
              • The EU said that the merchant fishing act was wrong and have to be revoked
                • EU law has supremacy over national law
      • Article 267
        • A request for a preliminary ruling is made under article 267
      • Discretionary referralls
        • Set out in Bulmer vs Bollinger (1974)
        • The guidelines to making a referral:
          • Guidance on the point of law must be necessary to come to a decision in a case
          • There is no need to refer a point which is  reasonably clear and free from doubt;  this is known as the 'acte clair' doctrine
          • The court must consider all the circumstance of the case
          • The English court retains the discretion whether to refer or not
        • The first case to be referred by the English courts was Van Duyn vs Home Office (1974)
          • Mrs Van Duyn was not allowed into the uk becasue they though she would harm the public
            • The uk wanted to check that they could stop her from coming into the country
      • There is also a court of first instance
        • It has existed since 1988
        • It hears staff cases i.e. disputes between European institutions and their employees
        • It hears complex economic cases in the field of competition law
        • It has 12 judges and operates in panels of 6, 4 or 3
      • The operation of the European Court
        • Lawyers are required to provide their arguments in written form
        • There is an advocate general
          • We don't have one in the UK
          • They present their findings after they have listened to all the parties
        • The judges decide what the verdict is by majority rule and then present it in written form
        • They have wide rights to study extrinsic material
    • European sources of law
      • Primary sources
        • Treaties
          • All treaties are signed by our head of government and become part of English law immediately
          • Van Duyn vs Home Office (1974)
            • The EU court of justice held that an individual was entitled to rely on article 45 giving the right of freedom of movement
          • They are directly applicable
          • McCarthy's and smith
            • Wendy Smith had taken on a job that had been done by a man.
              • She claimed that she was not getting paid the same is the man
            • Horizontal direct affect
      • Secondary sources
        • Regulations
          • Directly applicable to all member states
          • They have a direct effect if they give individual rights and are clear
          • Article 288
          • States can get fines if they fail to comply
          • They have horizontal and vertical effect
        • Directives
          • Not directly applicable to English law
          • Have a vertical direct effect if it gives individual rights and are clear
          • No horizontal direct effect
          • An individual can claim against the state for loss caused by failure to implement
          • Article 288
          • Working time directive
            • Issued in 1993
            • Gives detailed instructions of the maximum number of hours that should be worked, the rest periods, and the amount of paid holiday workers should have
          • Direct effect
            • If the purpose of a directive is to grant rights to individuals and that directive is sufficiently clear, it may be directly enforceable by and individual against a member state
            • This is where the member state has not enforced to directive within the time specified
            • Vertical direct effect
              • 1. directive
                • 2. state fails to implement directive within the time limit
                  • Claim is against arm of the state
                    • 4. individual can rely on the directive
            • Horizontal direct effect
              • 1. directive
                • 2. state fails to implement directive within the time limit
                  • Claim is not against an arm of the state
                    • 4. individual cannot rely on the directive
          • Duty to interpret national law in the light of the directives
            • national courts are to interpret their laws in light of the directives
          • Actions against the state for failure to implement a directive
            • The EU court can claim damages against the member state for not implementing a directive
            • Francovich vs Italian republic (1991)
              • The Italian government failed to implement a directive that protected employees from employers who went insolvent
                • As a result the firm which Francovich worked for went into liquidation whilst still owing him wages
                  • He sued the state for his financial loss.  The EU court of justice stated that he was entitled to compensation
          • They are addressed to certain states - and are binding
            • They set out the result they want and give a deadline
              • They are not direct - the state that it is addressed to has to do some work to sort it out
        • Decisions
          • They are binding to who they are addressed to
    • Conflict between EU law and national law
      • EU law take precedent over national law
      • Van Gend en loos
        • This involved a conflict of  dutch law and EU law on customs
        • The dutch said that the EU had no jurisdiction as to whether EU law should prevail over dutch law
      • Community law
        • The rule of community law infringed must be intended to confer rights on individuals
        • The breach must be sufficiently serious
        • This generates rights and obligations for everyone
        • There must be a direct casual link between the breach of obligation resting on the state and the damage sustained by the injured parties
      • The effect of Eu law on the sovereignty of parliament
        • Whilst in the EU, EU parliament has power over national govermenet
          • This means that the sovereignty of parliament has been affected

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