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Introduction

The EU came into being with the Treaty on European Union 1992 (the Maastricht Treaty). The Union is a result of years of evolution of three original European Communities i.e., the European Coal and Steel Community (ECC 1952), the European Economic Community (EEC 1958), and the European Atomic Energy Community (EURATOM 1958), established by the Treaty of Rome 1957, which have since merged into a single European Community.

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General Aims/Objectives of the EU

The general aims are laid down in Art 2 of the Treaty of Rome as amended by the Treaty on European Union 1992 as follows: * To establish a common market & economic & monetary union;* To promote harmonious & balanced development of ecomonic activities;* To raise a high level of living standards & quality of life;* To raise a high level of employment & social protection;* To promote economic & social solidarity among member states; * Seek to provide the further integration of laws & policies of member states.

THE EUROPEAN UNIONTHE EUROPEAN UNIONCountries in Europe who are Members of the EU:

Prior to the ratification of the Treaty of Nice 2001, there were 15 Member States: Austria; Belgium; Denmark; Finland; France; Ireland; Italy; Germany; Greece; Luxemburg; The Netherlands; Spain; Sweden; Portugal & the UK.

On 1st May 2004 by virtue of ratifying the Treaty of Nice 2001, enlargement took place & ten more European countries joined the Union taking the member currently to 25. The ten European countries are: Estonia; Hungary; Slovenia; Malta; Cyprus; Poland; Czech Republic; Latvia; Lithunia & Slovakia.

THE EUROPEAN UNION THE EUROPEAN UNION The EU & the British Constitution (Doctrine of PS):

On 1st Jan 1973, the UK became a member of the European Communities by signing the Treaty of Rome. It was an action which had profound implications on the UK legal system. For example, constitutional lawyers have been especially interested in one question involved in these relations, that is, whether the sovereignty of Parliament has been affected by the UK's participation. The argument is that Parliament's supremacy is limited as a result of its membership with the EU. This is due to the enactment of ECA 1972.

THE EUROPEAN UNION THE EUROPEAN UNION Major provisions of the ECA 1972

* Sec 1- it defines the Community Treaties to which the Act relates & includes the Treaties entered into by the Communities prior to 22nd Jan 1972. Any subsequent Treaties entered into by the Communities may be incorporated into the UK law by an Order in Council.

* Sec 2(1)- it states that all provisions of Community law which are intended to be directly applicable in the UK are given force of law. This applies to Community law made both before & after the coming into force of the Act.

THE EUROPEAN UNION THE EUROPEAN UNION Major Provisions of the ECA 1972:

* Sec 2(2)- it states that where Community law requires legislative implementations in the UK, this may be achieved by means of statutory instruments.

* Sec 2(4)- it states that the Acts of Parliament passed after 1972 shall be construed & have effect subject to the provisions of the ECA 1972.

* Sec 3(1)- the purpose of the sec is to ensure that the UK courts apply European Court of Justice methods of interpretation to Community provisions so as to ensure that the UK courts do not, by applying their normal rules of interpretation

THE EUROPEAN UNION THE EUROPEAN UNION Relevant cases to cite on EC Law & the applicability of the

doctrine of Parliamentary sovereignty in the UK:

* Macarthy Ltd v Smith [1979] 3 All ER 325- where the applicant (female) claimed that she was entitled to equal pay by virtue of sec 1(2)(c) of the Equal Pay Act 1970. The court held (Lord Denning) that “In construing our statute we are entitled to look to the Treaty as an aid to its construction: & even more, not only as an aid but as an overriding force...”

* Garland v British Rail Engineering Ltd [1983] 2 AC 751, [1982] 2 All ER 402 (HOL)- whether different interpretation of domestic law were possible. The HOL held that words in the Act should be construed, if they are capable of bearing such a meaning as being intended to be consistent with the obligation to comply with EC Law.

THE EUROPEAN UNION THE EUROPEAN UNION Relevant cases to cite on EC Law & the applicability of the

doctrine of PS:

* Garland v British Rail Engineering Ltd- According to Lord Diplock, courts should take the approach 'however wide a departure from prima facie meaning of the language of the provision might be needed in order to achieve consistency'. (Affirmed the decision of Lord Denning in Macarthy Ltd)

* Pickstone v Freemans plc [1988] 2 All ER 803 (HOL)- whether the applicants (females warehouse operatives) were entitled to equal pay with the male warehouse checker under sec 1(2)(c) of the Equal Pay Act 1970. The Court held that (Lord Oliver) “[A] construction which permits the sec to operate as a proper fulfilment of the

THE EUROPEAN UNION THE EUROPEAN UNION Relevant cases to cite on EC Law & the applicability of the

doctrine of PS:

* Pickstone v Freemans plc- the UK's obligation under the Treaty involves not so much doing violence to the language of the sec as filling a gap by an implication which arises, not from the words used, but from ...the manifest purpose of the legislation, by its history, & by the compulsive provision of sec 2(4)...”

* R v Sectary of State for Transport ex parte Factortame [No.2] [1990] 2 AC 85 (HOL)-whether the Merchant Shipping Act 1988 was contrary to those provisions of the EC Law which prohibited discrimination on grounds of nationality btn member states. The HOL sought a preliminary ruling on this point from the ECJ which ruled that 'a national court which in a case before it concerning Community law considers itself that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule'.

THE EUROPEAN UNION THE EUROPEAN UNION Relevant cases to cite on EC Law & the applicability of

the doctrine of PS:

* R v Secretary of State for Employment ex parte Equal Opportunities Commission & Anor [1994] 1 All ER 910 (HOL)- where the Equal Opportunities Commission brought an application for JR seeking a declaration of sec 53(1) of the Sex Discrimination Act 1975 was indirectly discriminatory & in breach of EC Law [as a result of Art 119 of the Treaty of Rome, Directive 75/117] (the equal pay directive). The HOL granted a declaration to the effect that national law was incompatible with Community Law.

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Relevant cases to cite on EC Law & the applicability of the doctrine of PS:

* Webb v EMO Air Cargo (UK) Ltd (No.2) [1995] 1 WLR 1454 (HOL)- whether the dismissal of the applicant was discriminatory contrary to the Sex Discrimination Act 1975. The HOL sought a preliminary ruling from the ECJ on implementation of the principle of Equal Treatment Directive (76/207/EEC). The HOL ruled that English Law was to be construed in accordance with ECJ's ruling.

THE EUROPEAN UNION THE EUROPEAN UNION The Institutions of the Union/Community:

(a) The European Commission- (referred to as the engine which drives the Community forward). It is the guardian of the Treaty. The Commission is based in Brussels, Belgium. It has 20 members appointed by the governments of the Member States all of which have to agree to each appointment.

Functions of the European Commission: (Articles 211-219)

* Legislative role- it proposes new laws & initiates policies to be approved by the Council of Ministers after consultation with Parliament.

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Functions of the European Commission:

* Policing role- In the event of a breach of the Treaty of Rome, the Commission will seek an explanation from the erring state. It is the guardian of the Treaties.

* It has the power to investigate & control potential monopolies. It also acts under the instruction from Council as the negotiator btn EU & external countries.

Note: To ensure that the provisions of the Community law are enforced; & to initiate & make proposals for Community legislative action.

THE EUROPEAN UNION THE EUROPEAN UNION The Institutions of the Union/Community:

(b)The Council of Ministers- this is the main law making body of the EC. It is made up of one representatives from each member state chosen by the state's government. It has no regular place at which it meets. Which minister attends meetings of the Council depends on the subject matter under discussions. Often the representative is each country's foreign minister. The Council is headed by a President & the office shall be held in turn by each Member States for a six-month term. (See Art 203 of the EC Treaty)

THE EUROPEAN UNION THE EUROPEAN UNION The Institutions of the Union/Community:

Functions of the Council of Ministers:

* Its main function is to take decisions i.e., to legislate. In other words, it takes the most important legislative & executive decisions.

* To make policy decisions & to issue Regulations & Directives on the basis of proposals from the Commission. It also accept or rejects proposals made by the Commission.

*It also try to resolve conflicts of national interests btn member states.

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The Institutions of the Union/Community:

(C) The European Parliament- It usually meets in Strasbourg, France. It is made up of directly elected MEP's (Members of the European Parliament) from each Member States who are required to be members of their national Parliaments. Art 189 provides that the number of members shall not exceed 700 & seats are allocated according to the size of population of the Member States.

Note: In relation to the size of the European Parliament, the Treaty of Nice 2001 provides that the current number of 626 Member will increase to 738 when the applicant states join.

THE EUROPEAN UNION THE EUROPEAN UNION The Institutions of the Union/Community:

Functions of the European Parliament:

* Accountability- The Commission is formally accountable to the Parliament. The Parliament may vote by 2/3 majority to remove the members of the Commission.

* Enforcement- It may initiate enforcement proceedings in the ECJ, if either the Commissioner or Council of Ministers abdict their responsibility.

* Supervision- it may establish committees of inquiry to investigate allegations of maladministration or breaches of Community Law.

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The Institutions of the Union/Community:

(d) The European Court of Justice- The court sits in Luxemburg. It consists of 15 judges, who must possess the qualifications required for appointments to the highest judiucial office in their own country or to be 'jurisconsults of recognised competence'. The court is presided over by a President who holds office for a three-year term. The President is elected by the judges among themselves. Assisting the judges are six Advocates-General. (See Art 222)

THE EUROPEAN UNION THE EUROPEAN UNION The Institutions of the Union/Community:

Functions of the ECJ: (See Art 220)

* The ECJ shall ensure that in the interpretation & application of this Treaty, the law is observed.

* The ECJ may rule on matters brought before it by the Commission alleging breach of the treaties by a member state. (See Art 226)

* Under Art 227 of the EC Treaty- one member state may bring a fellow member state before court.

* The ECJ hears 'preliminary reference' from the EC's member states national courts. (See Art 234)

THE EUROPEAN UNION THE EUROPEAN UNION Sources of EU Law/Community Law:

(a) Primary Sources- Primary sources are Treaties, as amended. These includes the original EEC Treaty & its Protocols as amended by later Treaties i.e., the Single European Act 1986, the Treaty on European Union 1992, & the Treaty on European Union 1997 (the Treaty of Amsterdam).

Note: Treaty Articles carries 'direct effect' which was first raised in the case of Van Gend en Loos. In this case, the plaintiff imported goods into Netherlands from Germany. The custom duty has been 3% before the EEC Treaty. Subsequently it was raised following an international agreement. The ECJ held that Art 12 was directly effective.

THE EUROPEAN UNION THE EUROPEAN UNION Sources of EU Law/Community Law:

(a) Primary Sources- (See also the case of Alfons Lutticke GmbH v Hauptzollamt Saarloius- where Art 95(1) contains prohibition on the States introducing discriminatory taxation & Art 95(3) contains a positive obligation on Member States to repeal or amend any provisions which conflict with the preceding rules i.e., time limit was given. The ECJ found Art 95(1) was directly effective & Art 95(3), the Court implied becomes directly effective once the time limit had expired. For a particular provision to be said to be 'directly effective', it must be sufficiently clear & precise, it must be unconditional & leave no room for the exercise of discretion in implementation by the Member States.

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(b) Secondary Sources-includes the interpretation of both primary & secondary sources by the ECJ. Secondary sources comprises of: (See Art 249 of the EC Treaty)

* Regulations- are instruments used in order to secure the uniform application of Community policy. A regulation shall have general application & binding in its entirety & directly applicable. The issue of a 'regulation' carrying a 'direct effect' on a Member State is not automatic.

* Directives- it is 'binding as to the result to achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice form & methods.(See the case of Van Duyn v Home Office [1974], where the ECJ ruled that Miss Van Duyn was entitled to invoke the Directives directly before her national court)

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Sources of EU Law/Community Law:

(c) Decision (See Art 249, which states that a decision shall be binding in its entirety upon those to whom it is addressed). Decisions are either made by the Council or Commission. A decision may be a result of an obligation imposed by a Regulation or Directive.

(d) Recommendations & Opinions- shall have no binding force. However, it may be taken into consideration in trying to clarify any ambiguities in domestic law. (see art 249)

THE EUROPEAN UNION THE EUROPEAN UNION How is primacy of EU Law/Community Law achieved?

The ECJ asserts the idea that the EC Treaty has created 'a new legal order of international law' i.e., the 'Twin Pillars' & they are:

(a) States have ltd their sovereign rights & accordingly, Community law takes precedence over any inconsistent national law or practice. (The principle of Supremacy-(See the case of Costa V ENEL (1964),where Italy nationalised production & distribution of electricity & transferred the assets of private electricity undertaking to a new state body ENEL. Costa (as a shareholder) in one of the undertakings & as an electricity consumer, claimed before the Italian Court that the Italian nationalisation legislation infringed provisions of EEC Treaty. The ECJ held inter alia that Community law prevailed over subsequent incompatible national law)

(b) Direct effect- Community law imposes obligations on individuals & confers upon them rights which become part of their heritage.

Note: 'Indirect effect'-this is to ensure that obligations imposed by the Community law are achieved. (See the case of Von Colson)

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Can national courts find Community law/legislation invalid?

In Foto-Frost v Hauptzollarnt Lubeck-Ost, it was held by the ECJ tat national courts could not find Community legislation invalid. Hence, hence the 'acte clair' doctrine cannot apply to questions of invalidity, but it is possible for national courts to find Community acts valid.

Exception:

It is stated that an exception exists in cases of interlocutory proceedings (i.e., the preliminary stages such as “pleading & discovery & inspection of documents) in civil proceedings) where national courts for reasons of urgency can rule that Community acts are invalid on an interim basis.

THE EUROPEAN UNION THE EUROPEAN UNION Can the ECJ refuse to hear a preliminary reference?

* It falls outside Art 234;

* Reference not made by a Court or Tribunal;

* Reference has nothing to do with Community Law;

* Absence of genuine dispute between the parties/abuse of preliminary reference procedure (see the case of Foglia v Novello (No.1 & No.2) where the ECJ refused to hear a reference from the Itallian court since the plaintiffs were abusing the preliminary reference procedure); &

* Hypothetical questions.

THE EUROPEAN UNION THE EUROPEAN UNION What is the effect of a preliminary reference?

* It is binding on national courts which referred the question for consideration-see the case of Milch-Fett-und Eierkontor.

* It may be cited as precedents in common law jurisdiction.

* It the same issue arises again in a later case under the doctrine of 'acte claire', there is no need to make further reference.

* If the national court is unhappy with the previous ruling it can make an additional reference, even if the matter is acte claire (see the effect of sec 3(1) of the ECA 1972, which seem to state that a national court is obliged to follow the ruling or make a new reference).