Lade Inhalt...

Influence of EC law on UK law

Referat (Ausarbeitung) 2006 16 Seiten

Jura - Europarecht, Völkerrecht, Internationales Privatrecht

Leseprobe

Contents

A. Introduction

B. EC legislation

C. ECJ in particular

D. Special problem: State liability

E. Conclusions

F. References

A. Introduction

How is UK law influenced by EC law? To answer this question I will describe the mechanisms of the EC legislation (B.), particularly of the ECJ (C.), and the special problem of state liability (D.).[1]

B. EC legislation

EC law, firstly, flows out of the different treaties and their protocols, forming the current European Union. These are directly applicable. Secondly there is the so called EC secondary legislation, consisting of Regulations[3] which are directly effective.[4] Furthermore there are Directives[5] and Decisions[6] which are indirectly effective. Finally there are the other sources, especially Decisions of the ECJ and Court of First Instance, Recommendations and Opinions. The latter both have no binding force, although they are of persuasive authority[7]. Direct Applicability[8] means that rules automatically become part of the law of each domestic legal system without the need for confirmation of their legitimacy by formal enactment in the legislatures of the member states.[9] Direct effect[10] means that someone may cite a Directive as law without having to cite any domestic legislation which was meant to implement that Directive.[11] Furthermore, when Directives are directly effective they have ‘vertical direct effect’ but not ‘horizontal direct effect’.[12] This means that they have direct effect in proceedings against a member state ‘vertically’ but not in proceedings between individuals or companies ‘horizontally’. For this purpose the word ‘state’ has been given a wide meaning[13] and in the UK would include local authorities and nationalised industries.[14][2]

One of the major questions, that must be asked, is, whether EC law takes precedence over the domestic law of the individual member states.[15]

Under UK constitutional law, it is recognised that Parliament has the power to enact, revoke or alter such, and any, law as it sees fit. Coupled to this wide power is the convention that no one Parliament can bind its successors in such a way as to limit their absolute legislative powers.[16] This absolute power is a consequence of the historical struggle between Parliament and the Stuart monarchy in the 17th century. In its struggle with the Crown, Parliament claimed the power of making law as its sole right. In so doing Parliament curtailed the royal prerogative and limited the monarchy to a purely formal role in the legislative procedure. In this struggle for ultimate power the courts sided with Parliament and in return Parliament recognised the independence of the courts from its control.[17]

The Treaty of Rome reflected a post-war desire to achieve stability through European unity, and its Preamble stated an aim of “ever closer union” amongst the peoples of Europe.[18] The establishment of an integrated European Community was a response to two factors: the disasters of the Second World War and the emergence of the Soviet bloc in Eastern Europe. The aim was to link the separate European countries, and particularly France and Germany, together in such a manner as would prevent the outbreak of future armed hostilities.[19] UK’s public opinion was showing some obstinate resistance to the Treaty aim of an ‘ever closer union’. The problem was an evident lack of democracy in the working of the EU. This may have been justified in the aftermath of the Second World War when the priority was reconstruction and reconciliation. Fifty years later something more is required, particularly in a continent which is supposed to have invented democracy.[20]

It would be a mistake to regard UK and European law as two separate systems of law. The latter has now reached the stage of being a significant source of UK law:[21] The European Communities Act 1972[22] gave legal effect to EC law in the UK. Pay close attention to the wording of section 2(1): “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the UK shall be recognised and available in law, and be enforced, allowed and followed accordingly”.[23] This section gives effect to all directly effective Community law, whether made prior to or after the passing of the Act. Section 3 binds all courts to interpret matters of EC law in accordance with the rulings of the ECJ and requires the courts to take judicial notice of EC legislation and the opinions of the ECJ. The UK courts have had no problem in applying directly effective provisions. They seem to have been reluctant, however, to apply the Von Colson principle[24].

In Duke v Reliance[25], Duke complained that she had been forced to retire at 60, despite her male colleagues’ being permitted to work until 65. Equal Treatment Directive 76/207[26] was not enacted into domestic law until the Sex Discrimination Act 1986[27]. Duke could not rely on the Directive as directly effective because her employer was a private company. She argued that the English courts should construe the unamended Sex Discrimination Act 1975[28] in a manner consistent with the Equal Treatment Directive[29], treating her enforced retirement as unlawful dismissal.[30] The House of Lords considered the case of Von Colson[31] but opined that it did not provide a power to interfere with the method or result of the interpretation of national legislation by national courts. They noted that the Equal Treatment Directive postdated the Sex Discrimination Act 1975 and thought it would be unfair on Reliance to ‘distort’ the construction of the Act to accommodate it. The House of Lords later applied the same objections in relation to the Northern Ireland legislation[32], despite the fact that it was passed after the Directive.[33]

C. ECJ in particular

The ECJ is the ultimate authority on EC law. As the Treaty is often composed in general terms, the Court is often called upon to provide the necessary detail for EC law to operate.[35] Its decisions must be accepted by the courts of member states and there is no right of appeal.[36] Like the House of Lords, the ECJ is not bound by its own previous decisions but usually follows them.[37] The ECJ is a court of reference: the ruling the Court makes is preliminary in the sense that the case is then remitted to the national court for it to apply the law to the facts. The Court only addresses itself to points arising from actual cases; it will not consider hypothetical problems.[38] It is thus unlike any court within the English legal system and more closely resembles the Supreme Court of the United States.[39][34]

The ECJ has jurisdiction to hear complaints that a member state has not fulfilled its obligations under the treaties, to decide whether the Council of Ministers and the Commission of the European Communities have acted legally, and to decide disputes between member states about the subject-matter of the Treaties.[40] Moreover the ECJ has jurisdiction to give preliminary rulings on references made to it by UK courts under art. 177 EC Treaty.[41]

[...]


[1] The European Convention on Human Rights is not less important, but for the following issue irrelevant. Although the Convention on Human Rights had evolved numerous implications on UK law, these are not seen as ambiguous as the influence flowing from the European Union’s institutions. Since 1992 the ‘European Communities’, EC, have renamed into ‘European Union’, EU. For some instances[1] English authors still refer to its legislation as ‘EC’ legislation.

[2] BENNETT/HOGAN/SEAGO, p. 160; DARBYSHIRE, pp. 226 et seq.; HOLLAND/WEBB, pp. 302 et seq.; INGMAN, pp. 226 et seq.; KELLY/SLAPPER, p. 65; PACE/SIM, pp. 10 et seq.

[3] Good explanation: KEENAN, p. 28; 102,567 such Regulations have been applied to the UK since accession in 1973 (House of Lords parliamentary answer [HL649], 13 January 2003).

[4] See also: KELLY/SLAPPER, pp. 389 et seq.

[5] Good explanation: KEENAN, p. 28.

[6] Good explanation: KEENAN, p. 28.

[7] Compare to: DARBYSHIRE, p. 228; INGMAN, pp. 226 et seq.; PACE/SIM, pp. 10 et seq.

[8] DARBYSHIRE, pp. 228 et seq.; HOLLAND/WEBB, pp. 302 et seq; INGMAN, p. 226.

[9] HOLLAND/WEBB, p. 302; INGMAN, p. 226.

[10] DARBYSHIRE, pp. 228 et seq.; HOLLAND/WEBB, pp. 304 et seq.; INGMAN, pp. 226 et seq. (using ‚legal effect’ instead of ‚direct effect’).

[11] HOLLAND/WEBB, p. 304.

[12] Marshall v Southampton and South Wales Hampshire Area Health Authority (Teaching) [1986] QB 401, CJEC.

[13] Marshall v Southampton and South Wales Hampshire Area Health Authority [1993] 4 All ER 586, CJEC.

[14] INGMAN, p. 227.

[15] BENNETT/HOGAN/SEAGO, p. 160.

[16] KELLY/SLAPPER, p. 65.

[17] KELLY/SLAPPER, p. 65.

[18] WALKER/WARD, p. 92.

[19] KELLY/SLAPPER, p. 387.

[20] HEATHCOAT-ARMORY, p. 4.

[21] WALKER/WARD, p. 93.

[22] Full text: http://www.opsi.gov.uk/acts/acts1972/19720068.htm#aofs.

[23] DARBYSHIRE, p. 240; see also: BENNETT/HOGAN/SEAGO, p. 160 f; KEENAN, p. 28.

[24] WALKER/WARD, p. 110; see also below (III. 3. – Indirect effect).

[25] Duke v GEC Reliance Systems Ltd [1982] ICR 449, EAT; good summary: INGMAN, p. 219; see also: WALKER/WARD, p. 110.

[26] Full text: http://www.pfc.org.uk/legal/etd.htm.

[27] Full text: http://www.opsi.gov.uk/si/si1988/Uksi_19880099_en_1.htm.

[28] Full text: http://www.pfc.org.uk/legal/sda.htm.

[29] Full text: http://www.pfc.org.uk/legal/etd.htm.

[30] DARBYSHIRE, pp. 240 et seq.

[31] See below (III. 3. – Indirect effect).

[32] Finnegan v Clowney Youth Training Programme Ltd [1990] 2 All ER 546

[33] DARBYSHIRE, p. 241.

[34] BAILEY/GUN, pp. 404 et seq.; BENNETT/HOGAN/SEAGO, pp. 159 et seq.; BROWN KENNEDY; DARBYSHIRE, pp. 217 et seq.; HOLLAND/WEBB, pp. 285 et seq.; KEENAN, pp. 48 et seq.; KELLY/SLAPPER, pp. 395 et seq.

[35] KELLY/SLAPPER, p. 66.

[36] KEENAN, p. 48.

[37] DARBYSHIRE, p. 220.

[38] KELLY/SLAPPER, p. 68.

[39] BENNETT/HOGAN/SEAGO, p. 159.

[40] INGMAN, p. 80; see also: EEC-Treaty, arts. 169 – 176 (old enumeration, before 1999).

[41] INGMAN, p. 81; see also: BENNETT/HOGAN/SEAGO, p. 163; PACE/SIM, p. 11.

Details

Seiten
16
Jahr
2006
ISBN (eBook)
9783640758456
ISBN (Buch)
9783640758579
Dateigröße
516 KB
Sprache
Englisch
Katalognummer
v159420
Institution / Hochschule
Johannes Gutenberg-Universität Mainz
Note
Schlagworte
EC law European law UK law

Autor

Teilen

Zurück

Titel: Influence of EC law on UK law