Written by Charlotte Langridge (Oct 2007)
a) Briefly explain how the EC Treaty is part of UK law
Introduction
Treaties are primary sources, with the Treaty of Rome being the most important. As soon as a Treaty is signed by a member state’s head of government, e.g. Gordon Brown, it automatically takes effort in international law. This is a result of the European Communities Act 1972, section 2(1), which states that treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law and be enforced, allowed and followed accordingly. Thus, this not only makes community law part of our law, but also allows citizens to rely upon it.
What is the EC Treaty?
In the case of Van Duyn v Home Office (1974) THE European Court of Justice held that an individual was entitled to rely on Article 39, giving the right of freedom of movement. This article had direct effect and conferred rights on individuals which could be enforced not only in the European Court of Justice, but also in national courts. Furthermore, citizens of the United Kingdom are entitled to rely upon the rights in the Treaty of Rome and other treaties, even though those rights may not have been specifically enacted in English law. The case of McCarthys Ltd v Smith (1980) reflects this. In this case the claimant’s employer paid her less than her male predecessor for exactly the same job. As they were not employed at the same time there was no breach of English domestic law. Despite this, the claimant was able to claim that her company was in breach of Article 141 of the Treaty of Rome over the issue of equal pay for men and women, this claim was confirmed by the European Court of Justice.
When does a Treaty become part of UK Law?
European law has a growing influence and this reflected by British courts as they are now prepared to apply European Treaty law directly rather than wait for the European Court of Justice to make a ruling on the point. This is illustrated in the case of Diocese of Hallam Trustee v Connaughton (1996). In this case the Employment Tribunal had to consider facts which had similarity to the Smith case. In this case a man was employed the woman had left the company, for the same job, at a much higher salary. The tribunal considered Article 141 of the Treaty of Rome and decided as a preliminary point that its provisions were wide enough to allow Miss Connaughton to make a claim.
The aim of the Treaty of Rome
Under Article 249 of the Treaty of Rome the EU has the power to issue regulations which are ‘binding in every respect and directly applicable in each Member state’. The regulations do not have to be adopted in any way by the individual states as Article 249 makes it clear that they automatically become law in each member state.
This direct applicability point was tested in the case of Re Tachographs: Commission v United Kingdom 1979. This case concerned a regulation requiring mechanical recording equipment to be installed in Lorries. The wording of Article 249 was explicit and meant that regulations were automatically law in all Member States. The Treaty of Rome ensures that laws are uniform across all Member States.
Conclusion
Overall, it is evident that EC treaties play an extensive role as part of UK law. If a UK citizen does not qualify to rely upon UK law they may still be able to rely on an EC directive.
b) In the following situations, consider whether there is a need to make an Article 234 referral to the ECJ.
(i) In this case there is no need to make an Article 234 referral to the European Court of Justice. According to the guidance provided by the Court of Appeal in the case of Bulmer v Bollinger (1974) a case should not be referred to the ECJ if the question of law has already been decided. With this in mind, the principle of free movement of workers is firmly and clearly established in the Treaty of Rome itself. The case of Van Duyn v Home Office (1974) there is already binding precedent in place from this case which clarifies that Jacques has the right to free movement for work purposes. Furthermore, in these circumstances there is no need to refer the case to the ECJ as the question of law is acte clair (already decided).
(ii) In this case there is no need to make a referral as there is already an ECJ ruling on a similar matter. Thus, the case of Bulmer v Bollinger clearly states that a case should not be referred if the issue of law has already been decided (acte clair). There is already binding precedent from the case of McCarthy v Smith (1980) and Hallam and Connaughton (1994). Hence, there is no need to make a referral to the ECJ.
(iii) In this situation there would be a discretionary referral under Article 234. This is because acte clair is again a relevant issue and the case of Bulmer v Bollinger 1974 outlines that where a point of law has already been decided there is no need to make a referral. There is a similar set of circumstances in the case of Gibson v East Riding of Yorkshire Council (1999). In this case Mrs Gibson was employed as a part-time swimming instructor and did not receive paid holidays. Therefore, although the circumstances differ slightly it would be down to the discretion of the House of Lords.
c)
(i) Describe the effect of European membership on English law using cases to illustrate.
Introduction
The effect of European membership on English law is quite substantial. In this essay I shall be discussing the influence of EU law in relation to English law.
Treaties
Treaties are primary sources and have an extensive effect upon English law. Treaties enable citizens of the United Kingdom the right to rely on the rights in the Treaty of Rome and other treaties even though those rights may not have been specifically enacted in English law. This was seen in the case of McCarthys Ltd v Smith (1980). . In this case the claimant’s employer paid her less than her male predecessor for exactly the same job. As they were not employed at the same time there was no breach of English domestic law. However, Wendy was able to claim that the company which employed her was in breach of Article 141 of the Treaty of Rome over equal pay for men and women; this claim was confirmed by the ECJ.
Regulations
Under Article 249 of the Treaty of Rome the European Union has the power to issue regulations which are binding upon each member state. From this alone it is clear that membership of the EU has a huge impact upon UK law. Article 249 makes it clear that regulations automatically become law in each country. This direct point was seen in the case of Re Tachographs: Commission v United Kingdom 1979. The United Kingdom government of the day decided not to be implement the regulation, but leave it to the lorry owners to decide whether or not to put in the necessary equipment.
Directives
Directives also show the effect of the UK’s membership of the EU. Directives are the main way in which harmonisation of law within member states is reached. Directives cover many areas including laws, banking, insurance, health and safety of workers, equal rights, consumer law and social security. Similarly, to regulations, it is Article 249 of the Treaty of Rome that gives the power to the Union to issue directives. However, there is a slight difference as Member States will pass their own laws to bring directives into effect and such laws have to be brought in within a time limit set by the Committee.
The usual and most common method of implementing directives in the United Kingdom is by statutory instrument. Directives can also be implemented by other law-making methods, an example being the Consumer Protection Act 1987.
Duty to interpret national law in the light of directives
Even if a directive has not been implemented, national courts (e.g. UK) have a duty to interpret their national law in the light of the wording and purpose of any relevant directive.
Actions against the state for failure to implement a directive
Being a member of the EU can also have disastrous effects. An Act of Parliament can be declared void by the courts if they conflict with EU law. This was seen in the case of Francovich v Italian Republic (1991). In this case it was held that the Italian Government failed to implement a directive aimed at protecting wages of employees whose employer became insolvent. The firm which Francovich worked for went into liquidation owing him wages and he sued the state for financial losses.
Supremacy of EU law
European law takes precedent over National law. This was first established in the case of Van Gend en Loos (1963). This involved a conflict of Dutch law and European law on customs duty. The Dutch Government argued that the European Court of Justice had no jurisdiction to decide whether European law should prevail over Dutch law. The ECJ later rejected this argument. In the case of Costa v ENEL 1964 the ECJ held that even if there was a later national law it did not take precedence over the European law.
Further conflict was illustrated in the case of Factortame (1990). In this case the ECJ decided that Britain could not enforce the Merchant Shipping Act 1988. This breach has had a serious affect in that the cases of Brasserie du Pecheur SA v Federation of Republic of Germany and R v Secretary of State for Transport, ex parte Factortame Ltd (No.4) (1996) that the governments were liable for financial loss suffered as a result of the breach of European law.
Conclusion
Overall, it is clear that being a member of the EU can have serious effects on national law. Furthermore, it could be argued that EU law degrades UK law due to its precedence.
c(ii) Benefits of European membership to English law
Introduction
There are many benefits of European membership to English law. Although it can have many disadvantages, there can be advantages of the membership as I shall discuss throughout this essay.
Power of the Judiciary
Belonging to the EU can be advantageous particularly to the court system. Judges now have much more freedom when it comes to interpreting statutes. Judges can now apply many rules in their statutory interpretations. For example, judges may use the literal rule, the golden rule and mischief rule. When interpreting a statute a judge can apply the rule which he feels most appropriate. If England was not a member of the EU judges would have less flexibility in their interpretations of statues which may lead to absurd decisions, leading to potential miscarriages of justice.
Benefits of European legislation for certain groups
Being a member of the European Union allows certain groups who may be classed as vulnerable, the chance to rely on certain regulations. For example, the issue of sex discrimination is common in the workplace and EU regulations give women particularly the opportunity to rely on such law. This is seen in the case of Marshall v Southampton and South West Hampshire Area Health Authority 1986. In this case the claimant was required to retire at the age of 62 when men doing the same work did not have to retire until the age of 65. Under the Sex Discrimination Act 1975 under English law, this was not discriminatory. However, Miss Marshall was able to succeed in an action for unfair dismissal by relying on the Equal Treatment Directive 76/207. Therefore, it is clear that being a member of the European Union has particular advantages to English law. Even if a law has not been implemented in national law, citizens can still rely on European law as it is supreme.
Benefits of Article 234
Article 234 states that where there is no appeal from a national court within the national system, then such a court must refer points of European law to the ECJ. Other national courts are also allowed to make an Article 234 reference. In relation to UK law, the House of Lords must refer questions of European law, since it is the highest appeal court in our system. The Court of Appeal, on the other hand has a choice, it may refer wishes or it may even decide the case without any referral.
Conclusion
Overall, it is evident that being a member of the Europena Union is beneficial to UK law as it allows citizens to rely on law which may not have been implemented in UK law. Membership is also beneficial to the courts as they have greater flexibility in interpreting statutes which can lead to clarity within the law.