SOL Q4 EC Law (OCR January 2007)

Written by Thomas Mercer (Sept 2007)

(a)  
The EC Treaty, otherwise known as the Treaty establishing the European Community or the Treaty of Rome, is a part of U.K law because of our membership to the European Union.
The European Union is a council of European countries founded in 1957 by France, Belgium, Germany, Luxembourg, Italy and the Netherlands under the name of the European Economic Community (changed to European Union in 1993 under the Treaty of the European Union). The aim of this European Union is to manage the laws of its Member States (in the area of European law), so that the law is applied generally and uniformly in all countries who are a part of the European Union.
A country joining the European Union (as the U.K did in 1973) is thereby agreeing to give up some of its sovereign rights to decide its own (European) law in exchange for gaining a uniform European law which applies to all of the European Union member states, however the Member States’ law regarding their own country is mostly unaffected by the European Union.
The case of Factortame in 1990 emphasised the fact that European Union law takes precedence over national law when it comes to European law. Here the Merchant Shipping Act if 1988 by the Thatcher Government was limiting Spanish fishermen fishing in U.K territorial waters. The European Union (specifically the European Court of Justice, an institution of the European Union) held that this was a breach of Community Law since Spain is also a member of the European Union. As a result of this the U.K was held liable for compensation for breaches of Community Law, therefore displaying that European Law takes precedence over national law.
The EC Treaty also confers rights to individuals living in the Member States of the European Union, such as equal rights to men and women. This is relevant to U.K law since in the case of Van Duyn v. the Home Office, a Dutch national wanted to enter the U.K but was rejected on the grounds of being a Scientologist. It was ruled in this case that Article 48 of the EC Treaty (Treaty of Rome) which confers freedom of movement took precedent over this decision by the U.K.

(b)
(i)
In this case the House of Lords must either refer to the European Court of Justice for a ruling on the matter or rely on a previous ruling by the European Court of Justice, since this is a point of European law. The reason why the House of Lords must refer rather than choosing to make the decision on their own is because it is the highest Court of Appeal in the English legal system, there is no-one above them to refer to except for the European Court of Justice.
However there is a precedent case in Van Duyn v. the Home Office, which ruled that Article 48 which confers freedom of movement to individuals living in the European Union takes precedence over decisions by U.K authorities. Therefore the House of Lords can simply rely on this decision rather than referring to the ECJ, since an answer on the matter has already been given.
In conclusion, in this case there is no need to refer to the European Court of Justice since it has already made a ruling on the point of European Law.

(ii)
In this case since the matter is in an Employment Appeals Tribunal, the court has the right of discretionary referral (lit. the court can choose whether to refer the case to the ECJ or not) as outlined in the Bulmer v. Bollinger case of 1974 where guidelines for discretionary referral were set out.
If the Tribunal decides that the case requires a referral on a certain point of European law in order to reach a decision on the case, they then have three options.
The first option is to refer the case to a higher Court of Appeal in the English legal system, however once the case reaches the House of Lords the case must be referred to the European Court of Justice since the House of Lords is the highest Court of Appeal in our legal system.
The second option is to directly rely on a previous decision by the European Court of Justice, such as in the Macarthys v. Smith case of 1980 where it was decided that Article 119 (which confers equal rights to men and women in employment) of the Treaty of Rome could be used by a women seeking compensation from her employer because of the higher pay given to her male predecessor who had the exact same job.
The last option is that the Employment Appeals Tribunal can refer the point of law to the European Court of Justice, however this should only be done if certain conditions are fulfilled; such as there not being a previous ruling by the European Court of Justice of the specific point of European law involved in the case.
In conclusion, in this situation the Employment Appeals Tribunal should rely on the previous ruling of the European Court of Justice for the Macarthys v. Smith case since there is no need to refer a point of law which has already been queried.

(iii)
In this case the Tribunal should either refer to the European Court of Justice or refer to the House of Lords, since whilst there is a precedent for equal treatment claims for wages in Macarthys v. Smith there is no precedent case that I am aware for the allocation of vacation leave.
However if the Treaty of Rome does specifically state the minimum hours of vacation leave employers must give to their employees, the Employment Appeals Tribunal could just rely on the Treaty of Rome directly. Although if the point of European law is not clear, then the point should be referred to the European Court of Justice or a higher Court of Appeal within the English legal system, such as the House of Lords.

(c )
(i)
Because Britain is a member of the European Union we have agreed to give up some of our sovereign rights (specifically, the right to decide on our own about points of European law) in exchange for gaining a system of uniform and generally applicable laws which apply to the whole of the European Union. This loss of sovereignty was emphasised in the Factortame case of 1990, where the U.K Government was told by the European Union to compensate Spanish fishermen because the Merchant Shipping Act of 1988 (which restricted fishing in U.K territorial waters) was considered to be a breach of European Union Community law.
There are several different sources of European law which in turn affect our own national law.
The first of which are Treaties (the primary source of European law), these Treaties are international agreements between two or more countries which immediately become part of national law in the U.K when signed by our head of Government (i.e. the Prime Minister, currently Gordon Brown). An example of European Treaties affecting U.K law is the Treaty of Rome (which confers a lot of rights to individuals living in Member States of the European Union, for example) in the case of Van Duyn v. Home Office in 1974. In this case the European Union overturned a decision by the U.Ks Home Office to refuse entry into the U.K by a Dutch national on grounds of being a scientologist; this was contravening Article 48 of the Treaty of Rome which confers the right of free movement to individuals living in the European Union.
Another example of a Treaty affecting U.K law is Macarthys v. Smith in 1980 in which it was ruled that a woman living in the U.K could rely on Article 119 of the Treaty of Rome (conferring equal rights to men and woman in employment) in order to claim compensation for receiving lower pay than her male predecessor who held the exact same position.
Regulations laid down by the European Union also affect U.K law, a notable example of this would be in the Re Tachographs: The Commission v. U.K case where the U.K was not conforming to a regulation passed by the European Union which stated that all lorries and similar heavy, long-haul vehicles should have a device fitted into them to ensure that drivers were taking proper breaks in order to prevent accidents. This case is notable since it also specified that Member States can not pick and choose which pieces of European legislation they wish to have, they must enforce all European law.
The third source of European Law is Directives; these are pieces of legislation that must be implemented by National Governments within a certain period of time (typically 5 years). However there exist situations where unimplemented directives can be used to claim against the State, also there is a precedent for claiming against the State for its failure for not implementing a directive which would have conferred rights to you (an individual living in that country).
As shown in the case of Marshall v. Southampton AHA in 1986, U.K law is affected by the principle of vertical direct effect; this means that when an individual is making a claim against an Arm of the State (such as a National Health Service hospital or a similar government funded public service) the individual can directly rely on a directive which hasn’t been implemented yet since it is the State’s obligation to have implemented the directive.
As a result of the Francovich v. Italy case of 1991 there also exists a precedent which affects U.K law as well as other Member States. In a Francovich claim an individual can claim against the State for damages suffered as the result of a government failing to implement a directive. However this only applies if the directive would have granted specific and clear rights to the individual, aswell as the court being able to clearly determine what the rights were and most importantly (since there could be no claim for damages without this) there must be a causal link between the damages caused and the State’s obligation to implement the Directive.
The rulings of cases in the European Court of Justice can also affect national law of Member States by setting precedents.
If the U.K or any other Member State does not comply with European law, the European Commission or another Member State will take the offending Member State to the European Court of Justice.
In conclusion the European Union affects U.K law through sources of European Law such as Treaties, Directives, Regulations and the case law of the European Court of Justice.

(ii)
Being a member of the European Union means that we gain a system of uniform, generally applicable European law which means there is less need for debate on European law within our own national system since we can refer to precedents from the European Court of Justice.
Also being a member of European Union does not completely limit our sovereignty, since it is clear that we still retain our own system of Government rather relying solely on a council of European countries for our laws. Sovereignty lost from joining the European Union mostly only concerns matters of European law and in the case of the Treaty of Rome, a general system of rights which are granted to individuals living in Member States (for example the right to equal pay in employment regardless of gender).
Membership to the European Union is also beneficially to our trade and trade processes since being a member would obviously give us trading links to the other members of the European Union. But also trading would be easier in Europe since the trade standards within Europe are set by the European Union.
Also European law within national systems of Government would probably benefit from membership of the European Union since there is the benefit of another high Court of Appeal in the form of the European Council of Justice. Therefore since there is another court which can review points of European law, those points will probably be clearer and easier to apply to the national system than if only the House of Lords was available for clarifying points of European law.
In conclusion by joining the European Union, European law becomes easier to apply and refer on within the English legal system.