SOL Question 4 EC Law

Written by Chloe Staniford (November 2007).

Bulmer v Bollinger (1974)

Introduction
  
In the following essay I will be explaining how vertical and horizontal affects people’s individual right and how that person can rely upon an Act or a Treaty. On the 1st of January 1973 the United Kingdom joined the European Economic Community. Also in 1973 the United Kingdom passed the European Communities Act 1972. The European Economic Community was originally set up by six countries: Germany, France, Italy, Belgium, the Netherlands and Luxembourg in 1957 by the treaty of Rome. The ‘European Union’ was introduced by the Treaty of European Union in 1993.

What is a Treaty?
    
 A treaty is a written international agreement between two or more member states (countries), which have direct effect either vertically or horizontally which can give rights to individuals. A Vertical effect is when the state fails to implement a directive within the time limit. Then a claim can be brought against the state (public sector). Which an individual can rely on the directive.
A Horizontal effect is when the state fails to implement the directive within the time limit however an individual can’t bring a claim against the state as the individual cannot rely on the directive.

How is a Treaty applied?

An individual of a member of state can directly rely on the EC treaty article that provides a right for example Article 39 – free movement of workers. This was illustrated in the case of Van Gend en Loos (1963) it showed European law takes precedence over national law; 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; that was a matter for the Dutch courts to decide. However the European Court rejected this argument.
Citizens of the United Kingdom are entitled to rely on the rights in the Treaty of Rome an other treaties, even though those rights may not have been specifically enacted in English law. This is illustrated in the case of Macarthys Ltd v Smith (1980). In this case Wendy Smith’s employers paid her less than her male predecessor for exactly the same job. As the two people were not employed at the same by the employer there was no breach of English domestic law. However, Wendy Smith 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 and this claim was confirmed by the European Court of Justice.
The European law shows that British Courts 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 was illustrated in the case of Diocese of Hallam Trustee v Connaughton (1996) where the Employment Appeal Tribunal had to consider facts which had some similarity to the Wendy Smith case; Josephine Connaughton was employed as a director of music by Diocese of Hallam from 1990 to September 1994, at which her salary was £11,138. When she left the position, the post was advertised at a salary of £13,434 but when a successful applicant, a man, was actually appoint at a salary of £20,000. This showed the similarity to the Macarthys Ltd v Smith to the Diocese of Hallam Trustee v Connaughton case. The employment Appeal 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 saying: “We are sufficiently satisfied as to the scope of Article 141 so as to decide this appeal without further reference to the European Court of Justice”.
Under Article 249 of the Treaty of Rome the European Union has the power to issue regulations which are “binding in very respect and directly applicable in each member state”. Regulations automatically become law in each member state countries. There has been one case when a member state failed to implement a regulation. This was illustrated in Re Tachographs: Commission v United Kingdom (1979) where a regulation requiring mechanical recording equipment was to be installed in lorries was issued. However, the United Kingdom government decided not to implement the regulation but leave it up to lorry owners to decide whether or not to put in such equipment. This matter was later referred to the European Court of Justice and was held that member states had no discretion in the case of regulations. This means member states cant pick and choose which regulations they want to implement. This was regulations make sure that laws are uniform across all the member states.
The European Community is one of the three treaties; it’s the merger treaty – 1963. The European Community attempts to join the member countries together by common policies. The main aim of the Treaty of Rome is to enforce someone’s individual rights so they can rely upon the Treaty of Rome when a breach has been committed and the individual can claim. A treaty becomes automatically part of law when signed by a member state’s head of government. When the United Kingdom’s Prime Minister, Gordon Brown signs the treaty document it automatically comes into effect in international law. The United Kingdoms parliament makes the national laws. This is also known as domestic laws which apply in the United Kingdom only although UK parliament can make our national laws. As we live in a democracy the Treaty will have to be checked by Parliament before taking legal effect in the United Kingdom. Parliament will have to pass an Act of Parliament for the EC Law to be included into the Untied Kingdom law. This Act was brought in during 1973 by the European Communities Act 1972.  The most important part of the European Communities Act 1973 is section two which states “ All such rights, powers, liabilities, obligations and restrictions from time to time created or arising 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 United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies”. This statement means that Parliament (which makes the law) and English Courts (which enforce the law)  must recognise that EU takes priority over English law.
In 1996 the case 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). This case was a breech of community law and has had another effect in the European Court of Justice. The government was liable for financial loss suffered as a result of the breech of the European law.

Examples of Cases

Jacques, a French worker, should have the right to enter the UK.  Our law concerns all treaties signed by our head of government which automatically becomes part of English law. As a result of the European communities ACT 1972 states: ‘All such rights, powers, liabilities obligations and restrictions from time to time created or arising by or under the treaties. Treaties used in the United Kingdom shall be recognised and available in law and enforced, allowed and followed accordingly.’  This not only makes community law but allows individuals to rely on it. For example, in this case of Van Duyn v Home Office (1974) the European Court of Justice was held that an individual was entitled to rely on article 39 giving the right of freedom of movement. The article had a direct effect and allowed rights to individuals which can be enforce in both European Court of justice and in National courts. This stated that a Treaty article has direct applicability, so it can be relied upon without any further implementation. In referral to source A Jacques meets one guideline: that the decision of the question referred should be conclusive to the case and if a reference is held to be necessary some courts must make a referral (those that are courts of last resort), others have discretion to refer.
  
If Pam is being paid less than her male employees while doing the same job, then she has an individual right to claim the equal treatment act against her employer. Pam would use the vertical direct effect to claim against the state. Pam can also rely on a directive. She could use the case Marshall v Southampton and Hampshire Area Health Authority (1986) in which Miss Marshall was required to retire at the age of 62 when men doing the same work as her didn’t have to retire until they were 65. Under the sex Discrimination Act 1975 in English law this was not discriminatory. However, Pam was able to rely on the equal treatment directive 76/207 for unfair dismissal. Even though the directive had not been fully implemented in the United Kingdom, the European court of justice put forward obligations to the member states. This allowed Miss Marshall to succeed in her claim. The case of Macarthys Ltd v Smith dealt with a similar issue. Wendy smith relied upon Treaty article 141 (equal pay for men and women) which has direct applicability. Pam will also use an equal treatment claim against her employer, so she will also be allowed to rely on Article 141 in the EC Treaty. Referring to Source A Pam’s cases meets two guidelines: that the facts of the case should already have been decided and that the decision of the question referred should be conclusive to the case.

   Carla has brought a claim in an Employment Tribunal against her employer because they refuse to give her holiday entitlement as required under EC law. Carla has an individual right to claim as the vertical direct effect means the member state cannot take advantage of its own failure to comply with European law and implement a directive. Carla will be able to rely on the Working Time Regulation 1998, this was an EC directive implemented by the UK, this gives a guideline on how much paid holiday Carla is entitled to.
 So Carla can rely on the directive when bring a claim against the state. Carla could use the case; Gibson v East riding of Yorkshire Council (1999). In this similar case, Mrs Gibson was employed as a part-time swimming instructor and did not get paid holidays. Mrs Gibson brought a claim forward to the employment tribunal held that under the working time directive she was entitled to four weeks paid holiday from November 1996 the date in which the directive should have been implemented. Her employers couldn’t rely on the lack of domestic legislation to defeat her claim. Referring to the Source, Carla meets one guideline; that the provision in question was not acte clair (reasonably clear).
 
The Effect of membership of the European Union on English Law

 When a law comes into affect in the European law it automatically becomes English law as well however Margaret Thatcher didn’t agree to all European Union laws. This was illustrated in the Re Tachographs: Commission v United Kingdom (1979), where a regulation required mechanical recording equipment to be installed in Lorries was issued. The United Kingdoms government decided not to implement the regulation, but to leave it to lorry owners to decide whether to install or not.  The matter was later referred to the European court of justice where it was stated that member states had no discretion in the case of regulations. Article 249 explicitly said that regulations were automatically law in all member states. Explaining that states could not pick and chose which ones they would like to implement. This way, it ensures regulations are uniform across all member states.

 European Membership on English law is vital when an issue of sovereignty is place. Parliamentary law is sovereign over other forms of law in England and Wales. This means that an Act of Parliament can completely overrule any custom, judicial precedent, delegated legislation or pervious Act of Parliament. This is also referred to as parliamentary supremacy. This was illustrated in the case British Railways Board v Pickin (1974). A private Act of parliament, the British Railways Act 1968, was enacted by parliament. Pickin challenged the Act on the basis that the British Railways Board had fraudulently concealed certain matters from Parliament. European law takes precedence over national laws. This was first established in Van Gend en Loos (1963) which involved a conflict of Dutch law and European law on customs duty. The Dutch government argued the fact that European Court of Justice had no jurisdiction to decide whether European law should prevail over Dutch Law; Dutch courts had to decide. The European court rejected this argument. However in the case R v Secretary of state for transport, ex parte Factortame LTD (1996) this case was a breach of community law. In this case the government were liable for financial loss suffered as a result of their breach of European law. In Factortame European fishermen claimed that they had been deprived of the right to fish as result of the merchant shipping Act 1988. In which a claim for compensation from the state concerned. The European court of Justice held that community law gave the right to compensate if three provisions were met. These were:
1) Community law must intend to confer rights on individuals.
2) The breach must be sufficiently serious
3) Must be a direct causal link between the breach of the obligations resting on the state and the damage sustained by the injured parties.
In the case Diocese of Hallam Trustee v Connaughton . The employment Appeal Tribunal considered Article 141 of the Treaty of Rome decided a preliminary point its provisions were wide enough to allow Miss Connaughton to make a claim saying: “We are sufficiently satisfied as to the scope of Article 141 so as to decide this appeal without further reference to the European Court of Justice”. This case illustrated how the British courts will apply the EC Treaty law themselves without waiting for a ruling from the European Court of Justice.

Benefits of the European Membership to English Law  

There are many benefits to European membership to the English law.  In the past individuals have been able to claim against the state and rely on Acts and treaties. Parliamentary law is sovereign over other forms of law. This means that an Act  of parliament can overrule any custom, judicial precedent, delegated legislation or pervious acts of parliament however when a national law is signed it automatically comes into affect in the United Kingdom for example Re Tachographs: Commission v United Kingdom (1979). The United Kingdom joined the European Union in 1973 and became a member of Europe. Being a member of the EU affects out law and political system. This means EU laws takes priority over English law.  An example to this is shown by the Merchant Shipping Act 1988, which set rules for who could own or mange fishing boats registered in Britain. The European court of justice ruled that the European Union law states, citizens of all member states can work in other member states. The merchant shipping Act 1988 could not by relied upon by EU citizens. The EC treaty is incorporated in UK law, this means citizens from member states can rely on rights conferred to them under the treaty. This was illustrated in the case of Van Duyn v Home Office (article 39) this case allowed freedom of movement of member state citizens, for example myself as a college student has the right to study further education in Barcelona University and not be limited to just Spain, as it’s a member of the EU. Another example of rights is the Macarthys Ltd v Smith (Article 141) which allows equal pay for men and women this benefits all works against discrimination in job pay. In this case Wendy Smiths employers paid her less than her male predecessors who were doing the same job. The company who employed her was in breach of Article 141 of the Treaty of Rome over equal pay for men and women and this claim was confirmed by the European Court of Justice.
There are two types of directives; horizontal and vertical. A Vertical effect is when the state fails to implement a directive within the time limit. Then a claim can be brought against the state (public sector). Which an individual can rely on the directive.  This was illustrated in the Marshall v Southampton and Hampshire Area Health Authority (1986) case, when her employer decided to implement Miss Marshall to retire at the age of 62 when her male colleagues would retire at the age of 65. Under the sex Discrimination Act 1975 in English law this was not discriminatory. However, Pam was able to rely on the equal treatment directive 76/207 for unfair dismissal. Even though the directive had not been fully implemented in the United Kingdom, the European court of justice put forward obligations to the member states. This allowed Miss Marshall to succeed in her claim. A Horizontal effect is when the state fails to implement the directive within the time limit however an individual can’t bring a claim against the state as the individual cannot rely on the directive. This id illustrated in the Duke v GEC Reliance Ltd (1988), Mrs Duke was unable to rely on the Equal Treatment Directive as her employer was a private company. This illustrates that directives do not have horizontal effect and this has been confirmed by an Italian case, Paola Faccini Dori v Recreb Srl (1994), in which the Italian Government failed to implement directive 85/447 in respect of consumer rights to cancel certain contracts. Dori could not rely on the directive in order to claim a right of cancellation against a private trader.

The European Court of Justice is a court for citizens in member states, to have their cases heard and not be denied by a conflicting decision in the member states courts. A case that illustrates this is Van Gend en Loos (1963) which involved a conflict between Dutch law and European law on customs duty. This happened because the member states were applying their own customs tax duty which meant people who were importing goods in had to pay more in The Netherlands. So in other words, if I wanted to sell cucumbers in Belgium I would have the freedom to as well as being free of fear of Belgium Government Taxing me. In conclusion, myself or Belgium people have the right to sell produces in other member states as we cannot be stopped. This benefits us for European Market trade as we can freely move in all EU member states.