Introduction

• EU law impacts on how UK institutions interact and incorporates protection of fundamental individual rights into domestic law

  European Communities Act 1972

  • 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 United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly...
  • Section 2(4): .. any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act...

  Reform Treaty 2007

  • known as Lisbon Treaty
  • renames the EC Treaty (Treaty of Rome 1957) as the Treaty on the Functioning of the European Union(TFEU)
  • UK has ratified the Treaty and passed European Union (Amendment) Act 2008

Types of Legislation

• Treaty provisions, Regulations and Directives
• can be relied on in the UK if they have direct effect, meaning that they can create legal rights and obligations enforceable in courts

Treaty Provisions

treaty provisions set out aims and objectives of EU and structure of its institutions

agreed by direct negotiation between governments of Member States and are subject to ratification by national Parliaments

can become a source of law in the UK through application of the doctrine of direct applicability

doctrine established by applying Section 2 of European Communities Act 1972 and European Court of Justice (ECJ)case law

Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]

• ECJ held Treaty provisions which are clear, unconditional and not dependent on any national implementing measure they can have direct effect

Van Gend criteria also apply to directives and regulations

Regulations

regulations are directly applicable

so have legal force in a member state without the need for further specific doemstic legislation

Treaty on the Functioning of the European Union

• Article 288: .. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States...
• previously EC Treaty Article 249

Directives

directives not directly applicable, implemented by specific domestic legislation

Treaty on the Functioning of the European Union

• Article 288: .. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods...
• previously EC Treaty Article 249

usually a time limit for implementation imposed

often passed by statutory instrument or an Order in Council (subordinate legislation so subject to judicial review)

directives can have direct effect

Van Duyn v Home Office [1974]

• D, Home Office refused C, Miss Van Duyn leave to enter the UK on grounds of her undesirability she was a practising Scientologist and a Dutch national
• C attempted to rely on a directive which allowed free movement of workers in the EU
• ECJ held individuals should be able to rely on directives in national courts
• otherwise usefulness of a directive was weakened
• directive could have direct effect

Pubblico Ministerio v Ratti [1979]

• D sold chemicals and labelled them in line with two directives, which had not been implemented by the Italian Government
• D was prosecuted for not labelling in accordance with the existing Italian law
• ECJ held if a Member State fails to implement a directive an individual may enforce directive themselves
• directive can have direct effect after time limit for implementation has passed

directives can only have vertical direct effect (against State or a public body)

Marshall v Southampton and South West Hampshire Area Health Authority [1986]

• C wanted to continue working at a Teaching Hospital (a public body)
• C complained that women were forced to retire at 60, whereas men, could retire at 65
• C sought to rely on the unimplemented Equal Treatment Directive 1976
• UK Sex Discrimination Act 1975 excluded matters related to retirement
• ECJ found C could rely on the directive
• ECJ: .. a Directive may not of itself impose obligations on an individual and…a provision of a Directive may not be relied upon as such against a person...

individual cannot enforce a directive against another individual or a private body, horizontal effect

Duke v GEC Reliance [1988]

• case in domestic courts against a private company
• therefore Equal Treatment Directive 1976 was not applicable

Interpretation

• ECJ and national courts interpreting EU law, use teleological approach derived from international law, extension of purposive approach
• requires courts to consider how maximum practical effect can be given to overall objectives of laws rather than intention of the legislator

  Von Colson and Kamann v Land Nordrhein-Westfalen [1984]

  • D, the German prison service refused to employ C, a female, to work in a male prison
  • C sought to rely on Equal Treatment Directive 1976
  • ECJ found whether or not EU law has direct effect, national courts should interpret domestic legislation to ensure objectives of the directive are achieved

  Webb v EMO Air Cargo (UK) Ltd (No.2) [1995]

  • D employed C, initially as cover for maternity leave with the intention permanent of employment
  • shortly after starting work C discovered she was pregnant and was unable to work
  • C was dismissed
  • C sought to rely on Equal Treatment Directive 1976
  • House of Lords referred to ECJ for a preliminary opinion
  • ECJ found in favour of C and held there was direct discrimination on the grounds of her sex

European Convention on Human Rights

• UK signed European Convention on Human Rights in 1951
• in 1965 recognised individual citizens have a right to petition the European Court of Human Rights
• part of domestic law

  Human Rights Act 1998

  • incorporates fundamental rights and freedoms contained within European Convention on Human Rights
  • right to life (Article 2)
  • prohibition on torture and inhuman or degrading treatment or punishment (Article 3)
  • right to liberty and security of the person (Article 5)
  • right a fair trial (Article 6)
  • right to respect for private and family life (Article 8)
  • freedom of thought, conscience and religion (Article 9)
  • freedom of expression (Article 10)
  • freedom of assembly and association (Article 11)