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AS Law LA2 > EU Sources of Law > Flashcards

EU Sources of Law Flashcards

1
Q

What are the 3 main sources of EU law?

A

Treaties
Regulations
Directives

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2
Q

What is a primary source of EU law?

A

Treaties

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3
Q

What is a treaty?

A

Document setting out the broad principles of EU law

Highest source of EU law

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4
Q

Who are all treaties signed by to become part of English Law?

A

Our head of Government

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5
Q

What does the European Communities Act 1972 do to English law?

A

Makes EU law a part of English law automatically (directly applicable)

Macarthys Ltd. v Smith 1980 ECJ

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6
Q

Macarthys Ltd. v Smith 1980 ECJ

A

Smith’s employers paid her less than male predecessor for exactly same job
Man = £60 pw, managing stok
Smith = £50 pw
Not employed at the same time = no breach English laws on discrimination (EPA 1970)
ECJ held = able to claim her employer = breach Art 157 TFEU on equal pay of m+w

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7
Q

What are English Cts now prepared to do in relation to Treaty law?

A

Apply European Treaty law directly rather than wait for the ECJ to make a ruling on a point

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8
Q

Who can rely on the rights in the TFEU and other treaties?

A

All MS, even though these may not have been specifically enacted into English law

Macarthys Ltd. v Smith

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9
Q

What are the secondary sources of EU law?

A

Regulations

Directives

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10
Q

What do secondary sources of EU law enable?

A

The broad principles of T to be transformed into concrete rules of law
Add detail to the framework of the T

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11
Q

What is the aim of regulations and directives?

A

Achieve uniformity of law in all MS

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12
Q

What are regulations?

A

Similar to an act of P
Directly applicable - part of Eng law as soon passed
Both horizontal + direct effect

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13
Q

What case tested the direct applicability of EU regulations?

A

Re Tachographs Commission v UK (1979) ECJ
EU issued regulation requiring tachographs to be installed into every lorry
UK decided not to implement - decision up to driver
Matter = referred to ECJ
Held that MS had no discretion in the case of regulations
Wording of Art 288 = clear, directly applicable to ALL MS

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14
Q

What does Article 288 TFEU give the EU the power to make?

A

Regulations

Directives

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15
Q

What are directives?

A

Broadly termed documents sent to MS for them to create their own law on a specific topic
MS are directed to achieve objectives by a certain date, usually 2 yrs
Flexibility on how

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16
Q

Are directives directly applicable?

A

No
MS has to pass own laws to bring directive into its legal system
In UK, usually done by: A of P, statutory instrument or even Order in Council

17
Q

Give an example of a directive that has been incorporated into English law

A

Consumer Protection Act 1987

- passed by P to incorporate directive on liability for defective products

18
Q

What sort of topics are directive made on?

A

Employment
Consumer law
health and safety etc.

19
Q

When is there a problem with directives?

A

When the MS had not implemented the directive in the time limit/ in a defective way

20
Q

How have the ECJ dealt with directives not being implemented properly?

A

Developed concept of direct effect
Individuals can rely on unimplemented/ partially implemented directives
However, complicated by principles of horizontal/ vertical direct effect

21
Q

What is vertical direct effect?

A

If individual works for the State/ arm of the state, they can rely on the unimplemented directives
Because the state shouldn’t be able to profit from failing to implement them properly

Marshall v Southhampton + South West Hampshire Area Health Authority

22
Q

Marshall v Southhampton + South West Hampshire Area Health Authority

A

Miss Marshall = employed by S+SWHAHA
Was required to retire at 62, men had to do so at 65
Under Sex Discrimination Act = not illegal
Sued for unfair dismissal + used Equal Treatment Directive
But directive hadn’t been implemented properly
ECJ: she could claim against her employers because they were an ‘arm of the state’

23
Q

What is the definition of state defined in Foster v British Gas plc(1990) ECJ?

A

‘A body, whatever it’s legal form, which has been made responsible for providing a public service under the control of the state’

24
Q

What is horizontal direct effect?

A

The rights can be enforced against other individuals or organisations

25
Q

Do directives have horizontal direct effect?

What effect does the have?

A

No, just vertical
Therefore directives that haven’t been implemented properly do not give give an individual any rights against other people

26
Q

What case shows that directives don’t have horizontal direct effect?

A

Duke v GEC Reliance Ltd (1988) ECJ

27
Q

Duke v GEC Reliance Ltd (1988) ECJ

A

Another retirement case
But Mrs Duke wasn’t able to rely on the Equal Treatment Directive (not implemented at the time)
Her employer was a private company, not one of the state

28
Q

How did the ECJ solve the problem that some people could claim their rights if the directives aren’t implemented but not others?

A

Developed another strategy
Said some circumstances, may be possible for person to claim damages against it’s MS if they have failed to implement a directive

Francovich v Italian Republic

29
Q

Francovich v Italian Republic (1991) ECJ

A

Italian G didn’t implement directive to protect employees wages when employer becomes insolvent
Francovich claimed damages against Italy
His business went into liquidation owing him wages which he should have been allowed

30
Q

When did the ECJ say it was possible for compensation to be made payable by the state?
(3)

A

Where:

  1. Purpose of directive had been to grant individual rights
  2. If it had been possible to ID content those rights
  3. Had to be casual link between the breach of state’s obligations + damage suffered
31
Q

What was held in R v HM Treasury ex parts British Telecommunications plc (1996)?

A

Compensation was not payable

- the breach wasn’t serious enough

32
Q

When a directive hasn’t been incorporated into English law what do P have a duty to do?

A

Interpret English law in light of the wording and purpose of any relevant directives
Known as indirect effect

33
Q

What is indirect effect?

A

A national Ct should interpret national law so as to include the directive

34
Q

Are decisions made in the Ct binding?

A

Yes

On the MS or individual only

35
Q

What is EU law superior to?

A

National law

36
Q

What is the case where we can see a conflict between national and EU law?

A

Factortame Case (1990)

37
Q

Factortame (1990)

A

ECJ held that the UK couldn’t enforce Merchant Shipping Act 1988

38
Q

What has our membership to the EU argued to have diluted?

A

Parliamentary sovereignty
EU = superior
Includes UK law that = made before we became a MS

39
Q

What are the 5 things that the EU has done for us?

A
  1. Equal pay for m+w
  2. New regulations on age/ sexual discrimination
  3. We have rights to enter another MS + start a business
  4. Right to study in other EU countries
  5. We have a lot more consumer protection rights

AS Law LA2 (8 decks)

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