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European Union law

 

European Law as a source of UK Law

The United Kingdom joined the European Community (now called the European Union) on the 1 January 1973. The European Community had been in existence since 1957 when six Member States (France, Germany, Italy, Belgium, Netherlands and Luxembourg) signed the Treaty of Rome. In 1972, the UK also signed the Treaty of Rome in a ceremony in Brussels. European law was incorporated into UK law (here no distinction need be drawn between the different jurisdictions within the UK) by the European Communities Act 1972. Perhaps the most important provisions are set out in sections 2 and 3.

Section 2(1) of the European Communities Act 1972 states that:

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.

Section 2(2) provides a general power for further implementation of Community obligations by means of secondary legislation.

Section 2(4) of the European Communities Act 1972 states that:

The provision that may be made under subsection (2) above includes, subject to schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and 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.

Section 3(1) of the European Communities Act 1972 states that:

For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any court attached thereto).

The effect of section 2 is that European law must be considered to be a valid and binding source of UK law. Where European law exists on a particular subject (at least if set out in the Treaties or in Regulations), it can override any inconsistent UK law - including Acts of Parliament. In this way the doctrine of parliamentary sovereignty is compromised. This is best illustrated by the case of the Spanish fishing vessels - the Factortame cases - Factortame v. Sec. of State for Transport (No.1) [1989] 2 W.L.R. 997 (HL); 1990 The Times 20 June (E.C.J.); (No.2) [1990] 3 W.L.R. 818 (H.L.); [1991] 3 All E.R. 769.

After the recognition in this case that UK law had breached European law and that the latter must prevail, English law was formally changed by staute. Some changes in the fishing regulations had already been made by the merchant Shipping Act (Amendment) Order 1989 SI No.2006. Others followed in the Merchant Shipping (Registration ) Act 1993. Later still, it was accepted that damages (amounting to many millions of pounds) would have to be paid top the Spanish trawler owners: R v Secretary State for Transport, ex p. Factortame (no 5) (1998) The Times 28 April.

This challenge to the sovereignty of the UK Parliament was at first limited by the modest scope of the European Communities, which were seen in the UK as little more than sophisticated free trade areas. However, increasingly after 1986, the Communities have transformed themselves into a Union which has some of the attributes of a Federal States and is certainly more than an international agreement. This change was especially signalled by the Treaty on European Union in 1992, often referred to as the Maastricht Treaty, and signed by 15 Member States (Belgium, Netherlands, Luxembourg (the Benelux countries); Germany, France, Italy, Greece, Spain, Portugal, Ireland, Denmark, Austria, Sweden, Finland, and the UK). The European Union now covers many aspects of our lives such as agriculture, transport, workers' rights, (see Eurotext: Employment Policy pages) and competition. It grants a form of citizenship to the people of Europe, and there are ambitious plans for a common currency which will in turn require harmonized economies.

European Sources of Law

The primary source of European law is the Treaties, which are the basis of the European Union. There are three main documents to be considered: The Treaty of Rome 1957; the Single European Act 1986; and the Treaty on European Union 1992 and also the 1997 draft Treaty of Amsterdam (see also the Amsterdam: A New treaty for Europe pages and an article on the issue by Michael Nentwich and Gerda Falkner, "The Treaty of Amsterdam: Towards a New Institutional Balance"). There are corresponding European Communities Acts of 1972, 1986 and 1993 which ensure that these Treaties take effect as UK law. (see the History of UK Membership of the EU and see also the European Information: The European Commission's Representations's in the United Kingdom pages for useful information)

The secondary sources (laws made under the terms of the treaties, especially the Treaty of Rome) comprise:

 

European institutions

Various institutions are involved in the European law making process, and include executive, legislative and judicial institutions. (See Institutions of the European Union for further information)

The political/executive institutions include the European Council. This is the name given to the twice-yearly summit meetings of the European government heads of state and Foreign Ministers, which have been held since March 1975. The European Council is now formally recognised in the Single European Act 1986. The Council is the apex of the political oversight of the European project. The President of the European Commission is in attendance, and the meetings will cover major political issues and policies. (see also the UK Presidency of the European Union) Day-to-day running of the European Union is in the hands of the European Commission. This proposes Community policy and legislation and supervises its application and enforcement. The Council agrees legislation on the basis of proposais from the Commission and consists of Ministers from each member state.

The European Parliament now consists of directly eiected MEPs from each member state. It has no direct legislative powers, but since 1986 it can negotiate directly with the Council as to any alterations or amendments it wishes to see in proposed legislation. These amendments can be overridden by the Council but only by a unanimous vote. Another democratic forum, instituted by the Maastricht Treaty, is the Committee of the Regions. This consists of representatives of local and regionai authorities who must be consuited on a range of social and economic matters before incorporation into European iaw.

The judicial work of the European Union is entrusted to the European Court of Justice together with the Court of First Instance. The court deals with the interpretation and application of Community laws. It has one judge from each member state and sits in Luxembourg.

European Court of Justice in Luxembourg

See further A Court for Europe and The Court of Justice and European integration.

Other institutions of the European Union includes

For further Information on the Internet see the following web pages and documents:

Eurotext: A Resource Bank of Learning Materials on Europe

Euro Internet: Information Resources Related to European Integration in the Internet

CORDIS: Community Research and Development Information Service

See also the FREE BRITAIN !: A Complete List of Euro-Sceptic Web Resources

Euro-Lex, European Union Law pages which includes links to the Official Journal of the European Communities, European Union Selected instruments taken from Treaties, EU Legislation in force - consolidated texts, and a link to a search engine for the recent case law of the Court of Justice and the Court of First Instance.

House of Commons, Library Research Papers, EU Enlargement: The Political Process, No: 98/55, May 1998.

House of Commons, Library Research Papers, EU Enlargement: The Financial Consequences, No: 98/56, May 1998.

House of Commons, Library Research Papers, EMU: Views in other EU Member States, No: 98/39, March 1998.

House of Commons, Library Research Papers, EMU: the approach to the Third Stage and the state of economic convergence, No: 98/35, March 1998

* There will be links cases in bold soon


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Last Updated 01 July 1998