English Legal System

The role of European Law in the English Legal System

The European Communities

The Council of Europe and the European Convention on Human

Rights

AimsThe aims of this lecture are to:

1. Introduce you to the distinction between the law of the European Community and the Council of Europe and the European Convention on Human Rights;

2. Consider the reasons for the establishment of these bodies;3. Look at sources of primary and secondary law within the

European Community;4. Examine the different sources of law in Europe and whether

these have direct effect;5. Introduce the European Convention on Human Rights;6. Examine how effectively the Convention was incorporated

into domestic law by the Human Rights Act 1998.

Outcomes• By the end of this lecture you should be able to:

1. Differentiate between the law of the European Community and the Council of Europe’s Convention on Human Rights;

2. Identify the main institutions of the European Community and their law-making powers;

3. Describe the primary and secondary legislation within the European Community and the effects that this is capable of having;

4. Describe the foundation and purpose of the Council of Europe and the European Convention on Human Rights;

5. Identify some of the main rights contained in the Convention;6. Describe the way in which the Convention has been

incorporated into English law by the Human Rights Act 1998.

Different jurisdictions

• A common error by students is to confuse the law of the European Community with the Council of Europe

The European Communities or the European Union are the laws which emanate from Brussels

The Council of Europe was a body set up after the Second World War to provide protection for human rights following the atrocities committed in that conflict

They should not be confused and are separate bodies, although in some areas there has been a certain degree of convergence in their aims and objectives

Importance of European Law• The supremacy of European law over domestic law will be

looked at below

• The areas of competence for the Communities are continually expanding

• Originally the Treaties contained provisions relating to the creation of a customs union and free movement of goods and workers

• Now the Community legislates in much wider areas including employment law, discrimination and the environment

European Law in context• Reasons for the creation of the European Communities

WWII had decimated the continent of Europe, politically, socially and economically

Marshall Aid plan by the Americans aimed to re-build the infrastructure of the continent

Council of Europe was established to ensure that the atrocities carried out by the Nazis could not be repeated – hence the creation of the European Convention on Human Rights

European Iron and Steel Community and Euratom

• Aimed to bind Germany and France together

• In particular their heavy industries which were necessary for armament

• Created by the Treaty of Paris in 1951

• 6 original members, Germany, France, Italy, the Netherlands, Belgium and Luxembourg

• The United Kingdom remained outside

• Euratom further strengthened the community by allowing co-operation in energy policy

The European Economic Community (EEC)

• This aimed at integrating the economies of the signatory states, rather than the industries specifically

• The Treaty also provided for an ambitious development of the community having as its stated aim to ‘lay the foundations of an ever closer union among the peoples of Europe’

• It is the Treaty of Rome as amended which will form the focus of this lecture

Institutions of the European Community

• The European Parliament

• The Council of the European Union (formerly known as the the Council of Ministers)

• The European Council

• The European Commission

• The European Court of Justice

Supremacy of European Law

• Fundamental case on this area was Van Gend en Loos 1963

• ECJ stated that the treaties gave rise to a new legal order which take precedence over all others

• Factortame 1991

Courts of the European Community

• The main court of the community is the European Court of Justice (ECJ) – this sits in Luxembourg and has 15 Judges drawn from the member states and 9 advocate-generals

• Until the establishment of the Court of First Instance it was the sole court of the Community and responsible for the considerable body of jurisprudence which has built up since 1957

Sources of European Community Law

• The Treaties

1. The Treaty of Rome 1957

2. The Single European Act 1986

3. The Treaty of Maastricht 1992

4. The Treaty of Amsterdam 1997

5. The Treaty of Nice 2001

Sources of European Law

• The Treaties above are primary legislation within the Community establishing the Community and its institutions

• The main secondary legislation is:

1. Regulations;

2. Directives.

Regulations and Directives

• These are binding on all member states of the Community in their entirety – Article 249

• Directives are addressed to member states and have to be implemented by the member state by an agreed date – in the UK this is normally achieved by statutory instrument – see lecture on domestic secondary legislation

Direct effect

• In order to understand this concept it is necessary to look at some aspects of international law

• Different states have different approaches to the implementation of treaties, monist and dualist

• Monist, e.g. The Netherlands, means that the state’s treaty obligations are incorporated into domestic law without implementation by the state itself

• Dualist, e.g. The UK, Parliament or other body has to implement the treaty

Vertical/Horizontal Direct Effect

• Vertical direct effect is the term given to the relationship between the state and the individual

• Horizontal direct effect is between the individual and the individual

• Individual includes both natural persons, you and I, and also corporations, limited companies for example

• In EC law whether a relationship between the parties to an action is vertical or horizontal affects the rights, obligations and duties that they have to perform

Van Gend en Loos 1963

• In this case a private individual who ran a haulage company objected to a charge by a Dutch governmental body on imported goods. The question was whether he could rely on the Treaty Article to challenge the charge

• HELD: that the Treaty created a new international order and conferred rights on individuals vis-à-vis the State where the provision of European Law relied upon fulfilled the Van Gend en loos criteria

• These are that the provision is:

1. Sufficiently clear and precise;2. Unconditional;3. Not subject to further implementation by the Community or MS.

What about horizontal direct effect?

• Defrenne v SABENA 1978

In this case the claimant wanted to rely on Article 141 of the treaty which guaranteed equal pay for equal work between men and women

HELD: Defrenne could rely on the article to protect her right. That treaty articles are capable of both vertical and horizontal direct effects

Regulations and Direct Effects

• We have seen that the Treaty articles are capable of having direct effects, that is being relied on by individuals before their national courts

• Turn now to look at secondary legislation, here regulations

• Regulations as we have seen are created under Article 249 of the Treaty, this states that they ‘shall be binding in their entirety and directly applicable in member states’

• They must fulfil all the Van Gend en Loos criteria

Directives and Direct Effect

• Directives we have seen are implemented by domestic legislation

• They are directed to the Member State

• The Member State is given a time limit to implement

• Controversial area

• Case of Marshall 1986

Summary of direct effects

• Treaty Articles – primary legislation – capable of both vertical and horizontal direct effects if Van Gend criteria are met

• Regulations – capable of both vertical and horizontal direct effects

• Directives – capable of vertical direct effect only

Directives – plugging the gap

• The questions may have occurred to you as to what happens to those who cannot rely on a Directive as against their employer

• 3 concepts developed by the ECJ to cover this situation:

1. Definition of the State/emanation of the State;2. Indirect effect;3. State liability.

The conditions for these are beyond the scope of this introduction, but will covered on the substantive EC law syllabus

The Preliminary Reference Procedure

• Provided for under Article 234 (ex Art 177)

• The aim of the article is to achieve uniform interpretation and application of European law and the interpretation and validity of secondary legislation

• The national courts make a reference to the ECJ – they are only required to refer where the decision in the case before them rests on a point of European Law

Problems with Article 234 References

• The caseload of the ECJ has expanded greatly in the years since it was created

2 main reasons can be cited for this:

1) The expansion of the European Community2) Increased competence of European Law over different

areas

Cases can now wait 2 years before the court will make a ruling

The Acte Claire policy (CILFIT criteria)

• Before making a preliminary reference the domestic court should consider the following factors:

1. The national court or tribunal must be convinced that the matter is equally obvious to the courts of the other members states and to the ECJ;

2. The existence of acte clair must be assessed on the basis of the characteristic features of EC law and the particular difficulties to which its interpretation gives rise;

3. It must be borne in mind that Community legislation is drafted in several languages;

4. EC law has its own terminology;5. Legal concepts differ between MS;6. Every provision of EC law must be placed in its context and interpreted in

the light of the provisions of EC law as a whole with regard to the objectives of that law.

Solutions proposed to tackle backlog of cases

• Create a new tier of courts regionally below the ECJ

• Restrict references to the ECJ to courts of last resort

• Transfer some of the ECJ’s jurisdiction to the Court of First Instance

The European Convention on Human Rights

• This was created, as stated above, in the aftermath of WWII as a response to Nazi atrocities

• Its aim was to grant fundamental rights to citizens vis-à-vis the State

• The United Kingdom although it was a signatory to the Council of Europe, did not incorporate the Convention into domestic law

• This was eventually achieved by the Human Rights Act 1998

Convention Rights

• Some of the most important rights guaranteed by the Convention are:

1. The right to life;2. The prohibition of torture and inhuman

and degrading treatment;3. The right to a fair trial;4. The right to freedom of religion.

Incorporation of the ECHR

• There was continued debate in the decades following the establishment of the Convention as to whether it should be incorporated into domestic law

• Much of this debate focused on the nature of the British Constitution and whether individual rights were protected sufficiently from governmental interference

• The Labour Party adopted a policy of incorporation of the ECHR as a Bill of Rights for the United Kingdom

Form of incorporation

• The British Constitution is founded on the principle of parliamentary supremacy or sovereignty – see lecture on fundamental principles of law

• S.3 of the Act made incorporation a ‘weak incorporation’ in requiring the judiciary to interpret legislation in accordance with the Convention and the jurisprudence of the ECtHR

Declarations of Incompatibility

• Under section 4 of the HRA 1998, the court, where it cannot read a piece of legislation as Convention compatible, can make a declaration of incompatibility

• This does not affect the continuing operation or validity of any piece of legislation so found, that is it preserves Parliamentary Supremacy

• Compare with the American Supreme Court’s power to strike legislation down as incompatible with the constitution

Summary of lecture• You should now be able to do the following:

1. Describe the background to the creation of the Council of Europe and the European Communities and the reasons for their creation;

2. Differentiate between European Community Law and the European Convention on Human Rights;

3. Name the main institutions of the European Community;4. Identify the main sources of European Community Law and the direct effects

which these may have;5. Outline the basic features of the Preliminary Reference procedure to the

European Court of Justice;6. Identify the some of the main rights protected by the European Convention

on Human Rights;7. Describe how effectively the Convention was incorporated into domestic law

by the Human Rights Act 1998.

Further reading

• For a good introductory text see Davies, K., ‘Understanding European Union Law’ (London: Cavendish, second edition)

• See also Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition), chapter 13

• For more detailed treatment on EC Law consult Steiner and Woods EC Law (Oxford: OUP, 2004)