Law Making: Europe

The European Union (EU) and Its Creation

• Post-WWII Context: After the Second World War, Europe sought unity, particularly between France and Germany, to avoid future conflicts. The European Economic Community (EEC) was formed in 1957 by Belgium, France, West Germany, Italy, Luxembourg, and the Netherlands under the Treaty of Rome.

• UK's Membership: The UK joined the EEC in 1973. The EEC became the EU in 1993 following the Maastricht Treaty. The UK left the EU on 31 December 2020 after a 2016 referendum.

EU Institutions

1. Council of the European Union (Council of Ministers)

   • Consists of national ministers from each EU member state.

   • Adopts laws and coordinates policies with the Parliament. Specific ministers attend based on the policy area (e.g., Minister of Agriculture for agricultural matters).

2. European Commission

   • Composed of 27 Commissioners, one from each EU member state.

   • Proposes new laws and ensures compliance with EU law in Member States.

3. European Parliament

   • 705 Members of the European Parliament (MEPs) directly elected by EU citizens.

   • Examines legislation proposed by the Commission, jointly adopting laws with the Council of Ministers.

4. Court of Justice of the European Union (CJEU)

   • Based in Luxembourg with one judge per Member State.

   • Functions to ensure Member States comply with EU treaties and interprets EU law uniformly.

   • Preliminary Rulings: National courts can seek interpretations of EU law from the CJEU, ensuring consistent application across the EU.

Sources of EU Law

• Primary Legislation: Treaties, which are formal agreements between Member States.

  • Treaty on the Functioning of the European Union (TFEU): The most important treaty, originally known as the Treaty of Rome.

• Secondary Legislation: Includes regulations, directives, and decisions.

  • Regulations: Automatically apply in all Member States and are binding, with "direct effect" (e.g., Regulation on tachographs).

  • Directives: Set goals for Member States to achieve but allow them flexibility in how to implement them (e.g., Working Time Directive).

Key Features of EU Law

1. Direct Applicability: Treaties and regulations are automatically part of national law and can be relied on directly in courts.

2. Directive Implementation: Directives require Member States to adapt their national laws to meet certain objectives.

3. Conflict Between EU and National Law: In case of conflict, EU law prevails over national law. Despite the UK leaving the EU, EU law continues to affect the UK, with much of it retained as "retained EU law."

CJEU vs. UK Courts - Key Differences

• Presentation of Case:

  • UK courts follow common law procedures.

  • The CJEU operates with an Advocate General who provides an opinion on cases.

• Advocate General:

  • CJEU cases involve an opinion from an Advocate General before the judges make their ruling.

• Judgments:

  • UK courts can set precedents.

  • CJEU judgments are binding on all EU Member States and aim to ensure uniformity.

• Interpretation and Aids:

  • The UK courts interpret national laws and may refer to extrinsic aids.

  • The CJEU ensures that EU law is interpreted consistently, using extrinsic aids when necessary.

Conflict Between EU Law and National Law

• Parliamentary Supremacy: In the UK, before Brexit, EU law took precedence over national law. However, after Brexit, the UK retains much EU law as "retained EU law."

• Post-Brexit: CJEU decisions before 31 December 2020 remain binding, but UK courts are no longer bound by post-Brexit CJEU rulings. The UK courts (including the Supreme Court) now have the discretion to disapply EU law.

Examples of EU Law Types

• Treaties: Treaty of Rome (1957), which created the EEC, later becoming the EU under the Maastricht Treaty.

• Regulations: Regulation No 1463/70 on tachographs, which are devices to measure truck drivers’ hours.

• Directives: The Working Time Directive 1993/04, later incorporated into UK law as the Working Time Regulations 1998.

Key EU Law Principles to Remember

• EU Institutions:

  • Council of Ministers, European Commission, European Parliament, CJEU.

  • They work together to adopt laws and ensure consistency in law interpretation.

• Sources of Law:

  • Primary Law: Treaties (e.g., TFEU).

  • Secondary Law: Regulations (directly effective) and Directives (require implementation).

• National vs EU Law:

  • EU law has supremacy over national law, but post-Brexit, the UK has flexibility in how it applies EU law through "retained EU law."