Can the English Legal System Be Considered in the Context of the European Legal Order - Case Study Example

Topic: “Can the English Legal System be considered on its own or must it be understood within the context of the European Legal Order?” IntroductionHow may UK act under the existing European legal order? Can the English legal system be considered on its won or must it be understood within the context of the European order? This paper will attempt to answer the above questions in the light of the development of the following concepts: The European Court of Justice (ECJ), Approximation laws, Directives, Direct Effect, Indirect Effect, Regulation, Sovereignty, and Supremacy vs. Primacy. A case will be cited for clarity. The ECJ A work entitled The Jean Monnet Program by Professor J.H.H. Weiler, European Union Jean Monnet Chair reads: “The ECJ is the institution empowered under the treaty of Rome to make interpretations and these interpretations include preliminary rulings under Article 234 of the Treaty, which states: "[t]he Court of Justice shall have jurisdiction to give preliminary rulings concerning: the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community [...]. Where such a question is raised before any court or tribunal of a Member State, that Court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice."21 Article 234 has been supplemented by numerous cases of the Court.22 “< http://www.jeanmonnetprogram.org/papers/01/013901.rtf> A treaty is like a contract between two parties. It involves at least two independent states agreeing to a relation on some political or economic matter. Since the treaty confers to the ECJ a power to make preliminary rulings under Article 234 on the interpretation of the treaty, it must follow such rule because the fact that it entered into a treaty is a proof that it respects the provisions. A question could arise where there is a conflict against the national law and European law. How will this be resolved? To answer the question the concept of approximation of laws must be understood. The work of Professor Ljiljana Biukovic and Professor Martha OBrien gave us the following definition of the term: Approximation laws “Approximation of law is “a means provided for in Art 95 (ex Art. 100a) of the Treaty of Rome to achieve progressive harmonization of the national laws of the Member States according to standards set by EC law. Directives are the preferred legislative method for achieving approximation or harmonization of MS laws.” The next question is what are directives? Directives “Directive is defined by Professors Biukovic and OBrien as “the most common type of EU legislation, not directly applicable, but may have direct effect; binding upon Member States as to the objectives to be achieved but leaving to the Member States the choice of form and method; preferred means of harmonization of laws; usually enacted by the Commission.” (Emphasis supplied) Direct Effect, Indirect effect and Regulation What is the meaning of direct effect then? The same work by Professors Biukovic and OBrien said , “An EU act has direct effect if it accords rights to private parties which must be upheld by the national courts; an act having direct effect must be clear, unconditional and not dependent on further actions of the EU or Member States; an act has vertical direct effect when it only confers rights on private parties against Member States and horizontal direct effect when it confers rights or imposes obligations on persons vis a vis Member States or other persons.” In case of the direct effect, the English Court in UK must allow the conferment of rights in case of vertical direct effect, conferment of rights and imposition of obligations in case of horizontal direct effect. Note the EU and member states need no further actions for the conferment or imposition. Knowing direct effect leads also to know indirect effect. The principle of indirect effect is the so called Colson Principle which states that, “it states that EC legal provisions, even when not directly effective, must be taken into consideration by national courts of the Member States when interpreting national legislation.” We learned that direct effect may be caused by a directive. The next question is: Is a directive the same as regulation? The answer of course is, no. This is because regulation is pursuant to the principle of direct applicability while a directive is pursuant to approximation law as stated earlier. So the next interesting sub-topic is: Is there a loss of UK sovereignty if there is an exercise of direct effect, indirect effect, or regulation via the EU law? Sovereignty Before the preceding question could be answered, we will have to define first sovereignty. What is sovereignty? Why is it an issue? Sovereignty is the right to assert itself independently by excluding others states from exercising such right (note get google definition). It is said that the Sovereignty is lost by the doctrine of Supremacy. So the next question is what is supremacy? The work of Professors Biukovic and OBrien has this to say about subject: “the doctrine of supremacy of EU law over both prior and subsequent national law is not expressly stated in any of the treaties but is established by the ECJ; imposes a duty upon national courts to give immediate and automatic precedence to EU law and to set aside conflicting national provisions.” It is different from Primacy. How is it different? Supremacy vs. Primacy A work by Franz C. Mayer on “Supremacy - Lost? – Comment on Roman Kwiecieñ ” said: “The relationship between European Union law and national law is one of the most debated issues of European constitutional law. The Treaty establishing a Constitution for Europe (Constitutional Treaty) introduces an article that, for the first time, explicitly states the primacy of European law over national law.[1] A declaration annexed to the final act of the IGC states that this provision reflects existing Court of Justice case law. Thus, it is no surprise that most commentators agree that the Constitutional Treaty does not change much concerning the relationship between European law and national law. However, the new provision does not only raise the question of what happened to supremacy (as opposed to primacy), it also offers the opportunity to recall the different aspects of the principle (B.) and to reflect on the role and the function not only of the principle, but also of legal scholarship in shaping the principle (C.).” The Cases Author Franz C. Mayer cited cases which reads: “ A standard account on primacy has to start out from the 1963 Van Gend en Loos-decision of the European Court of Justice.[2] In emphasizing that European law is to be distinguished from regular public international law and in according direct effect to European law, the ECJ made a direct conflict between European law and national law possible, without answering the question which law shall prevail. The 1964 Costa v. ENEL-decision[3] answered this question, stating that in case of conflict between European law and national law, European law prevails. The ECJs core justifications for the primacy of European law are independence, uniformity and efficacy of Community law. In this perspective, Community law is "an integral part of [...] the legal order applicable in the territory of each of the Member States," and provisions of Community law "by their entry into force render automatically inapplicable any conflicting provision of current national law."[4] This concept of primacy in application, Anwendungsvorrang (as opposed to primacy in validity, Geltungsvorrang), also applies to the Member States constitutional law provisions. The Court has been extremely reluctant, though, to state this openly. The decision in the case of Internationale Handelsgesellschaft decided in 1970 stands out as the case where the ECJ uses the strongest language with respect to primacy over the national constitution:[5] "The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure."[6]”(original footnoting preserved) Conclusion/ Recommendation: Based on the foregoing, there is bases for ECJ to apply the concept of Direct Effect in under the principle of primacy. The “core justifications for the primacy of European law are independence, uniformity and efficacy of Community law. In this perspective, Community law is "an integral part of [...] the legal order applicable in the territory of each of the Member States," and provisions of Community law "by their entry into force render automatically inapplicable any conflicting provision of current national law."[4] Application of direct effect by EU through the ECJ is consistent with approximation laws as earlier defined. Applying the direct effect does not necessarily result to result to loss of UK sovereignty. UK was free to join it is free to leave EU. If it continues to believe and adhere to the EU objectives, then it must do so with an open mind and therefore the English system must not be considered on its own in case of conflict with the EU law but must be understood in the context of European legal order. Bibliography (a) Case 106/77, Simmenthal, 1978 E.C.R. 629, paras. 3 and 21 et seq.; See also (b) Case 26/62, Van Gend en Loos, 1963 E.C.R. 1 (English special edition). (c) Case C-213/89, Factortame, 1990 E.C.R. I-2433, paras. 20 et seq. (d) europa.eu.int/comm/represent_en.htm (e) Glossary prepared by Professor Ljiljana Biukovic and Professor Martha OBrien for use by students in European Union Law in the Faculty of Law, UBC and Faculty of Law, University of Victoria.< http://europa.eu.int/comm/governance/index_en.htm (f) http://europa.eu.int/comm/governance/index_en.htm (g) Treaty Establishing the European Community (h) www.answers.com/topic/ec-abbreviation (i) Case 6/64, Costa v. ENEL, 1964 E.C.R. 585 (English special edition). (j) Case 11/70, Internationale Handelsgesellschaft, 1970 E.C.R. 1125, para. 3; Case C-473/93, Commis­sion v Luxembourg, 1996 E.C.R. I-3207, para. 38. See also Case C-285/98, Kreil v. Germany, 2000 E.C.R. I-69. (k) Treaty Establishing a Constitution for Europe, Art. I-5, 10 July, 2003, O.J. (C310): "The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States." (l) www.germanlawjournal.com/article.php?id=650 - 40k - 24 Nov 2005 Read More