European Communities Act 1972 and European Sources of Law - Assignment Example

Law Assignment Question Custom/Common law In the past, customs resulted in laws that were applied throughout the country. Common law, was foundedon established customs, practices and case law. These decisions were documented as Law Reports. Legal certainty was ensured by making the decisions of a higher court binding on the lower courts, in cases with similar facts. This constitutes the doctrine of judicial precedent1. Legislation Since the 17th century, legislation has given rise to most of the new laws. Acts of Parliament constitute primary legislation, and they are of greatest significance. These acts become valid, after being approved in both the houses of Parliament, and thereafter receiving Royal Assent2. Government ministers introduce legislation, based on primary legislation, which does not require Parliament’s approval. This constitutes secondary or delegated legislation, and is issued as statutory instruments3. European Sources of Law The European Union was founded on the Treaties, which constitute primary sources of European law. The chief amongst these are the Treaty of Rome 1957, the Single European Act 1986, and the Treaty on European Union 1992. The 1997 draft Treaty of Amsterdam is also an important document for the EU. The European Communities Acts of 1972, 1986, and 1993 make certain that the UK effects these Treaties4. Laws enacted under the terms of these Treaties comprise secondary legislation. It includes Regulations, Directives, and the case law of the ECJ. Regulations are binding instruments, which are directly applicable to all the Member States of the EU. They have supremacy over national legislation, and prevail, in case any conflict arises with the domestic laws5. The decisions of the ECJ have a binding nature, on the individuals or Member States. However, recommendation and Opinion are not binding on the Member States6. Equity Equity aims to establish justice according to fairness, as opposed to the mechanical application of rules under common law. The 14th century Chancery Courts or Courts of equity, emerged as an alternative to the extant system of automatic and stringent application of rules of proof. Equity provides novel remedies, like specific performance of contracts and the enforcement of contracts. These two systems were merged in 18737. Equity was an alternative to the inflexible common law, which had become an impediment to the rendition of justice. The common law was built on an ad hoc system; therefore, it was incapable of adapting to change. With the development of the doctrine of stare decisis or precedence, rigidity increased in law. This principle was extended to procedural matters and not limited to judicial precedent. The common law had formulated rigid legal procedures, which admitted of no change8. Question 2 The EC law enjoins certain rights and obligations on Community institutions, Member States and Community citizens. This is the direct applicability principle. The ECJ has promoted direct applicability. With its decision in Van Gend & Loos, the ECJ firmly established the direct applicability and supremacy of Community law9. In Van Gend & Loos, the ECJ held that individuals can rely on the Articles of the Treaty under the provisions of EC Law, which were directly applicable in all the cases10. In Costa v ENEL, the ECJ established that the EC Member States had surrendered their sovereignty to the Community; and that the Member States were precluded from departing from this position, by establishing their own measures or statutes11. The ECJ ruled in Van Colson that the Member States were obliged to interpret their domestic legislation, in accordance with the Community law12. Subsequently, the question arose, whether the result envisaged in a Directive was to be promoted by a Member State, even if had not implemented that Directive. This was the crux of the Spanish Marleasing case, in which the ECJ ruled that it was mandatory for a Member State to promote the objectives of Directives, even if it had not been adopted, at the time of the decision13. However, the UK Courts were not in favour of implementing the principle established in Marleasing; despite being willing to implement the principle in Van Colson. The ECJ’s decisions are aimed at implementing Community law, throughout the EU. On many occasions, this results in a rescinding of the national law of some Member State or the other. This has resulted in frantic attempts by some of the affected Member States to obtain a favourable decision from the ECJ14. The government of a Member State is liable to make reparation to an entity that has been put to loss, on account of the former’s improper transposition of an EC Directive, if certain conditions are present. These are; first, the violation must be in respect of a tenet that sought to confer some right on the entity; second, the nature of the infringement should possess sufficient gravity; and third, there must be a direct causal link between the breach and the loss sustained by the entity15. Question 3 With the advent of the European Communities Act 1972, EC law was integrated into national law. It integrated the doctrines of supremacy and direct effect into English law and judicial principles into legal order. This act was instrumental in making the national courts adopt EC law, as it reconciled EC law with the British constitutional doctrine16. In R v. Secretary of State for Employment17, the House of Lords adopted a much more equitable approach, under the beneficial influence of the ruling in the Factortame case, wherein the ECJ had specified the exact extent of the supremacy doctrine. This enabled their Lordships to usher in an impressive constitutional change18. Directives are issued to the Member States, requiring them to modify their domestic laws, within the stipulated time, so as to give effect to the Directive in that Member State. As a Member State of the EU, the UK has to implement the Directives of the EU. This is achieved by means of statutes, secondary or delegated legislation, as required by the European Communities Act 197219. In Factortame I, the ECJ ruled that parliamentary sovereignty could not be interposed to circumvent Community law20. It was established by the ECJ in Francovich that the Member States have to compensate the loss caused to individuals, on account of their violation of EC law21. In British Telecommunications the plaintiff underwent had been forced to undergo heavy losses, due to the improper transposition of an EC Directive by the UK government. Since, the incorrect transposition was on account of the imprecise wording of the Directive, the State was not held to be liable in damages to the plaintiff22. The ECJ decisions cover a multitude of area in law and public policy. In Factortame, the ECJ brought to an end an infringement of the European Commission’s Single European Act by the United Kingdom. This made it very clear that in disputes relating to judicial precedence the EC law was supreme and not the domestic law. The existence of the Community and its legal order are dependent on the primacy of Community law over National law and the direct applicability of the former. These principles have been championed by the ECJ, which has proved to be a redoubtable defender. In addition, the uniform applicability of Community law, through the length and breadth of the EU, is ensured by these principles. Moreover, the Community legal order has rendered yeoman service, by arriving at a solution to the fiscal, political and social predicaments envisaged by the Member States. Bibliography Case 26 –62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR1 Case 6 – 64 Costa/ ENEL [1964] ECR 1251 Case 14/83 Van Colson and Kamann v. Land Nordrhein - Westfalen, [1984] ECR 1891 Case 106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1991] 1 ECR 4135 Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] ECR I-2433 Joined Cases C-6/90 & C-9/90 Francovich and Others [1991] ECR I-5357 Case C-392/93 R v HM Treasury, ex parte British Telecommunications [1996] 2 CMLR 217 Conor Quigley, European Community Contract Law: The effect of EC legislation on contractual rights, obligations, and remedies (Kluwer Law International, 1997) ‘Equity’ (2006) accessed 24 October 2009 European Communities Act 1972 ‘European Union Law’ (1998) accessed 24 October 2009 Geoffrey Garrett, R Daniel Kelemen and Heiner Schulz, ‘The European Court of Justice, National Governments, and Legal Integration in the European Union’ ( 1998) 52(1) International Organization 149 Klaus-Dieter Borchardt, ‘The ABC of Community law’ (2000) accessed 24 October 2009 Larry Mead, David Sagar and Kevin Bampton, Corporate Governance and Business Law (Butterworth-Heinemann, 2007) R v Secretary of State for Employment, ex p. Equal Opportunities Commission (1994) 1 All ER 910 Rose-Marie Belle Antoine, Commonwealth Caribbean law and legal systems ( 2nd edn Routledge, 2008) ‘The Sources of the Legal Systems’ (1998) accessed 24 October 2009 Read More