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E.U Law Flashcards

1
Q

What are the two main types of E.U legislation?

A

1) Primary

2) Secondary

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2
Q

What does Primary Legislation include?

A

Mainly the Treaties - the most important of which was originally the Treaty of Rome itself

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3
Q

What is Secondary Legislation? What are the three types?

A
  • Legislation passed by the institutions of the union under Article 288 (Treaty on the Functioning of the European Union)
  • Consists of three types:
    • Regulations
    • Directives
    • Decisions
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4
Q

What does it mean when E.U law is directly applicable?

A

It immediately becomes part of the law of each member state

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5
Q

How does Direct Applicability work? (2)

A
  • National Parliaments cannot reject it, but they don’t have to do anything to incorporate it either
  • It is applicable in the exact way it was drafted by the E.U (automatic)
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6
Q

To what legislation does direct applicability apply?

A

Primary Legislation

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7
Q

What does it mean when E.U law has direct effect? (2)

A
  • Still applies to E.U countries
  • The countries have discretion in creating the most appropriate laws in their own legal systems to bring the law into effect
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8
Q

When does Direct Effect apply? What does it apply to?

A
  • When a provision of E.U law creates individual rights that are enforceable in national courts
  • To Secondary Legislation
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9
Q

What are the two main forms of Direct Effect?

A
  • Horizontal

- Vertical

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10
Q

What happens if the government fails to adopt a directive?

A

They can be sued

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11
Q

Why do things become difficult when it comes to those working for a private company in terms of Vertical Direct Effect?

A

The government is not responsible for those working for a private company

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12
Q

In what case was the general principle of state responsibility for compliance with EU law developed by the ECJ?

A
  • Francovich
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13
Q

What are the Francovich Principles? (3)

A
  • The proof that the directive did confer a ‘right’
  • The fact that the directive was clear about said ‘right’
  • The fact that the claimant suffered financial loss as a direct result
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14
Q

Horizontal Direct Effect means a person can use E.U legislation against who?

A
  • An individual

NOT THE STATE

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15
Q

What does Vertical Direct Effect do?

A
  • Creates individual rights against the government
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16
Q

What is a good example case for the use of Vertical Direct Effect?

A
  • Foster v British Gas
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17
Q

What’s Vertical Direct Effect in a nutshell?

A
  • If the government has failed to adopt a directive into national law and one has suffered a loss of the right established by the directive, they can sue the government
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18
Q

What is Indirect Effect?

A
  • Where national courts have to interpret national law in line with an unimplemented or badly implemented directive of the E.U
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19
Q

Where does Indirect Effect come from?

A
  • The failure of a member state to implement a directive, and direct effect cannot apply because the party against whom the directive is sought to be enforced is a private entity (or fails to meet the conditions that would give it direct effect)
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20
Q

What are the four sources of Union law?

A
  • The Treaties
  • Regulations
  • Directives
  • Decisions
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21
Q

Describe Treaties. Primary or secondary? What do they establish?
Do they have direct applicability or direct effect?
What direct effect can they have?

A
  • Primary source of Union law
  • Establish Union aims, institutions and legislative procedures
  • Basically like the Union’s constitution
  • Directly applicable
  • Can have both horizontal and vertical direct effect providing that the Treaty has been breached
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22
Q

Describe Regulations (3)

A
  • Binding, primary piece of legislation
  • Directly applicable
  • Can have both horizontal and vertical direct effect provided that the Van Gend en Loos requirements are met
23
Q

What are the Van Gend en Loos requirements? (3)

A
  • Provision must be sufficiently clear and precise
  • Provision must be unconditional/non-dependent
  • There must be an identifiable right granted by the Treaty
24
Q

Describe Directives (4)

A
  • Not directly applicable
  • Have direct effect
  • Can have vertical direct effect
  • Can have horizontal direct effect provided that the Francovich principles apply
25
Q

Describe Decisions. Are they directly applicable? Who may they be addressed to? Can they have direct effect?

A
  • Not directly applicable
  • May be addressed to a member state, company or person e.g granting export licenses to companies outside the E.U
  • Can have vertical direct effect only, and only when addressed to a member state
26
Q

What happened in Van Gend en Loos (1963)? (4)

A
  • Postal and transportation company imported urea formaldehyde from West Germany to the Netherlands
  • The authorities charged a tariff on the import
  • Van Gend en Loos objected, stating that it was a clear violation of Article 12 of the Treaty of Rome
  • The case held - direct applicability
27
Q

What happened in McCarthys Ltd v Smith (1979)? (4)

A
  • Smith worked for McCarthys and was paid £50 a week when a former male employee had been paid £60 a week for the same job
  • Smith said this was unlawful under the Equal Pay Act 1970, or the Treaty of the European Community Article 119
  • McCarthys argued that she had no claim because the Equal Pay Act did not allow for comparisons with former employees
  • E.U law did allow for such a comparison, and overrode the UK statute as it was from a Treaty, making it directly applicable
28
Q

What happened in Marshall v Southampton Area Health Authority (1986)? (5)

A
  • Senior dietitian dismissed from her job, despite wanting to work until 65
  • Dismissed solely because she had ‘reached the retirement age’ which was 60 for women and 65 for men
  • She claimed her dismissal violated the Equal Treatment Directive 1976
  • She suffered financial loss and the satisfaction of working as a result of the government failing to implement the directive so was able to sue the government through vertical direct effect
29
Q

What happened in Van Duyn v the Home Office (1975)? (3)

A
  • Van Duyn was a Dutch national associated with Scientology
  • She was refused entry to the UK because of this association
  • As she was denied entry on the basis of religion, it was unlawful
30
Q

What did Van Duyn v the Home Office (1975) prove?

A
  • That a directive can have vertical direct effect if unimplemented or implemented incorrectly in order to prevent negative effects on individuals
31
Q

How does E.U law affect the UK? (2)

A
  • The European Communities Act 1972 incorporates E.U law into English law. It states that all UK legislation takes effect subject to E.U law with the exception of the 1972 Act itself
  • If the E.U passes a law that opposes the national law of a member state, the member state must repeal their law
32
Q

What was held in R v Secretary of State for Transport, ex parte Factortame (1990)? (4)

A 
The Act (the Merchant Shipping Act 1988) was in breach of the Treaty of Rome 1972, as it was discriminating on the basis of nationality
- The case held and confirmed the UK's subordination to E.U law
33
Q

When was the European Union formed?

A
  • 1993
34
Q

What is the E.U made up of? (5)

A
  • The Commission
  • The Council
  • European Parliament
  • The Court of Justice of the European Union
  • The European Court of First Instance
35
Q

Describe the Commission (2)

A
  • Main executive body

- Headed by 28 commissioners who are appointed by member states for 5 years

36
Q

What does the Commission do? (4)

A
  • Proposes and drafts E.U legislation
  • Negotiates trade agreements
  • Draws up annual budget
  • Ensures that member states uphold E.U law
37
Q

Describe the Council (3)

A
  • Main decision making and legislative body
  • Most powerful of the institutions
  • No permanent membership
38
Q

What does the Council do? (2)

A
  • Represents the interests of individual member states
  • Adopts union legislation based on proposals from the Commission and after consulting the Parliament, puts forward finished ideas for law
39
Q

Describe the European Parliament. What is its role? How are its members elected?

A
  • Mainly consultative and advisory role

- Members elected in their own countries (MEPs) every 5 years

40
Q

What does the European Parliament do? What role does it exercise? What power does it have?

A
  • Exercises a supervisory role over the Commission
  • Has the power to veto the appointment of the Commission and dismiss the whole Commission
  • Reports on the Council 3 times a year
41
Q

Describe the Court of Justice of the European Union. Where does it sit? Who makes it up? What is its role?

A
  • Sits in Luxembourg
  • 28 judges appointed for 6 years
  • Constitutional court
  • Judicial and Supervisory role
42
Q

What does the European Court of Justice do? (2)

A
  • Supervises the application of E.U law

- Provides definitive interpretations of E.U law

43
Q

Describe the judicial role of the ECJ. Example case?

A
  • Hears disputes against member states and cases against European Institutions e.g Re Tachographs: EC Commission v UK (1979)
44
Q

Describe the supervisory role of the ECJ (4)

Mandatory references? Discretionary references? What does the referral system ensure?

A
  • Article 267 of the Treaty on the Functioning of the European Union means that any court can refer a question on E.U law to the ECJ
  • Mandatory references are compulsory
  • Discretionary references are optional
  • The referral system ensures that the law is interpreted the same throughout the E.U
45
Q

What are the Bulmer v Bollinger guidelines? When are they used? (5)

A
  • In deciding whether a referral is necessary, English courts use these guidelines. A referral is not necessary where:
    • The ECJ has previously ruled on the same point
    • The point is reasonably clear and free from doubt (acte clair)
    • The facts of the case have not been decided
    • It would not be conclusive of the case
46
Q

Describe the European Court of First Instance. When was it established? What is its aim? Jurisdiction?

A
  • Established in 1988
  • Its aim is to reduce the workload of the ECJ
  • Limited jurisdiction
47
Q

What does the European Court of First Instance do?

A
  • Deals with mainly internal litigation
48
Q

What happened in Re Tachographs EC Commission v UK (1979)? (4)

A
  • There was a regulation that required all heavy goods vehicles to be fitted with a tachograph machine to limit the number of hours a driver is allowed on the road without a break
  • Regulations are primary legislation, meaning that they are directly applicable
  • The UK didn’t bring this law into effect and so breached the treaty
  • The case held and the ECJ forced the UK to implement the law
49
Q

What happened in Von Colson v Land Nordhein Westfalen (1984)? (4)

A
  • Two women had applied to work as social workers in a German prison
  • The officials in charge of recruitment refused to appoint them on the basis of gender
  • The women claimed that they should be granted a contract of employment or damages under Article 6 of Directive 76/207
  • It was held that the Directive did not satisfy the requirements for direct effect, but was indirectly effective instead
50
Q

What is a good example case for indirect effect?

A
  • Von Colson v Land Nordhein Westfalen (1984)
51
Q

What happened in Foster v British Gas (1990)? (3)

A
  • Mrs Foster claimed that her forcible retirement at the age of 60 contravened the Equal Treatment Directive, as her male counterparts could work for an additional 5 years
  • In order to assert this claim, as directives only have vertical direct effect, Mrs Foster would have to prove that British Gas was an organ of the state
  • The answer was yes. The organisation was publicly run and was responsible for a public service, making it an organ of the state
52
Q

Who has a role in making E.U law? (3)

A
  • The Council
  • The Commission
  • European Parliament
53
Q

How does all E.U legislation start?

A
  • With a proposal from the Commission
54
Q

What are the Van Gend En Loos Requirements for?

A
  • establishing the direct effect of primary EU law

Law (45 decks)

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