Solicitors Qualifying Examination

European Union Law | EU Law – SQE1 & SQE2 Examinations – solicitorsqualifyingexamination.net

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European Union Law
(Non-examinable, for information only)
History and Treaties
• 1951 – ECSC (European Coal and Steel Community Treaty), force: 1952
o Common market for coal and steel
o Belgium, France, West Germany, Italy, Luxembourg and
Netherlands
o Control of coal and steal given over to an independent
international authority, the High Authority, given the power to fix
prices and ensure compliance with competition rules.
§ Alongside High Authority was Council of Ministers
representing Member States, an Assembly and a Court of
Justice to review the legality of the Acts of the High
Authority.
• Treaties of Rome, 1957
o EEC Treaty, European Economic Community
§ Same members as ECSC
§ Establish customs union and later a common market
§ Force in 1958
o Euratom Treaty
§ European Atomic Energy Community
§ Governed non-military use of atomic energy (nuclear
power)
§ Same members
§ Force in 1958
• Merger Treaty, 1965 – 3 communities (ECSC, EEC, Euratom) shared
representative comity (Assembly) and court, but this established single
Council of Ministers and Commission
• UK joins 1st January 1973
• UK is a dualistic state, meaning international treaties only have effect
when incorporated by domestic legislation
• European Communities Act 1972 – incorporates treaties from EEC and
other two communities into domestic law, and UK joined the European
Communities
o Section 2(4) of ECA 1972 = British legislation interpreted and has
effect subject to EU law
§ CASE: R v Secretary of State for Transport, ex parte
Factortame (no.2) [1991]
© Liam Porritt 2020 2
• 1986 – Spain and Portugal joined the European Communities
• 1986 (force 1987) – Single European Act signed
o Single internal market within the EEC (it is a Treaty not an Act
though!)
o Assembly > European Parliament
o Court of First Instance (subsequently General Court under Lisbon
Treaty) established
• 1992 (force 1993) – Treaty of European Union (‘Maasticht Treaty’)
(TEU) signed:
o Pillar 1: EEC > EC
o Pillar 2: Framework for Member States to co-operate in the fields
of Justice and Home Affairs
o Pillar 3: Co-Operative framework for Member States to adopt
common positions on areas of common foreign and security policy
• NOTE: Treaty – nothing to give EU control over the foreign or security
policies of any of the Member States
• Euro formed + European Central Bank established
• ‘Social Chapter’ – further rights for workers and social policy issues (but
UK negotiated opt-out)
• 1995 – Austria, Finland and Sweden joined
• 1997 – Treaty of Amsterdam: UK signed up to ‘Social Chapter’
• 2001 – Treaty of Nice, paving way for new Member States in 2004
• 2004 – 10 countries join
• 2004 – Constitutional Treaty – to provide a single constitutional
framework for the EU
o 2005 – rejected in popular referenda in France and Netherlands,
and abandoned
• 2007 – Treaty of Lisbon (force in 2009), to give current structure of EU:
o Amended TEU (Abolished three-pillar structure), and
o Treaty on the Functioning of the European Union (TFEU), an
amended Treaty of Rome (EEC Treaty)
o Introduced institutional reforms
• 2013 – Croatia joins, making total of 28 Member States
• 23rd June, 2016 – UK referendum on leaving the EU
© Liam Porritt 2020 3
Acts of the EU and Sources of EU Law
Primary Legislation
• EU Treaties – TFEU + TEU ~ EU’s primary legislation
o European Convention on Human Rights is NOT an EU Treaty and
has NO direct relationship with EU
• Third-country Treaties
o Treaties or agreements with third parties are also primary sources
of EU law – e.g. Lomé Conventions.
Secondary EU Legislation – Regulations, Directives, Decisions
• Article 288 of TFEU = EU institutions make secondary leg.
o BUT: only within limits of competences and objectives set out in
Treaties (Art 5(2) TEU – Principle of Conferral)
o AND: Unless exclusive competence, EU can only act where
objectives cannot be sufficiently achieved by Member States but
can be better achieved by EU (Art 5(3) TEU – Principle of
Subsidiarity)
o … In practice, must question to what extent powers of the EU are
really limited by this.
o See below for more details.
• Forms of law
o Regulation (binding in its entirety)
o Directive (binding as to result to be achieved)
o Decision
• Regulations = legislation where adopted using legislative procedure (ECA
1972) ~ ‘directly applicable’ to Member States = apply in Member States
without Member States having to enact their own legal measures to
implement or give effect to them
• Directives = Member States must pass national legislation to implement
them in their legal order ~ binding as to the result, but national
authorities choose form and methods
o Deadline: in Directive (often 2 years) or 20 days after publication
(Art.297 TFEU)
o Failure to implement – EU Court of Justice = mechanisms to rely on
Directives themselves in national courts of relevant Member State
• Decisions = legally binding on parties to whom they are addressed (e.g.
2004 Competition commission decision that Microsoft in breach of
competition law and fined 497,000,000 EUR)
© Liam Porritt 2020 4
Case Law
• Case law of EU courts
o E.g. ability to enforce rights under EU law in national courts = case
law
Soft Law (NOT forms of law at all)
• Non-binding recommendations and opinions
• Communications, declarations, notices, programmes and resolutions
© Liam Porritt 2020 5
EU Constitutional Principles
Competences – Principle of Conferral – Article 5(2) of TEU
Three types of competence provided for in TEU, defined in Article 2 TFEU:
1. Article 3 TFEU: Exclusive competence conferred on Union – only Union to
legislate in a particular area, Members States only doing so if so
empowered by EU
o Customs union
o Competition rules for internal market
o Monetary policy for Member States with euro
o Conservation of marine biological resources under the common
fisheries policy (hence Norway’s being out of the EU)
o Common commercial policy
2. Article 4 TFEU: Shared competence with Member States; EU may legislate,
and Member States to legislate to the extent that the Union has not
exercised / no longer exercises its competence
o Areas not under 1 or 3!
3. Article 6 TFEU: Supportive / supplementary competence – carry out
actions supporting the actions of the Member States without superseding
their competence in these areas
o Protection and improvement of human health
o Industry
o Culture
o Tourism
o Education, training, youth and sport
o Civil protection
o Administrative cooperation
Note: EU much still act in accordance with specific powers granted by the
treaties. So, it may be within one of its allocated competences, but may still not
act if not granted specific power to do so by a Treaty provision.
© Liam Porritt 2020 6
Principle of Subsidiarity – Article 5(3) of TEU
• Subsidiarity requires that for (2) and (3) above, the EU should only act
under Article 5(3) of TEU where its Member States could not achieve
similar objectives as effectively, and where the EU is better placed to do
so.
• All legislation put forward by the Commission must be expressly justified
on the basis of subsidiarity (Treaty of Amsterdam, 1997)
o However, United Kingdom v Council (Working Time Directive)
[1996] ~ UK argued infringed subsidiarity, but the CJEU ruled that
once the Council felt the need to act, it would inevitably wish to
harmonise the law in this area – so, essentially, if there is a
problem according to the commission/council, the most effective
way to combat this is through harmonizing law immediately,
rather than by allowing member states to take action themselves.
• Lisbon Treaty [2009] ~ National parliaments may put forward reason
why legislative proposal does not comply with subsidiarity. A threshold of
national parliaments = yellow card and Commission forced to amend /
withdraw.
o 2013 – establishing European Public Prosecutor’s Office – yellow
carded.
Principle of Proportionality – Article 5(4) of TEU
Union action shall not exceed what is necessary to achieve the objectives of the
Treaties.
© Liam Porritt 2020 7
EU Institutions
• European Commission (overall interests of Union) – one Commissioner
from each Member State, appointed by EU Council + President (appointed
by European Council) + High Representative of the Union for Foreign
Affairs and Security Policy (appointed by European Council) = Initiate
legislative proposals + enforces EU law
o EU competition law – fines for breaches
o Brings enforcement actions vs Member States to CJEU
• Council of the European Union (national interests of Member States) –
Government ministers from Member States (on relevant matters, e.g.
agriculture) – cannot initiate legislation, but must approve legislative
proposals of Commission (block or amend) + signs international
agreements on behalf of EU
o Qualified Majority Voting: 55% of Council members (at least 15
members) + representing at least 65% of EU population, unless
less than 4 objections + some exceptions in TFEU Art. 238
• EU Parliament (the people) – 766 MEPs, elected by Member States’
citizens – cannot initiate legislation, but must approve legislative
proposals of Commission
o May request that the Commission submit a proposal to the Council
to take legislative action in an area of EU competence
• Court of Justice of the EU (CJEU / ECJ) – Luxembourg
o One judge from each member state
o Min 8 Advocates-General, to provide reasoned opinion to the Court
of Justice in response to the submissions made by the parties to
the case = advisory, before judgment delivered
• General Court without Advocates-General, but one judge from each
Member State
• Specialised Courts – Civil Service Tribunal hearing disputes between EU
and its civil servants
• European Council – Heads of State of Member States + President elected
by EU Council + President of the Commission
o Instigates amendments to EU Treaties, however must be ratified
by Member States
• European Central Bank
• The Court of Auditors
NOTE: The European Court of Human Rights is not an EU institution, the
European Convention of Human Rights is not an EU treaty, and both were
created by the Council of Europe – which is not an EU institution,
comprising 47 members.
© Liam Porritt 2020 8
European Union Legislative Procedure – ‘Ordinary Legislative Procedure’
• First reading: Commission submits proposal to the Parliament and the
Council. Consultation by Council with Parliament, then :
o Council adopts as agreed to or amended by Parliament. =
Adoption.
o Or, Council adopts common position.
• Second reading: Council’s ‘common position’ communicated to
Parliament.
o Agreement = Adopion.
o Or, rejection.
o Or, Parliament amends + may be approved by Council.
o Or Parliament amends + Council does not approve. Then…
• Conciliation Committee – Council + Parliament reps, six weeks to agree
joint text + absolute majority in Parliament + qualified Council majority
CJEU / ECJ
• Enforcement proceedings
o Commission v Member State (enforcement actions) – Art 258
TFEU
o Member State v Member State (enforcement actions) – Art 259 +
260
• Annulment and other judicial review procedures (Art 263-266; 268)
o Challenge validity of EU Acts / secondary leg. – Art 263 TFEU
o Challenge action by EU institution
o Failure of EU institutions to act – Art 265
• Most CJEU case law = questions by Member States to CJEU about EU law
(Article 267) ~ preliminary reference, followed by preliminary ruling,
passed to national court to apply it ~ no right of appeal
o Interpretation binding on all national courts
• Appeals for General Court on points of law (Art 256)
• Jurisdiction in disputes over award of compensation for non-contractual
damages (Art 268; 340).
• Meaning of legislation and treaty provisions ~ purposive approach
• Precedents applied and departed from more flexibly than in UK
• Important case law:
o Doctrine of direct effect, which enables individuals to enforce in
their national courts rights conferred by EU law (NV Algemene
Transport – en Expeditie Onderneming van Gend en Loos v
Nederlandse Administratie der Belastingen (Case 26/62) [1963]
ECR 1).
o Principle of supremacy, which ensures that EU law prevails over
inconsistent national law (Costa v E.N.E.L. (Case 6/64) [1964] ECR
585)
© Liam Porritt 2020 9
European Convention on Human Rights, 1953
• UK citizens can petition the European Court of Human Rights
(Strasbourg) from 1966
• Human Rights Act, 1998 – some way to incorporating Convention rights
into UK law
o Section 4 = Legislation that cannot be interpreted in a way
compatible with the ECHR can be declared as such by court or
tribunal, and Gov/Parl decides what to do
• Section 2 = HRA, 1998 ~ in determining a question connected with a
Convention right, a court must account for decisions / opinions of the
ECHR.
o NB Convention rights do not merely have to be fulfilled in the
negative sense (i.e. the State not doing X), but also by ensuring
laws prohibit, deter or punish violations of the Convention rights
by others.
• Cases brought to ECHR ~ vs governments after appeal processes
exhausted
o 1, 3, 7 or 17 judges

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