How EU differs from standard intl law
public intl law
to know how the EU treaties are unique then you need to know how public intl law is different
usually yhere are two sources of intl law
customary intl law – background norms. what states say and do to make law
states make steering decisions
customary intl law is about consensus
treaties are different – they are specific. they have particular remits
any famous treaty such as GATT, Kyoto, Vienna Conventio – treaty about treaties
because they are aimed to benefit states they are discretionary
treaties are optional
even if states sign up to them they make reservations
climate change treaty = they can sign up and then break it
what has EU done that is novel? Treaty of rome is a framework treaty. that is different from a public intl treaty which is specific
framework treaty is designed to provide and outline and to be fleshed out by ECJ
Rome has a general subject matter. gives an implication that if you sign you agree that it will evolve
once you introduce this element of case law
you open yourself to what court decides to do
ECJ takes a purposive approach. This is also called teleological approach. ECJ goes far beyond the purposive approach as would be used by a domestic court.
UK courts have changed modes of interpretation. started with literalism. then golden rule. then mischief rule. All gave more discretion to the court
many small decisions change the treaty so much.
EU introduced effet utile principle. Laws ought to have a useful effect.
another principle – direct applicability. This is the EU laws go directly into national law.
There is no further measure needed on the part of the member state
The United Kingdom has a complex system for doing this via the European Communities Act and national statutes which incorporate EU laws and treaties into UK domestic law
purposive approach to filling in the treaty
effet utile – case law
direct applicability =
this looks v different from treaties under public intl law
a new legal order has been created
member state legal traditions – it is drawn from legal traditions of member states
van Gend en Loos – economic subject. prohibiting a rise in tariff duties..
price of glue.
later cases in direct effect – move away from economic issues and into social issues
van Gend en Loos
this is first time we see tripartite structure
national court MAKES reference to the
national govts makes a reference. Germany, the Netherlands and Belgium
6 member states in ECJ.
Belgian govt argues that
national law ratifies the treaty. is this national law to prevail over another national law
the Belgian Govt argues that this should be a matter of national principle whatever the EU treaty whether it is the same or different
it does not matter to the Belgians . Even if the treaty has special significance it has been incorporated into national law therefore all we are talking about national laws
Belgian says this is up to Belgium to decide the hierarchy of national laws
principles are not developed in the abstract but by looking at real cases. makes law usable.
all governments are against the idea that individuals can rely on EU law in national courts
that would weaken nations
EU law cannot be effective if it has to enforce the law itself. It needs member states to co operate via their courts
a court can only deal with cases brought to it
makes it difficult to create a coherent eco system of laws
article 12 must be read as creating direct effect
”according to the spirit, the wording and the general spirit of the treaty.”
ECJ invented the notion that the treaty had a spirit. the court had a certain idea of Europe.
it does not define work conditions
the word principle is inherently unclear
apply the principle that men and women should receive equal pay for equal work
even if men and women get different amounts of money one can say that we believe in the principle but the outcome has not been reached
van Duyn relates to article 45.3
exceptions to free movement; public policy, public security and public health
conditions are imposed
ECJ says nonetheless the article has direct effect. these conditions are subject to judicial control
1973 – Rayner case
related to discrimination on the grounds of nationality
directive leaves discretion to member states the form and method for implementation
almost all treaty articles etc…have direct effect
the EU is a new legal order. It suffers from many problems that old intl law is. chief problem is lack of enforcement.
trying to transition to a system where there are laws that cannot be ignored.
If there is no direct effect than these laws are not applied in national courts
borrow from crime – offences against the person. primary statute 1861
overlaps and confusion. law has been built case by case
ECJ has a case come before it. It seeks to do justice. It can see a way of doing it. Case after case you end up in position where criteria have been eroded. No one provides and overall oversight
treaty articles directives and decisions have vertical and horiztonal direct effect. vertical against emanation of the state. Horizontal against individual
seen in Marshall v Southampton and South West Health Board
health authority required women to retire at 60. men at 65
national law was silent on the issue
under article 159 of EEC treaty. why directives are binding
”binding on member states to which they are addressed.”
directives will not satisfy the criterion that they need no further implementing measure
once time limit has passed for transposition of directive then the directive will be held to be valid
How is a directive different from a regulation once the time limit has passed?
We said that directives are directly effective because they are binding on member states to whom they are address
this is also true of decisions which bind those to whom they are addressed
this is also true of treaty articles
What is an emanation of the state?
Courts have sought to expand direct effect through a wide construction of an emanation of the state
incidental direct effect
v difficult if you think about all the things an emanation of the state has to cover
these would normally be thought to be part of the government – agencies that work f or the state
agencies that perform tests for disability benefits.
paperclips to staffing go to a private company
govt quangos. niche public bodies
a school is an emanation of the state
Foster v British Gas. Gender discrimination in working are. A private company was held to be an emanation of the state because it was a monopoly providing an essential service
ECJ decided that things are emanations of the state even though they are not the government
private mutli-national conglomerates are not susceptible to direct effect
CIA security. Belgian law that was not compatible with community law.
It was in breach of community law.
Belgian law was not valid
libel claim that they were bringing who said they were in breach of the law could succeed
vertical direct effect that was being applied
Belgian law made by Belgium has been knocked out of play
effect of this that in a case between two companies this claim succeeded where it otherwise would have failed
You are not bringing the directive in. It is not horizontal direct effect
what is in favour of incidental direct effect is it stop states relying on their wrongdoing
If a state fails to implement a directive then incidental direct effect hold the state to account and knocks out offending legislation
Unilever SPA v Central Food SPA (2000) case – unjust to defendants
final argument against this as a principle is that it is another expansion of direct effect . A liberal interpretation of direct effect has eroded all limits
vertical direct effect is v wide now. there is a novel structure. has an effect in purely horizontal cases
von Colson – harmonious interpretation. it is required by article and by principle of effet utile. for community law to be effective harmonious interpretation is needed
indirect effect is v broad
it does not need any of the conditions in van Gend en Loos (does not need to be clear, precise or unconditional)
regardless of time laws were made or intent behind them – it still applies
national laws can be interpreted harmoniously with EU even if made before EU
von Colson – claim was vertical. an effective remedy was needed
the case that expanded this a lot was Marleasing
one of the most significant quotations – this must be done when there is any room for interpretation
Pfeieffer – a member state must do whatever lies in its jurisdiction having regard to the whole body of national law to ensure that directive is effective’
making decisions on factual scenarios is left ot national courts. ECJ will give an opinion and say that it thinks that a national law can be interpreted in line with EU law
it gives hints
there are few cases where it has accepted that national laws cannot be interpreted in line with EU law
wagner-myret – case where court that EU law and national law could not be interpreted at all
pupinot – is a case where same as below.
Koote – is a good case for ECJ implying that national law can be interpreted in keeping with EU and laws given direct effect. implied how they wanted it to be done.
when can community law be used in national court
how is it used . how it interacts with national law
van Gend says states limited their sovereign rights. supremacy of EU
Costa v ENEL – EU supremacy. similar language to van Gend
law applies to nationals and member states. mentions limited fields where states had ceded sovereignty
drew on van Gend en Loos
Costa v ENEL
by contrast with other treaties the EU has created its own treaty. It became part of legal systems of member state. BY CREATIng a community of unlimited duration with its own legal capacity and more particularly real powers stemming from a limitation of sovereignty. Member states have limited their sovereign rights and created a body of law that binds their nationals and themselves. EU has capacity on intl plane.
integration into member states of laws. makes it impossible for states to accord precedence to a unilateral measure. national measures cannot be inconsistent with community law.
the application of the law cannot vary between member states without jeopardising effectiveness
legal system accepted by member states on the basis of reciprocity.
countries entered into a negotiation. they set up a relationship whereby their traditions would feed into the EU. EU law came back to nations
EU laws have greater power than domestic laws
there is an interesting article
McCormick – questioning sovereignty
sets out view of EU as a reciprocal interactive body
they feel they are in a strong position. supremacy like direct effect expands
next significant case International Handelsgesselchaft – EU law prevails over fundamental principles of national law
EU clashed with proportionality etc… core principles of German law. ECJ said Union law prevailed.
Germany ‘s constitutional court clashed with EU – v strong on respect for human dignity. treat people as ends not means. constitutional court is immutable
Germany fell out with ECJ there. Germany does not accept that community law is supreme over Grundgesetz.
all countries take up different issues with supremacy.
procedural expansions and practical expansion
simmenfell – ECJ held that all courts must set aside conflicting national law provisions – it did not have to get to court of last instance.
this is a huge departure. a court of first instance can strike down laws. This is a concern to civil law countries such as France
France’s concern with this was jurisdiction. it has administrative courts and ordinary court
highest admin court said they could not set aside French laws in favour of EU laws only constitutional court could
ordinary courts said they could set aide French laws
France has two highest courts. One said EU law was supreme. One said it was not
this is resolved. EU law is supreme but based on French constitution allowing this
Italian constitution permits limitations on sovereignty as are necessary to organisation permits peace and justice to nations
Italian court allows EU supremacy
Czech Rep – tedn to have gone the other way and resisted supremacy
courts are most puissant branch of govt and like to consolidate power
a lot of these countries are post communist and had little independence they are loath to give it up again
The UK – parliamentary sovereignty.
UK created a body that could stand up to the king and reflect popular will
difficult to accept that EU is supreme.
constitutional law – there is continuing and self embracing parliamentary sovereignty
because parliament adopted European Communities Act this means what EU does reflects the will of Parliament
later parliaments are bound by earlier decisions
Factortame – they set aside act where it clashed with community law
fauburn – said ECA was a constitutional statute
sets out conditions for relationship between citizen and states
enlarges or diminishes constitutional rights
it is defined as a constitutional act on the basis of its contnet
other constitutional acts – magna carta, bill of rights, reform act, act of Union
if EU measure is repugnant to key right then a question would arise whether the Euro communities act is sufficient
will of Parliament does not necessarily conflict with EU supremacy
in Germany ECJ has been taken on.
there may be fundamental principles in other constitutional law
the European Communities Act did not contemplate the abrogation of UK law
we still based supremacy of EU on parliamentary sovereignty in HS 2 action plans case
there is a pattern.
the ECJ comes up with a novel concept in one case
it broadens it in more cases
state liability is set out in Francovich
broadened in brasserie du pecheur and factortame
state liability is uniform remedy for breaches of EU law
slap on the wrist. builds on argument that member states should not rely on their own wrongdoing
the ECJ cited van Gend en Loos and Costa v ENEL to say that states are bound in principle
It IS ecj ‘S role to protect individuals
state liability applies especially to directive
s states have especial responsibility for this
Francovich we rely on effet utile. we rely on provision on treaty
altered in brasserie du pecheur
state liability relies on
the EEC can be held liable for breaches of its obligations
state liability arises from extending EU liability to member states
that is drawn from member states
rather than relying on provision of EC treaty
ECJ said to states we drew this line from your legal traditions
it is analogous to breaching one’s own obligations
brasserie du pecheur = it adapted conditions for state liability to apply
it applies where the directive or instrument was intended to confer rights on individuals, direct link between breach and damage – the damage must be serious
similar to van Gend
level of discretion is v similar to Costa
it builds on those two cases
.most cases come from 60s and 70s
the EU has expanded into social fields in Maastricht and Lisbon
HS2 case from 2007
the EU has more members. all of these provisions
the final question. why has the ECJ been able to do this?
some suggestions. based reasoning on traditions of member states
v broad ambit. difficult to argue against
EU expanding functions
she propagandises for the EU because people want it to do this