European Law

The European Union (EU) currently comprises 27 European countries. The original members- France, Germany, Belgium, Luxembourg, Italy, and the Netherlands- laid the foundation in 1951, when they created the European coal and steel community(ECSC). Six years later, they signed the Treaty of Rome, creation the European Economic Community (EEC) and the European atomic Energy Community (Euratom).

In 1993 the Maastricht treaty renamed the European Economic Community the European Community and also created the European community has now be totally replaced by the European Union.

Sources of EU Community law:

The primary sources of EU law are the treaties, as amended secondary legislation is law made by the EU institutions, and includes the interpretation of both primary and secondary sources by the European court of Justice (ECJ).[1]

Primary sources

These include 'the original EEC ( the Treaty of Rome 1957) and it’s protocols, which gave been amended by the following later treaties: Merger Treaty 1965, Acts of Accession (1972, 1979, 1985), Budgetary Treaties 1970, 1975, Single European Act 1986, Treaty on European Union (Maastricht) 1992, Treaty on European Union (Amsterdam) 1997, Treaty of Nice 2000 and treaty of Lisbon 2007.[2]

Secondary sources

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States (Art 288, para 2 TFEU).

 A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods (Art 288, para 3 TFEU).

 A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only upon them (Art 288, para 4 TFEU).

 Recommendations and opinions shall have no binding force (Art 288, para 5 TFEU). Article 288 TFEU provides that regulations, directives and decisions are ‘binding’ and are therefore legally enforceable. In contrast, Art 288 provides that recommendations and opinions have ‘no binding force’ and are therefore not legally enforceable. The former three legally enforceable measures will be considered below, whereas the latter two will be considered in the section entitled ‘Soft law’.[3]

The institution of the European Union

The European Union is more than just a confederation of countries, but it is not a federal state. It is, in fact, a new type of structure that does not fall into any traditional legal category. Its political system is historically unique and has been constantly evolving over more than 50 years. There are six key European institutions: the commission, the council of ministers, the European council, the European Parliament of the European Union, the court of justice and the European central bank. Each o the institution will be considered in turn.[4]

The commission

The commission is composed of 27 members, called commissioners, who are each appointed by the member states, called commissioners, who are each appointed by the member states, subject to approval by the European parliament, for five years.[5] Since 2004, the Commission has been made up of one Commissioner from each member state. The Commission enjoys a substantial degree of independence in exercising its powers. Its job is to uphold the common interest, which means that it must not take instructions from any national EU government. As ‘Guardian of the Treaties’, it has to ensure that the regulations and directives adopted by the Council and Parliament are being implemented in the member states. If they are not, the Commission can take the offending party to the Court of Justice to oblige it to comply with EU law. As the EU’s executive arm, the Commission implements the decisions taken by the Council in areas such as the common agricultural policy. It has wide powers to manage the EU’s common policies, such as research and technology, overseas aid, regional development, etc. It also manages the budget for these policies. The Commission is assisted by a civil service made up of 46 directorates-general (DGs) and services, which are mainly based in Brussels and Luxembourg.

European Council

The Council of the European Union (also known as the Council of Ministers) is the EU’s main decision-making body. The EU member states take it in turns to hold the Council Presidency for a six-month period. Every Council meeting is attended by one minister from each EU country. Which ministers attend a meeting depends on which topic is on the agenda: foreign affairs, agriculture, industry, transport, the environment, etc. The Council has legislative power, which it shares with the European Parliament under the ‘co-decision procedure’. In addition to this, the Council and the Parliament share equal responsibility for adopting the EU budget. The Council also concludes international agreements that have been negotiated by the Commission. According to the Treaties, the Council has to take its decisions either by a simple majority vote, a ‘qualified majority’ vote or unanimously, depending on the subject to be decided. The Council has to agree unanimously on important questions such as amending the Treaties, launching a new common policy or allowing a new country to join the Union. In most other cases, qualified majority voting is used. This means that a Council decision is adopted if a specified minimum number of votes are cast in its favour. The number of votes allocated to each EU country roughly reflects the size of its population.[6]

The council of minister

The Council of Ministers represents in interests of individual members states. It is a very powerful body in Europe and plays an important role in the passing of legislation. It does not have a permanent membership- in each meeting the members, one from each country, are national government ministers chosen according to the subject under discussion.

The European parliament

Member of the parliament were initially delegates designated by the parliaments of member states. In constitutional terms, the delegates had a dual mandate: that of membership of both the domestic and European parliaments. The Treaty, however, envisaged that the parliament should be directly elected by people. The first direct elections to the European parliaments took place in 1997. The European parliament agreed to end the dual mandate for elected representatives with effect 2004.[7]

Other institutions and bodies of European Union

The Court of Justice

The Court of Justice of the European Communities, located in Luxembourg, is made up of one judge from each EU country, assisted by eight advocates-general. They are appointed by joint agreement of the governments of the member states for a renewable term of six years. Their independence is guaranteed. The Court’s role is to ensure that EU law is complied with, and that the Treaties are correctly interpreted and applied.[8]

 The Court of Auditors

The Court of Auditors in Luxembourg was established in 1975. It has one member from each EU country, appointed for a term of six years by agreement between the member states following consultation of the European Parliament. It checks that all the European Union’s revenue has been received and all its expenditure incurred in a lawful and regular manner and that the EU budget has been managed soundly.

The European Economic and Social Committee

When taking decisions in a number of policy areas, the Council and Commission consult the European Economic and Social Committee (EESC). Its members represent the various economic and social interest groups that collectively make up ‘organised civil society’, and are appointed by the Council for a four-year term.[9]

The Committee of the Regions

The Committee of the Regions (CoR) was established under the Treaty on European Union and consists of representatives of regional and local government proposed by the member states and appointed by the Council for a four-year term. Under the Treaty, the Council and Commission must consult the CoR on matters of relevance to the regions, and it may also issue opinions on its own initiative.

The European Investment Bank

The European Investment Bank (EIB), based in Luxembourg, provides loans and guarantees to help the EU’s less developed regions and to help make businesses more competitive.

The European Central Bank

The European Central Bank (ECB), based in Frankfurt, is responsible for managing the euro and the EU’s monetary policy (see Chapter 7 ‘Economic and monetary union (EMU) and the euro’).

Distinguish between ECJ and ECHR

The ECJ has the task of supervising the uniform application of EU law throughout the member states, and in so doing it can create case law. It is important not to confuse it with the European court of Human Rights, which deals with alleged breaches human rights by countries who are signatories to European convention on human right.[10] They are completely separate bodies. Both decide on issues of law arising out of the treaties that set them up. The European Court of Justice decides issues of law arising out of the treaties that set up the European Union, and interpretation of laws made by the other bodies set up under those treaties, being the European Commission and the European Parliament. The European Court of Human Rights was set up by the European Convention on Human Rights, and decides whether or not a state's actions breach the rights set down in the Convention. The court of human rights deals with cases where people think that their basic human rights are being infringed such as fighting deportation to countries that use torture or have a death penalty which are illegal in the EU to things as little as being allowed to use Latin in school lessons. On the other hand The Court of Justice interprets EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between EU governments and EU institutions. Individuals, companies or organizations can also bring cases before the Court if they feel their rights have been infringed by an EU institution.

The Advantages and disadvantages of incorporating HRA 1998 into UK law

 Advantages:

• Improved access: UK citizens are now able to enforce their rights under the convention directly before law.
• Remedies: the remedies available from the European Court of Human rights are inadequate. The national courts are able to provide quicker and more effective remedies.
• Tried and tested: the ECHR has been tried and tested over the last 30 years. Privy Council has also developed case law in relation similar which were often drafted with the convention in mind.
• Avoid conflict between domestic and international law: problems with the current arrangements were highlighted by recent litigation. Now under ss. 2 and 3 of the human rights Act 1998 a court would be able to take into account the Strasbourg jurisprudence and interpret relevant legislation in a way which is compatible with convention rights so far as it is possible to do so.
• Encouraging conformity: incorporation has reduced the problem of bringing domestic law into line with the ECHR. The courts are contributing to this process in every case where a conflict arises between the convention and domestic law.
• International image: it is not good for the UK image abroad frequently to be found in error by a ‘foreign’ court, as has been many times.
• Education: the ECHR sets out for citizens, Government and the judiciary the basic rights and freedom we are all entitled to expect. This should lead to better awareness by citizens of their legal rights, and to legislation and judicial decisions which take those rights as their starting point, rather than just of many things to be considered.

Disadvantages:

• Judicial power: the government has been unhappy with some of the decisions handed down by the judges relying on the Human Rights Act, Which undermine its national policies.

• Legal status: incorporation of the ECHR would have had more impact if it had been entrenched any legislation which did not comply with it would have been struck down by the courts.
• Limited scope:  the Convention is probably only enforceable against the state not against private individuals. This in not the case, for example, in relation to the rights provided under the new Constitution in South Africa.
• Drafting style: The ECHR follows the more general, looser European style of legislative style of legislative drafting in contrast to the more tightly worded legislation our courts are used to applying though, as EU has grown in importance, British courts are gaining more experience this approach.

Finally it can be said that the domestic courts of member states are under a duty to apply and give effect to EU law to ensure that it has supremacy over domestic law. In doing so the courts act in a form of partnership with the court of justice of the European Union, In order that EU law is given priority over incompatible national law.

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[1] Administrative and constitutional law By Barnett, H (9^th ed P,174)

[2] Administrative and constitutional law By Barnett, H (9^th ed P,151)

[3] English legal system by Elliott,C & Quinn, F (11^th p, 105, 106)

[4] English legal system by Elliott,C & Quinn, F (11^th p, 94)

[5] English legal system by Elliott,C & Quinn, F (11^th p, 94)

[6] http://europa.eu/abc/12lessons/lesson_4/index_en.htm

[7] Administrative and constitutional law By Barnett, H (9^th ed P,159)

[8] English legal system by Elliott,C & Quinn, F (11^th p, 96)

[9] Administrative and constitutional law By Barnett, H (9^th ed P,164)

[10] English legal system by Elliott,C & Quinn, F (11^th p, 97, 301), Administrative and constitutional law By Barnett, H (9^th ed P,165, 169)