Effect of membership of the EU on English law and the benefits the the UK

EFFECT OF MEMBERSHIP OF THE EU ON ENGLISH LAW

 

·         EU Membership brings with it new SOURCES of law – treaties, regulations and directives.

·         EU law takes precedence over national law. (Van Gend en Loos (1963) & Costa v ENEL (1964) – “the member states have limited their soverign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves”

·         MS’s including Britain have transferred sovereign rights to a Community created by them. None of the MS’s can rely on their own law when it is in conflict with EU law.

·         Acts of Parliament will be declared Void by the courts if they conflict with EU law. R v Secretary of State for Transport ex parte Factortame – where the ECJ decided that Britain could not enforce the Merchant Shipping Act 1988 because it contravened the Treaty.

·         Change in the role of the courts – interpretation is purposive and they can seek guidance from the ECJ under Article 234

·         ECJ approach to those who fail to implement European obligations – Brasserie du Pecheur SA v Federation of Republic of Germany (1996) – Government liable for the financial loss suffered as a result of their breach of EU law. Compensation available where:

o   The rule of community law infringes must be intended to confer rights on individuals

o   The breach must be sufficiently serious

o   There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.

 

BENEFITS OF EU MEMBERSHIP TO ENGLISH LAW

·         Increase power in the judiciary – they now have greater freedom regarding the interpretation of statutes as they are adopting the purposive approach.

·         Certain groups are benefited – females, part time workers and employees for example

·         Lord Denning is of the view that the supremacy of Europe will only be accepted by the courts until Parliament passes an Act to repudiate the treaties – R v Secretary of state for transport ex parte Factortame.

·         Article 234 referrals make it possible for there to be clear guidance from the ECJ to all courts and tribunals.

·         The UK still doesn’t operate on an EU legal framework – the judge as an activist/inquisitor and a greater reliance on statute.

European law cases

VAN GEND EN LOOS(1963) and COSTA v ENEL (1964)  European law takes precedence over national law. The Van Gend case was a Dutch case that involved a conflict between Dutch and EEC law over custom duties.

COSTA v ENEL (1964)

In this case it was argued that the Italian courts were obliged to follow domestic law which conflicted with European Law. However, the ECJ held that “the member states have limited their sovereign rights…and have created a body of law which binds the nationals and themselves.”

FACTORTAME cases (1990-2000)

This case involved Spanish Fishermen operating in UK waters. The Thatcher Government introduced legislation to limit such fishing to UK companies. It was held in this case that a state is liable to compensate for breaches of Community Law ñ this involved Spanish Fishermen and the Merchant Shipping Act 1988.  This case emphasises that EU law is supreme over domestic laws. 

It was held here that the Merchant Shipping Act 1988 contravened Treaty provisions regarding discrimination on nationality. The ECJ said that joining the EU was voluntary and therefore the UK had chosen to limit their sovereign rights

 BULMER v BOLLINGER (1974)

The treaty is like an incoming tide. It flows up the estuaries and up the rivers. It cannot be held back.