Key features of judicial precedent

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.