Europe Law (Research Paper Sample)

Europe Law
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Introduction
The European Union (EU) was formed as a means to unite all of Europe, through economic and political systems to enhance a free market of goods, services, currency and people. In present day, the EU works by means of law, in that the member states are united by the rule of law and it is essentially a community founded on law. Member states of the EU are considered sovereign nations, although collectively they come under EU authority as a means of instituting world influence.
The EU is comprised of various institutions each performing different functions. These institutions are:- European Council, European Parliament, European Commission, Council of the European Union and the Court of Justice of the European Union. The European Council lays down the general procedures for EU policies and is comprised of the heads of states of member countries. The European Parliament is directly elected by European Union citizens and approves proposed laws and evaluates the EU budget. The European Commission is comprised of independent members, one from each of the member states and puts forward legislation for approval by the European Parliament. The Council of the European Union decides EU laws. The Court of Justice of the European Union, comprised of 3 courts-Courts of Justice, General Court and Civil Service Tribunal- uphold EU law, rule on how to interpret EU law and ascertain that laws are applicable in the same manner in all member states.[‘Europa’ http://curia.europa.eu/. Accessed 26th March 2013.] [Court of Justice of the European Union. http://europa.eu/about-eu/institutions-bodies/court-justice/. Retrieved on 26th March 2013.]
Considering the basis of the EU, it is necessary to examine the sources of Union law. The legal sources of EU can be categorised into two; primary sources and secondary sources. Primary sources are found in treaties, which form the founding principles on which the EU was formed. Treaties are considered directly applicable and include: the Treaty of Lisbon-The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union(TFEU), Treaty of Amsterdam, Treaty of Rome, Treaty on European Union, Single European Act (SEA). Secondary sources of Union Law arise from the terms of primary law, and augment them. They include directives, regulations and decisions. Directives are instructions given to member states which have to interpret them to become law; regulations have direct effect on all member states, and decisions are applicable only to those individuals and member states affected.[Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/01] [‘EU law and the balance of competences: A short guide and glossary.’ Foreign & Commonwealth Office /eu-law-and-the-balance-of-competences-a-short-guide-and-glossary. Accessed 19 March 2013.]
Considering the given situation, this discourse will attempt to answer the following questions;
Looking at all relevant sources of EU law can your client rely on any cause of action in the UK courts under EU law?
The United Kingdom joined the EU in January 1973 and signed the Treaty of Rome. EU law became effective in the UK by the European Communities Act 1972. Of importance here, are provisions set out in sections 2 and 3.[‘European Union Law’ /law/hamlyn/european.htm, Accessed 19th March 2013.]
Section 2(1) of the European Communities Act 1972 states:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies.
Section 2(2) provides a general power for further implementation of Community obligations by means of secondary legislation.
Section 2(4) of the European Communities Act 1972 states:
The provision that may be made under subsection (2) above includes, subject to schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section.
Section 3(1) of the European Communities Act 1972:
For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any court attached thereto).
Thus, section 2 shows that EU law should be seen as valid and binding to UK law. As long as EU law exists on certain subject, as long as it is laid down in the Treaties or in Regulations, it takes precedence over any conflicting UK law, even an Act of Parliament. With the UK being a dualist state, this aspect has been known to bring parliamentary sovereignty into question as witnessed in the Factortame cases. Considering the precedence set, the UK House of Lords decreed:[Factortame Ltd. vs. Secretary of State for Transport (No. 2) [1991] 1 AC 603. Lord Bridge also observedthat: "When decisions of the Court of justice have exposed areas of United Kingdom statute law whichfailed to implement Council directives, Parliament has always loyally accepted the obligation to makeappropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy rulesto rules of Community law in those areas to which they apply (…)”, P.P. Craig, G. de Búrca, op.cit., p. 309.D. Nicol (op.cit., p. 257-261) provides the evidence of considerable ignorance of the British MP’s on the implications of legal integration for the UK.] [Anthony G. UK Public Law and European Law (2002) p. 92]
If the supremacy (...) of Community law over the national law of Member States was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. (...) Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgement, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.
Another important decision made by the EU on the prioritization of EU law in certain areas over national law was Costa v ENEL in 1964. Of note, EU laws that are not directly applicable e.g. Directives should be interpreted in line with the aims of the EU legal order and the Union generally. This is to avoid subjective interpretation and ensures certain rights which would otherwise be endangered.[In Case 6/64 Flaminio Costa v ENEL [1964] ECR 585, Mr Costa filed an action against the nationalisation of electricity generation and distribution, and the consequent vesting of the business of the former electricity companies in ENEL, the new public corporation.]
In Article 4(3) of the TEU, it states:
Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.
Thus, member countries are expected to offer sincere cooperation in fulfilling the objectives of Union Law and UK courts are required to observe Union laws and implement them correctly.
In this case, Directive 2000/78/EC of the European Parliament and of the Council of 27 November 2000 provides a general framework on which the UK should implement this law. As noted, directives are not directly applicable to a member state, and the UK being dualist will require transposing it into its legal systems. This was accomplished through the Equality Act 2010. Article 288 TFEU states "A Directive shall be binding, as to the result to be achieved, upon each member state which it is addressed, but shall leave to the national authorities the choice of form and methods." Thus, Directives do not have to conform to other member states and the EU lets Member states determine its interpretation. Within the provision of Directive 2000/78/EC, it provides that ‘member states shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations [under this Directive] are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.’ This allows victims who feel discriminated against to exercise their rights. In this case, the client should be allowed to file a suit and bodies or legal entities that have a stake in this issue may take on the complaint in suitable judicial or administrative procedure.
Regulation 2010/666/EU (fictitious), with a legal base of Article 153(1) (a) TFEU (health...