Application of european law by English courts

International and foreign sources of law in England :EU law:

It’s important in English law because the UK is part of the EU since the 1973. The same year, Ireland and Denmark joined also the European Communities. This was made possible through the European Communities Act of 1972which enable the joining of the European Communities.

It has changed some of his basis legal principles.

A) Source of EU law:

1) The treaties:

TEU: Maastricht treaty (1992), the articles of this treatyorganizes the organs of the EU. There was the last modification in December 2009 with the Lisbon treaty.

TFEU: which enables EU law to be produced (traité de Rome).

Charter of Fundamental Rights: this is a treaty which state fundamental rights which was adopted in December 2000 but this charter didn’t have any binding legal force at the beginning, it was just a text. That changed in December 2009 when the TEU was adopted because section 6 at the article 6 of TEU provides that the Union recognizes the rights, freedoms and principles set out in the charter of fundamental rights. And article 6 says also that charter will have the same legal value as the treaties.

Both texts (CEDH and CFR) are sharing the same interest and share a number of provisions and there is a wish of consistency. Article 52 of the charter provides that in so far as this charter contains rights which correspond to rights guaranteed by the convention, then the meaning and scope of these rights shall be the same as lay down by the charter. Whenever the rights set out in the convention and in the charter the… there is a wish of a number states to say that if we recognize the same rights they should have the same meaning. It’s the primary legislation.

2) Secondary legislation:

  • Regulations: (règlements)
  • Directives: they aren’t applicable in the number states but they should be incorporated in the national legal system of each state.
  • Decisions: they concern only individuals or a category of individuals.
  • Recommendations and opinions (avis): they don’t have binding force.

We may say that when states undertake their obligation to incorporate to their own legal system this act undermines Parliamentary sovereignty. Some offers have a spoken about the..of parliamentary sovereignty.

B) Application of EU law by English courts:

A major part of EU law is applied by national courts.

1) Direct effect and direct applicability:

We should distinguish both.

  • =>Directly applicability (no need to incorporate them): it doesn’t need to be incorporated into a national regulation, statute. Regulations and decisions are directly applicable. It becomes part of EU law without any incorporation.
  • => The direct effect is something different, it means that a provision of EU law create rights which are enforceable by a court of a member state. When a EU law has a direct effect, it creates a right for individuals and not only for the member states.

The national direct effect should be divided:

  • The direct effect place between the states and individuals =>vertical direct effect. Vertical direct effect when an individual may invoke that text against the state.
  • The direct effect may also be used along individuals. If a private individual has the right to invoke EU law against another individual then it is say that this act of EU law will have ahorizontal direct effect.

Regulations and decisions: direct effect vertical and horizontal.

=> The direct applicability and direct effect of EU law varies according to the type of legislation involved:

  • – Treaties: yes/yes
  • – Regulations: yes/yes
  • – Decisions: yes/yes
  • – Directives: No/?

Direct effect of directives?

The court of justice decided that a directive could have a direct effect but only in certain conditions.

Vertical effect if:

  • – A directive may have a direct effect if the state hasn’t implemented the directive in the specific period of time.
  • If a directive is clear enough and if it’s unconditional, it’s only individuals against a state or public entity but not private entity.

This has been decided in a famous case which implied a British citizen in the Van Duyn v Home Office (ECJ, 1974): it was Ms. Van Duyn who wanted to enter into the British territory but has been refused the right to enter in the UK. She was a member of the scientologist. She protested and she argued that this refusal to enter into the territory was contrary to the treaty of Rome and the government responded that the treaty of Rome allowed some exceptions on public policy grounds. The government justified his refusing that she belong his group of scientologist. She replied that a directive which hasn’t been implemented in UK, a directive says that refusal of entering in territory should be justify on individual ground.The government should be justifying the reasons. The case was referred to the European Court of Justice (ECJ) and the ECJ says that Ms. Van Duyn has right when she rely on the directive even the directive hasn’t been implemented because the directive is clear enough and unconditional. It gave rights to this doctrine that a directive may have a direct effect but only a vertical effect.

2) Supremacy of EU law:

The principle of supremacy of EU law is not explicitly stated in the treaties but it has been pronounced by the courts, by the ECJ.

  • Van Gend en Loos (ECJ, 1963): in that case ECJ stated that EU law was distinguishing from international law. EU law is an autonomous legal order.
  • Costa v ENEL (ECJ, 1964): conflict between Italian la and EU law. In that case the court stated that (moodle).
  • International Handelgesellschaft (sociétécommerciale) (ECJ, 1970): even if there is a conflict between German law and EU law, then EU law prevails even if it’s primary or secondary legislation.

These cases undermine Parliamentary sovereignty. The Parliament may do whatever act the only thing that the parliament may not do is to bind the ends of future parliament.

English jurisdictions should apply EU law when there is a conflict with a provision of a statute or an English regulation. Whenever there is a conflict between English laws, even the English courts should apply EU law and not national legislation because the act adopted by the parliament will not be applied.

English courts have the authorization not to apply English law.

R v Secretary of State for Transport, ex parte Factor tame: Spanish fisherman argued that a law enact that has been adopted by the parliament; the merchant shipping act was contrary to EU law. There was a conflict between the merchant shipping act 1988 and EU law.

C) Supervisory role of the European Court of Justice :

National judges are the one who apply the EU law. With 28 number states there is a risk that EU law may be interpreted in 28 different mines. It’s a wish for the very beginning to create the European Court of Justice in order to uniform to say what the interpretation of EU law should be.

The ECJ may give his opinion to how interpreted the EU Law.

Need of uniform interpretation:

Art 267 TFEU: procedure. Concerning the interpretation of the treaties there is preliminary rulings (questions préjudicielles).

Courts have the obligation to refer a question before the ECJ. Before the lower courts they have a choice when judges ask themselves but when they really should refer of the ECJ.

When should lower courts refer a preliminary question?

=>Bulmer V Bollinger (CA, 1974): the court of appeal through the voice of Lord Denning gave the principle of the abidance when courts should may references to the ECJ. When they have to take into account the expenses and the delay that have a consequence of such preliminary ruling and Lord Denning says thatcourt should refer a question when it’s a question really difficult and important.

It undermines authority of superior courts, the doctrine of binding precedent. Even the Supreme Court may refer, shall refer the question of application to the European Court of Justice the decisions should be applied and are binding on the English courts. The doctrine of binding precedent is affected by the fact that English courts should apply the principles of EU law and not the binding precedent.