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 treaty. 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
Both texts (CEDH and CFR) are sharing the same interest and share a number of provisions and there is . Article 52 of the charter provides that in so far as . Whenever the rights set out in the convention and in the charter the… . It’s the primary legislation.
2) Secondary legislation:
- – Regulations: (règlements)
- – Directives: they aren’t applicable in the number states but
- – Decisions: they concern or a category of individuals.
- – Recommendations and opinions (avis): .
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): . Regulations and decisions are directly applicable. It becomes part of EU law without any incorporation.
- => The direct effect is something different,
The national direct effect should be divided:
- – =>vertical direct effect.
- – 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
- – , 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.
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
- – 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,
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
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 (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 . When they have to take into account the expenses and the delay that have a consequence of such preliminary ruling and Lord Denning says that
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
- English legal system and difference with the civil law
- Distinction between Common law and equity
- Distinction between Common Law and statute law (written law)
- House of Lords, House of Commons and the parliamentary sovereignity
- The legislation : Source of English law
- Statutory interpretation
- Case Law and precedent in the English Legal System
- Stare decisis or the doctrine of binding precedent
- Judge-Made Law
- What is Equity in English Common Law Tradition ?
- Equity in the english legal system
- Custome Law and Soft Law
- Treaties : Ratification and Provisional Application
- Application of european law by English courts
- How does the European court of Human Rights affect the UK?
- Foreign Law in the English Courts : conflict of laws rule
- Lower courts : Magistrate’s courts, Crown court, county court
- High Court : Chancery and Queen’s Bench Division
- Supreme court and Court of appeal
- Lord Chancellor, lord Chief Justice (authorities of the judicial system)
- The independence of the judiciary in England and Wales
- Lawyers in the english legal system : Solicitors and Barristers
- English Law – English legal system