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Legal System | Law Making

EU Legislation: Introduction

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  • UK signed the Treaty of Rome 1957 in 1972
  • became a member of the European Economic Community (EEC) on 1 January 1973
  • EEC has now e the European Union (EU)
  • to avoid Parliament having to legislate to incorporate each piece of EU legislation into English law the European Communities Act 1972 was passed

    European Communities Act 1972

    • Section 2(1): .. All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or 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...
    • Section 2(4): .. 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; but, except as may be provided by any Act passed after this Act...
  • EU law often in relation to commercial and consumer law, employment law, freedom of movement and the environment

Executive and Legislature

  • policy is guided by Brussels based Council of Europe and European Commission
  • Council of Europe: comprised of Ministers from the member States and often called Council of Ministers
  • European Commission: central executive, amembers are nominated by the Governments of member States
  • European Parliament: made up of MEPs, directly elected by residents of the member States
  • EU Parliament can veto legislation in some areas and role in law making process is increasing

Primary Legislation

  • EU foundational treaties are primary legislation and binding on member States
  • cannot be challenged in national courts or Court of Justice of the European Union

    Reform Treaty 2007

    • known as Lisbon Treaty
    • renames the EC Treaty (Treaty of Rome 1957) as the Treaty on the Functioning of the European Union(TFEU)
    • UK has ratified the Treaty and passed European Union (Amendment) Act 2008

Secondary Legislation

  • regulations and directives are two types of secondary EU legislation
  • Regulations

  • regulations are directly applicable
  • have legal force in a member State without the need for further specific domestic legislation

    Treaty on the Functioning of the European Union

    • Article 288: .. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States...
    • previously EC Treaty Article 249
  • Directives

  • directives are not directly applicable
  • implemented in the UK by specific domestic legislation, usually a time limit for implementation imposed

    Treaty on the Functioning of the European Union

    • Article 288: .. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods...
    • previously EC Treaty Article 249
  • often passed by statutory instrument or an Order in Council, so as subordinate legislation subject to judicial review
  • directives can have direct effect

    Van Duyn v Home Office [1974]

    • D, Home Office refused C, Miss Van Duyn leave to enter the UK on grounds of her undesirability she was a practising Scientologist and a Dutch national
    • C attempted to rely on a directive which allowed free movement of workers in the EU
    • ECJ held individuals should be able to rely on directives in national courts
    • otherwise usefulness of a directive was weakened
    • directive could have direct effect
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