The Impact of Different Sources of EU Law on the UK

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Executive Summary The purpose of this paper is to evaluate the impact which the different sources of European Union law has had on the law of the United Kingdom. The general conclusion regarding the inculcation of the United Kingdom into the European Union is that it has brought about considerable effects and changes to the legal framework of the country. The sources of the European Union law could be classified as primary law, secondary law and supplementary law. The impact of these different sources is most felt through the direct applicability of European Union law, above the will of the Parliament, in the United Kingdom. Moreover, the English courts now issue declarations of incompatibility where they hold the relevant United Kingdom laws to be discordant with the purposes of the European Union. Also, the effect of European Union law has affected the way rights are accorded to the citizens of the country. Introduction The European Union is an economic and political partnership between 28 or so European countries (Europa.eu, n.d.), where it seeks to protect and integrate the political, economic and military interests of the continent in a wholesome manner. The law of the European Union primarily refers to elements such as the laws found in treaties, laws enacted and the judicial decisions of the Court of Justice of the European Union, amongst other Union courts (Borchardt, 2010). The laws emerging from these sources are treated as if they were codified – they are accorded immense respect in the member States such the United Kingdom. Indeed, where there exists a conflict between the laws of the European Union and those of the Member States, the former is accorded primacy over the latter by default (Mayer, 2005) . Therefore, this paper seeks to analyse some of the effects which the sources of European Union law have had on the legal framework of the United Kingdom. In order to do so, the paper would firstly seek to analyse the different sources of European Union law. The next section would enumerate on how these sources, either individually or collectively, have impacted on the English legal framework. The paper’s summary conclusion is that the principal effect of European Union law is that of displacing Parliamentary will as supreme in the United Kingdom (Thompson and Gordon, 2014). Sources of European Union Law There are principally seven different sources of European Union law – namely, European Union treaties, secondary laws made under these treaties, non-legally enforceable instruments which aid the interpretation of Union law, treaties made between the Member States, international treaties entered into by the European Union, fundamental rights upon which the Union is grounded and the judicial decisions of the Court of Justice of the European Union (CJEU hereafter). However, it is possible to classify these sources into three main categories – primary law, secondary law and supplementary law (Reich, 2005). Primary law refers main to the treaties comprising the European Union, which are namely the Paris Treaty of 1951 and the Rome Treaty of 1957 (the founder treaties of the European Union) and the Treaty in Functioning of the European Union (TFEU hereafter). These treaties were formulated after considerable negotiations between the Member States and were subjected to ratification by national parliaments (Reich, 2005). These treaties seek to outline the role and duties of the Member States, the roles of Union institutions, and all other pertinent bodies involved in the functioning of the European Union (Alter, 1998). Primary law also comprises of law pertaining to the amendment of these treaties, protocols annexed to these treaties and the treaties entered into when new member countries accede to the European Union. In order facilitate proper functioning of the Union, treaties set expansive policy goals and then inaugurate institutions which play a principal role in ensuring that these policy goals are met via corresponding legislation. These legislations are broadly classified as either directives or regulations (Snyder, 2000). Regulations are directly applicable in every single Member States of the European Union, without requiring any implementing legislations from the part of the Member States. They automatically supersede all domestic legislations which conflict the regulation (Snyder, 2000). Directives, as opposed to Regulations, require the Member States to produce the purported effect of the Directive, but leave the Member States at liberty to formulate the best possible way to achieve this outcome. Secondary law pertains mainly to the unilateral acts and agreements signed by Member States in order to govern their activity in producing a pre-conceived outcome. Unilateral acts refer to a broad umbrella, referring to decisions, regulations, recommendations, opinions and directives (Treaty of Lisbon, 2009, Art. 288). While these are listed under Article 288 of the Treaty of Lisbon, other unlisted unilateral acts refer to recommendations, white papers and communications. They also refer to the international agreements/treaties entered into by the European Union, agreements undertaken between Member States and inter-institutional agreements existing between the institutions of the European Union (Aziz, 2004). Finally, the third group of sources of European Union law is supplementary law. This primarily refers to the uncodified/unwritten rules of law developed by the judicial decisions of the CJEU. The court is given the duty of interpreting the European Union laws in such a manner that they are applied similarly in all of the Member States. Thus, the CJEU’s decisions serve as a bridge between primary and secondary laws. The principles established by the CJEU permits the court therefore to implement rules from different domains (Garrett, Kelemen and Schulz, 1998). Supplementary law could also include international legal tenets and customary international law principles. Moreover, supplementary law includes the fundamental rights which the European Union is based – these include human rights, criminal law as founded within the legal frameworks of Member States, competition law (Snyder, 2000) and fundamental freedoms such as the free movement of capital, free movement of goods, free movement of people and free movement of services (Dinan, 2005). Competition law pertains to the control of economic activities between the Member States, in order to avoid certain powerful Member States from distorting the economic regulations and rules. Competition law therefore regulates activities such as mergers and acquisitions, monopolistic/oligopolistic anti-competitive measures undertaken in Member States and regulation of the public sectors (Rose and Bailey, 2013). Similarly, one of the fundamental rights (also pertinent to the cause of this paper) protected under the garb of supplementary law is the provision that men and women need to be accorded equal treatment in all of the Member States. This anti-discriminative provision seeks to ensure that gender-based biases do not disadvantage the opportunities and rights given to women at workplaces (Horspool and Humphreys, 2014). Thus, given that these rights are a source of European Union law, they give citizens of Member States the right to sue the organisation/government which is responsible for the discriminatory measure, under the context of violation of human rights. The only prerequisite is that the corporation needs to be situated in one of the Member States of the Union. Therefore, it could be gathered, from an analysis of the sources of European Union law that they operate on a principle of supremacy. The European Union laws are accorded precedence over national laws insofar as the latter’s provisions are inconsistent with the former. Hence, it is clear that the principal effect of the sources of European Union law mentioned above is that they dominate the legal frameworks of Member States, which includes the United Kingdom. Effect on United Kingdom Laws The United Kingdom enacted the European Communities Act 1972 in order to incorporate the aforementioned sources of law into the legal framework of the United Kingdom. Despite the sources of European Union law, it is important to note that they are permitted to have the effects to be mentioned below solely owing to the enactment of this Act – without this Act, the local governmental/judicial bodies would be under no obligation to let European Union law affect United Kingdom law. The first effect of European Union law on the laws of the United Kingdom is the supremacy accorded to the laws of the former. As per the constitutional practices of the United Kingdom, the parliament is ranked supreme, whereby it serves as the most potent legislative authority (Eleftheriadis, 2009). This means that, unlike in the United States, no domestic courts could override the law-making authority of the Parliament. The Parliament can make and unmake any laws as it deems fit, and no Parliament can enact a law in such a manner that it can bind future parliaments. Yet, the sources of European Union law have altered this position. As per the Treaty of Rome, the primary provisions of the European Union founding treaties apply to all Member States, including the United Kingdom. This means that the European Union law reigns supreme over the will of the Parliament in the United Kingdom, thereby fundamentally altering the legal framework of the United Kingdom (Loveland, 1996). As a result of this, the United Kingdom courts may even disapply certain domestic legislations where they do not complement Union provisions. Evidence for this is found in the ambits of the European Communities Act 1972 itself, whereby section two clearly outlines that legislation, be it enacted before or after the foundation of the European Union, must be interpreted in a manner consistent with the European Union provisions. In R v Secretary of State for Transport ex parte Factortame ([1990] UKHL 7), the House of Lords held unambiguously that the judiciary of the United Kingdom are under a legal obligation now to apply directly applicable Union law, even if it is inconsistent with domestic law. In this case, the House of Lords had to declare certain provisions of the Merchant Shipping Act 1988 as invalid for this purpose. Therefore, it is inadvertently clear that the sources of the European Union law have had the effect of making the domestic provisions and law-making powers of the Parliament in the United Kingdom less potent. This issue was principally settled in the landmark case of Costa v ENEL ([1964] ECR 585 (6/64)). It is worth noting that this principle applies even in instances where the domestic law in question is penal in nature (as per Publico Ministero v Ratti [1979] ECR 1629, C-148/78). Secondly, the other main way the sources of European Union law affect the British legal framework is the way in which the fundamental rights are applied in the domestic context, attempting to undo all forms of discrimination faced by women at the workplace. A case-in-point is that Union law demands that male and female workers are treated equally at workplaces (as per Equal Treatment Directive 76/207/EEC). On this point, the House of Lords held that provisions of the Employment Protection (Consolidation) Act 1978 were deemed to be incompatible with this tenet of Union law (R v Secretary of State for Employment ex parte Equal Opportunities Commission [2000] UKHL 12). This is because the Act accorded less rights to part-time workers as compared to full-time workers – the problem being that most part-time workers were bound to be women. Hence, owing to the sources of European Union law, these provisions were struck down. It is therefore clear that another way in which the sources of European Union law affects the domestic legal framework is that it accords special rights to its citizens, whereby the Union law deems that all Union citizens ought to enjoy such rights. This has the effect of disengaging from the personal direction of the domestic law and inculcating the rights nevertheless the prevailing culture in the country. Conclusion In summary, this paper has established that there are seven main sources of European Union law, whereby these could be classified as primary law, secondary law and supplementary law. Moreover, the paper has evidenced that there are two main changes effected by these sources on the legal framework of the United Kingdom - they have superseded parliamentary supremacy and inculcated fundamental rights to citizens despite their domestic legal framework. Bibliography Table of Cases Costa v ENEL [1964] ECR 585 (6/64) Publico Ministero v Ratti [1979] ECR 1629, C-148/78 R v Secretary of State for Employment ex parte Equal Opportunities Commission [2000] UKHL 12 R v Secretary of State for Transport ex parte Factortame [1990] UKHL 7 Table of Legislation and Treaties Equal Treatment Directive 76/207/EEC Employment Protection (Consolidation) Act 1978 European Communities Act 1972 Merchant Shipping Act 1988 Treaty of Lisbon 2009 Treaty of Paris 1951 Treaty of Rome 1957. Other Sources Alter, K. J. 1998. Who are the “Masters of the Treaty”? European Governments and European Court of Justice. International Organization, 52(1), pp. 121-147 Aziz, M. 2004. Mainstreaming the duty of clarity and transparency as part of good administrative practice in the EU. European Law Journal, 10(3), pp. 282-295 Borchardt, K.D. 2010. The ABC of European Union Law. Europa.eu, [online] available at: < http://europa.eu/documentation/legislation/pdf/oa8107147_en.pdf> [Accessed: 23 June 2015] Dinan, D. 2005. Ever Closer Union: An Introduction to European Integration. 3rd ed. Boulder: Lynne Rienner Eleftheriadis, P. 2009. Parliamentary Sovereignty and the Constitution. Canadian Journal of Law and Jurisprudence, 2, pp. 1-24 Europa.eu. N.d. How the EU works. [online] Available from: < http://europa.eu/about-eu/index_en.htm> [Accessed: 23 June 2015] Garrett, G., Kelemen, R. D. and Schulz, Heiner. 1998. The European Court of Justice, National Governments, and Legal Integration in the European Union. International Organization, 52(1), pp. 149-176 Horspool, M. and Humphreys, M. 2014. European Union Law. 8th ed. Oxford: Oxford University Press. Loveland, I. 1996. Parliamentary Sovereignty and the European Community. The Unfinished Revolution? Parliamentary Affairs, 68(3), pp. 517-535 Mayer, F. C. 2005. Supremacy – Lost? Comment on Roman Kwiecien. German Law Journal, 6(11), pp. 1497-1506 Reich, N. 2005. The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union. European Law Journal, 11(6), pp. 675-698 Rose, V. and Bailey, D. 2013. Bellamy and Child: European Union Law of Competition. 7th ed. Oxford: Oxford University Press Snyder, F. 2000. The Europeanisation of Law: The Legal Effects of European Integration. Oxford: Hart Publishing Thompson, B. and Gordon, M. 2014. Cases and Materials on Constitutional and Administrative Law. 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