Sources of Law Exam Question -­‐ EU Law By Jade Pickett (March 2012) The Source refers to the EC Treaty. Briefly explain how the EC Treaty is part of UK law. [12] A treaty is an international agreement; an outcome of negotiation. It is a universal link between the 27 member states of the EU which outlines the rights and responsibilities which are settled, before the parliament scrutinises and approves it through the conventional legislative process and the head of state for each country signs it. The United Kingdom joined the European Union (formerly the European Economic Community) on the 1st of January 1973 under Prime Minister Edward Heath. The signing of the Treaty of Rome and the Treaty of Lisbon by Gordon Brown in 2007 has had huge influence, resulting in EU law becoming a primary source of law for the UK. The Treaty of Rome The Treaty of Rome was signed in 1957 by the six founding countries with the inclusion of Luxemburg, Italy, Germany, the Netherlands, France and Belgium. This created the European Economic Community and thus established four institutions; the Council of the European Union, the Commission, the European Parliament and the European Court of Justice. Article 192 of the treaty states that, despite the EU Parliament having no law-­‐making role or binding effect from their decisions, the affirmation of Parliament is crucial to any international arrangements the Union wishes to enter into. This demonstrates the relationship between the EU Parliament and UK law as there is a possibility that these arrangements become law and consequently influence UK law. Appling the Treaty of Rome What makes the treaty a primary source of UK law is its operation within various cases. The treaty outlines how a citizen of any member state can seek legal advice and rely directly on the treaty article that provides a right. Consequently, the treaty acts as a written constitution by which citizens may determine their rights from. An example of this is the case of Macarthys v Smith (1980), where Wendy Smith claimed she was a victim of sexism; she had been paid significantly less than preceding male employees who undertook the exact same work as she had previously done. British law stated that Smith was unable to take legal action against her employers (Macarthys) as she was not employed at the same time of the male employees. However, under EU law, her employer was in direct breech of the treaty (Article 157 of the TFEU) regarding the equal pay of men and women. Another example can be found in the case of Van Duyn v Home Office (1974). Here, the European Court of Justice stated that the right of freedom of movement could be relied upon under Article 45. The Article had direct effect and gave rights to individuals which could be enforced in all national courts as well as the European Court of Justice. These two cases demonstrates that the rights and laws expressed through European law has precedent over national law, giving each member state a degree of protection from the EU Commission and the European Court of Justice’s rulings. The EU has the power to issue regulations which are ‘binding in every respect and directly applicable in each Member State’ under Article 288 (TFEU), meaning that the regulations of the EU directly apply to the entirety of the EU states or individual member states without intervention of that specific state’s Parliament. The case of Re Tachographs: Commission v United Kingdom (1979) verifies this point of direct applicability on domestic law. The United Kingdom had refused to Jade Pickett March 2012 Page 1 enforce the fitting of tachographs (devices that record the length and time details of a journey in vehicles such as lorries) on large-­‐vehicles on the UK roads. However, the matter was referred to the European Court of Justice that held that the regulations expressed in Article 249 must be strictly and immediately implemented in all member states. In other words, the UK had no discretion over the regulations issued. The various cases discussed above show how the Treaty of Rome is a major part of UK law as the regulations from the EU automatically become law in the United Kingdom. There is no interference from their individual parliaments, and every citizen can utilize the rights set out in the treaty which allows them to rely on these rights as somewhat of an international constitutional system. The citizens can use these rights even if they do not qualify to rely on the law of their own nation. In the following situations, consider whether there is a need to make an Article 234 referral to the ECJ. (i)
Jacques, a French worker, has been denied entry to the UK. The House of Lords is considering his case. The case concerns free movement of workers under the EC Treaty. [5] The House of Lords should not make an Article 234 referral to the European Court of Justice regarding Jacques case of being denied entry to the UK that concerns the free movement of workers under the Treaty of Rome. In the case of Bulmer v Bollinger 1974, the Court of Appeal sets out firm guidelines of referral. It states that “there is no need to refer a question which has already been decided by the European Court of Justice in a previous case”. The Treaty of Rome has already established the right of free movement of workers itself, and the case of Van Duyn v Home Office 1974 also established the answer to the free movement of workers, where the European Court of Justice held that an individual is entitled to rely on Article 45 giving the right of free movement. Article 45 had direct effect and announced that the rights of a citizen could be enforced through both the ECJ and the national courts of each member state. Hence, the decision had previously been established which introduces another limitation on referral; “there is no need to refer a point which is reasonably clear and free from doubt; ‘acte clair’ doctrine”. Because the point is ‘acte clair’, from the prior decision, there is no need to refer Jacques case. (ii) Pam is paid less than male employees for doing the same work. She has brought an equal treatment claim against her employer. An Employment Appeals Tribunal is deciding the case. A reference to the ECJ in Macarthys Ltd v Smith (1980) concerned a similar issue. [5] Pam’s case concerns the right for all individuals in the EU to be subjected to equal rights and equal pay regardless of gender, sexuality etc. The regulations within the EU regarding equal pay are set out in Article 141, with concentration of equality based on gender stated in Section 3. “The Council shall adopt measures to ensure that the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.” Pam’s case has the potential to be viable in court and win against her employers in terms of regulations that the EU has implemented in terms of the inequality she experienced. The case of Macarthys v Smith 1980 involves details similar to that of Pam’s case. In the UK courts, Wendy Smith was refused appeal regarding her receiving lower pay to her male coefficients, due to the fact Jade Pickett March 2012 Page 2 that she was employed at a different time. However, when the case was taken to the ECJ, it confirmed that she was in breach of Article 157 over equal pay for men and women. In the case of Defrenne v SABENA 1976, Gabrielle Defrenne claimed that she was being paid significantly less than her fellow male airline stewards and took legal action against SABENA, a Belgian airline company. The case went to the ECJ due to there being no Belgian Acts of Parliament that prohibit gender discrimination, where Defrenne successfully managed to claim that Article 141 applied to her case. These cases highlight definite precedent through past decisions which would apply to Pam’s case, thus her case would not be referred to the ECJ as her point of law has already been established and it would breach the ‘acte clair’ doctrine whereby “there is no need to refer a point which is reasonably clear and free from doubt”. (ii)
Carla has brought a claim in an Employment Tribunal against her employer because they refuse to give her holiday entitlement as required under EC law. [5] Carla’s case involves a point of law that has already been decided in a large amount of cases. Therefore the case is acte clair and should not be referred to the ECJ. With this in mind, Carla would have been able to rely on the directive Working Time Regulation 1998 which presented in depth information on the maximum number of working hours, rest period and the amount of paid holiday that employees are entitled to. Previous to Carla’s case, there was the case of Gibson v East Riding of Yorkshire Council 1999, whereby Mrs Gibson was employed as a swimming instructor but did not receive paid holidays. She took action against her employers under breach of Article 7 and the Employment Tribunal held that Gibson was entitled to four weeks paid holiday annually under the Working Time directive and that her employers could not rely on the fact that the state had failed to implement the directive. Although this case displays precedent to Carla’s case, the details are dissimilar and therefore it is left to the discretion of the Supreme Court as to whether Carla’s case is referred to the ECJ. (c) Lord Denning in the Source discusses the effect of membership of the European Union on English Law. (i) Describe the effect of European membership on English law using cases to illustrate. [15] The aim of the UK joining the EEC in 1973 was to become a European member state in order to abolish restrictions on the trade of goods and the movement of people and money. By joining, the member states are agreeing to abide to all EU treaties, regulations and directives implemented. The EU therefore has reigning sovereignty over the UK, in terms of laws and public policy. Treaties The European Communities Act 1974 ruled that all treaties signed by the Prime Minister after being fully debated by Parliament are to become English law immediately; “Treaties are without further enactment to be given legal effect”. Not only do treaties substantially effect English law, but they also allow English citizens to rely on the EU for their rights should they feel that their rights have been breached. The case of Macarthys v Smith (1980) is an example, where Mrs Smith claimed she had been paid significantly less than preceding male employees who did the same work that she had done. Under English law, Smith was unable to take legal action against her employers (Macarthys) as she was not employed at the same time of the male employees. Under EU law, Jade Pickett March 2012 Page 3 however, her employer was in direct breech of the treaty (Article 157 of the TFEU) regarding the equal pay of men and women. This case is evidence that being a member of the EU has direct effect on English law in terms of relying on the rights set out in the treaties, even though these rights may not be specifically enacted in English law. Regulations The regulations issued by the European Union under Article 288 (TFEU) are “binding in every respect and directly applicable to each member state”, meaning that any regulations automatically become part of English law and thus demonstrating the effect that EU law has on English law. The case of Re Tachographs: Commission v United Kingdom (1979) verifies this point of direct applicability on English law. The United Kingdom had refused to enforce the fitting of a tachograph onto large-­‐vehicles. However, European Court of Justice that held that the regulations expressed in Article 249 must be implemented in all member states. In other words, the UK had no discretion over the regulations issued. This case therefore confirms that there is a direct link between EU membership and English law as member states must enact the EU laws and are unable to pick and choose which regulations they wish to implement. Directives A directive issued by the European Union gives instructions about the result that is to be achieved without dictating how to achieve that result. Directives, which can cover many areas such as company law and consumer law, usually give the member states some discretion over the exact rules, simply ‘directing’ each state to the desired result. Article 288 states that directives “bind any member state by which they are addressed as to the result to be achieved, while leaving no domestic agencies a competence as to form and means”. This means that member states can must bring the directive into effect, however they will pass their own laws to do so, often within a time limit set by the European Commission. As these directives are from the EU, membership of the EU can thus have significant effect on English law. Although member states do have some power to make their own choices involving directives, it is important to note that directives must be implemented. If a member state fails to keep to a time limit laid down by the European Commission, ‘direct effect’ will be put into action, whereby member states that have not implemented a directive will have direct legal force taken against them. In the case of Marshall v Southampton and South West Hampshire Area Health Authority 1986, Miss Marshall (who was required to retire at aged 62 where men were required to retire at age 65) succeeded in relying on the Equal Treatment Directive where the Sex Discrimination Act 1975 in English law did not classify her case as discriminatory. Although the directive had not been fully implemented yet, the ECJ held that it was clear and imposed obligations on the member state. It had a vertical effect on the member state which meant that the member state was unable to take advantage of its own failure to implement the directive. This therefore highlights the direct link between EU membership and English law. (iii)
Discuss the benefits of European membership to English law. [12] A major advantage of European membership to English law is that citizens can rely on EU law. As a result of the European Communities Act 1974, treaties signed by the heads of government become English law automatically, allowing citizens of the United Kingdom to rely on the rights made in EU laws. An example can be found in the case of Van Duyn v Home Office (1974). Here, the European Court of Justice stated that the right of freedom of movement could be relied upon under Article Jade Pickett March 2012 Page 4 45. The Article gave rights to individuals which could be enforced in all national courts as well as the European Court of Justice. The EC treaty is therefore incorporated into English law, so citizens are entitled to rely on the rights of other laws using the treaty. Another example is that of Macarthys v Smith (1980 she had been paid less than male employees who undertook the exact same work as she had previously done. Smith was unable to take legal action against her employers (Macarthys) under British law, as she was not employed at the same time of the male employees. However, her employer was in direct breech of the treaty (Article 157 of the TFEU) regarding the equal pay of men and women under EU law. Another benefit of European membership is that is makes us part of the common market, meaning we are entitled to ‘Four Freedoms’; movement of goods, workers, capital and services. This allows us to buy and invest in other countries without regard for national borders, therefore allowing business across countries to be incredibly easy. The increased business leads to increased trade, which in turn leads to advantages such as lower prices for consumers and more exports for industries. Furthermore, these exports (and imports) harbour protectionist policies which mean that there is little to no trade tax between European countries. In conclusion, it is evident that the primary benefit of EU membership is the availability of citizens to rely on the laws passed by the ECJ. Various points of law, such as unequal opportunities and pay, were not previously protected by English law. Having access to other laws from a different source therefore enables the citizens to achieve fairness. although there does appear to be a vast array of disadvantageous points to our membership, there are also a number of points, as highlighted in this essay. Bibliography • The English Legal System By Jacqueline Martin • http://en.wikipedia.org/wiki/European_Union • http://www.economicshelp.org/europe/benefits-eu.html • http://en.wikipedia.org/wiki/Treaty_of_Rome • Dr Jepson’s Lawsblog Jade Pickett March 2012 Page 5