Read Types of EU law text version

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EUROPEAN UNION LAW

[2] TYPES OF LAW.

Describe the difference between a primary and secondary source of EU law. Define each of the types of European law, using case examples to illustrate. [treaties, regulations, directives, decisions] Explain how each source of law becomes a law in Member States, and how they are enforced by the EU. Define the key terms of the topic e.g. direct effect.

By the end of this unit, you should be able to:

You will also be able to evaluate:

The effectiveness of each type of law, and its impact on domestic law How Britain's supremacy has been affected by its membership of the EU

Homework

Law has no coursework, and as such, the homework is an important assessment tool to evaluate your work in the subject. You are reminded that if a homework is not handed in on time, you will have 24 hours to get it to your teacher; otherwise you will receive a U for your work, which may result in your withdrawal from the examination:

Should we move further into Europe?

Using your knowledge of the topic and the cases etc. Write an A4 side arguing either against or for the statement, remembering to enclose appropriate evidence (at least one case).

End of Unit Assessment:

You will be assessed through DRAG test, and past exam question once we have looked at the different types of law which the EU may make. The question you will answer is on this handout pp. 20

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WHY DO WE NEED A SET OF LAWS IN THE EU?

Each of the 27 member countries of the EU has its own set of domestic laws, so why have another set of laws on top of these?

The EU gives enforceable rights to

not

.

Four Freedoms

The basis of the whole EU is the four fundamental freedoms which every piece of legislation should enforce and define... what are they? Freedom FREE MOVEMENT OF GOODS FREE MOVEMENT OF PERSONS FREE MOVEMENT OF SERVICES FREE MOVEMENT OF CAPITAL What does this cover?

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TREATIES

These are known as Primary Legislation. This means that they apply in all member states and automatically become law without the member state having to do anything other than ratify them.[under s.2(1) ECA 1972]. This means that they are d a MS can rely on them in their own judicial system) (in other words, a citizen of a

They create a `new legal order' which bind both states and individuals Van Gend en Loos (1963) *KEY CASE*

*KEY CONCEPT* The treaties are the highest form of EU law and set out a range of aims as well as rights and obligations. Why have both rights and obligations?

The treaties are:

Treaty of R Treaty of M Treaty of A Treaty of N Treaty of L 1957 1992 1997 2000 2009 Founded the EU Set out the social chapter and the single market Reforming Expansion to 25, and then 27 states. Reconstitution and restructure of EU

These treaties must be agreed to ................................................... Why?

Prior to Lisbon, the EU developed a Constitution which would have replaced all the treaties with one set of rules... but two countries voted against it, and so it had to be dropped. 1. 2. 3

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Examples:

Bosman 1995 Article 39 (48): free movement of workers Facts Outcome: Josemans v Maastricht 2011 Article 12: Non-discrimination Facts: Outcome: Van Duyn v Home Office 1975 Article 39 (48): free movement of workers

WHAT KIND OF EFFECT DO THE TREATIES HAVE?

This is where you are going to have to learn some new vocabulary. These terms were invented (!) by the European Court of Justice, to explain the effect of the treaties (and other legislation) on the citizen

Treaties have both horizontal and vertical direct effect. This means that citizens can rely on the treaty against both other individuals and their government in the courts as long as the provision is:

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Direct Effect So, what this means is that you can rely on provisions of the treaties in our domestic courts against both the state (and emanations) and private companies or individuals if they are:

This means...

"Clear and unconditional, and implementation requires no further action by the Member state (unconditional)"

Van Gend en Loos

This means that the courts can apply EU law without sending it to Strasbourg if it is "sufficiently clear". (Pickstone v Freeman 1988 ­ article 135 equality of treatment) Macarthys v Smith (1979) *KEY CASE*

What type of direct effect is this illustrating?

Article 141

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All the rest of EU law is Secondary Legislation

1. REGULATIONS

They, like the treaties, are directly applicable. Under Art. 288 (249) they are "binding in every respect and directly applicable in each member state" They must be applied even if the Member State has already passed legislation which conflicts with it, and are as legally enforceable as an national law. They build on provisions in the Treaties: e.g. to ensure free movement of workers, there is regulation 1612/68 which allows worker's families to entry and stay in other MS with them. If you think about it, the article would be useless without it!

....and they come into force in the member country as soon as they are passed by the Council of Ministers. They must be passed using qualified majority voting. There is no need for the member state to do anything to incorporate them into the law. Leonesio v Italian Ministry of Agriculture (1973)

Re: Tachographs 1979... a UK example!

They have both ................................................. and ............................................... effect.

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2. DIRECTIVES

*THIS IS WHERE THE TROUBLE STARTS!!!!*

Unlike the previous areas, they are not directly applicable. The Member State has to pass some of its own legislation to incorporate them into domestic law. We do most of ours through Orders in Council or Statutory Instruments. They are broadly phrased so that the Member States can create their own detailed legislation to fulfil the "aim and purpose" of the directive, within a specified time limit. The aim is to harmonise MS laws, so everyone has the same minimum standards e.g.

WORKING TIME DIRECTIVE which imposes minimum holidays for workers, minimum rest

periods and maximum hours a week!

According to article 288 (249), the directives are only binding "as to the result Van Duyn v Home Office

to be achieved".

The HO defended the case arguing that under directive 64/221, MS can deny entry to citizens on the ground s of public policy, public security or public health... but these denials must be fair. Was the decision `fair'? Why?

BUT WHAT IF THE COUNTRY DOESN'T IMPLEMENT IT? DO I HAVE NO RIGHTS THEN?

Well, in theory, you couldn't rely on the directive unless it had come into force in the MS. BUT the ECJ didn't like this. It has consistently refused to follow this and has made it clear that an individual can rely on the directive in their domestic courts even if it is not properly implemented in the Member State's law.

WHEN CAN IT BE RELIED ON? A citizen can rely on a directive in their national courts if the state has: a. failed to meet the time limit, or b. implement the directive properly.

N.B. a country can't rely on the lack of implementations against an individual [Pubblico Ministero v Ratti]

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This means that the directives have vertical direct effect only. What does it mean?

Marshall v Southampton AHA 1986

Rule: R (Westminster City Council) v Mayor of London (2002)

Rule:

Who or what is EMANATION OF THE STATE...

SO, ONE PROBLEM:

EMANATION OF THE STATE

Foster v British Gas 1990

Facts:

Ruling:

An emanation of the state is "a body, whatever its legal form which has been made responsible, pursuant to a measure adopted by the State, for providing a purpose special powers beyond these which result from the normal rules applicable in relations between individuals." 8

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So, who has rights? Listen to the facts of the following cases, and decide whether the claimant can bring a case... Case Gibson v East Riding of Yorkshire Council 1999 Duke v GEC Reliance 1998 Rely on Directive? Why?

Why might this approach be unfair to some people?

AO2 Development:

I CAN TAKE `EM TO COURT... BUT WHAT DO I GET OUT OF IT?

For many years nothing! The ECJ would say that there has been a breach and then the MS would have to change the law... that's it! The ECJ was worried that this meant that there was no real force behind countries having to implement or change the law... so they decided that an individual may be able to sue for damages arising from the mis-implementation of the directive. If the MS fails to implement the directive, then it may be possible for the individual to sue the government for damages. Frankovich v Italy 1992 Rules: 1. ................................................................................................................................. 2. ................................................................................................................................. 3. .................................................................................................................................

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INDIRECT EFFECT

To make directives even more effective, the ECJ then goes and invents a whole new thing... indirect

effect. This is meant to try and bridge the gap between horizontal and vertical direct effect, and give

citizens more rights! What this means is that the domestic courts must always interpret the domestic law to give effect to directives even if they haven't been implemented yet.

National courts must interpret laws in accordance with relevant directives, as confirmed as Marleasing (1990)

Von Colson v Land Nordrhein-Westfalen (1984) Facts: Outcome: "national courts are bound to interpret national law in light of the wording and purpose of the directive"

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3. Decisions [See the notes on the ECJ]

From the ECJ, and addressed to a state, person or company and is binding on the recipient only [technically!]

EVALUATION

So, using what you know about the types of law, complete the evaluative table below ­ what is positive an what is negative about each?

TYPE OF LAW

POSITIVE

NEGATIVE

Treaties

Regulations

Directives

Decisions

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DEFINITIONS AND KEY TERMS:

TO REVISE THIS TOPIC, DEFINE EACH OF THESE TERMS. Impact

Direct Applicability

Meaning of the Term

Direct effect

Horizontal direct effect

Vertical direct effect

Indirect effect.

Harmonisation

Directive

Treaty

Regulation

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SOVEREIGNTY

For this topic, you need to be able to: Discuss the impact of European Union law on domestic legal institutions and law. To be able to do this effectively, we need to look the issue of sovereignty. This is also a topic that likes to appear on the exam!

Some basics first...

When did the UK join the EU? 1. Which act covers the union? 2.

This Act makes EU law the supreme source of law in the UK. [This concept is also known as supranationalism] But: The EU is only concerned with particular types of laws, e.g. a. drate; b. sssinbue; c. kerwros ghirts; d. ronimevetn; e. ranstprot etc. It is not concerned with criminal law! [well.... it wasn't till the ECJ decided... but more on that later] However, if Parliament wanted to repeal (.......................................)the Act, they could take back their power. This would mean that domestic law would be supreme again. In addition, Libon also sets out how a MS could leave if they chose. What would be the problem with repealing the Act?

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Supremacy was established not in the treaties, but in the case law of the ECJ. The case which established this is our old favourite: Van Gend en Loos (1963) A bulb grower: conflict of Dutch law and European law over the customs duty. The Dutch argued that the ECJ have no jurisdiction to decide whether EU law should prevail over the Dutch law. Instead they said that it should be up to the Dutch courts to decide. The ECJ disagreed, holding that the Treaty had created a new legal order, meaning that by signing the treaty, States had given up the right to legislate in certain areas.

Costa v ENEL (1964) Facts: Outcome: Even if there is a later national law, the EU takes precedence. "The Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both themselves and their nationals."

There is a limitation to this, known as the theory of subsidiarity ­ this means that they should only pass laws on an EU level which are better done by the community rather than by individual states. Today we are going to focus on whether remaining in the EU is a positive or negative thing. [This is what is known as the sovereignty debate]

SO, WHAT DO WE GET OUT OF IT?

In Britain, there has been a huge improvement in workers' rights e.g. minimum wage, working hour limits and anti-discrimination laws, as well as creating more jobs, more money, making it easier to travel between member states, and increasing environmental protections. R v Secretary for State for Employment ex parte Equal Opportunities Commission (1994)

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IMPACT OF MEMBERSHIP OF THE EU IN UK

1. Judges must ignore laws made by Parliament if they conflict with EU laws.

This includes both laws created before and after those of the EU (Simmenthal)

The most famous instant of this is that of Factortame R v Secretary of State for Transport, ex parte Factortame (1990) Problem:

UK court decision:

ECJ decision:

2. The Supreme Court is no longer the highest court in England and Wales. It is bound by the European Court of Justice under s.3 (1) ECA. This also affects precedent e.g. Re: Medicaments, where the CA followed ECJ rather than HL. 3. EU citizens can now rely on EU rights in their national courts, and as such domestic courts must apply EU law

They can also impose governments with liablity for financial loss suffered as a result of their breach of EU law

4. Judges have had to adapt their style of statutory interpretation. The EU predominantly uses the ........................... approach. Their laws are looser in structure, setting out broad principles to follow, unlike the English tightly written, very precise drafting methods. This has caused some concern in the courts that Judges would have to change their whole approach to cases and interpretation: 15

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Bulmer v Bollinger 1974

Lord Scarman: "The incoming tide has not yet mingled with the home waters of the common law... If we stay in the [EU], I would expect to see its principles of legislation and statutory interpretation, and its conception of an activist court whose role is to strengthen and fulfil the purpose of statute law, replace the traditional attitudes of English Judges and lawyers to statute law and the current complex style of statutory drafting." Lord Denning: "The Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back."

Following Factortame, Denning amended his simile to "a tidal wave... - to the dismay of all". AO2: So... what do you think? Is it a `tide' or a `tidal wave'?

You will do what I say... or else!

The powers of the EU to enforce its judgements are growing. Commission of the European Communities v Council of the European Union (2005)

See Times article

The EU Sovereignty Bill

Currently the House of Commons is considering the EU Sovereignty Bill, which builds on their manifesto promise to limit the power of Europe. Task: Read the enclosed articles and answer the following questions: 1. 2. 3. What are the main provisions of the Bill? What is the importance of Clause 18? Does the Bill affect the current supremacy of EU law?

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SO... SHOULD WE STAY OR SHOULD WE GO?

ADVANTAGES DISADVANTAGES

Consolidation Work:

1. Using the textbook, summarise the facts and the decision in Brasserie du Pecheur SA v Federation of Republic of Germany (1996)

2. What rules did the court establish for when the compensation may be meted out?

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The EU bill explained

The European Union bill is currently being scrutinised in the House of Commons ­ but what does it mean for the UK? Carl Gardner guardian.co.uk, Tuesday 11 January 2011 15.00 GMT This afternoon the European Union bill begins its committee stage ­ where the bill is subjected to detailed, line-by-line scrutiny. The house approved the principle behind the bill at second reading before Christmas. Unusually, the EU bill is being considered by a committee of the whole House of Commons, a procedure used for controversial bills. What does the EU bill do? The bill fulfils two Conservative manifesto promises: to require a referendum before any further transfer of power to the EU, and to introduce national sovereignty legislation to make it clear that authority over our laws stays in this country. The coalition agreement committed the government to introduce a "referendum lock" and to examine the case for a sovereignty bill. The main provisions of the bill are: · To require a referendum before the government could agree to change the current EU treaties, or to certain EU decisions, so as to transfer power to the EU. · To require an act of parliament before the UK could agree to a number of other specified decisions provided for in the existing treaties. · Clause 18 makes clear that EU law has effect in the law of the UK only through an act of parliament. Does the bill repatriate powers from the EU to the UK? No. It does not affect any existing EU competence, whether transferred in the Lisbon treaty or earlier. When will a referendum be required? A referendum will be needed whenever the EU treaties are changed to transfer power to the EU, though some less far-reaching changes can be

approved without a referendum if not "significant". No referendum will be needed if a new member state (such as Turkey) joins the EU. How do we know whether or not a treaty change transfers power to the EU? A minister will decide whether power is being transferred. That decision can be challenged in court, which has led Yvette Cooper, the shadow foreign secretary, to say the bill creates "a lawyers' paradise". Couldn't a future government just repeal the "referendum lock" anyway? Yes. The bill does not include any entrenchment mechanism (for instance requiring a Commons vote of 75% to repeal the referendum lock), so a future government could repeal it in order to avoid a referendum. This has led the Conservative MP Douglas Carswell to call the bill "a piece of legislative PR". How does the bill guarantee national sovereignty? Clause 18 confirms the existing position, that EU law only has effect in the UK through an act of parliament. The government argues that this will ensure the courts reject any argument that EU law has authority in Britain in its own right. Does clause 18 affect the supremacy or primacy of EU law? No. Clause 18 does not alter the existing relationship between EU law and UK law or affect the primacy of EU law. So what's the problem with clause 18? Because clause 18 merely restates the existing position rather than cutting down the power of the EU, it does not go far enough for Eurosceptics. The EU scrutiny committee has said clause 18 is not really a sovereignty clause but that the government portrays it as such "for political reasons". Professor Adam Tomkins of Glasgow University has said the clause could even be dangerous, since it could have unforeseen effects on parliamentary sovereignty.

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European Union Bill: Brussels will not be blocked by one Bill alone

Telegraph View: The EU sovereignty Bill looks set to be a real test for David Cameron The European Union Bill that the House of Commons will debate this week confronts David Cameron with one of the greatest challenges of his premiership. With a substantial number of Tory rebels hoping to amend the legislation significantly, the Prime Minister faces a real prospect of defeat. That, however, might not be an entirely bad thing. This may sound like a strange thing to say, given the welcome intention of the Bill: to provide safeguards against any further transfers of sovereignty to Brussels, by requiring a national referendum on future treaty concessions. Yet as we report today, detailed analysis of the Bill has led some to conclude that it will do more harm than good. The discontent has focused on the fact that ministers will be the ones to make the decision on whether or not a treaty is acceptable, subject to judicial review. According to both Opposition spokesmen and Conservative backbenchers, this creates a legal minefield, effectively handing a decision to the judiciary that formerly belonged to Parliament, and leaving the electorate marginalised. Although Europe is far from the running sore that bedevilled the most recent Conservative administration, it has long been a contentious issue for Mr Cameron. His retreat over a referendum on the Lisbon Treaty, despite a "castiron" guarantee, was realistic but unpopular, while his Eurosceptic tone on the campaign trail has not been matched in office. Indeed, when dealing with their counterparts on the Continent, he and his Foreign Secretary, William Hague, have taken a more pragmatic, conciliatory tone than many expected. As a result, the European Union Bill assumed greater significance, as the chief symbol that the party's leadership shared the rank and file's concern over the salami-slicing of Britain's sovereignty. The revolt over the Bill is not just a matter of party management: according to Bill Cash, the chairman of the Commons European Scrutiny Committee, it is "a

matter of national interest, not party politics". That is one reason why the Bill was so welcome in the first place: for decades, the Euro-ratchet has turned relentlessly in the direction of integration and federalism. Whatever reservations the public may have expressed, governments have danced to the Brussels tune. Indeed, the increasing (and accurate) perception that the European project will be driven through regardless of the public will has had a corrosive effect on levels of trust in our democratic institutions. While the European Union Bill had the best of intentions, its unintended consequence appears to be to transfer the power to defend Britain's sovereignty from MPs to the courts. That is unfortunate. Mr Cameron should therefore see this as an opportunity to regain public confidence by giving this legislation real teeth. But resisting the pressure for integration is not just about passing a single Bill ­ it is about remaining watchful in the face of a threat that expresses itself on multiple fronts. Even if this Bill can be rendered iron-clad, it will scarcely profit Britain to protect itself against treaty changes, only to see the City of London hollowed out by the EU's new regulators and billions more committed to bailing out the eurozone. As the project of economic union threatens to collapse under the weight of its own contradictions, Mr Cameron has a strong hand to play in defending Britain's interests. We urge him to do so.

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September 14, 2005

A British government official said: "We firmly believed it was inappropriate to harmonise criminal law at EU level. We believe criminal law is a matter for member states co-operating intergovernmentally." He added that they would consult other countries to consider the options, although the governments have no right of appeal against the court.

Europe wins the power to jail British citizens

By Anthony Browne, Brussels Correspondent

BRUSSELS has been given the power to compel British courts to fine or imprison people for breaking EU laws, even if the Government and Parliament are opposed.

Some national government officials said that the issue was so sensitive that EU lawmaking would grind to a halt and member governments would refuse to pass legislation rather than accept harmonisation of criminal law.

An unprecedented ruling yesterday by the supreme court in Europe gives Brussels the power to introduce harmonised criminal law across the EU, creating for the first time a body of European criminal law that all member states must adopt. The judgment by the European Court of Justice in Luxembourg was bitterly fought by 11 EU governments, including Britain, and marks a dramatic transfer of power from national capitals to Brussels.

One diplomat said: "This stuff is political dynamite in the UK, Holland, Italy, Scandinavia, and Eastern Europe, where they are as keen on their sovereignty as anyone. Imagine how Italians would react if their criminal law was rewritten at EU level. Ironically, it means less will be done at EU level."

Diplomats said that it was political dynamite in many countries, but the European Commission welcomed the ruling, on a test case about environmental law, as a landmark that sets an important precedent. It gives the Commission the right to decide when breaches of agreed policies are so serious that they should be treated as criminal. Member states have fiercely guarded their sovereignty over criminal law. The Commission took them to court after they blocked it from introducing harmonised criminal law for pollution. The Court of Justice, which has a record of promoting European integration, ruled in the Commission's favour, concluding: "The European Community has the power to The Commission said that it would use its new powers only in extreme circumstances, but its officials are already talking about introducing EU crimes for overfishing, deliberate polluting, money laundering and price fixing. The Court said that although as a general rule criminal law does not fall within EU powers, EU members have always insisted that the power to set criminal law goes to the heart of national sovereignty and must be decided by national governments and parliaments. The Luxembourg judges ruled, however, that national governments could not exempt EU law from being upheld by criminal sanctions. The ruling means that the Commission can propose an EU crime that, if passed by the European Parliament and a qualified majority of member states, must be adopted by all José Manuel Barroso, the President of the Commission, said: "This is a watershed decision. It paves the way for more democratic and more efficient lawmaking at EU level." member states. This means that Britain could be forced to introduce a crime into its law if enough other members support it. It also gives the Commission the power to compel members to enforce EU criminal law if governments drag their heels or if their courts refuse to sentence people. that "does not prevent the Community legislature . . . from taking measures that relate to the criminal law of member states which it considers necessary". require the member states to lay down criminal penalties for the purposes of protecting the environment."

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Timothy Kirkhope, the Conservative leader in the European Parliament, said: "This appears to be a worrying erosion of British sovereignty. It is a significant transfer of power to the Commission." Gerald Barling, QC, a leading European expert at Brick Court Chambers, said: "The ruling is significant. It is the European Commission flexing its muscles." The ruling was welcomed by most MEPs, who will now have the powers to pass criminal law and not just civil law. Chris Davies, the leader of the Liberal Democrats in Europe, said: "Europe needs an umpire to ensure fair play between member states and to dismiss the cheats. The European Commission is the only body that comes close to fitting that role." The Court ruling did not establish whether Brussels had the right to set criminal sanctions but officials made clear that they intended to do so. WHAT THEY SAID ABOUT THE RULING "The European Community has the power to require the member states to lay down criminal penalties" The European Court of Justice "This judgment breaks new ground. It strengthens democracy and efficiency in the EU" José Manuel Barroso, Commission President "We firmly believed it was inappropriate to harmonise criminal law at an EU level." British government spokesman "This Court ruling gives (the Commission) more teeth with which to bite" Chris Davies MEP, Liberal Democrats ". . . a worrying erosion of British sovereignty. It's a significant transfer of power to the Commission" Timothy Kirkhope MEP, Conservative "Anyone who thought that the French and Dutch voters throwing out the constitution was the end of integration should look at this closely" Nigel Farage MEP, UKIP "This stuff is political dynamite" An EU diplomat

"The British Government has completely misjudged the ability of the European Court to extend the power of European Union" Neil O'Brien, Vote No

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Thursday, October 28, 1999 Published at 03:18 GMT 04:18 UK

The amount which now could be claimed by the Spanish in individual court cases has been estimated at £80m - but interest and legal costs are expected to push the total bill to be picked up by the British taxpayer at over £100m. Plymouth Fisheries manager Peter Bromley branded the decision a "sick joke. "The feelings of the industry will be very strong and the government will continue to do absolutely nothing about it. "As far as I am concerned the British industry is a valuable asset to this country, and it is not exploited to the extent it should be to the benefit of the British people or the British fishermen. "This is just a sick joke played on an industry which is having to fight very hard for its survival. "We seem to be kow-towing to Europe over everything at the moment."

Spanish fishermen net £100m compensation

Spanish fishermen claimed for three years of losses

Britain will have to pay compensation estimated at £100m to Spanish fishing companies unlawfully banned from operating British-registered vessels 10 years ago. In 1988 the Conservative government passed laws intended to stop Spanish fisherman increasing their take of fish by the ploy of using British fishing quotas. The legislation was later found to have broken European law. Euro-scepticism, already high over the beef impasse with France, was further inflamed when five law lords unanimously ruled on Thursday that the breach was sufficiently serious to entitle the fisherman to claim compensation. They said that although the government's intention was to protect British fishing communities, the effect was to discriminate against Spanish nationals, thereby flouting one of the most basic principles of European law. The law lords said the government had deliberately decided to run the risk of introducing the legislation, knowing that it could be unlawful. Justice required that the wrong should be made good.

The case was brought by Spanish company Factortame Ltd and almost 100 other Spanish fishing companies. They are claiming for losses while their ships were laid up over three years from 1988-1991. Following the Icelandic cod war in the 1970s, Spanish fishing companies started buying UK-registered ships. In 1988, the UK Government passed the Merchant Shipping Act, preventing the Spanish-owned ships from fishing against UK quotas, or "quota-hopping". But three years later the European Court of Justice overturned the UK's legislation. It also ruled member states must pay compensation where a breach of European law was deemed sufficiently serious. After the ruling John Couceiro, director of Factortame, said: "I am delighted. "Hopefully after our long battle we can now sort out the damages and put this all behind us."

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OCR June 2008

Source A Marshall v Southampton Area Health Authority (1986) Miss Marshall, a dietician, was compulsorily retired by the Health Authority from her job when she was 62, although she wished to continue to 65, the State retirement age for men. It was the Authority's policy that the normal retiring age for its employees was the age at which State retirement pensions became payable: for women this was 60, though the Authority had waived the rule for two years in Miss Marshall's case. She claimed that the Authority was discriminating against her by adopting a policy that employees should retire at state pension age, hence requiring women to retire before men. The national court made reference to the European Court of Justice (ECJ) asking for directions on the meaning of the Equal Treatment Directive. The ECJ found that there was a conflict with the UK law, and the UK changed its legislation to conform.

Source B Directives may have vertical direct effect but not horizontal direct effect. This means that they impose obligations on Member States and not on individuals. The ECJ has found a number of ways to widen access where the principle of vertical direct effect applies. First, it has defined 'the State' very broadly to include all public bodies, including local authorities and nationalised industries. This meant in Marshall v Southampton AHA the claimant could rely on the Directive even though she was not suing the Government itself, because her employer was considered part of the State. Source A and B adapted from: English Legal System, Elliot & Quinn, Longman.

ANSWER ALL PARTS. (a) Source A at lines 7-10 refers to the European Court of Justice (ECJ).

Describe the role and composition of the European Court of Justice. [12 marks]

(b) Using Source B, consider whether any of the following have a claim against their employers for a failure to comply with a directive.

(i) Bert is a midwife working for a private hospital. [5 marks] (ii) Winston is an accountant working for a company which was owned by the Government twenty years ago. [5 marks] (iii) Letitia is a dog warden working for a local council. [5 marks]

(c) With reference to Source A and Source B: (i) Using the sources and other examples, describe directives and how they become law in Member States [15

marks] (ii) 'Directives can never have horizontal direct effect.' Discuss the problems which are caused by this. [12 marks]

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