To what extent does European Community law now form part of the English legal system?
Foundation of the European Economic Community
In 1957 the six founding states (France, Germany, Italy, Belgium, the Netherlands, and Luxembourg) signed the Treaty of Rome which established the EEC. Since then the total membership has gown to 12, the United Kingdom joining in 1973 with the Treaty of Accession, under the Conservative Government led by Edward Heath. As was indicated in the article on the European Courts (“Mainly for Students”, August 18 1990 at p 55), the treaties were incorporated into UK law by the European Communities Act 1972.
The aim of the original members was to create an economic community, a single internal market which could meet the challenge of world competition. Yet it was clear that many barriers remained before the achievement of this objective and in 1986 the “Single European Act” was adopted by Parliament in the European Communities (Amendment) Act 1986. This Act seeks to sweep away the remaining barriers by December 31 1992.
Issues of sovereignty
One of the reasons for the original reluctance of the UK to enter the European Community was the fear that entry would entail loss of sovereignty. This apprehension is not peculiar to the UK. Many other members have also shared it, as can be seen from European case law.
When the European Court of Justice recently decided, in the case of Factortame Ltd v Secretary of State for Transport May 17 1990, that an English court could suspend an Act of the UK Parliament, it raised again the controversial question of the loss of sovereignty involved in the accession of the UK to the European Community.
The national law in question was the Merchant Shipping Act 1988 (and departmental regulations made under it), which required vessels which had previously been registered as British vessels to reregister. Only those vessels whose owners (or shareholders in the case of companies) were British or domiciled in Britain, could qualify for registration. The applicants were an English company which owned 95 deep-sea fishing vessels but, as most of the shareholders and directors were Spanish, they were refused permission to register. Deprived of the right to fish in British waters the applicants challenged, by way of judicial review, the new system on the ground that it contravened the provisions of the Treaty of Rome and other rules given effect by the European Communities Act 1972.
The House of Lords, [9] 2 All ER 692, declined to make an order postponing the coming into force of a statute pending a reference to the European Court, but referred the matter to the European Court of Justice at Luxembourg for a preliminary ruling. The Spanish fishermen were seeking interim relief which would have enabled them to continue fishing in the meantime, thus avoiding irreparable damage. The House of Lords saw the question (as did many British politicians) entirely in terms of a clash between the sovereignty of the national parliament and the competing system of Community law. Lord Bridge of Harwich maintained that there was no power to confer Community rights directly contrary to “Parliament’s sovereign will”.
Thus, the decision of the European Court of Justice that a national court, in these circumstances, must set aside a national rule, leads to the conclusion that there has been a loss, or diminution of sovereignty by the member state. Where the dispute is perceived in confrontational terms this will be the inevitable reaction.
Yet under the European Communities Act 1972 Parliament specifically provided that certain types of European Community law were automatically to become part of the UK legal system. Other types of Community legislation require some form of implementation by the member state; the discretion, however, lies only in the form and method of the implementation. So the two legal systems are becoming increasingly interwoven; to national law there is a European dimension.
The basis of European Community law
The institutions of the European Community have no general legislative powers. Their power to legislate is derived from the treaties. Individuals can derive rights from the treaties, but, in general, they are not directly applicable. Some Community legislation is directly applicable.
Secondary legislation consists of regulations, directives and decisions. Article 189 of the Treaty of Rome sets out the different forms of instrument which the council and commission of the European Community can adopt for legislative purposes.
Article 189 of the Treaty of Rome states:
In order to carry out their task the Council and the Commission shall, in accordance with the provisions of this treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
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.
A decision shall be binding in its entirety upon those to whom it is addressed.
Recommendations and opinions shall have no binding force.
Regulations
Regulations are a directly applicable source of law in national courts just as national legislation is. Furthermore the member states may not subsequently pass legislation which is inconsistent with any of the regulations. Nor may they seek to interpret them in a way which may be seen to restrict or modify their scope. Any inconsistent subordinate legislation will be ultra vires.
Directives
Directives apply to situations which are objectively defined but prescribe only the ends, not the means. Thus it is left to the member states to implement a directive.
The discretion relates to the method of implementation, not the content. So the UK Government may use an Act of Parliament or some form of subordinate legislation — as for example in the case of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1989. However, the method of implementation must be more specific than a change of administrative practice.
A directive normally includes a time-limit during which the member states must take steps to incorporate it into the national legal system. Once the time-limit elapses the member state is liable to enforcement proceedings.
Directives are most effective in achieving the harmonisation of laws, a major philosophical tenet of the European Community. Article 3(h) of the Treaty of Rome specifies that one of the activities of the Community shall be the “approximation of the laws of Member States to the extent required for the proper functioning of the Common Market”.
Decisions
A decision is an individual act which may be addressed to an individual or a member state. Although, in the case of those decisions addressed to states, they are normally implemented by legislation this is not necessary as they have the force of law.
Recommendations and opinions
These are not binding in law but are of persuasive authority only.
Can a directive confer a directly enforceable right?
Directives are addressed to member states. They are an order requiring a member state to implement an EEC legislative enactment in a manner appropriate to the national legal system. It has been argued that if they are addressed to member states then they cannot be capable of conferring directly enforceable rights on individuals.
However, frequently a directive can be so explicitly drafted that its implementation is a mere formality. If then a national (“municipal”) law, purporting to implement a directive, is inconsistent with the directive, which piece of legislation takes precedence? Case law seems to indicate that the directive will override national law.
Other cases have followed this development. In Van Duvn v Home Office [5] 2 WLR 760, the UK argued that, since Article 189 of the treaty distinguished between the effects ascribed to regulations, directives, and decisions, it must be presumed that the council (in issuing a directive rather than making a regulation) must have intended that the directive should not be directly applicable. The court responded to this by stating that the fact that a regulation was directly applicable did not mean that a directive could not have a similar effect: “It would be incompatible with the binding effect attributed to a directive by Article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned.” Thus individuals could rely on a directive before a national court and the judges of those courts could accept it as a part of Community law.
However, the European Court of Justice did not decide that all directives should have direct effect. They indicated that each case must be examined to determine whether “the nature, general scheme, and wording of the provision in question are capable of having direct effects on the relations between Member States and individuals”. So only where a directive is sufficiently precise can it be relied on by an individual against a member state.
The further question arises as to whether a directive can be relied on by one individual in an action, not against a member state but against another individual; in a “horizontal” rather than a “vertical” action.
In Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [6] 2 All ER 584, the appellant, Miss Marshall, sought to rely on council directive 76/207 which deals with equality of treatment between the sexes in employment law. Miss Marshall, who had been dismissed at the age of 62 on the ground that she was over the normal retiring age for women in her employment, alleged sex discrimination contrary to the directive. The court held that the dismissal was contrary to the directive and that it could be relied on by an individual in the national courts against a public sector employer because it was sufficiently precise.
The court stated:
…where a person involved in legal proceedings is able to rely on a directive as against the state he may do so regardless of the capacity in which the latter is acting, whether as an employer or as a public authority. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with Community law.
Any unfairness could easily be avoided by the state taking action to implement the directive properly. Thus it was decided that directive 76/207 was sufficiently precise and could be relied on by an individual in the national courts as against a state authority acting in its capacity as an employer.
Another recent case in the European Court of Justice on this issue, again involving sex discrimination in the field of pensions, is Barber v Guardian Royal Exchange Assurance Group May 17 1990. Here, however, the court did not have to decide precisely this question, but the Advocate-General, in his opinion, argued that the horizontal direct effect of a directive should not be permitted against a private sector employer. Instead the court was able to decide the case in Mr Barber’s favour because of a provision in the Treaty of Rome.
The latest case in the European Court of Justice, Foster v British Gas plc July 12 1990, has, however, taken the law one step further. It was held that British Gas, despite being a privatised company, was a body which provided a public service under the control of the state and had special powers for that purpose. Therefore, the directive could be directly relied upon against British Gas, in the same way as it could be against a traditional public sector employer.
So European law has become another source of law by virtue of the European Communities Act 1972. When Parliament renounced its right to legislate contrary to Community law it accepted a diminution of sovereignty in return for membership of a European Community.
