Law - Development of Law

Question 1.

Explain the relationship of the European Court of Justice with UK courts [14]

On the 1st January 1973, when the EU was still the EEC, the UK had joined the European institutions and its future would be altered until the 23rd June 2016 when the Brexit vote would be initiated, this was not an option for any European Country until the Treaty of Lisbon was signed between 2007-2009, before this time, it was permanent for every country to stay in the EEC/EU. The European Union, previously known as the European Economic Community, was created on the 21st March 1957 when the treaty of Rome was signed. This treaty is considered to be the core of the EU, it lays put what the European Union was for and the framework of rules it upholds. The reason for the EEC was to prevent another war in Europe by creating a unified economic alliance amongst the democratic states of Western Europe. The first six countries to join the EU, France, West Germany, Belgium, Luxembourg, Italy and the Netherlands had created a common market that had harmonised the laws regulating the economic activity of all member states at the time which was 6, now there are 28, soon to be 27 with European referendum .Although the Supreme Court is the highest court in the UK, the European Court of Justice has power over the Court and it is important for all our courts to follow the rulings of the European Court of Justice.

Since then, the EU had created a Single Market with the treaty of Maastricht 1992. This was the most controversial treaty to signed and created splits among political parties within the UK Parliament. The Single Market are rules that allow the free movement of goods, people, services, capital and people from each European Country which has caused many issues in the past such as Factortame 2001, an essential case that illustrates the power of the European Court over UK courts. The UK had tried to protect its own shipping fleet by imposing rules in the Merchant Shipping Act 1998. Due to this fishing of foreign boats, this led to the rise of the cost of fish to the people of the UK which ultimately affected the monetary value of UK capital. The European Court of Justice ruled that the courts could not enforce this Act as it was in contrary of EU law.

The European Court of justice sits in Luxembourg and deals with legal disputes that occur in Europe involving EU law. The court rulings are heard by the judges of the court, there are 28 judges who sit in this court who serve for 6 years with an opportunity to sit for a further 6 years to ensure continuity in the court. The English Judge of the European Court of justice is called Christopher Vajda and is assisted by an advocate general called Eleanor Sharpton. There are currently 11 advocate general's. Advocate general's jobs are to assist in presenting cases to the court in an unbiased way, these advocate generals also sit for 6 years. There are two main functions of the European Court of Justice, these are as follows. The judicial role, this is to hear actions against member states for breach of EU treaties or law, these countries are brought to the law by the Commission, there are a total of 28 commissioners, 1 for each member state. These commissioners are appointed by each member state's governments, but are totally independant of one another. It is the commission that takes each member state to court if it breaks regulations of the treaties or EU law. In 1979, the UK was taken to the European Court of Justice in the case Re Tachographs (EC Commission v UK), the case involved an EC law made on tachographs, they were made compulsory in all commercial vehicles. The UK did not change its law but introduced a voluntary scheme instead of the EC law. The Commissioner had told the UK to make the law but when the UK had refused, the Commission took the UK to the ECJ. The punishment for the UK was a fine and the law had to be applied anyway, there is little point not to comply as it will be applied either way.

The relationship between the EU and the UK is currently very controversial due to the Single Market which was created by the Treaty of Maastricht 1992. This is the main reason why people had voted out of the UK in the Brexit referendum in 2016. With article 50 being passed, the EU laws that apply to the UK will all need to be checked and will initiate the Grate Repeal in order to keep what laws we want to keep from the European Union. This will take a very long time as every law will need to go through Parliament for it to be a UK law. But before Brexit will initiate, they will need a preliminary ruling from the European Court of Justice, it can be seen as compulsory that the UK follows this ruling.

The ECJ has an important jurisdiction over all member states. Under Sc 3.1 of the European COmmunities Act 1972, its decisions are binding on all matters of community law, this includes all high courts of every country and our supreme court, therefore, in terms of precedent, its rulings on EU relations are binding on all UK courts. It is a fundamental concept of ENglish law is that Parliament has Supremacy, however, under Sc 2.1 of the European Communities Act 1972 the UK agreed that existing and future community law was to be given legal effect in the UK.

In conclusion, it has long been established that the ECJ has priority over the UK courts in domestic law. This point was decided before the UK joined the European Union in the case Costa v ENEL 1964.

Analyse the role of the Commission in EU law [11]

The Commission is the body that initiates and prepares all EU legislation, though it can not do this alone as it needs to be implemented with the authority of the Council. The Commission must consult with the European Parliament and the Economic and Social Committee on proposals for new laws. With this separation of powers this leads to much less bias in their proposals as proposals must be agreed on. Once legislation is agreed on by the council, it is the responsibility of the Commission to make sure that legislation is passed. Furthermore. It is also the responsibility of the commission to set the EU budget, along with the EU Auditors that the money is spent correctly.

In particular with the Commission, it is their duty to ensure that the treaties and law are upheld as the Commission may need to take the institutions to the ECJ such as the UK in the Tachographs case. By taking a institution to the ECJ, it is also their role to make sure that the law is the implemented and fines are placed upon the institution. Any alleged breaches of EU law must be investigated by the Commission which will then lead to legal action