8.1.2 The European Union Lecture

A. Introduction

The European Economic Community (EEC) was established in 1957 between its original six Member States: West Germany, France, Italy, Belgium, the Netherlands and Luxembourg. The UK became a member in 1973 by virtue of the European Communities Act 1972. Attempts were made even at this early stage to challenge entry to the EEC, on the grounds that membership would undermine Parliamentary Sovereignty. A national referendum was held in 1975 on the UK's continued membership of the EEC. The renegotiation of the EC Treaty at Maastricht in 1992 also led to further challenges in UK courts.

Case in Focus: In R v Foreign Secretary, ex p Rees-Mogg [1994] QB 552, an unsuccessful attempt was made in the courts to prevent the UK from ratifying the Maastricht Treaty.


Political discussions were also dominated by the question as to whether a referendum before the UK ratified the Treaty of Lisbon in 2007. The Lisbon Treaty was the latest in the line of treaties expanding the powers of the European institutions and European law. The Lisbon Treaty substantially amended the two treaties, which are the legal basis upon which the European Union (EU) now stands. These are the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). These amendments were introduced into UK law by virtue of the European Union (Amendment) Act 2008.

B. European Union Institutions

The EU has many of the institutions that its Member States have, including a court structure and a Parliament. The EU institutions are shown in figure 8.2 and described in Table 8.1 below.

Figure 8.1 Three Pillars of the European Union (Lisa Webley and Harriet Samuels, Public Law, Texts, Cases and Materials (2nd Edition, Oxford University Press, 2012) p.226)


Figure 8.2 The EU Institutions Simplified (Lisa Webley and Harriet Samuels, Public Law, Texts, Cases and Materials (2nd Edition, Oxford University Press, 2012) p.227)

Table 8.1 European Union Institutions

EU Institution

Description

The European Council

The European Council is made up of the heads of state of government of each of the Member States as well as the European Council President and the President of the European Commission.  The EU's High Representative for Foreign Affairs and Security Policy also participates in the European Council Meetings.  The Council of the EU, the European Parliament and the European Commissions are the EU law making and decision making bodies. The decision making body depends on the pillar within which the issue resides.

The Commission

The Commission has one member for each Member State; its membership was reduced in November 2014, due to the increase in EU membership in 2005, 2007 and 2013. In the UK, nominations have been made by the Prime Minister of senior political figures with a record of service in either the Conservative or the Labour party. Each commissioner has the responsibility for a specific area of activity. The European Council nominates the Presented of the Commission, who is voted for by members of the European Parliament (MEPs).

The Commission acts under the political guidance of the President and has two principal functions: to propose legislation and to ensure that EU laws are implemented and applied. The Commission can bring proceedings against EU institutions or Member States that are in breach of their obligations under EU law.

Enforcement proceedings have been brought against the UK, including

  • C-382/92, Re Business Transfers: EC Commission v UK [1994] ECR I-2435, where the UK failed to implement directives regarding business restructuring to protect employees;
  • C-222/94, EC Commission v UK [1996] ECR I-4025, failure to implement directive on television broadcasting;
  • C-98/01, EC Commission v UK [2003] ECR I-04641, government control of British Airports authority, breach of free movement of capital
  • C-6/04, EC Commission v UK [2005] ECR I-9017, concerned the government failure to fully implement a directive on the conservations of natural habitats and of wild fauna and flora

The Council of the European Union

The Council is made up of political representatives from Member States and meets in ten different configurations: general affairs, foreign affairs, economic and financial affairs, justice and home affairs, employment, social policy, health and consumer affairs, competitiveness, transport, telecoms and energy, agriculture and fisheries, environment and education, youth, culture and sport. The Presidency rotates between Member States. The Council makes policy and approves legislative initiatives proposed by the Commission. The Council's deliberations were not made in public until the Lisbon Treaty, the non-legislative business is still conducted in private.

The Qualified Majority Voting Procedure was introduced through the Lisbon Treaty, with the focus being upon the number of countries and their combined populations. Certain policy changes require simple majorities whereas others require unanimity, such as social protection of workers and collective defence of the interests of workers.

The Council of the EU is comprised of Member States' government representatives. Various members of government would attend these meetings depending on the issue to be discussed. The Home Secretary may attend, or in matters of the Common Agricultural Policy, the Secretary of State for Environment, Food and Rural Affairs would attend. The European Parliament is comprised of MEPs who are elected from politicians within each Member State in the European Parliament elections. The European Commission is comprised of representatives that have been appointed rather than elected and represent the EU itself.

European Parliament

Representatives of the European Parliament (MEPs) are elected for five-year periods through elections in the Member States. There are 766 seats in the unicameral Parliament. Larger states have more seats: Germany has 99, France has 74, Italy and the UK have 73. Elections are based on the regional list system, the country is divided into 11 electoral regions and votes are cast for registered parties rather than candidates. There are no European political parties; however, MEPs participate in their various political rather than national groupings.

The TEU now provides that the Parliament and the Council jointly exercise legislative functions; legislative instruments require approval of both the Council and the Parliament.

The Commission prepares a draft budget each year and presents it for approval to both the Parliament and the Council.

Court of Justice of the European Union

The function of the CJEU is to 'ensure that in the interpretation and application of Treaties the law is observed'. It consists of one judge per Member State who sit in chambers (5 judges) or the Grand Chamber (13 judges). Eight Advocates General (A-Gs) make reasoned submissions on cases brought before the Court to assist the CJEU. These are appointed from the highest judicial offices in the Member States; appointments are made for six years.

Every three years there is partial replacement of the judges and A-G's, although they are eligible for re-election.

The Court of First Instance (or General Court) hears a defined class of cases, with a right of appeal to the CJEU.

Article 263 TFEU provides that cases may be brought before the CJEU in one of three ways:

  1. The Commission may bring proceedings against a Members State for failure to comply with a Treaty obligation. The Commission first gives an opinion to the Member State, if they don't comply the case proceeds to the CJEU
  2. A state may initiate a proceeding against another state, first with an opinion of the Commission. There are financial penalties for breach of Treaty obligations.
  3. A Member State may challenge the legality of a legal instrument in proceedings against an EU institution. Natural persons might address institutions directly if the legal instrument is of 'direct and individual concern' to the person involved.

Article 267 TFEU the CJEU has jurisdiction to give preliminary rulings on the interpretation of Treaties. The CJEU is not empowered to resolve the dispute between the parties, merely to provide an interpretation on an uncertain provision of EU law. Reference can be made by the courts in Member States. An example of such a reference was made in O'Brien v Department of Constitutional Affairs [2010] UKSC 34, [2011] 1 CMLR 36, where the UK Supreme Court requested guidance as to whether judges were workers for the purposes of a directive which gave full time workers equal treatment to part time workers, in a dispute about pension entitlements of recorders.

The Court of Justice and the Court of First Instance are the higher court and lower courts respectively for the purposes of EU law. The Court of Auditors oversees the EU funds and expenditure. For those countries who have adopted the Euro, the European Central Bank plays an important role. 

C. European Union Law

The EU is different from other international law in that it has created a new legal order. There are five main sources of EU law:-

  • Treaties - these are the highest form of international law negotiated by Member States
  • Regulations - these are binding directly on Member States by virtue of agreements that these states have made within EU Treaties
  • Directives are a form of derivative law, each Member State must implement legislation in order to give them effect within domestic law
  • Decisions are also derivative law; they are binding on the Member States to which they apply
  • International agreements are negotiated between the community and Member States

Table 8.2 Sources of European Union Law

Source of Law

Description

Treaty

The highest forms of law in the EU are the Treaties, which set out the constitution of the EU, but also substantive matters, some give rise to direct effect in national courts. In Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62 the CJEU found that Article 12 of the EEC Treaty had direct effect in the Dutch courts. Not all Treaty provisions have direct effect, but Article 12 contained a 'clear and unconditional prohibition'. Where the treaty provision has direct effect between two private parties, this is referred to as horizontal direct effect. When it is relied upon against the State, this is known as vertical direct effect.

Regulations

Article 288 TFEUempowers the institutions to 'adopt regulations, directives, decisions, recommendations and opinions.  Regulations have general application in the sense that they are directly applicable in all Member States and are binding in their entirety. The CJEU held in Case 93/71 Leonesio v Italian Ministry for Agriculture [1972] ECR 287 that as a general principle 'because of its nature an purposed within the system of sources of community law' a regulation 'has direct effect and is, as such, capable of creating individual rights which courts must protect'. Regulations have horizontal as well as vertical direct effect.

Directives

Directives require legislation to be created within Member States in order to create enforceable legislation that can be directly relied upon in domestic courts. The TFEU requires that directives are 'binding as to the result that is achieved' (Art.288) but the national authorities have discretion as to the methods which will be implemented to achieve these results. The default position according to Article 288 must be that directives do not have any direct effect. There are exceptions to this rule. If a Member State fails to implement or correctly implement a directive. In certain cases, the CJEU has found that directives can have direct effect.  Only the parts of the directive that are sufficiently clear and conditional can have direct effect (Case 41/74 Van Duyn v Home Office (No.2) (1974) ECR 1337).

Directives can only have vertical and not horizontal direct effect:

In Cases 152/84 Marshall v Southampton and South West Hampshire AHA [1986] ECR 723, it was held that although a directive might only have a vertical direct effect, it may nevertheless be relied upon against a state, when that state was acting as an employer as opposed to as a public authority.

The CJEU has categorised the scope of public bodies broadly. Directives have been enforced against

  • The police [Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1987] QB 129]
  • Publically run hospitals [Cases 152/84 Marshall v Southampton and South West Hampshire AHA [1986] ECR 723]
  • Nationalised utility companies [Foster v British Gas plc [1991] 2 AC 306]
  • Privatised utility companies [Griffin v South West Water Services Ltd [1995] IRLR 15]
  • A Church of England primary school [NUT v Governing Body of St Mary's Church of England School [1996] EWCA Civ 1194, [1997] ICR 334, (1997) 3 CMLR 630 ]

Decisions

Are binding in their entirety as regards those to whom they are addressed.

Recommendations and Opinions

These have no binding force.

Exam Consideration Direct effect is a topic of fundamental importance and is found in exam papers on a regular basis. You should read a wide range of case law on the topic in order to achieve a comprehensive understanding of the direct effect of the various pieces of the EU legislation and Treaties and whether direct effect acts between the state and the individual or between private individuals.

Case in Focus: Francovich v Italian State [1991] ECR I-5357, Directive 80/70 required Members States to establish funds to assist when an employer became insolvent. Italy failed to implement this Directive. The ECJ held Member States must compensate for any loss caused to individuals by the failure to implement a Directive. However, the Directives implementation should grant rights to the individual, these rights should be identifiable and there must be a causal link between the breach and the loss to the individual. The provisions of Directive 80/70 were found to be insufficiently conditional to grant Francovich effective rights.

D. EU Law and the British Constitutional Law

With the current negotiations about leaving the EU, there has been much speculation about the impact of EU law in the UK.  The UK is a dualist state with respect to international law, so it is bound by international law only once there is a piece of legislation in the UK that incorporates the international agreement into UK law. Monist states on the contrary are those in which ratified international treaties become domestic law without any further action beyond the state ratifying the relevant treaty. 

The Treaty of Rome was drafted to enable Member States to incorporate Community law into their domestic legal systems and importantly there were penalties though the European Court of Justice (ECJ) for those who failed to do so. The UK Parliament enacted the European Communities Act 1972 (EC Act) in order to give effect to community law in the UK. Section 2(1) of this Act, provides that all obligations arising out of the European Community Treaties shall be recognised and be enforceable in law. The EC Act took precedence over any precedents that went before it and will remain in force until Parliament repeals it.

Case in Focus: Garland v British Rail Engineering Ltd [1983] 2 AC 751, Lord Diplock confirmed that in the light of section 2(1) EC Act that judges are required to interpret statutes to conform with EC/EU law. However, if such an interpretation was not possible the judge is required to apply EC/EU law rather than the law in force in the UK as the EU law is hieratically superior for as long as the EC Act remains in force.

Section 3 EC Act provides that questions as to the meaning of a provision of a Treaty is to be treated as a matter of law and either referred to the CJEU or determined in accordance with decisions of the European Court. The CJEU does not interpret the domestic jurisdictions national laws, it makes rulings as to the meaning of provisions of EU law where domestic courts are in doubt and refer a question on a point of EU law to it for a ruling.

Exam Consideration It is important to note that EU law will remain in force in the UK until Parliament repeals the EC Act 1972. This is an important requirement for the UK's departure from the EU. Further discussion on the implications of the EU's departure from the EU is considered below.

Concerns about the implication of membership of the EU for parliamentary supremacy have existed in the UK since the UK joined the EEC in 1973. Certain individuals have expressed these concerns through the UK courts.

Case in Focus: Blackburn v Attorney-General [1971] 1 All ER 567, CA, Lord Denning MR, Mr Blackburn brought two actions against the Attorney-General in which he sought declarations that by signing the Treaty of Rome, the government had surrendered sovereignty permanently which is in breach of the law. Blackburn referred to Costa v ENL [1964] CMLR 425, 455 in which it was acknowledged that EEC Member States had limited their sovereignty. The Court of Appeal found that treaties only take precedence of UK law to the extent that Parliament instructs the courts to do so. Parliament cannot bind its successors but Mr Blackburn argued that in signing the Treaty of Rome it was doing so since it was irrevocable. Lord Denning raised the question as to whether the UK was at liberty to leave the EEC, but left the question unanswered.

As mentioned in chapter 5, the courts to not have jurisdiction over the prerogative of treaty making, there could be no injunction as Mr Blackburn argued over the UK joining the EEC. There are a number of cases from the CJEU, which consider the way in which EU law interacts with the domestic legal system and restricts parliamentary supremacy.

Case in Focus: NV Algemene Trasport-Expedite Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62 concerned a conflict between Dutch customs regulations and the EC Treaty. The ECJ held that Article 12 EC Treaty had direct effect and confirm that an individual could rely upon it within a national court, without the need for further legislation to be enacted in the Member State.

Case in Focus: Flaminio Costa v ENEL (1964) Case 6/64 ECR 585, 593-4 provided insight into the way the ECJ viewed the European Community, and established the precedence of Community law.  The ECJ stated:

"By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or transfer of powers from the States to the Community, the Member States have limited their sovereign rights."

The EC Treaty was not clear on the exact status of regulations at this point; the ECJ confirmed in Costa that they were directly applicable. The ECJ has at certain times expanded the terms of European legal supremacy beyond that which had been understood during negotiations around European Treaties.

Case in Focus: C-11/70 Internationale Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel [1970] ECR 1125, the ECJ confirmed that EU law derived from Treaty law is hierarchically superior to domestic law and that cases of the ECJ are also binding on national judges.

Case in Focus: Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629, affirmed that national courts are under full effect to European law 'if necessary refusing of its own motion to apply any confliction provision of national legislation, even if adopted subsequently'.

As a result of these precedents, the UK courts have thus had to acknowledge the supremacy of EU law over domestic law and whether the EC At 1972 actually does bind future Parliaments. In Pickstone v Freemans [1989] AC 66 the House of Lords interpreted the relevant statutory provisions in line with EU law. Similarly, in Lister v Forth Dry Dock and Engineering Ltd [1990] 1 AC 546, the House of Lords interpreted UK law to accord with a EU Directive even though by doing so they changed the meaning of that law.  The Courts began to find it more and more difficult to rely upon their interpretive obligation to create findings of law that accorded with European law.

Case in Focus: In Factortame Ltd and others v Secretary of State for Transport (Factortame No.1)[1990 2 AC 85, HL the High Court requested a preliminary ruling from the ECJ to determine the compatibility of the Merchant Shipping Act 1988 with the EC Treaty. A temporary injunction was sought by the applicant fishermen. The relevant parts of the 1988 Act were disapplied. The Court of Appeal reversed the High Court's decision holding that the High Court could not disapply Acts of Parliament. After a reference to the ECJ, the House of Lord restored the interim order granted by the High Court, which disapplied the relevant provision of the 1988 Act. The ECJ final ruling found the 1988 Act to be in contravention of EC Law.

The case makes clear that EU law is clearly hierarchically superior to domestic law and that domestic law must be set aside if necessary to give effect to provisions of EU law. This of course has implications for parliamentary supremacy and for UK constitutional law.

D. Nicol, 'Britain's transnational constitution' [2008] 61(1) Current Legal Problems, 125, 127-8,

International law presents a spectrum, with some regimes being weak and others are flouted with impunity. The EU, WTO and ECHR are on the stronger side of the spectrum, with EU law being the strongest of all. There is only EU law which enjoys a 'quasi-federal status vis-à-vis national law'. EU law has a unique constitutional impact since it compels domestic courts to enforce EU law even when it conflicts with a provision of domestic law. Half of the original Member State intervened in the landmark case of van Gend en Loos to oppose the creation of direct effect, but were overruled by the ECJ. The preliminary reference system has been effectively deployed by the ECJ to monitor national laws for their compatibility with EU law.

Referring back to Blackburn v Attorney-General [1971], does this mean that the UK has limited its parliamentary supremacy for all times? Since the UK has now voted to leave the European Union, this is clearly not the case, but the courts were challenged with making decisions on this basis.

Case in Focus: In Thoburn v Sunderland City Council [2002] EWHC 195 Admin, Laws LJ held that there was no conflict between EU law and UK law that triggered the doctrine of implied repeal, which is invoked when the provisions of a later Act contradict the provisions of a more recent one. He also rejected the argument of Sunderland City Council that the EC Act 1972 was effectively entrenched within the UK constitution and could not be repealed.  Laws LJ clarified the following points:

1. All rights and obligations created by the first pillar EU law is incorporated into UK law as a result of the EC Act 1972. Inconsistent UK legislation (even primary) must be set aside.

2.  The EC Act 1972 is a constitutional statute and as such can only be repealed expressly by Parliament.

3. This special status is a product of common law, not EU law.

4. The UK's fundamental relationship with EU law rests on domestic legal powers.

The EC Act 1972 is thus capable of repeal and Parliament has not bound its successors. This makes Factortame an expression of the rules of Parliamentary sovereignty, Parliament has not bound its successors with the EC Act 1972, and hence it was possible for the British Public to vote on the 23rd June 2016 to leave the EU. The UK remains bound by EU law until it has been able to negotiate its exit from the EU and be released from its obligations under international law. The details of that settlement are now a matter of political negotiations rather than legal settlement, including the status of EU national now resident in the UK and UK nationals who are resident elsewhere in the EU.

E. European Union Act 2011 and the Lisbon Treaty

In the Lisbon Treaty, the EU drew a clearer line between the competencies of Member States and those of the EU. One million citizens may call upon the European Commission to bring forward a certain policy; this is referred to as the Citizen's Charter. It introduced the European Charter of Fundamental Rights (from which the UK opted out).

S. Burns, 'An incoming tide' [2008] 158 New Law Journal 44, 44-6

Lord Denning noted in Bulmer (HP) Ltd v J Bollinger SA [1974] Ch 401 at 418-9, that the impact of EU law was like an incoming tide flowing up the UK legal system. Burns considers that tide to be more of a Tsunami, particularly in the light of the Lisbon Treaty. The Treaty amends the TEU; Article 1 states that the Union shall replace the European Community.

Article 3 TEU states that the Union aims to promote peace, and to create an area of freedom, without frontiers. It refers to an internal market, and sustainable development, aiming towards full employment and an improvement of the quality of the environment. Article 3 also creates economic and monetary unions, whose currency is the euro.  Article 5 maintains that issues of law and order and the safeguard of national security will remain the sole responsibility of the State. Article 35 TEU provides that 'any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements'. This provision clarifies the position of the UK that it is able to pass legislation that repeals the EC Act 1972 in order to withdraw the country from the EU.

The European Union Act 2011 brought into the law the requirement that any proposal that sought to transfer power from the UK to the EU be put to a referendum of the UK electorate, before the UK government was to be empowered to enter into such a treaty.  The rapid growth of the EU and its competencies had given rise to concern in the UK and other EU Member States. Certain members of the Conservative party in particular wished to reclaim powers from Brussels. The Conservative party who were the dominant party in the 2010-2015 Coalition government introduced the European Union Act 2011 (EU Act 2011); it provided that any further extension of EU powers would be approved by an Act of Parliament and by a referendum.

Section 2 provides that no Treaty amendment of the TEU or TFEU shall be ratified unless an Act of Parliament approves it and either a referendum condition or exemption condition is met. The exemption condition would need an Act dispensing with the need for a referendum. Section 3 applies similar arrangements to the simplified revision procedure for making amendments to the TFEU under Article 48(6) TEU.   The purpose of the EU Act 2011 in constitutional terms is that it effectively retinas the balance of power between the EU and the UK and means that any ceding of power to the EU would have required a referendum in favour of doing so by a referendum of the British electorate.

F. The European Union Referendum and Brexit

As part of his parties manifesto in the 2015, General Election David Cameron (the Prime Minister) promised to hold a referendum on the UK's future in the European Union. The referendum was held on 23rd June 2016, the leave campaign being support by campaigners from the Conservative Party. The UK voted to leave the EU, with 52% of those who voted opting to leave. The turnout for the referendum was 71.8%, with more than 30 million people voting. [Brian Wheeler and Alex Hunt, 2 October 2016, Brexit: All you need to know about the UK leaving the EU, http://www.bbc.co.uk/news/uk-politics-32810887]. David Cameron, the Prime Minister resigned after the referendum and Theresa May took over. There is currently a lot of debate about what leaving the EU will mean for the UK, in particular how Britain will trade with other countries that remain in the EU and the situation of EU nationals who are resident in the UK (as well as UK nationals resident elsewhere in the EU).

For the UK to leave the EU, it must invoke Article 50 of the Lisbon Treaty, which permits the UK two years to negotiate the terms of departure from the European Union. Theresa May has stated that she will invoke Article 50 by March 2017. The government will also be required to enact a repeal Bill that will end the primacy of EU law in the UK; the Bill will incorporate all EU law into UK law (that is not already implemented through legislation) after which the government will need to decide which pieces of legislation to retain and which to repeal or amend. The terms of Britain's exit from the EU will need to be agreed by the other 27 members of the European Union, which some politicians will take much more than two years. EU law will remain static in the UK until it leaves the EU; it will remain bound by EU law including those giving direct effect, but will have no part in the decision-making. The UK will need to repeal the European Communities Act 1972 in order to complete its departure from the EU.

Figure 8.3 The Procedure the UK must follow in order to leave the European Union (Brian Wheeler and Alex Hunt, 2 October 2016, Brexit: All you need to know about the UK leaving the EU, http://www.bbc.co.uk/news/uk-politics-32810887)

Exam Consideration Negotiations on the UK's departure from the EU are highly topical and thus it is important to keep up to date with news reports of the status of negotiations and how this will affect the position of EU law in the UK. Be aware that if Article 50 is invoked, two-year pass and no extension is agreed all EU Treaties will cease to apply in the UK. The UK's departure from the EU answers the questions that Lord Denning left unanswered in Blackburn, that the UK had retained its own parliamentary supremacy and can indeed leave the EU and claw back the supremacy of UK law.

Hands on Example - European Union Law

The following scenario aims to test your knowledge of the topics covered in the chapter on European Union Law. The answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Scenario

Part A:  The European Commission propose a Regulation that is approved by the Parliament and the Council in 2013 which provides that all citizens in European Union Member States shall be entitled to a minimum full time contract of work of 35 hours a week. The aim of the regulation is to outlaw zero hour's contracts and guarantee a minimum number of hours for full time work.  In 2015, the UK Parliament passes the Minimum Full Time Hours Act 2015. This Act provides for a minimum hours’ contract for full time work at 28 hours per week.

In 2016, Barbara works for Shorts Direct as a full time staff member. She has a contract, which guarantees her 28 hours work a week. Barbara objects and requests a minimum of 35 hours a week, relying upon the EU Regulation. Shorts Direct rely on the Minimum Full Time Hours Act. Advise Barbara as to whether the EU Regulation or the Minimum Full Time Hours Act 2015 determines her rights.

Part B: Explain the procedure that the UK must follow in order to leave the European Union and no longer be bound by EU law. Be careful to distinguish between the legal and political process involved in withdrawing from the EU.

Suggested Answers

A) This question might look straightforward, but there are a number of elements to the answer. The UK courts have jurisdiction to interpret and apply an Act of Parliament, once it has received assent by the House of Lords, House of Commons and the Royal Assent. There are a number of cases you might want to refer to here, including Stockdale v Hansard [1837] Eng R 487 and Pickin v British Railways Board [1974] AC 765 HL.

The underlying question is whether section 2 European Communities Act 1972 is subject to express or implied repeal, which would enable the UK Parliament to pass legislation in contravention of an EU regulation. You should explain the rules of express and implied repeal by reference to Vauxhall Estates Ltd v Liverpool Corporation [1932]KDB and Ellen Street Estates v Minister of Health [1934] 1 KB 590, [1934] All ER Rep 385. You should consider whether a provision of an Act of Parliament can protect a statute from amendment or repeal.

You need to consider the supremacy of EU law, as provided for in section 2 European Communities Act 1972. You should also consider the views of the House of Lords in Factortame Ltd and others v Secretary of State for Transport (Factortame No.1) [1990 2 AC 85, HL which makes clear that domestic law must be set aside if necessary to give effect to a provision of EU law.

You should also refer to Thoburn v Sunderland City Council [2002] EWHC 195 Admin, where it was confirmed that the EC Act 1972 incorporated all rights and obligations created by EU law into UK law and that inconsistent legislation must be set aside. The EC Act 1972 is a constitutional statute and as such cannot be repealed by implication, only by express provision of Parliament.

Taking this into account the court is likely to disapply the provisions of the 2015 Act in favour of the EU Regulation and Barbara should be able to require a minimum of 35 hours work per week when employed on a full time employment contract.

B) This is an overview of the process, the exact political agreements that will be reached between the UK politicians and the remaining 27 Member States is to be determined. In law however, since the UK has carried out a referendum and voted to leave the EU, the next state of the process is to invoked Article 50 of the Lisbon Treaty. Article 50(1) provides that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements", it then goes on to describe the states of a Member State withdrawing from the EU. The remaining 27 EU Member States need to discuss the conditions of the withdrawal.

Political negotiations need to take place between the EU and UK in order to agree upon the UK's future relationship with the EU, in particular in relation to issues of immigration and trade between the UK and EU Member States. A draft of this agreement will be reviewed by the European Council; it needs the approval of 20 of the 27 remaining member states and ratification by the European Parliament.

If the requisite number of states do not agree, the period of negotiations of the draft agreement can be extended. At this point EU Treaties and thus EU law will cease to apply in the United Kingdom.  This leaves the UK with a large amount of European law which is currently in force in the UK which will need to be addressed by Parliament. Directives have been incorporated by virtue of Acts of Parliament, but Regulations, which have direct effect, need to be accepted into UK law until Parliament can decide which parts of EU law it will retain and which will be amended or repealed.

Finally, Parliament must repeal the European Communities Act 1972, thus removing the obligation of the UK to subsume its parliamentary supremacy to European Union law. UK courts are no longer bound by decisions of the CJEU.


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