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EU Law
Study Note | Degree

28 FEBRUARY 2012

Introduction
EU law impacts on how UK institutions interact and incorporates protection of fundamental individual rights into UK
domestic law.

EUROPEAN COMMUNITIES ACT 1972

Section 2(1): '.. All such rights, powers, liabilities, obligations and restrictions from time to time
created or arising by or under the Treaties, and all such remedies and procedures from time to
time provided for by or under the Treaties, as in accordance with the Treaties are without
further enactment to be given legal effect or used in the United Kingdom shall be recognised
and available in law, and be enforced, allowed and followed accordingly...'

Section 2(4): '.. any enactment passed or to be passed, other than one contained in this part of
this Act, shall be construed and have effect subject to the foregoing provisions of this section;
but, except as may be provided by any Act passed after this Act...'

REFORM TREATY 2007

Also known as the 'Lisbon Treaty', it renames the 'EC Treaty' (Treaty of Rome 1957) as the Treaty
on the Functioning of the European Union (TFEU).

The UK has ratified the Reform Treaty and this is affirmed by the passing of the European Union
(Amendment) Act 2008.

Types of Legislation
EU law consists of Treaty provisions, Regulations and Directives, which can be relied on in the UK if they have
'direct effect', meaning that they can create legal rights and obligations enforceable in the courts.

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Treaty Provisions
Treaty provisions set out the aims and objectives of the EU and the structure of its institutions. Treaties are agreed
by direct negotiation between the governments of Member State and are then subject to ratification by the national
Parliaments.

Treaty provisions can become a source of law in the UK through application of the doctrine of 'direct applicability'.
The doctrine is established by applying Section 2 of the European Communities Act 1972 and European Court of
Justice case law.

VAN GEND EN LOOS V NEDERLANDSE ADMINISTRATIE DER BELASTINGEN [1963]

European Court of Justice held that Treaty provisions which are clear, unconditional and not
dependent on any national implementing measure they can have 'direct effect'.

The 'Van Gend' criteria also apply to directives and regulations.

BULMER V BOLLINGER [1974]

Lord Denning: '.. But when we come to matters with a European element, the treaty is like an
incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament
has decreed that the treaty is henceforward to be part of our law. It is equal in force to any
statute...'.

Regulations
Regulations are 'directly applicable', so have legal force in a member state without the need for further specific
doemstic legislation.

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 288: '.. A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all Member States...'.

Previously 'EC Treaty' Article 249.

Directives
Directives are not 'directly applicable' and are implemented in the UK by specific domestic legislation. There is
usually a time limit for implementation imposed. Directives are often passed by statutory instrument or an Order in
Council. This means as subordinate legislation they are subject to judicial review.

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 288: '.. 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...'.

Previously 'EC Treaty' Article 249.

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Directives can have 'direct effect'.

VAN DUYN V HOME OFFICE [1974]

Defendant, the Home Office refused the claimant, Miss Van Duyn leave to enter the UK on the
grounds of her undesirability. She was a practising Scientologist and a Dutch national.

Claimant attempted to rely on a directive which allowed free movement of workers in the EU.

European Court of Justice held that individuals should be able to rely on directives in national courts,
otherwise the usefulness of a directive was weakened. The court held that the directive could have
'direct effect'.

PUBBLICO MINISTERIO V RATTI [1979]

Defendant sold chemicals and labelled them in line with two directives, which had not been
implemented by the Italian Government.

Defendant was prosecuted for not labelling in accordance with the existing Italian law.

European Court of Justice held if a Member State fails to implement a directive an individual may
enforce the directive themselves. A directive can have 'direct effect' after the time limit for its
implementation has passed.

However, directives can only have 'vertical direct effect', which means against the State or a State body. An
individual cannot enforce a directive against another individual or a private body, 'horizontal effect'.

MARSHALL V SOUTHAMPTON AND SOUTH WEST HAMPSHIRE AREA HEALTH

AUTHORITY [1986]
Claimant, Mrs Marshall, wanted to continue working at a Teaching Hospital (a public body) and
complained that women were forced to retire at 60, whereas men, could retire at 65.

Claimant sought to rely on an unimplemented Equal Treatment Directive 1976 on equal treatment of
men and women. However, the UK Sex Discrimination Act 1975 excluded matters related to
retirement from its provisions.

European Court of Justice found that claimant could rely on the directive. Stating '.. a Directive may
not of itself impose obligations on an individual and…a provision of a Directive may not be
relied upon as such against a person...'.

DUKE V GEC RELIANCE LTD [1988]

Case in domestic courts against a private company and therefore the Equal Treatment Directive
1976 was not applicable.

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Interpretation
The European Court of Justice and the national courts interpreting EU law, use the 'teleological' approach derived
from international law. The approach is an extension of the purposive approach. It requires courts to consider how
maximum practical effect can be given to the overall objectives of the laws rather than the intention of the legislator.

VON COLSON AND KAMANN V LAND NORDRHEIN-WESTFALEN [1984]

Defendant, the German prison service refused to employ a female, the claimant, to work in a male
prison.

Claimant sought to rely on the Equal Treatment Directive 1976.

European Court of Justice found that whether or not EU law has 'direct effect', national courts should
interpret domestic legislation to ensure the objectives of the directive are achieved and to be consistent
with EU law.

WEBB V EMO AIR CARGO (UK) LTD (NO.2) [1995]

Defendant employed the claimant, initially as cover for maternity leave with the intention permanent of
employment beyond the return of the other employee. Shortly after starting the claimant discovered
she was pregnant and was unable to work during the maternity leave period and she was dismissed.

Claimant sought to rely on the Equal Treatment Directive 1976.

The House of Lords referred the case to the European Court of Justice for a preliminary opinion. The
court found in favour of the claimant and held there was direct discrimination on the grounds of her
sex.

European Convention on Human Rights

UK signed the European Convention on Human Rights in 1951 and in 1965 recognised individual citizens have a
right to petition the European Court of Human Rights.

HUMAN RIGHTS ACT 1998

Incorporates the fundamental rights and freedoms contained within the European Convention on
Human Rights into UK law.

Including the right to life (Article 2), the prohibition on torture and inhuman or degrading treatment or
punishment (Article 3), the right to liberty and security of the person (Article 5), the right a fair trial
(Article 6), the right to respect for private and family life (Article 8), freedom of thought, conscience and
religion (Article 9), freedom of expression (Article 10) and freedom of assembly and association (Article
11).

This article can be found online at www.bitsoflaw.org/public/constitutions/study-note/degree/source-eu where links to further resources are
available.

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