Ec Law Essay, Research Paper
EC LAW ASSIGNMENT
Gary Slapper states ??that ever since the UK joined the European Community it has progressively, but effectively passed the the power to create laws which have effect in this country to the wider European institutions such??(Slapper`99 P.33) So in all practical terms the UK`s legislative, executive and judiciary??s powers are in the main controlled by and operated within the framework of the European community laws. The increasing importance of Uk judges to consider the issues and principles of EC Law is clearly evident now as regards such issues as human rights and employment rights. National Judges must consider the practical realities that they must abide by EC rules regarding four areas of 1. Direct Applicability,2.Direct Effect and that3.EC Law following the case of Costa v Enel (1964) prevails over the national laws of each member state. Lastly 4. that in coming to a decision the National judge has the option to request a preliminary hearing under Art.177 from the European judiciary on a national legal dispute. It is these four areas that must be looked at in by the national judge when they are considering a case.
With the fact that regulations are directly applicable under Art.189EC to all member states and that the UK has adopted the Monist stance (i.e. Community Law automatically becomes UK law) then judges have little option in some areas of law, but to follow Ec laws/Treaties. This comes via the European Communities Act 1972(S.2) and is affirmed in Ec case law 34/73 Variola 1973.National judges must also consider that Ec directives are part of domestic law and thus have legal existence even before their confirmation into national law.
National judges must also consider that Ec Law regarding matters that come before the domestic courts is also Directly Effective (involving treaties) and it enforces rights and duties for Ec nationals, which can be enforced in domestic courts. This was established in the landmark case of Van Gend en Loos 1963.The National judge ??has to apply community law in the absence or in place of national law then a provision of such community law must to all intents and purposes be unconditional, clear and precise to form part of Uk law??. Kaczorowaska`98 P275 .The National judge has the ability to use discretion in the form and implementation procedure. Indeed with the concept of indirect horizontal direct then domestic judges are required to interpret their law in line with that of the community which basically emphasises the supremacy of Ec law as seen in Von Colson and Kaman 1984.Following the case of Harz 1984 then the national judge must interpret domestic law as to ensure such a result was required by the directive regardless of whether the defendant was the state or a private individual. After Marleasing 1990 and Wagner 1993 it appears the national judges have a duty to consider all national law, which existed before or after the directive. Domestic judges must concern themselves with the subject in question so as to determine if national legislation should be interpreted in line with the wording and aim of the directive. Indeed in the uk case Webbv Emo Air Cargo 1995 the House of Lords had to consult the ECJ under Art.177 Ec on the issue of the EC Directive 76/207 on Sex Discrimination to the already existing Uk Sex Discrimination Act 1975.By following the New Directive the English judges confirmed the position that Ms Webbs dismissal was contrary to Ec Law and that ??national law pre-dating EC law must be interpreted in conformity with the latter??(Kaczorowaski`97 P.288)
National judges must refer their considerations under ART 177 where there is a national dispute of national law involving ec law. The landmark case of Schwarze 1965 the ecj emphasised that co-operation is needed between national courts and the ecj. This 1965 case emphasised that as regards preliminary hearings then both national courts and ecj ??are called to contribute directly and reciprocally to render a judgement??(Kacz`97 P.373.The national judge is reminded that as emphasised in Rhein muhlen 1974 then Article 177 Ec is needed to preserve the community character established by the treaty which must ensure the law is uniform throughout all states.?? Indeed the national judge must ecj assistance on the interpretation of primary sources of community law such as treaties, protocols and acts of accession.
National courts in interpreting laws must consider the Supremacy of EC Law. See Costa v Enel 1964. National authorities and especially national courts are required to ensure effectiveness of community law to protect rights conferred by the latter upon individuals and to supervise the proper application of principle of supremacy. Indeed the national judge must consider that without supremacy of ec law there would have little point in the principles of direct effect and direct applicability. Important to this principle for domestic judges was the issue raised in the case of Simmental 1978.Here the Echo cleared up the task for domestic judges faced with conflicting provisions of national and community law. Here after the national judge had referred the case using Art.177Ec the echo made clear in the area of conflicting subsequent legislative measure of a member state with community law then domestic judges must use EC law in its entirety and that they should put aside national law provisions which were before or after in conflict with Ec law. The national judge must therefore not ask or wait this putting to one side of conflicting national provision by legislation, but use its own methods. ??The national judge should if required refuse the application of conflicting national law and instead apply EC law??(kac`97 P294)
The above are the main areas a judge should consider when looking at a National case. You need to read Kaczorowaska (267-303 and 373-401 to extend the essay and get a full understanding) and your notes. This is the main structure and I would suggest you borrow the above book from the library and change a lot of the wording. There are 900 words. This is only rough and I would normally take two weeks over such a thing. I have my own work to do. Change ecj for European court of justice etc.I think if you change the wording and structure it as I have done and add a conclusion summing all 4 areas up and get your lunatic brother to do his artwork you should get above 50%
Steiner and Woods
Slapper Kelly/Eu Law Monitor