FREE ESSAY ON EUROPEAN COMMUNITY LAW

EUROPEAN COMMUNITY LAW

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)
937 words
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%
Bibliography
bibliography 
Steiner and Woods
/Kacorowaski/
Slapper Kelly/Eu Law Monitor