English Legal System - Sources of EU Legislation (Part 2)


Article 249 EC stipulates that decisions are binding in their entirety on those to whom they are addressed.
They must be notified to the addressee and take effect when notified to those to whom they are addressed.

Decisions are not the judgements of the European Court of Justice, but general measures adopted by the Community or one of its institutions in the form of administrative action taken by the Commission officials, and they are in effect legislative measures.

They may be addressed to a state, a company or a person and it is binding only on the recipient.
Example of such is the granting or refusal of export licenses to companies outside the European Union

Recommendations and Opinions

These are often referred to as ‘soft law’, and they are not legally binding as they merely suggest a line of action to be taken or they give a view on a particular question.
They may be taken into account for the purposes of interpreting a measure.

They may be occasionally preliminary to legal action as when the Commission has states an opinion upon a question whether a member state is in a breach of an obligation after given the member state an opportunity to submit observations, and if failing then to comply with the opinion, the Commission may initiate proceedings before the court.

Effect of the European Union Law on the UK

Membership of the European Union has number of effects on the UK and its legal system. Joining the original EEC created new and important sources of law.

The European Communities Act 1972 s. 2(4)

English law should be interpreted and have effect subject to the principle that European law is supreme, taking precedence over all domestic sources of law

R v Secretary of State for Transport, ex parte Factortame [1990] 2 AC 85

Case stating that judges may refuse to apply statutes when they are in conflict with directly effective EU law, as in this case the Government passed legislation to prevent Spanish trawlers trying to take advantage of British quota. The House of Lords agreed with the Spanish boat owners challenging this Act resulting in the Merchant Shipping Act being effectively unenforceable.

This decision was criticized as it compromises the Parliamentary sovereignty to make laws, however it was known that prior the UK joining the European Community, it was to give up some degree of its sovereignty over its own law, and joining meant voluntary acceptance of this.

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151

Stated that the European Communities Act 1972 was a constitutional Act which could only be repealed by express provisions of an Act of Parliament and Lord Justice Laws stated that Acts should be divided into ordinary statutes and constitutional statutes, European Communities Act being a constitutional Act.

As the different approaches of the English legal system and those of the Continental Europe, the result may be that the more tightly written, very precise rules of English law may be influenced by the more broad principles of the mainland Europe

The European Court of Justice tends to follow the continental approach, and this in time may result in more creative judicial decision making and changes in the drafting of statutes in relation to this in the UK
Related Posts Plugin for WordPress, Blogger...
Need Law Introduction ... click HERE
Private Policy About Us Contact Us Content References

LAW (LLB) NOTES is intended merely as an informational and educational resource and is not intended to offer legal advice, nor does it offer legal advice. The exchange of information, by electronic mail or otherwise, relating in any way to LAW (LLB) NOTES is not intended to create an attorney-client relationship, nor does it create an attorney-client relationship.