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Introduction to EU Law & the European Legal Order

EU Law & HomelessnessLewisham Homelessness Forum Training

5th February 2014

Rebecca Collins, Project Manager

Topics We Will Cover

1. Europe: an overview2. European Legal Order3. EU Law4. Who does EU law apply to?5. Enforcement of EU rights

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1. Europe: An Overview

EU Institutions

NOTE! The Council of Europe which governs the European Court of Human Rights (ECtHR) and upholds the European Convention of Human Rights (ECHR) is SEPARATE to the

European Union

Europe Explained

• European Union • Council of Europe• European Economic Area (EEA)• Eurozone• Schengen Area• European Fair Trade Agreement• Euro Customs Union

Europe in a Diagram

European Union28 Member States (year of entry)

• Austria (1995)• Belgium (1952)• Bulgaria (2007)• Croatia (2013)• Cyprus (2004)• Czech Republic (2004)• Denmark (1973)• Estonia (2004)• Finland (1995)• France (1952)• Germany (1952)• Greece (1981)

• Hungary (2004)• Ireland (1973)• Italy (1952)• Latvia (2004)• Lithuania (2004)• Luxembourg (1952)• Malta (2004)• Netherlands (1952)• Poland (2004)• Portugal (1986)• Romania (2007)• Slovakia (2004)

• Slovenia (2004)• Spain (1986)• Sweden (1995)• United Kingdom

(1973)

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2. The European Legal Order

The Sources of EU LawThere is a hierarchy of law in the EU, when making a case you

always want to cite the strongest sources of law. Here is an overview of the hierarchy:

Note that EU law is supreme in domestic legal systems. In the UK, the European Communities Act 1972 established this. 9

TREATIES

REGULATIONS & DIRECTIVES

CASELAW

The Lisbon Treaty

At the top of the hierarchy of EU law there are three treaties (known together as the Lisbon Treaty):

•Treaty on European Union (TEU) – broad principles and institutional framework

•Treaty on the Functioning of the EU (TFEU or TOFU) – nuts and bolts of competence and lawmaking

•Charter of Fundamental Rights – contains rights and principles of a justiciable character (but there is a Protocol limiting this for the UK, currently at issue in litigation before the Court of Justice of the European Union)

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Application of the CharterArticle 51

Scope

1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member

States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof

in accordance with their respective powers.

2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.

This means that the Charter can only be used when the UK is applying existing European Union law.

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Direct Effect of Treaty Articles

It is possible for Treaty articles to have direct effect, that is, to create legally binding obligations. The article must be clear, precise, unconditional, and capable of giving rights (Van Gend, C-23/62).

Some key terms:• Vertical direct effect: creates obligations on the states vis-à-vis

individuals.• Horizontal direct effect: creates obligations between

individuals.

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Do Directives Have Direct Effect?

A provision of a Directive can have direct effect if the provision is clear and precise, unconditional, and the deadline for implementation has passed. In that case, the Directive has direct effect vis-à-vis the Member State or an emanation of the Member State. For more about these, see Grad (C-9/70), Ratti (C-148/78), and Marshall (C-152/84).

The important point is that direct effect is only vertical: you cannot rely on a Directive alone to enforce obligations against individuals.

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3. Who does EU law apply to?

Who does EU law apply to?

Who Are EEA Nationals?Nationals of these countries:

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,

Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway,

Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland

The UK is not included!*

A8 countries are underlined

A2 countries are hyphen-underlined

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*There are exceptions, but these are very specific and don’t apply in general circumstances

A8 & A2 Nationals

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A8 – Joined in 2004 A2 – Joined in 2007Czech Republic

Estonia

Hungary

Latvia

Lithuania

Poland

Slovakia

SloveniaRomania

Bulgaria

Basic Residence Rights

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Any EEA national has the right to move to and reside in the UK for up to three months

After five years of legally living in the UK whilst exercising treaty rights (with some exceptions), EEA nationals can apply for permanent residence

• Includes part-time work (as little as 10 hours a week)• EG. full-time or part-time work with a contract of employmentWORKING• Working for yourself (even part-time)• EG. Starting your own cleaning businessSELF-EMPLOYED• Being so rich you don’t need to work • EG. millionaires and their familiesSELF-SUFFICIENT

• Enrolled in full-time or part-time studies that require location in UKSTUDYING

TREATY RIGHTS

At the end of three months – in order to live here legally – EEA nationals must exercise “treaty rights”

4. Enforcing EU Law

1. Litigation in UK Courts and Tribunals

2. References to the Court of Justice for the European Union

3. Infringement proceedings

Three Ways

Litigation in UK Courts and Tribunals

• EU law can be relied upon and enforced in domestic courts and tribunals.

• Rights under Treaties, Regulations and provisions of Directives with direct affect can be directly sought and applied.

• Directive provisions with indirect affect can be used to argue for an interpretation consistent with the Directive.

References to the CJEU

Article 267 of the Treaty on the Functioning of the European Union:

The Court of Justice of the European Union shall have jurisdiction to give preliminary

rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies

of the Union;

Where such a question is raised before any court or tribunal of a Member State, that

court or tribunal may, if it considers that a decision on the question is necessary to

enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a

Member State against whose decisions there is no judicial remedy under national law,

that court or tribunal shall bring the matter before the Court.

Process for a Reference

• Referral can be requested by one of the parties in the case, however decision to refer remains with the Court or Tribunal (other than Court from which there is no appeal)

• CJEU only rules on the questions that are referred – the national court remains competent in the original cases.

• Decision of the CJEU is binding not only on the referring national court but on all national courts.

Infringement Proceedings

Article 258 of the Treaty on the Functioning of the EU:

If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union

Infringement Proceedings Process

• Very long process • Begins with a complaint to the European

Commission.• If Commission agrees with complaint, State given

formal notice and opportunity to submit observations.

• European Commission gives a “reasoned opinion” • If State fails to comply, may be brought before the

CJEU

Any Questions?

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EU Law Quiz

• What countries make up the A8 states?• How is the Council of Europe different from the EU?• Can the Commission investigate the way Belarus

implements law? • What are the four ways you can exercise “treaty

rights?”• Name two differences between Regulations &

Directives• Which EU Institution investigates whether states

infringed the rights of citizens by failing in their treaty obligations?