1 Studying EU law
EU law traditionally is one of the core subjects for a qualifying law degree in England & Wales. It filters through to the ‘domestic’ law of member states as well as some states that have bilateral Treaties with the EU, such as Norway, which are bound to follow large chunks of EU law. Any understanding of domestic law in a member state is incomplete without a good grounding in the principles and content of EU law, which is the reasoning behind EU law forming an integral part of domestic legal study.
Activity 1 Why study EU law?
Timing: You should allow yourself 20 minutes to do this activity.
Watch the two videos below: the first video features Professor Paul Craig, one of the authors of a renowned EU law textbook, and the second video is from the EU Commission. You need to only watch the first 03:59 minutes of the video recording by Professor Craig. You are welcome to listen further but, when doing so, bear in mind some of these points are now dated.
Download this video clip.Video player: Why is it so important to study EU law?
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Transcript: Why is it so important to study EU law?
Professor Paul Craig
St John's College, Oxford
December 2010
PAUL CRAIG
I'm Paul Craig, I'm one half of Craig and de Burca on EU Law, Text, Cases, and Materials. And we're just producing the new edition.
Studying EU Law
Why is it so important to study EU Law?
When I first started teaching EU law, which was, intake of breath, 1978, at that time, EU law was a little bit adventurous. It was regarded a bit like international law, that is an exceptional subject which a few practitioners knew about and nobody else really did.
Things have changed really dramatically in the last 30 years. The reason why it's so important to study EU law now is there is almost no part of domestic law which is not affected in a fairly significant way by EU law. So whether you're thinking of tax law or social welfare law, whether you're thinking of the law of contract or commercial law, whether you're thinking of the law relating to trade and the movement of goods, whether you're thinking about competition law or company law or discrimination law, all these areas of law now have an EU component.
In that sense, it's impossible to be a purely domestic lawyer. If such a creature existed, then they need to be put in the ark or in a museum or something of that kind. It's not possible to be a purely domestic lawyer. Whatever your specialty is, you need to know something about EU law. So for a student, when you're going out there if you want to practise law or know something about law in your later life, you have to know about EU law, because it's the framework which produces the law relating to all of these different areas.
What are the key issues they will come across?
Any student who comes to EU law for the first time will find a number of things that they have to get used to. They have to get used to the idea that there are a set of institutions out there at the EU level which are different from those in their nation-state. They have different names, commission, council, European Council, European Parliament. And the division of powers between those institutions is not always as clear as it might be in some nation-states. And that's something you have to get used to too. But that is something which students actually become accustomed to pretty quickly, because most of you out there are pretty bright, and therefore you're going to get used to this stuff pretty quickly.
But equally, you have to get used to the fact that the European Court of Justice and the General Court have their own style of reasoning, their own way of framing Decisions. And you have to get used to reading Decisions given by the European courts. And the style of those Decisions isn't actually quite the same as that given in domestic courts.
A further difference which you'll get used to, and again, it's something actually which is just something that most students get used to really quite quickly, is the fact that the legislation produced by the European communities or the European Union, as it now is, is often framed slightly differently from domestic statutes. So all of these things are just part of the learning curve when you take on this new subject. But don't worry about it, because you the students are actually going to get to, going to be able to grasp these issues rather more quickly than you might initially think.
What are the current topics being discussed?
EU law is a very large subject, so at any one point in time, there are always multiple debates going on in EU law. And indeed, because EU law is a big topic, then you'll have debates going on between EU corporate lawyers. You'll have debates going on between EU environmental lawyers. You'll have debates going on between EU administrative lawyers, et cetera.
Having said that, standing back from where we are now, I think that some of the major debates which are going on are these. On the one hand, you do have debates about what the implications of the Lisbon Treaty are going to be. How's the Lisbon Treaty going to affect the disposition of power, both between the EU institutions, as it were, at the EU level? The inter-institutional division of power's going to be affected by Lisbon in a number of ways. Precisely how it's going to be affected is still being worked out. So for example, the balance of power between the European Council and the Commission, the balance of power between the Council and the European Council, these matters are being worked out and debated.
Another issue which is being debated is the impact of the new provisions about competence on the vertical division of power between the EU and the member states. One of the aims behind these provisions on competence was to try and quieten member state fears about competence creep, about the fact that the competence of the EU seemed to be expanding with no real limitation. So the categories of competence were put there in order to try and make clearer when the EU could act, when it couldn't act, and therefore what the reserve powers of the member states were. There are debates going forward about the precise effectiveness of this new categorisation of competence.
Another debate yet again is going to be about the impact of folding the area of freedom, security, and justice into the main body of the treaty. This is going to be really quite dramatic, because there are many important provisions in these areas, concerned with areas, issues such as criminal law, criminal procedure, immigration, asylum, hot political topics where the law is difficult and the politics are even more difficult, if I can put it that way. And the impact of making these legal provisions fully justiciable so that the European Court of Justice is going to have full authority over these areas. It's going to be big changes and there are debates about precisely how those changes are going to fall out, what those changes are going to look like.
One final example, after 10 years, the Charter of Rights at the EU level is now fully binding. Even before the Lisbon Treaty, the Charter was referred to increasingly by litigants, by advocates general, by the General Court, and equally even by the European Court of Justice. But Lisbon is significant. The Charter is now legally binding in its own right, has the same status as the Treaties themselves.
This is likely to have a significant implication for the kind of cases going before both the European Court of Justice and national courts. And there are big debates about the nature of those implications. In my view, it's going to lead to a fairly significant change in the kinds of cases being dealt with both before national courts and the European Court of Justice. So just to link the point I made just a moment ago about the AFSJ, the area of freedom, security, and justice, with the Charter, if you put the two together, it's potentially quite explosive in the following sense.
The area of freedom, security, and justice is now fully justiciable. Many of the legal provisions made in those areas dealing with asylum, dealing with immigration, dealing with data protection, dealing with criminal law and criminal procedure, raise complex and controversial issues concerning human rights. People are going to use the Charter, both at national level and before the European Court of Justice, in order to try and attack the relevant EU legislation and vindicate their rights based on the Charter. So I think we're in for an exciting time. And there are debates going on about precisely what the concrete implications of this legal intervention will be.
What are the major changes we are likely to see in EU Law over the coming 3 years?
It's always difficult to guess the future. A week is a long time in politics. Three years is even longer.
Having said that, it seems to me that one of the significant developments is going to come from the Charter, the EU Charter. EU Charter's been around for a long time, a decade now. It was signed and sealed in 2000, agreed to by the member states, but its legal status was unclear until the Lisbon Treaty. Well, its legal status was not actually unclear. It was not formally binding, but it was referred to by the advocates general, by the Court of First Instance, and by the European Court of Justice.
Having said that, the Charter is now legally binding under the Lisbon Treaty and it has the same legal status as the Treaties. Now, that is going to be significant. Now, some people say it won't make any difference because the Charter was merely declaratory of rights which existed under EU law anyway.
I don't take that view. Yes, the Charter is intended to be declaratory. It's written and sold as being declaratory. Nonetheless, the very fact that these rights are brought together in concrete form in this document called the Charter is, I think, going to have a very significant impact. And people are going to use and rely on Charter rights in actions both against the EU institutions and against their member states when implementing EU law.
And just to show the force and the importance of this, the implications of the Charter becoming fully binding are even more forceful if you link that with one of the other developments made by the Lisbon Treaty. And the development is the fact that the area of freedom, security, and justice is now fully legally binding and becomes a normal part of EU law. So what's the connection between this and the Charter?
Well, the connection is this. Many of the kinds of legal measure which were enacted in that area concerning with asylum or immigration, with data protection or criminal law, or criminal procedure, many of these issues are controversial in human rights terms. And people are going to make various kinds of rights-based challenge, either at EU level or at national level, against these measures. They couldn't do that before. They couldn't do that before at all, or not in the way that they can now. I think therefore you're going to get an explosion, if that's not too big a word, but I think it's not, I think you're going to get an explosion in rights-based challenges brought before the European Court of Justice or national courts based on Charter rights.
And if I can add one further point here, I think related to this is the fact that under the Lisbon Treaty, there's not a power but a duty for the EU to sign up to the European Convention on Human Rights. Negotiations to that end have already started. They've already begun. And I think that therefore one of the key issues moving forward over the next three years, it's not only the legal implications of the EU Charter itself, but the legal implications of the interrelationship between the EU and the European Convention on Human Rights.
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Download this video clip.Video player: The European Commission explained – functioning and tasks
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Transcript: The European Commission explained – functioning and tasks
[CROWD TALKING]
Reunion
Funtioning and tasks of the European Commission
NARRATOR
It's a July morning on a beach in Europe, the last day of your holidays. You use your mobile phone to send a text message
[BEEP]
and then close your eyes. Your words are picked up by local telephone lines and transmitted from one network to another until they reach the country where your boyfriend lives. This is called roaming. Telephone companies generally charged too much for this service, which resulted in unpleasant surprises at the end of the holidays.
But roaming prices have now dropped dramatically thanks to the European Commission. The Commission is a group of politicians, men and women, who meet every Wednesday in Brussels. We call them commissioners. Together they form the government of Europe, so to speak. They all have their own specific field of responsibilities and come from different countries. It is their role to defend the general interest of the European Union. When they take their oaths, they swear not to accept instructions from their own government. Each commissioner expresses an opinion on all subjects, and contributes to all Decisions. It is often said that the Commission is the driving force of the European Union.
Its main role is to take the initiative in proposing EU legislation. For instance, the College of Commissioners was the first to conceive of the possibility of reducing roaming tariffs in Europe. This proposal was then examined and adopted by the other European institutions. You benefit from that initiative a few years later, lying on your deck chair.
To end your holidays, you stroll along the water's edge for a while. You still do not know it, but it is the European Commission which makes sure that the water lapping at your feet is not polluted. The quality of bathing water is enshrined in EU law. And if the member states refuse to take the necessary measures to ensure the cleanliness of their shore, the Commission may penalise them in its role as Guardian of the Treaties.
A few hours later, you arrive at the railway station. You will very soon be with your boyfriend. And once again, strange as it may sound, this is partly thanks to the European Commission. Its third major task is to manage the policies and budget of the EU. For example, assistance for the regions and their infrastructures. The Commission is responsible for organising the European financial support granted, for example, to airport, motorway, and railway projects in Europe. Without it, the train taking you at 300 kilometres to your boyfriend would probably not yet have been built.
Halfway through your journey, you go to the buffet car to drink an espresso while you watch the sun blinking behind the line of trees. Before it warmed your hands, the coffee which you're enjoying grew far away from here on the plateau of an African country, and it reached this railway carriage partly thanks to the Commission. The Commission is responsible for performing tasks on behalf of the European Union outside its borders. In practise, this involves negotiating commercial Treaties with foreign countries on the basis of a mandate entrusted to it by the member states, and also establishing development programmes in emerging countries. In Africa, these programmes help to develop coffee exports, for example.
[HORN]
Right of initiative, Guardian of the Treaties, policy implementation, and international dimension. In one day, from the beach to the arms of your boyfriend, the work of the European Commission has made your reunion easier.
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Comment
Paul Craig’s thesis is that much of our national or domestic law is either fertilised by or contains directly applicable EU law. You will return to considering the broad scope and influence of EU law when considering the aims of the EU in Section 4 and the extent of competences in Section 5 of this course.
The second video clip is a more topical explanation for studying EU law provided by the EU Commission and attempts to explain the impact of EU laws on our routine daily lives.
Famously, suggesting a whiff of apprehension, Lord Denning described the spread of EU law into national law as an incoming tide flowing up the UK legal system, and incontrovertibly having a profound impact on the sovereignty of Westminster: HP Bulmer Ltd v J Bollinger SA (No 2) [1974] Ch 401 at 418–19. You will be looking at the meaning of this issue of sovereignty in relation to supremacy of laws in Section 10.