European Union Law
EU Legal Order
The legal order of the European Union (formerly the European Community) is based on the European treaties. Those that are of continuing relevance are (reflecting renaming):
- The Treaty of European Union 1957
- The Single European Act 1986
- The Treaty of European Union (Maastricht Treaty)
- The Treaty of Amsterdam 1997
- The Treaty of Nice 2001
- The Treaty of Lisbon 2009
There are also secondary sources of EU law comprising:
Regulations - which are binding and directly applicable to all member states, including the UK. This means that they do not have to be transposed into national legislation and are binding as soon as they are passed throughout every member state.
Directives - which set down certain results that must be achieved in every member state and establish a time limit for their implementation in domestic law. Member states need to pass implementing measures to bring their laws into line with the requirements of the Directive.
Decisions of the Court of Justice of the European Union (Court of Justice) - which are binding on the parties to whom they are addressed, whether member states or individuals. The Court of Justice accepts that EU law overrides any subsequent national legislation that is incompatible with the provisions of EU law (Case 6/64, Costa v ENEL).
Recommendations and opinions - which have no biding force but state the view of the institution issuing them.
UK Membership of the EU and Incorporation of EU Law into Domestic Law
The UK formally joined the European Community (now the European Union) on 1 January 1973.
European law was incorporated into UK law by the European Communities Act 1972. Since then, EU law has been considered to be a binding and valid source of UK law.
The European Communities Act
- Recognises that EU law can be 'directly applicable' and gives legal effect in the UK to 'directly effective' EU law (section 2(1)). It covers provisions contained in the EU treaties and also regulations, even if the UK has enacted legislation giving effect to them, provided that they have direct effect according to EU law.
- Enables the UK Government to make delegated legislation to implement EU law within the UK (e.g. to implement directives) (section 2(2)).
- Requires any enactment passed or to be passed to be construed and have effect subject to EU law (section 2(4).
- Requires the UK courts to apply EU law in accordance with the principles laid down by the Court of Justice (section 3(1)).
On 29 March 2017, the UK Prime Minister served notice of the UK’s intention to withdraw from the European Union pursuant to Article 50 of the Treaty of European Union, officially triggering a process known as 'Brexit'. If no agreement is reached in two years, and no extension is agreed, the UK automatically leaves the EU and all existing agreements, and that Treaty would cease to apply to the UK with effect from 29 March 2019. Until then, the UK remains subject to its EU law obligations.
While the Article 50 mechanism prescribes the procedure for the UK's withdrawal from the EU, it does not deal with the form of the UK's future relationship with the EU, or the timeframe over which that would be determined. It is beyond the scope of this article to consider the different options in detail. However, there are a number of models for relationships between the EU and third countries which are being considered as a basis or starting point for the UK's relationship with the EU post-Brexit. These include:
The UK might join the European Free Trade Association (EFTA) and the European Economic Area (EEA). The UK would be part of the single market (except the Common Agricultural Policy and the Common Fisheries Policy). The UK would be subject to the four freedoms. It would not be subject to the jurisdiction of the Court of Justice but would be subject to the jurisdiction of the EFTA Court. The UK would have no decision-making power or veto rights over future EU legislation.
While Switzerland is a member of EFTA, it is not part of the EEA and its relationship with the EU is governed by a number of bilateral agreements which give it some access to the single market. It is subject to the free movement of people but not services and capital. The EU has expressed reservations about the sustainability of the Swiss model.
Turkish Model (Customs Union)
Turkey is part of a customs union with the EU which gives it tariff-free access to the single market for goods but not services. It does not have to make a contribution to the EU budget but has to harmonise its laws with EU laws in some areas (for example, consumer protection, competition and intellectual property).
Canadian Model (Free Trade Agreement - FTA)
Canada is one of few countries which have negotiated FTAs with the EU. In Canada's case, this took over a decade.
World Trade Organisation (WTO) Model
The UK is already a member of the WTO. If this were to be the basis of its trading with the EU post-Brexit, the UK would not be subject to EU law, including the four freedoms. It would not have to make a contribution to the EU budget. However, it would be subject to trade tariffs and EU standards when trading with the EU.