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European law comes into effect in a number of ways and is usually classed as either primary legislation or secondary legislation. This is not in itself unusual as we in the UK have a similar classification of primary (Acts) and secondary (delegated) legislation. Primary sources in the EU are the Treaties and secondary legislation consists of either regulations, directives or decisions. Regulations are items of unilateral secondary legislation, that is to say they are adopted solely by the European Union authority. The legal acts of the Union are listed in Article 288 of the Treaty on the Functioning of the European Union (TFEU). They are regulations, directives, decisions, recommendations and opinions. We are concerned here with regulations.
The authority for the EU to issue regulations comes from Article 249 of the Treaty of Rome and provides that regulations are 'binding in every respect and directly applicable in each member state.'
Regulations are said to be the most direct form of EU law. This is because, as soon as they are issued, they have binding legal force throughout every Member State. Regulations are not in any way less important than national laws and are, indeed, on a par with national laws. National governments do not have to take action themselves to implement EU regulations and they automatically become law in each member state.
This is not the case with directives. Directives do not take effect automatically and must be implemented if they are to become part of the member states' national law. Directives are addressed to countries and those national authorities must take some action to put them into effect. Decisions do not necessarily apply to each member state and apply to specific countries or individuals.
Regulations have 'general application, are binding in their entirety and directly applicable in all Member States.'
That regulations have general application means that they are aimed at general categories of people and not to identified persons. The Court of Justice has indicated that regulations may, all the same, be limited to certain categories of persons.
A regulation is binding in its entirety so can not be applied incompletely, selectively or partially. 'It is a legal act binding upon the institutions, the Member States and the individuals to whom it is addressed.'
It is important to note that regulations, as we have seen, are directly applicable. Crucially the law in a member state will change on the issue of a regulation and this change will take effect as prescribed by the regulation. An organisation or individual may acquire legal rights or have existing rights altered by such regulations. Because of this it is important to understand the nature of this form of secondary legislation and that they operate without recourse to our own national parliament. This direct applicability is taken from Article 249 of the Treaty of Rome.
It is this same Article 249 which enables the EU to make directives but the important distinction is that directives do not come into effect straight away, some action must be taken by the member state in question. This means that organisations and individuals do not have their rights changed automatically as they do with regulations. This may be crucial in the event of a potential course of action arising prior to liability being established.
Some may argue that Parliament has given up its sovereignty (power) to legislate and that we, the electorate, are being denied representation as we have not voted for or been involved in the EU decision making process. However the effect of Article 249 will have been known to new applicants for entry to membership of the EU, as will the stated aims and fundamental principles and concepts of the EU as set out in its treaties.
It should also be remembered that the EU is striving to attain uniformity in a number of areas between member states in order to provide a 'level playing field' when it comes to such matters as safety, employment protection and standards. This is so that member states are able to enjoy the benefits of a much larger market for their goods and services. If the barriers and other restrictions to the free movement of goods and services had remained in place this freedom of movement would have been much more restricted . We ourselves joined the EU in the seventies when the emphasis was very much about the benefits of a 'common market.'
A case which illustrates this 'direct applicability' point very well is the case of Re Tachographs: The Commissioners v United Kingdom (1979). The matter was eventually taken up by the Court of European Justice and concerned the UK government's failure to implement a Council regulation imposing the requirement that mechanical recording devices had to be installed in goods vehicles. The problem was that drivers of these vehicles were driving for considerable periods of time and as a result there was evidence that this was the cause of them falling asleep at the wheel or otherwise being responsible for road traffic accidents. The UK government were too slow to comply with the regulations and were held to account over the matter. In actual fact the government of the day had intended to leave the matter to the proprietors of haulage firms to put the equipment into their vehicles but the EU would have none of it.
As we have seen the EU have set out on a course of action to achieve regularity in a number of areas and the concept of uniformity and equality is dependent upon being able to achieve this throughout the EU member states where the EU feel this is appropriate.
One further point that is important from an individual's perspective is the concept of direct effect (both vertically and horizontally). This means that, provided the regulation is deemed to have been intended to give individual rights and the regulation is definitive and clear as to these rights, an individual may claim if they feel they are being denied. The effect of this is that a claimant has less to do to make out a claim under a regulation than a directive. The claim is based on a law which is integrated into the national law by the making of a regulation so the 'source' is different but it is in no way inferior to laws passed by our own Parliament – far from it. It is well known that in the event of there being a conflict between EU law and national law, EU law shall prevail.
In the case of directives it is possible that a member state may fail to implement a directive thereby potentially depriving an individual of rights to which they would otherwise have been entitled. The claimant in such situations has to show that the state failed to do what it should have done and whilst directives have direct effect if it is intended to give individuals rights which are clearly set out and provided for, directives do not have horizontal direct effect. Although in this regard the emerging doctrine of horizontal direct effect continues since the case of Kücükdeveci (2010) to the effect that national courts have a duty to disapply any provision of national legislation.
Such distinctions are far from satisfactory as many lay persons would find it difficult to see why compensation may be payable in one case but not in another. The point is well illustrated by the leading cases on the subject Marshall v Southampton and South West Hampshire Area Health Authority (1986) and Duke v GEC Reliance Ltd (1988).
The former case brought by Mrs Marshall concerned a claim for discrimination on the basis that she was required to retire earlier than her male fellow workers. Mrs Marshall succeeded in her claim to the European Court of Justice despite the fact that a directive had not been fully implemented in the UK. In this case the directive had vertical direct affect and a claim was allowed.
Mrs Marshall's claim succeeded because her employers were considered to be an 'arm of the state' and presumably because it was the state that failed to implement the directive and because it was accepted that rights were created it was only right that the same state, or a part of it, compensated the claimant. The directive was said to have vertical direct effect but it was the difference that allowed her claim to succeed whereas a claim against a private employer would not be allowed. Mrs Duke, on the contrary, was not able to rely on the directive because her employer was not an arm of the state but a private company.
The difference has now been mitigated to some extent by the case of Francovich v Italian Republic (1991).
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Some examples of EU regulations or lack of them:
Take, for example, banana regulation. According to the EU, all bananas imported into the European Union or grown there must be at least 14 centimetres (5.5 inches) long and 2.7 centimetres thick. The fruit should not be damaged, nor should it be fully ripe. These rules may sound petty, but they have their advantages: consumers will only see fresh fruit in their supermarkets. As Commission Regulation (EC) 2257/94 puts it, bananas must be "free from malformation or abnormal curvature"
A train journey from Tallinn to Madrid: sounds simple, but think again. A standard gauge of 1,435 millimetres (about 4.7 feet) is used on most of the EU's rail network. But in Spain and Portugal the distance between the rails is greater - there, the Iberian gauge of 1,668 mm is used. In this case, a lack of EU regulation means more train transfers for travellers.
To each his own…and that also applies to mailboxes! For the most part, mailboxes stick to norms which specify a standard size, volume and mail slot. The European Union, however, has stayed away from any regulation in this area. Which is a good thing, too, because mailboxes are one of the ways Europeans can express their cultural differences, and that's something we wouldn't want to lose!
In this essay we look at what regulations are and how they differ from directives, why they are important and how they are introduced.
Article 249 of the Treaty of Rome is mentioned and reference is made to:
The Commissioners v United Kingdom (1979) Re Tachographs;
Marshall v Southampton and South West Hampshire Area Health Authority (1986);
Duke v GEC Reliance Ltd (1988) and
Frankovich v Italian Republic (1991).
As always the essay lends itself to further research and development according to your individual needs.
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