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( 155 .)


and it may give opinions on its own initiative (see Arts 263“5 EC). The
Committee of the Regions is widely regarded as having been a largely unsuc-
cessful body. There are several policy areas in respect of which no consultation
is required, yet which may be said to have an important regional dimension. A
number of the more powerful non-state regions in the European Union prefer
to deal with the institutions directly rather than through the Committee.

Other bodies
Two other bodies may brie¬‚y be noted: the European Central Bank, which has
the exclusive power to authorise the issue of Euros (Art 106 EC) and the
European Ombudsman, created in 1995, which investigates complaints of
maladministration in the activities of the European Union™s institutions
(Art 195 EC).

(ii) Law-making in the European Union
The Treaties specify a number of di¬erent types of European law. For the
Community pillar the most important provision is Article 249 EC. This
provides as follows:
302 British Government and the Constitution

In order to carry out their task and in accordance with the provisions of this Treaty, the European
Parliament acting jointly with the Council, the Council and the Commission shall make regula-
tions and issue directives, take decisions, make recommendations or deliver opinions.
A regulation shall have general application. It shall be binding in its entirety and directly
applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to
which it is addressed, but shall leave to the national authorities the choice of form and
A decision shall be binding in its entirety upon those to whom it is addressed.
Recommendations and opinions shall have no binding force.

Regulations and Directives are the legislative instruments of the Community.
Decisions may be addressed to particular individuals and corporations as well
as to Member States. They have rather the character of administrative action
than of general legislation, although Decisions may give rise to legal obligations
and are sometimes quasi-legislative in e¬ect. Recommendations and Opinions
fall into the category of ˜soft law™: they do not have legislative force but may
in¬‚uence the working of the Community and the shaping of policy.
A Regulation, being ˜directly applicable™, has automatic e¬ect as law in all the
Member States without any intervention by the national authorities. As such, it
is the most powerful form of law available to the European Union (apart from
Treaty provisions themselves). Regulations avoid the possibility that the law
might be distorted or delayed in being re-enacted by agencies of the Member
States, and are especially apt when what is wanted is a prompt, precise and
uniform application of rules throughout the European Union. Any necessary
implementing action by a Member State must not qualify the scope or
e¬ectiveness of the Regulation. The European Union has the power to adopt
Regulations only where the Treaty expressly so provides. If the European Union
has the power in a certain ¬eld only to adopt Directives, it may not adopt
Regulations instead.
Directives are binding ˜as to the result to be achieved™: the Member States are
obliged to implement them but use their own legislative or administrative tech-
niques in doing so. Unlike Regulations, then, Directives can come into force
only when implemented (or ˜transposed™ into national law) by the Member
States. In other words, they are not ˜directly applicable™. In the British context,
such transposition will not always require primary legislation: sometimes
secondary legislation (such as an Order in Council) will be su¬cient. This will
depend on the subject matter. Directives are an appropriate legislative instru-
ment when a precisely uniform implementation is not necessary or would
be di¬cult to realise because of di¬ering legal, administrative or economic
structures in the Member States. They are particularly suitable for achieving a
˜harmonisation™ or ˜approximation™ of national laws, when that is required, for
example, for the operation of the internal market (see Art 94 EC).
303 The European dimensions

A Directive usually leaves to the Member States a margin of discretion in
carrying out its objectives. Discretion in implementation means a less consis-
tent application of Community policies, and Community institutions may
prefer to enact Regulations (when free to choose between these and Directives)
and have sometimes formulated Directives in very precise terms which left little
freedom of action to the Member States. Such a Directive may not di¬er much
in e¬ect from a Regulation, even though national measures of implementation
are called for. Recent years have seen a reaction against such over-prescriptive
legislation. Directives normally set time limits for their implementation. Often
these are not met by Member States. As we shall see below, the European Court
of Justice is frequently seized of actions brought against Member States for
failing to implement Directives or for implementing them incorrectly.
As for the second pillar, as may be expected, there is very little formal law-
making. Rather, the TEU talks of the European Council ˜deciding on common
strategies™, ˜adopting joint actions™ and ˜adopting common positions™ (see Arts
12“16 TEU). In the third pillar there is no equivalent of Regulations, but there
is an equivalent of Directives, albeit that they are called Framework Decisions.
Article 34 TEU provides that the Council may ˜adopt framework decisions for
the purpose of approximation of the laws and regulations of the Member States.
Framework decisions shall be binding upon the Member States as to the result
to be achieved but shall leave to the national authorities the choice of form and
methods. They shall not entail direct e¬ect.™ (For law- and policy-making in the
second and third pillars, see H Wallace, W Wallace and M Pollack (eds), Policy-
making in the European Union (5th edn 2005), chs 17, 18.)
The European Union possesses no general law-making power. Rather, its
legislation must be based on a speci¬c grant of law-making power (known as
a ˜legal base™ or as a ˜competence™) in the Treaties. Each legal base will specify the
type(s) of legislation that may be made under it (ie, whether Regulation or only
Directives may be adopted) and the law-making procedure that must be
followed. A typical example is Article 94 EC. This provides as follows:

The Council shall, acting unanimously on a proposal from the Commission and after consult-
ing the European Parliament and the Economic and Social Committee, issue directives for the
approximation of such laws, regulations or administrative provisions of the Member States
as directly affect the establishment or functioning of the common market.

Thus, under this provision the Council may adopt Directives (but not
Regulations), but only where it does so unanimously (rather than by quali¬ed
majority voting). It must consult the European Parliament, but the European
Parliament is not given any formal power to amend the Council™s legislation,
and so forth.
Law-making procedures in the European Union are notoriously complex.
Chalmers et al report that ˜it is possible to identify twenty-two di¬erent legisla-
tive procedures in the EU™ (p 144). The vast majority of measures, however, are
304 British Government and the Constitution

enacted through one of three di¬erent means: (a) where the Council legislates
without consulting the European Parliament, (b) consultation procedure, or
(c) co-decision procedure. Each of these will now be outlined. The ¬rst of these
procedures tends now to be used only in ¬elds which are politically sensitive for
the Member States, such as emergency measures in immigration law, or where
the legislation is performing an implementing role.
Consultation procedure, now of reduced application but still used in a
number of important areas (such as agriculture), consists of three main stages:
the Commission submits a proposal to the Council; the Council consults the
European Parliament (and, in some cases, also the Economic and Social
Committee or the Committee of the Regions); the Council adopts the measure,
either unanimously or through QMV.
Co-decision procedure is, as was noted above, the only legislative procedure
in which the European Parliament is conceived as being an equal partner with
the Council. This procedure was added at Maastricht (see now Art 251 EC). The
¬elds in which co-decision is used were extended by the Treaties of Amsterdam
and Nice and it is now the most commonly used procedure, applicable to most
of the cases in which Council decisions are taken by quali¬ed majority. In
co-decision the Commission submits its proposal for legislation to both the
Council and the European Parliament. The Council, having obtained the
opinion of the Parliament on the proposal, may adopt the proposed act by
quali¬ed majority if the Parliament™s opinion does not include any amend-
ments, or if the Council approves all the amendments proposed. Otherwise the
Council adopts a reasoned ˜common position™, which is communicated to
the Parliament. This initiates the so-called ˜second reading™ of the proposed
measure. If within three months the Parliament approves the common position
or has taken no decision, the act is deemed to have been adopted in accordance
with the common position. If the Parliament rejects the common position by
an absolute majority of its members, the act is not adopted. If, on the other
hand, the Parliament proposes amendments to the common position (again by
an absolute majority of its members), the Commission gives its opinion on
these before they are considered by the Council. If the Council approves all the
amendments by a quali¬ed majority (but unanimity is required for amend-
ments not supported by the Commission) the act is deemed to have been
adopted as amended. If the Council does not approve the amendments
a meeting of the Conciliation Committee is convened. The Conciliation
Committee, on which the Council and the Parliament are equally represented,
attempts, with the aid of the Commission, to reach agreement on a joint text
(by a quali¬ed majority of the Council™s representatives and a majority of the
representatives of the Parliament). If the Committee fails in this (which rarely
happens), the proposed act is not adopted. In a ˜third reading™, a joint text
approved by the Committee may be adopted by the Parliament (by an absolute
majority of the votes cast) and the Council (by a quali¬ed majority), but if
either of the two institutions fails to approve it within six weeks, it is deemed
305 The European dimensions

not to have been adopted. This is a procedure, then, in which the Parliament is
engaged with the Council in a joint legislative process and has, in e¬ect, a veto
on the adoption of proposed measures.

(c) Principles of European law: supremacy, direct and indirect effect
and state liability
While the institutional structure and law-making powers of the European
Union are undoubtedly important, in our account of the European Union we
have yet to see just why the United Kingdom™s membership of it has had such a
signi¬cant impact on the British constitution. This is because the heart of the
matter concerns not the institutions themselves, but certain principles of EU
law that have been developed by the European Court of Justice (ECJ) in its case
law. It is to these principles that we now turn. This section outlines what the
principles are; the next section discusses how the United Kingdom Parliament
and the domestic courts have sought to grapple with and accommodate them.
There are three main issues to consider “ supremacy, direct and indirect e¬ect
and state liability.

(i) Supremacy
In this context supremacy concerns the relationship between EU law and
national law. Suppose that a provision of EU law provides that x should be the
law, whereas a provision of British, German or Polish law provides that y should
be the law. In the event that x and y are mutually incompatible, which should
prevail? Surprisingly, perhaps, the Treaties themselves are silent on this ques-
tion. The Court of Justice ¬rst declared what it considered the right answer to
be in 1964, in one of its most signi¬cant constitutional decisions to date.

Case 6/64 Costa v ENEL [1964] ECR 585 (ECJ)

European Court of Justice: . . . By contrast with ordinary international treaties, the EEC Treaty
has created its own legal system which, on the entry into force of the Treaty, became an inte-
gral part of the legal systems of the Member States and which their courts are bound to apply.
By creating a Community of unlimited duration, having its own institutions, its own per-
sonality, its own legal capacity and capacity of representation on the international plane and,
more particularly, real powers stemming from a limitation of sovereignty or a transfer of
powers from the States to the Community, the Member States have limited their sovereign
rights, albeit within limited fields, and have thus created a body of law which binds both
their nationals and themselves.
The integration into the laws of each Member State of provisions which derive from
the Community, and more generally the terms and the spirit of the Treaty, make it impossi-
ble for the States, as a corollary, to accord precedence to a unilateral and subsequent measure
over a legal system accepted by them on a basis of reciprocity. Such a measure cannot
306 British Government and the Constitution

therefore be inconsistent with that legal system. The executive force of community law
cannot vary from one State to another in deference to subsequent domestic laws, without
jeopardizing the attainment of the objectives of the Treaty . . .
[T]he law stemming from the Treaty, an independent source of law, could not, because of
its special and original nature, be overridden by domestic legal provisions, however framed,
without being deprived of its character as Community law and without the legal basis of the
Community itself being called into question. The transfer by the States from their domestic
legal system to the Community legal system of the rights and obligations arising under the
Treaty carries with it a permanent limitation of their sovereign rights, against which a sub-
sequent unilateral act incompatible with the concept of the Community cannot prevail.

The doctrine of supremacy, regarded as ˜absolutely fundamental for the main-
tenance and survival of the Communities™ legal order™ (C Timmermans in
R Jansen et al (eds), European Ambitions of the National Judiciary (1997), p 35),
has been many times rea¬rmed by the Court of Justice, with no mitigation of its
rigour. National legal provisions of whatever order (even if part of the constitu-
tion of a Member State) must yield precedence to Community law and, to the
extent of any con¬‚ict with it, must be treated as inapplicable (see Case 11/70
Internationale Handelsgesellschaft [1970] ECR 1125). This is so even if the national
law is of more recent date than the Community rule with which it con¬‚icts. The
Simmenthal case was another landmark in the evolution of this doctrine.

Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal
SpA [1978] ECR 629 (ECJ)
The Simmenthal company had been charged a fee for a public health inspection
of beef which it had imported into Italy from France. The company reclaimed
the fee in an Italian magistrate™s court on the ground that its imposition was
contrary to provisions of Community law on the free movement of goods. This
contention was upheld by the European Court of Justice on a reference made to
it by the Italian court. The Italian authorities then raised a new argument: the
Italian law providing for the fee had been enacted after the relevant Community
provisions, and although under Italian law an enactment could be held invalid
if it con¬‚icted with prior Treaty obligations, only the Italian Constitutional
Court had jurisdiction to give such a ruling; in the meantime other courts must
give e¬ect to the enactment. The Italian magistrate then made a second refer-
ence to the European Court, for a ruling on this question. In the course of its
judgment the Court of Justice restated the principle of the supremacy of
Community law as follows (emphasis added).

European Court of Justice: . . . [R]ules of Community law must be fully and uniformly applied
in all the Member States from the date of their entry into force and for so long as they
continue in force.
307 The European dimensions

These provisions are therefore a direct source of rights and duties for all those affected
thereby, whether Member States or individuals, who are parties to legal relationships under
Community law.
This consequence also concerns any national court whose task it is as an organ of a
Member State to protect, in a case within its jurisdiction, the rights conferred upon individ-
uals by Community law.
Furthermore, in accordance with the principle of the precedence of Community law, the
relationship between provisions of the Treaty and directly applicable measures of the insti-
tutions on the one hand and the national law of the Member States on the other is such that
those provisions and measures not only by their entry into force render automatically inap-
plicable any conflicting provision of current national law but “ in so far as they are an inte-
gral part of, and take precedence in, the legal order applicable in the territory of each of the
Member States “ also preclude the valid adoption of new national legislative measures to
the extent to which they would be incompatible with Community provisions.


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