. 64
( 155 .)


has created its own legal system, which is integrated into the legal systems of the Member
States and which their courts are bound to apply. The subjects of that legal system are not
only the Member States but also their nationals. Just as it imposes burdens on individuals,
Community law is also intended to give rise to rights which become part of their legal pat-
rimony. Those rights arise not only where they are expressly granted by the Treaty but also
by virtue of obligations which the Treaty imposes in a clearly defined manner both on indi-
viduals and on the Member States and the Community institutions [citing Van Gend en Loos
and Costa v ENEL].
Furthermore, it has been consistently held that the national courts whose task it is to apply
the provisions of Community law in areas within their jurisdiction must ensure that those
rules take full effect and must protect the rights which they confer on individuals [citing
Simmenthal ].
The full effectiveness of Community rules would be impaired and the protection of the
rights which they grant would be weakened if individuals were unable to obtain redress
when their rights are infringed by a breach of Community law for which a Member State can
be held responsible.
The possibility of obtaining redress from the Member State is particularly indispensable
where, as in this case, the full effectiveness of Community rules is subject to prior action
on the part of the State and where, consequently, in the absence of such action, individ-
uals cannot enforce before the national courts the rights conferred upon them by
Community law.
It follows that the principle whereby a State must be liable for loss and damage caused
to individuals as a result of breaches of Community law for which the State can be held
responsible is inherent in the system of the Treaty.
A further basis for the obligation of Member States to make good such loss and damage
is to be found in Article [10 EC], under which the Member States are required to take all
appropriate measures, whether general or particular, to ensure fulfilment of their obligations
under Community law. Among these is the obligation to nullify the unlawful consequences
of a breach of Community law . . .
It follows from all the foregoing that it is a principle of Community law that the Member
States are obliged to make good loss and damage caused to individuals by breaches of
Community law for which they can be held responsible.
Although State liability is thus required by Community law, the conditions under which
that liability gives rise to a right to reparation depend on the nature of the breach of
Community law giving rise to the loss and damage.
Where, as in this case, a Member State fails to fulfil its obligation under the third para-
graph of Article [249 EC] to take all the measures necessary to achieve the result prescribed
by a Directive, the full effectiveness of that rule of Community law requires that there should
be a right to reparation provided that three conditions are fulfilled.
314 British Government and the Constitution

The first of those conditions is that the result prescribed by the Directive should entail the
grant of rights to individuals. The second condition is that it should be possible to identify
the content of those rights on the basis of the provisions of the Directive. Finally, the third
condition is the existence of a causal link between the breach of the State™s obligation and
the loss and damage suffered by the injured parties.
Those conditions are sufficient to give rise to a right on the part of individuals to obtain
reparation, a right founded directly on Community law.
Subject to that reservation, it is on the basis of the rules of national law on liability that
the State must make reparation for the consequences of the loss and damage caused. In
the absence of Community legislation, it is for the internal legal order of each Member
State to designate the competent courts and lay down the detailed procedural rules for legal
proceedings intended fully to safeguard the rights which individuals derive from Community
law . . .
Further, the substantive and procedural conditions for reparation of loss and damage
laid down by the national law of the Member States must not be less favourable than those
relating to similar domestic claims and must not be so framed as to make it virtually impos-
sible or excessively difficult to obtain reparation.

Since the Francovich decision the principle of state liability has been broad-
ened. Originally a means of giving greater domestic legal e¬ects to Directives,
in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur v Germany and R
v Secretary of State for Transport, ex p Factortame Ltd (No 3) [1996] ECR I-1029
the Court of Justice ruled that Member States could be held liable in damages
for a variety of breaches of EU law, including, signi¬cantly for our purposes,
breaches attributable to national legislation:

the Court held in Francovich that the principle of State liability for loss and damage caused
to individuals as a result of breaches of Community law for which it can be held responsible
is inherent in the system of the Treaty.
It follows that that principle holds good for any case in which a Member State breaches
Community law, whatever be the organ of the State whose act or omission was responsible
for the breach . . .
The fact that, according to national rules, the breach complained of is attributable to the
legislature cannot affect the requirements inherent in the protection of the rights of individ-
uals who rely on Community law and, in this instance, the right to obtain redress in the
national courts for damage caused by that breach.

Member States would be liable where the following three conditions were met:

In such circumstances, Community law confers a right to reparation where three conditions
are met: the rule of law infringed must be intended to confer rights on individuals; the breach
must be sufficiently serious; and there must be a direct causal link between the breach of
the obligation resting on the State and the damage sustained by the injured parties.
315 The European dimensions

State liability, while it is a doctrine of EU law, is principally for the national
courts of the Member States to enforce. The Court of Justice had the following
to say about the sorts of factors that national courts could take into account:

The factors which the competent court may take into consideration include the clarity
and precision of the rule breached, the measure of discretion left by that rule to the
national or Community authorities, whether the infringement and the damage caused was
intentional or involuntary, whether any error of law was excusable or inexcusable, the
fact that the position taken by a community institution may have contributed towards
the omission, and the adoption or retention of national measures or practices contrary
to Community law.
On any view, a breach of Community law will clearly be sufficiently serious if it has
persisted despite a judgment finding the infringement in question to be established, or a
preliminary ruling or settled case-law of the Court on the matter from which it is clear that
the conduct in question constituted an infringement.

The doctrine of state liability was further extended in Case C-224/01 Köbler
v Austria [2003] ECR I-10239, where the Court of Justice controversially ruled
that decisions of national courts that fail to give su¬cient weight to matters of
EU law could, in principle, incur state liability (for comment, see Scott and
Barber (2004) 120 LQR 403).
Courts in the United Kingdom have applied the doctrine of state liability in
a number of cases, including Case C-392/93 R v HM Treasury, ex p British
Telecommunications plc [1996] ECR I-1631 (where the breach of EU law was
held not be su¬ciently serious to merit state liability) and R v Secretary of State
for Transport, ex p Factortame Ltd (No 5) [2000] 1 AC 524 (where the opposite
conclusion was reached).
(See further Harlow, ˜Francovich and the problem of the disobedient State™
(1996) 2 ELJ 199 and Craig, ˜Once more unto the breach: the Community, the
State and damages liability™ (1997) 113 LQR 67.)

(d) EU law in the United Kingdom
(i) Impact of EU membership on government and Parliament
When ministers of the Crown exercised the royal prerogative in concluding the
Treaty of Accession of the United Kingdom to the European Communities in
1972, this act produced no e¬ects in the law of the United Kingdom. British
courts act upon a dualist theory of the relation between international law and
municipal (national) law, in holding that treaties can bring about changes in
the law of the United Kingdom only through the intervention of Parliament (see
Attorney General for Canada v Attorney General for Ontario [1937] AC 326, 347).
It was therefore necessary for Parliament to enact a statute which would make the
changes in the law required by United Kingdom membership of the European
Communities. Not only would existing Community law have to be incorporated
316 British Government and the Constitution

as a whole but provision would also have to be made for future Community
legislation to take e¬ect in the United Kingdom in accordance with the Treaties.
Both these commitments were implemented by the European Communities
Act 1972 “ an enactment e¬ecting a radical transformation of the legal system
of the United Kingdom. Indeed, Laws LJ suggested in Thoburn v Sunderland
City Council [2003] QB 151 that ˜It may be there has never been a statute having
such profound e¬ects on so many dimensions of our daily lives™. The European
Communities Bill introduced in Parliament in 1972 was given a second reading
in the House of Commons by a majority of eight votes after the Prime Minister
(Edward Heath) had announced that the vote would be regarded as one of
con¬dence in the Government. Although strongly contested, the bill was passed
by both Houses without a single amendment. So Parliament exercised its
sovereignty, and the European Communities Act 1972 came into force on
1 January 1973.
Changes and additions to the EC Treaty made by the Single European Act,
the Maastricht Treaty and the Treaties of Amsterdam and Nice were given the
e¬ect of law in the United Kingdom respectively by the European Communities
(Amendment) Acts of 1986, 1993, 1998 and 2002.
Few institutional changes have been made in the United Kingdom in conse-
quence of accession to the Communities. It has been remarked that ˜The new
challenges posed by EC/EU membership have simply been absorbed into the
existing institutions, and into the characteristic methods, procedures and
culture of Whitehall™ (Bulmer and Burch, ˜Organising for Europe™ (1998) 76 Pub
Adm 601, 613). No new government department has been created to handle
European Union a¬airs, for these a¬ect the work of most departments “
principally the Foreign and Commonwealth O¬ce, the Treasury, and the
departments concerned with agriculture, trade and industry, employment,
the environment and transport. Some thousands of o¬cials in these
departments “ the greatest number in the Department of Environment, Food
and Rural A¬airs “ are wholly or mainly engaged in work related to the
European Community. ˜We are an entirely European Ministry™, a Minister of
Agriculture remarked (before the amalgamation of agricultural and environ-
mental a¬airs), ˜running European policy in Britain™ (First Report, Environment
Committee, HC 55 of 1991“92, Evidence, Q 112).
In the Foreign and Commonwealth O¬ce, which has the main responsibil-
ity for policy on the European Union, a Minister of State has charge, under the
Secretary of State, of EU matters. In most other departments responsibility for
European matters is divided between several ministers. A Ministerial
Committee on European Policy, under the chairmanship of the Secretary of
State for Foreign and Commonwealth A¬airs, has as its terms of reference: ˜To
determine the United Kingdom™s policies on European Union issues, and to
oversee the United Kingdom™s relations with other Member States and princi-
pal partners of the European Union™. There is also a Ministerial Committee on
European Union Strategy, chaired by the Prime Minister. The European
317 The European dimensions

Secretariat in the Cabinet O¬ce provides the machinery for coordinating the
work of government departments relating to the European Union, and gives
advice on European matters to the Prime Minister. (See further Daintith and
Page, The Executive in the Constitution (1999), pp 316“19; Bulmer and Burch,
˜The Europeanisation of UK government™ (2005) 83 Pub Adm 861.)
Parliament has undertaken a scrutinising role in respect of EU legislation,
setting up for this purpose a new committee of each House. The House of
Commons European Scrutiny Committee, according to its terms of reference,
˜assesses the legal and/or political importance of each EU document, decides
which EU documents are debated, monitors the activities of UK Ministers in
the Council, and keeps legal, procedural and institutional developments in the
EU under review™. As the Committee states on its homepage (accessible via

The committee™s primary role is to assess the political and legal importance of each EU
document (about 1,100 per year) and to determine which are debated. The committee
receives an explanatory memorandum on each document from the relevant minister. All
documents deemed politically or legally important are discussed in the committee™s
weekly reports. Debates recommended by the committee take place either in a European
Standing Committee or (more rarely) on the Floor of the House. Under [a House of Commons]
resolution, ministers should not agree to proposals which the committee has not cleared or
which are waiting for debate. The committee also monitors business in the Council . . . and
sometimes conducts general inquiries into legal, procedural or institutional developments
in the EU.

The House of Lords European Union Select Committee has the following
terms of reference: ˜to consider European Union documents and other matters
relating to the EU™. This may sound bland, but the House of Lords committee
is both busy and exceptionally valuable. It produces a large number of high
quality reports on a broad variety of matters pertaining to the European Union.
To take a typical year as an example, in 2005“06 it produced reports on current
developments in European foreign policy, the criminal law competences of the
EU, the Commission™s policy on ˜sustainable, competitive and secure energy™,
the Services Directive, developments in European defence policy, the EU™s
budget, relations between the EU and Africa, nuclear safety, consumer credit,
illegal migrants, e¬ective regulation, the ˜European Arrest Warrant™, the EU™s
strategy for jobs and growth and the proposed European Institute for Gender
Equality, as well as numerous other matters.
Since 1972 the process of integration of the United Kingdom into the
Communities has continued, the ˜incoming tide™ of Community law ¬‚owing
strongly up our rivers (as Lord Denning conceived of it in Bulmer v Bollinger,
above). A Department of Trade and Industry Review of the Implementation and
Enforcement of EC Law in the UK (1993) estimated that ˜over a third of existing
UK legislation arises from an obligation to implement EC law™. This estimate
318 British Government and the Constitution

seems to have been too high (see Page, ˜The impact of European legislation on
British public policy-making™ (1998) 76 Pub Adm 803). Nevertheless that
impact has been considerable in some ¬elds: a former Secretary of State for the
Environment, John Gummer, remarked that ˜something like 80 per cent of our
environmental legislation is now decided collectively in Brussels™ (see Third
Report, Environment Committee, HC 163-I of 1995“96, para 42).

(ii) European Communities Act 1972
The provisions of the European Communities Act 1972 to be discussed below
are set out here for reference:

2. (1) All such rights, powers, liabilities, obligations and restrictions from time to time
created or arising by or under the Treaties, and all such remedies and procedures from time
to time provided for by or under the Treaties, as in accordance with the Treaties are without
further enactment to be given legal effect or used in the United Kingdom shall be recog-
nised and available in law, and be enforced, allowed and followed accordingly; and the
expression ˜enforceable Community right™ and similar expressions shall be read as referring
to one to which this subsection applies.
(2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order
in Council, and any designated Minister or department may by regulations, make provision “

(a) for the purpose of implementing any Community obligation of the United Kingdom, or
enabling any such obligation to be implemented, or of enabling any rights enjoyed or
to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised;
(b) for the purpose of dealing with matters arising out of or related to any such obligation
or rights or the coming into force, or the operation from time to time, of subsection (1)

and in the exercise of any statutory power or duty, including any power to give directions or
to legislate by means of orders, rules, regulations or other subordinate instrument, the
person entrusted with the power or duty may have regard to the objects of the Communities
and to any such obligation or rights as aforesaid.
In this subsection ˜designated Minister or department™ means such Minister of the Crown
or government department as may from time to time be designated by Order in Council in
relation to any matter or for any purpose, but subject to such restrictions or conditions (if any)
as may be specified by the Order in Council. . . .
(4) The provision that may be made under subsection (2) above includes, subject to
Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of
Parliament, and any enactment passed or to be passed, other than one contained in this Part
of this Act, shall be construed and have effect subject to the foregoing provisions of this


. 64
( 155 .)