Introduction
The English Legal System is an important constituent of the European Union in the sense that it forms the basis of the EU law (Archer 2008). The European law can be defined as a body of various treaties and legislation, which comprises of elements such as regulations and directives that affect directly on directly the laws of the member countries of the European Union. Basically, the EU law can be perceived as a distinctive legal phenomenon that was established in order to facilitate the European integration through the use of the various communities in Europe and the EU (Barnard 2007). The outcome of this was the establishment of a law framework that is superior to the laws of the members countries of the EU. In addition, the EU law has independent sources that effectively integrate the framework of the international law and the laws of the European Union member states. Basing on this framework, the paper discusses the sources of the European law, and the role of the EU institutions in decision making. In addition, the paper also analyses the effect of the EU membership on the English Legal System.
Sources of the European Union Law
There are three fundamental sources of the European Union law; they include the primary law, secondary law and the supplementary law. Each of the sources of the EU has different sources of establishments, with each having a distinctive role in the European legal system. The following section discusses each of the sources of the European Union law and the role of the EU institutions in law making (Craig 2007).
The primary law
The primary law is also called the original source of law, is the highest source of the law in the EU, and forms the framework of the legal order of the European Community. The primary law overrides other sources of law within the European Union, and it essentially comprises of the European Union Treaties. The European Union Treaties are used in the setting up the policy goals and the establishment of institutions that have the responsibility to enact legislations in order to facilitate the achievement of the policy goals (Elliott & Quinn 2010).
The scope of the European Union Primary Law comprises of the founding treaties during the establishment of the European Union, their respective amendments and adaptations by the various treaties and acts. The EU primarily law significantly deals with the founding treaties that led to the establishment of the EU, the major treaties that are used in amending the European Union, the protocols that take control of the EU treaties, any additional Treaties that can be used to amend specific sections of the European Union Founding Treaties, and the Treaties used in the accession of new member countries to the European Union (Elliott & Quinn 2010).
With regard to the geographical scope of the European Union primary law, Article 355 of the TFEU states that the European law is applicable to all the metropolitan territories of the EU member countries and specific islands and other overseas territories; for example, Madeira and the French Overseas department (Horspool 2010). In addition, the European law is applicable to territories whereby an EU member country has the responsibility of fostering foreign relations, such as the Gibraltar and the Aland islands. With this respect, the EU council has the sole responsibility establishing specific conditions to certain regions in order to ensure effective integration to the European Community. Regarding the scope of the European Union Law with respect to time, the EU law is applicable immediately a Treaty is enforced, except in situations whereby there is a schedule for a transitional period. The duration of implementation of the EU primary law is not limited to time; this is in accordance with the Article 356 of the TFEU (Horspool 2010).
Sources of the secondary European Union Law
The secondary law of the European Union consists of mainly unilateral acts and agreements as the law making forms. The European Union legislation normally comprises of regulations and directives, with the regulations becoming a law in all the EU member countries immediately after their enactment without the need to establish any implementation measures. This means that regulations are supreme to the existing domestic laws and provisions (Kent 2001). Directives normally need the EU member countries to attain a given result, while the ways of achieving the goal are left at the obligation of the member countries, implying that the details of implementation are influenced by the domestic laws and provisions, provided that the policy goals are achieved. The law making forms under the European Union secondary law include the statutory acts, which comprises of regulations and directives; individual acts, which comprises of decisions; recommendatory acts, which comprises of recommendations and member countries opinions; and finally the acts related the Common Foreign and Security Policy and the Police and Judicial Cooperation with regard to criminal matters. In addition, secondary sources of the European Union Law also comprises of the legal acts that are informal and have been adopted and implemented by the various bodies of the European Union community (Malanczuk 2009). These informal acts are not provisioned under the European Union Treaties. Another law making platform that serves as the source of the EU secondary law are the international acts. International acts comprises of the decisions enforced and the acts enacted by the representatives of the member countries during conventions with other representatives. In addition, international agreements undertaken by the European Union are an important source of the secondary law for the European Union. This usually takes the form of international agreements that have been signed by the European Union and another country or an external organization, agreements between the EU member countries and institutional agreements, which are agreements between the various European Union Institutions (Malanczuk 2009).
Sources of the European Union Supplementary Law
The supplementary law mainly comprises of the non-written forms of the European Union law that have a judicial origin. The supplementary sources of law were used by the Court of Justice as a source of law in cases whereby there were no provisions under the primary and secondary law that could address the issue. Basically, they comprise of the general law principles and the public international law. Therefore, the supplementary law can be used to bridge the gaps that the primary and the secondary sources of the European Union Law. In such cases, the Court of Justice makes use of the public international law and the general principles of law (Steiner & Lorna 2006). The Fundamental rights are also another significant element of the supplementary law of the European Union regarding its source. The International law serves as a source for the establishment of the case law by the Court of Justice, through the court citing and usage of such laws. In addition, the Court of Justice also holds the view that the European Union has to abide by the requirements of the international law. In this sense, the Court of Justice believes that the European Union is subjective to the use of law that can be accepted internationally and a law that is internationally liable through a vis-à-vis in cases whereby a non-member inflicts any harm to the member states. The following section analyses the effect of EU membership on the English Legal System (Steiner & Lorna 2006).
The effect of European Union membership on the English Legal System
Under the legal system of the European Community, the European Court of Justice serves as the Supreme Court, irrespective of this, Courts that are found in the EU member countries can make use of the European Union Law. In cases whereby the laws of the laws of the member countries have less provisions compared to the European Union Law, then the EU law can be used by the courts of the member countries. In cases whereby the EU law should be integrated into the existing laws of the EU member countries through frameworks such as directives, then the European Commission has the responsibility of taking the proceedings against the member country as stated in the EC Treaty. The fundamental approach to this phenomenon is that the EU law that has been directly adapted by the Courts of the member countries results into what is referred to as the direct effect; on the other hand, an indirect effect is characterized by scenario whereby the member countries use the European Union Law to interpret the domestic laws. The following is a discussion of the direct and indirect effect of the European Union Membership on the English Legal System.
The Direct effect is one of the principles of the EU laws, which consents that the provisions of the EU Law may grant the rights and enforce any necessary obligations on the people, whereby the Courts of the member countries have the responsibility of recognizing such laws and enforcing them. The principle of the Direct Effect of the EU law does not have an explicit mentioning in the European Union treaties (Barnard 2007). The doctrine of the direct effect of the European Union Law was first established during the case of Van Gend en Loos, and the criteria of this doctrine should be adequately clear and states clearly, be non-dependent and grant a particular right for the nationals to base their claim. In cases whereby the criteria have been fulfilled, then the rights that are being debated about can be enforced in the domestic courts. Basing on this, there are various forms of the direct effect of the European Union membership on the English legal system (Archer 2008). The European Court of Justice identifies the two forms of the direct effect; they are the Vertical and Horizontal direct effect, with a significant difference basing on the individual who supposed to be subject to the enforcing of the rights. The Vertical direct effect is primarily concerned with the relationship that exists between the European Union law and the domestic laws, with a specific consideration of the obligation of the state to guarantee that it is observing the EU law and that the national laws are somewhat compatible to the EU law. This enables the citizens to depend on the actions of the EU against the actions undertaken by the state, a phenomenon referred to as an “emanation of the state” (Barnard 2007). The Horizontal direct effect is primarily concerned with the relationship between the citizens. A European law is said to be horizontally directly effective if the citizens of a member states can rely on the actions stipulated by the law against each other. A typical example of the horizontal direct effect is the directives in the sense that they are enforced against the member state. Legislative acts also have a direct horizontal effect on the member countries (Steiner & Lorna 2006).
The indirect effect is a doctrine of the EU law that ensures that domestic courts interpret the national legislations basing on the aims of a specific EU directive. A directive can be defined as a legislative order that that the national government has the responsibility of its implementation. Normally, the member country is at liberty to draft the way they will implement the directive; however, the law should meet the core objective of the original EU directives. This implies that the implementation of such directives can vary in the different member countries. Individuals have the right of suing their stage for not providing support to an EU directive, but they cannot make use of directives that have not been implemented as a framework for suing other individuals. The state in this case refers to any entity that is controlled the national government such as administrative authorities. The basic argument is that state authorities have to implement the EU directives even if they are in line with the national laws. Another effect of the European Union membership on the English legal system is the aspect of supremacy of the EU law. Supremacy of the EU law guarantees that national laws that conflict with the EU law have to be ignored in order to facilitate the implementation of European Union law (Horspool 2010).
References
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