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direct/indirect effect (supremacy of EU law (UK constitution-less -…

- - - - Van Duyn v Home office
        
        directive could be relied on in national court despite UK not having introduced it into its national law
    - - duty of harmonious interpretation
        
        Von Colson v Land Nordrhein-Westfahlen
        
        vertical claim against german prison service
        
        sex discrimination remedies
        
        insufficiently precise to be implemented by court
        
        national courts under duty to interpret national law so far as possible to achieve the result laid in directive
        
        national court part of state thus bound by article 4(3)
        
        interpret national legislation in light of wording and purpose of union law
        
        duty applies in relation to all legislation whether passed before or after the relevant union legislation and whether intended it implement it or not
        
        applies vertical or horizontal case :check:
      - limits
        
        some relevant national legislation required thats capable of being interpreted in accordance with directive
        
        if there is no relevant national law or has one interpretation = :no_entry:
        
        legal certainty and non retroactivity :check:
        
        create or aggravate criminal liability :forbidden:
        
        civil liabilities :check:
  - - - MS fault
        
        failed to transpose directive into national law
        
        transposed inaccurately
      - Marshall case
        
        only vertical effect
        
        court given wide meaning to 'state'
        
        Foster v British Gas
        
        emanation of the state :red_flag:
        
        perform public service?
        
        pursuant to measure adopted by the state?
        
        under the control of the state?
        
        special powers beyond : those of normal commercial undertakings?
        
        cumulative
        
        unfair dismissal
        
        remedy be adaquate and effective thus compensation :no_entry: ceiling and interest :check:
- - - - Equivalence - no less favorable than those relating to similar domestic claims
      - practical possibility; in practice virtually impossible or excessively difficult to obtain reparation :forbidden:
    - - effective
      - adequate
      - act as deterrent
      - guarantee real and effective protection
    - - court - no jurisdiction to set aside Act of parliament for for compliance with community law, if sole obstacle is rule of national law to grant interim relief - national law set aside
    - - art 6 and 13 - every person had the right to obtain an effective remedy in competent court against measures they consider to be contrary to principle in directive
        
        certificate :no_entry: conclusive
- - - - confers rights on individuals
      - content ot those rights ascertainable
      - causal link between loss and breach
      - Francovich requirements
  - - - rule breached which
        
        confer rights on individuals
        
        breach is suff serious
        
        MS manifestly and gravely ignored the limits its discretion
        
        factors (Factortame req)
        
        clarity and precision of breached rule
        
        measure of discretion by that rule on national or union auth
        
        whether infringement was intentional or voluntary
        
        if error of law was inexcusable or nor
        
        fact that position adopted by union institution may have contributed towards the omission
        
        adoption or retention of national measures or practices contrary to union law
        
        if there has already been a ruling obtained by commission under art263 and MS still persist to breach - auto suff serious
        
        non implementation of directive :check: suff serious
        
        only Francovich conditions needed
        
        procedure to bring action for damages - national rules
        
        causal link
- - - - Dicey Parliament can make or unmake any law and no institution can override or set aside that legislation
    - - domestic legislation must be enacted for international law to enter into national law
      - Lord Denning - Blackburn v AG - no notice of treaties until they are embodied in law enacted by Parliament and only to that extent parliament tells us
      - European Communities Act 1972 needed
        
        s2(1)
        
        makes direct effect part of UK legal system
        
        s2(2)
        
        implementation of EC obligations even where these are meant to replace national leg and Acts of Parli - via courts
        
        s3(1)
        
        preliminary ruling from ECJ
        
        s2(4)
        
        supremacy of EU law without need for legislations
        
        traditional consstitutional appraoch
        
        doctrine of parli supremacy and implied repeal - ECA cannot be entrenched. future parli cannot be binded
  - - - principles of construction to assume whether parli intended ECA to have any inconsistency with EC law to be resolved via primacy to EC law
        
        where an apparently conflicting provision of english law could be read in conformity - this approach :check:
      - willing to give primacy to EC law to DE community law by
        
        fictional construction of domestic law or
        
        directly in priority application - where necessary
        
        however
        
        Macarthys case - Lord Denning - should parli expressly attempt to repudiate its EC obligations - courts obliged to give effect to its wishes
        
        higher wage to man prev holding position - different times employed
        
        ECJ - time no matter so court :check:
        
        Garland v BRE Ltd - concessionary travel facilities to male employees families. contrary to Art 119- so 119 prevail :check:
    - - domestic law v DE Community law
      - post
        
        Equal Opportunities Commission
        
        no constitutional barrier to an applicant before UK court in seeking judicial review of primary legislation which was alleged to be in breach of community law
      - grant of injunction against the crown :check: suspend
    - - construe domestic law in conformity with EC law which was not DE even where that construction was not prima facie meaning of the statute
        
        this was even where the national statute was introduced to implement a non directly effective directive
  - - - supremacy inherent in nature of EC Treaty
    - - primary conception of supremacy
    - - emphasized domestic acceptance of supremacy
        
        laws lj
        
        common law decided the impact of EC on sovereignty in the light of any statutes that Parli had enacted
        
        common law modified the traditional concept of sovereignty by creating exceptions to the doctrine of implied repeal
        
        constitutional statutes not subject of doctrine of implied repeal
        
        repeal :check:
        
        some express words in latter statute or words so specific that inference of actual determination to effect the result contended was irresistible
        
        question over where EC law so repugnant to constitutional right guaranteed by law of England then it would be whether general words of ECA would allow it to incorporated and give overriding effect
  - - - fulfil parliaments wishes
      - decide parli not free to pick and choose which ones to oblige as long as its part of community
    - - MS must repeal the conflicting national rule regardless of interpretation thats harmonious