Essay Example on Discuss how the European Union, EU law is enforced with a focus on the UK Key enforcement mechanisms.

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This essay will discuss how the European Union, EU law is enforced with a focus on the UK Key enforcement mechanisms that are used by the EU will be discussed such as supremacy. Finally, potential deals that the UK could do post-Brexit, such as Norway will be discussed. One key mechanism is supremacy. Supremacy was discussed in Van Gend en Loos. The court stated that the Community constitutes a new legal order in international law for whose benefit the States have limited their sovereign rights, albeit within limited fields. However, Costa v ENEL held that where national law is found to be incompatible with EU law, then EU law shall prevail. This was seen in the UK in Macarthys v Smith in which Lord Denning stated the treaty takes priority over anything in our English statute whenever there is any inconsistency. Community law has priority. Thus backing up Costa in that EU law is supreme over UK law. Another mechanism is direct effect Eur lex states that the principle of direct effect enables individuals to immediately invoke a European provision before a national or European court. Eur lex goes on to state that the direct effect principle, therefore, ensures the application and effectiveness of European law in EU countries.

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 Gilbert states that Van Gend en Loos held that individuals could assert the rights conferred upon them by the EU in national courts if the EU law in question has direct effect. Reyners v Belgium gave the criteria for provisions to become directly effective and they are that the provision must be clear. It must be unconditional and its operation must not be dependant on further action being taken by the Union or national authorities. The direct effect may apply to treaty articles, secondary legislation, and treaties with 3rd countries. For the direct effect, there are two aspects to direct effect a vertical aspect and a horizontal aspect according to Eur lex. The vertical effect is according to Practical law is that EU legislation can be enforced against the state or an emanation of the state such as a nationalized industry or privatized utility and horizontal effect is that it may be enforced against another individual. EU legislation such as the Treaty of the Functioning of the European Union 2007 TFEU has a vertical and horizontal effect. However, directives can only have a vertical effect and so can only be used against the state.

The direct effect is an effective enforcement mechanism to ensure that Member States comply with EU laws. Drake stated if a Member State fails to implement a directive correctly or by the prescribed date individuals may be deprived of their full Community rights. This is a great way to ensure that the directives are complied with as the Member States want their citizens to have all of the necessary rights. 

Another mechanism is indirect effect which according to Practical law is a principle of interpretation whereby the courts of the member states of the EU must interpret national legislation as far as possible in a manner that is consistent with provisions of EU law. Indirect effect was seen in Von Colson. In which the ECJ held that the national law must be stretched to accommodate the directive and so stated the provision entitles individuals to a remedy which provides real and effective judicial protection and has a real deterrent effect on the employer. Drake stated it followed that national courts were under an obligation to interpret national law in order to ensure that the claimants were able to invoke their right to an effective and adequate remedy. Indirect effect gives the power to individuals to sue other individuals horizontal due to a directive. This is an effective enforcement method as it shows that sanctions are willing to be imposed for non compliance. The final mechanism is state liability.


State liability is implicitly inherited from the good faith clause of Article 4 3 of the TFEU, which states pursuant to the principle of sincere cooperation the Union and the Member States shall in full mutual respect assist each other in carrying out tasks which flow from the Treaties. This shows that the EU is inherent in the EU legal structure. State liability is a gap filler where there is no direct effect to something and there is still an issue state liability attempts to rectify the wrong. This principle was seen for directives with the case of Francovich. In which it was held that where a directive gives an individual’s rights and those rights could be identified from the directive and there was a causal link then the state would be liable. The House of Commons briefing paper stated that in the Francovich case held that in some circumstances states have to compensate individuals for damage, they suffer because the state has failed to transpose a directive or done so late or poorly. Factortame established the principle that state liability should be applied applicable to all areas of EU law. As Gilbert states the CJEU continued to assert more power over to how Member States should interact with EU law by expanding the principle to include any breach by the Member State of its Treaty obligations. Factortame held 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.

Sufficiently serious was defined in Factortame as when the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. A UK case to show this is Delaney v Transport. Therefore if a Member State did go against their Treaty obligations then they can be sanctioned as in the UK case of this is R Santos v Home Department. There are several possible agreements that could take place between the UK and the EU after Brexit, for example, the Norway model. The BBC stated Norway is a member of the European Economic Area. EEA A HM Government report explains that the Norway model would give the UK considerable access to the free trade Single Market. And that Norway makes significant contributions to the EU and is subject to EU rules. If the UK negotiated the Norway model they would be bound by many of the EU’s rules but no longer have a vote. For any problems that may arise Norway is subject to the jurisdiction of the EFTA Court, the EFTA Court follows the principles of the ECJ’s rulings. This, therefore, means that if the UK were to become like Norway then any disputes would be settled by the EFTA Court, not the ECJ. Overall this means that if the UK does a Norway then they will be bound to EU rules, without being a full member and so it can be stated that the EU laws and regulations would still have direct effect in the UK. Furthermore, there is still state liability in the EFTA and the national courts according to Karlsson HF v Iceland. Therefore it can be shown that even once the UK leaves the EU there would still be strong enforcement of EU law. Another model is the Swiss model.

According to Dhingra and Sampson Switzerland is not a member of the EU or the EEA. Instead, it has negotiated a series of bilateral treaties governing its relations with the EU. According to BBC Switzerland has agreed more than 120 bilateral agreements with Brussels designed to secure Swiss access to Europe's markets. Additionally, the article states that Switzerland is a member of the European Free Trade Association EFTA. The HM report states that Switzerland has no representation in the EU’s institutions and no role in the EU’s legislative process. According to a European Parliament briefing paper. Each sectoral bilateral agreement is managed by a Committee, each Committee is responsible for dispute settlement. No surveillance authority is watching over the implementation of the agreements nor is a court in place that guarantees a unified interpretation of the agreements acting as a last resort to settle disputes. The report also states enforcement is difficult given that there are no official sanctions, no implementation deadlines and no court ruling over the bilateral agreements. This means that if the UK were to have a similar deal to Switzerland then enforcing the law would be difficult. Also due to their being no enforcement body as the report states, this will quite simply make the finding of a solution impossible at least on the legal level when disputes arise between the UK and the EU.

However, an enforcement body is the Federal Tribunal that has shown to have given direct effect for example with the Federal Tribunal Decision 129 II 249. Conversely, it has also denied direct effects such as in Cassis de Dijon. This shows that the Tribunal is inconsistent and therefore not a good enforcement and dispute body Overall in the Swiss model enforcement of EU law would be weak Conversely as stated in the HM report if Switzerland fails to introduce domestic legislation reflecting certain EU rules the EU can block Switzerland from access to the related parts of the Single Market. To avoid this Switzerland chooses in most cases to align with new EU laws as they are adopted. This shows that in practice EU law is largely adopted into Switzerland law especially in areas about the Single Market, thus showing some form of direct effect. The Canada model is another model that could be used. As the European Commission explains the Comprehensive Economic and Trade Agreement CETA is a trade agreement between the EU and Canada. The Commission go on to state that CETA will remove customs duties to benefit EU consumers and support people’s rights at work and the environment. Furthermore, CETA has set up the Investment Court System ICS which is a mechanism for resolving disputes.

The ISC will have a permanent investment tribunal and appellate tribunal. Moreover, the tribunals are mentioned in Article 8 27 8 29 of CETA. Additionally, CETA clarifies that in adjudicating upon the consistency of a claim the tribunal shall apply the agreement in accordance with the principles of international law. With respect to domestic law, CETA confirms that EU or the Member States law will be examined only as a matter of fact. As the CETA deal is new it is unclear whether there is any direct effect or state liability to enforce the necessary provisions therefore in that instance enforcement is very weak. However, as there is a dispute body already set up it is possible that direct effect and state liability would come into the CETA agreement via case law, therefore if the UK were to have a similar deal then the enforcement could potentially be strong.

A default deal would be to follow the World Trade Organisation WTO rules. As BBC states if there is no deal reached before Brexit takes effect trade rules would default to World Trade Organisation rules. As the HM report states WTO rules offer no access to the Single Market no wider cooperation on crime or terrorism, no obligations for budgetary contributions or free movement of people. The report also states that businesses cannot directly enforce their rights under WTO rules and the WTO dispute settlement process is burdensome both in time and resources. Enforcement of EU law would be the weakest from all the trades as the HM report states the WTO provides limited arrangements to handle trade disputes. The case of Hermes International v FHT established that in the WTO there is no direct effect. This was then affirmed by Dior v Tuk Consultancy. Overall it can be shown that the WTO agreement would have the least enforcement of EU law. Overall it can be argued that the Norway model would appear to be the best deal that the UK could achieve as it would offer the most benefits of the EU and would have strong enforcement from EFTA. Other possible deals besides preferential agreements include deals to access the Single Market include the trojan horse strategy and the free movement of capitals.

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