Exploring Ways in Which the European Union Legal Order Differs from the Common Law Jurisdiction

Exploring Ways in Which the European Union Legal Order Differs from the

Common Law Jurisdiction

The main sources of law in the common law jurisdiction are statutes

and the doctrine of judicial precedent. In the European Union (EU) the

main sources of law are the treaties and various forms of secondary

legislation (regulations, directives, and decisions), judicial

precedent does not apply in the EU. As of 1st January 1973 EU law has

had effect in the UK as a result of the European Communities Act 1972.

The EU does not have a formal constitution as such, but the EC Treaty

confers powers and duties on the institutions. The European Court of

Justice (ECJ) has referred to 'a new legal order' in a number of

cases. This 'new legal order' is characterised by the concepts of

direct effect and the supremacy of EU law over national law. The case

of Van Gend en Loos (1963)[1] establishes the 'new legal order' most

clearly, where the court created a famous statement[2].

The case of Van Gend en Loos (1963)[3] was the first in a long line of

rulings from the ECJ that developed the doctrine of supremacy of EU

law over national law. The case of Costa v. ENEL (1964)[4] elaborated

on this new legal order. The new legal order of the EU is not only

supreme to national legislative provisions, but also national

constitutions; Internationale Handelsgesellschaft (1970)[5]. The ECJ

have also made it clear that the supremacy of EU law affects

legislation enacted both before and after becoming a member state;

Simmenthal (1978)[6]. Courts of Member States are also obliged to

ignore conflicting national law and rule according to EU legislation;

Factortame (19...

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...ing in its entirety and directly

applicable in all Member States."

[33] Commission v. UK (Re Tachographs) (Case 128/78) (1979) ECR 419.

[34] Article 249 - Previously 189, "A decision shall be binding in its

entirety upon those to whom it is addressed."

[35] Article 249 - Previously 189, "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 methods."

[36] Marshall v. South West Area Health Authority (No.1) (Case 152/84)

(1986) ECR 723.

[37] Van Gend en Loss v. Nederlandse Administratie der Belastinge

(Case 26/62) (1963) ECR 1.

[38] Pubblico Ministero v. Ratti (Case 148/78) (1979) ECR 119.

[39] Francovich, Bonifaci and others v. Italy (Cases C-6 & 9/90)

(1991) ECR I-5357.