Figure 5.22: the Maastricht Treaty—changes 5.5.11 The issue of the supremacy of Community law over English law Now that you have a reasonably secure but basic knowledge and understanding of the Community it is appropriate to turn to a discussion of the particular legal and constitutional changes to the English legal system and the English constitution caused by the political act of the UK joining the EC in 1973. Article 10 of the EC Treaty (formerly Article 5), stated that Member States of the Community had to ensure compliance with Community law. Much of it was also intended to have an immediate effect in Member States as soon as it was created in the institutions of the Community (remember the same institutions now serve the Union). In other words, it should automatically enter the legal system of Member States.

2012 ◽  
pp. 166-166
Keyword(s):  
Legal System ◽  
Maastricht Treaty ◽  
Basic Knowledge ◽  
The Political ◽  
Member States ◽  
Community Law ◽  
Political Act ◽  
The Uk ◽  
Article 5 ◽  
Constitutional Changes

Other types of secondary legislation immediately place legal obligations directly into the legal system of all Member States. These are binding in their entirety and said to be directly applicable. Still other types place legal obligations directly upon certain named States, individuals and organisations. (4) The treaties, regulations and directives enacted by the Union do not directly state that they give individuals rights that they can enforce in their national courts. These legal rules are addressed in the first place to the Union and the Member State. Yet under the founding treaties Member States are expected to enforce the rights, liabilities and powers that are a consequence of membership in national courts. The ECJ has developed the concept of direct effect which describes EC primary or secondary law that give individuals rights that are enforceable in their national courts. Set criteria have to be present. Direct effect is easier to prove in relation to regulations than it is in relation to articles and directives. The criteria demand that: • the rule does not require any action from the State (and directives do); and • that the right to be enforced is clear and precise and can be activated without recourse to the State (which is not the automatic case in relation to articles in a treaty concluded at State level or a directive issued to the State demanding certain outcomes within a timescale). However, articles and directives considered on a case by case basis by the European and national courts have been held to give individuals rights. The case of Van Gend en Loos discussed later in this chapter deals with direct applicability and direct effect of articles. (5) A major difficulty is caused by the lack of uniformity of terms in relation to ‘directly applicable’ and ‘direct effect’. ‘Directly applicable’ is the phrase used in Article 249 (formerly 189) of the EC Treaty to refer to the process by which Community law of certain types is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. ‘Direct effect’, which is not a phrase occurring in any of the treaties, is the phrase consistently used in the ECJ in two senses to refer to: • the process by which individuals acquire rights they can enforce in national courts (against other individuals—horizontal direct effect, and against the State itself—vertical direct effect); and • the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. This is confusing, especially as some Community law that is created by Article 249 (formerly 177) of the EC Treaty is not said in the Treaty to be directly applicable in the sense of immediately and automatically becoming part of the legal system of Member States. Yet the ECJ has held that such law can, if certain criteria are present, have direct effect. In fact, they have gone one step further and constructed the concept of indirect effect. It is indirect precisely because the law is not directly applicable but somehow an individual can enforce it in a national court.

2012 ◽  
pp. 157-157
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
National Court ◽  
State Level ◽  
The State ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Legal Obligations ◽  
The Right

Subsidiarity as a Subject of Battle in European Union Politics

2020 ◽  
Author(s):  
Kees van Kersbergen ◽  
Bertjan Verbeek
Keyword(s):  
European Union ◽  
Power Relations ◽  
Political Process ◽  
Maastricht Treaty ◽  
Lisbon Treaty ◽  
The Political ◽  
The European Union ◽  
Member States ◽  
Over Time ◽  
The Eu

Since the Maastricht Treaty (1993), subsidiarity has guided the political process surrounding the distribution of competences between administrative layers in the European Union (EU). The EU’s subsidiarity regime affects the politics and governance of the EU, because the notion of subsidiarity allows for continuous negotiation over its practical use. The constant battle over subsidiarity implies that the notion changes its meaning over time and alters the power relations between different actors within the EU. Since the Lisbon Treaty (2009), subsidiarity has mainly strengthened the position of member states at the expense of the Commission.

From a pragmatic point of view there is a need to accept this confusion, and seek to derive the meaning of the phrase from its context. Some legal academics advise forgetting the issue, which is like running away, and does create further confusion. The courts use the phrase synonymously. The EC Treaty, however, remains silent about individual rights in national courts and only uses the term ‘direct applicability’ to refer to the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. For the purposes of explaining some of the issues surrounding EC law, this text will assume the artificial distinction between direct applicability and direct effect. It will assume therefore that ‘directly applicable’ applies to the process of automatic assimilation into the legal systems of Member States and that ‘direct effect’ refers to individuals deriving rights from Community law enforceable in national courts. Remember, however, that the terms tend to be conflated. These matters will now be set out as a series of tables and diagrams to assist you in the development of understanding.

2012 ◽  
pp. 158-159
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
Point Of View ◽  
Individual Rights ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Running Away ◽  
Ec Law ◽  
Direct Applicability

5. The legal system and human rights

UK Politics ◽  
2021 ◽  
pp. 95-117
Author(s):  
Andrew Blick
Keyword(s):  
Human Rights ◽  
Legal System ◽  
The Political ◽  
Policy Makers ◽  
Theoretical Concepts ◽  
Political Role ◽  
Legal Advice ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

This chapter focuses on the legal system in the UK and looks at how the legal system and human rights relate to the political system. The chapter starts by defining both the legal system and human rights and shows how they are important in politics and in our democratic society and how they work in practice. These are closely connected issues, as the UK legal system is supposed to operate within human rights principles. The chapter introduces a series of theoretical concepts that aid to the understanding of the legal system. Central to this is the concept of the rule of law. The chapter presents some practical examples to show how various goals are realized. The first example given in the provision of legal aid to those who cannot afford their own legal advice. The second example relates to how policy makers attempt to deal with threats of terrorism. The third example is the key legal basis for the upholding of human rights via the Human Rights Act 1998. The chapter finishes with a debate on the political role of courts and looks at the implications of Brexit for the legal system and human rights.

5.13 How to handle Community law reports It is now important to sum this section up by looking at the issues surrounding the reading of Community law reports and reflecting on the development of reading skills. All legal systems have some appreciation and acknowledgment of precedent. The Community legal order is an artificially created legal system that draws on the legal systems of the Member States for the establishment of approaches to interpretation and law making in relevant areas. The majority of Member States operate from a Civil Code legal system unlike the UK’s preference for a common law system. Because of the familiarity of most Member States with civil law systems and the fact that all of the founding members were nation States with civil law systems, the European Community’s legal system is deeply embedded in the civil system. In the English law’s common law tradition, the legal theory underpinning the practical approach to decision making in the law courts is the declaratory theory This states that when a judge in court is deciding a case he declares in his decision what the law is. The case can then become an important precedent, as it states the law and determines when other courts must follow it. One case can determine and preset the law within the limits of the doctrine of precedent. In civil law systems codes are used to organise areas of law. All civil systems are based in different ways on Roman law where the legal theory position is that when a judge in a court makes a decision about the law, that decision is evidence of the law. The ECJ, not surprisingly, when setting up legal principles that apply across all cases, drew upon the legal experience of all Nation States, but the minority approach of the English legal system is not the approach in the Community legal order. As you will remember from Chapter 3, in the English common law system decisions of the courts are the law, rather than evidence of what it is thought to be. Through the system of precedent in the English legal system, previous court cases and law cases are presented to the court as precedents. But this is not the case in the ECJ where arguments consider other cases and other documents and practices in order to present what may seem appropriate principles of the law. It should have been apparent from the previous chapter and the discussion in that chapter on the doctrine of precedent that English law, despite its theoretically rigid binding nature, is extremely flexible in the mouths of judges. It may seem odd that there is a lack of precedent in the ECJ. But the ECJ has a determination to carefully develop and keep legal principles which do give a great deal of consistency and coherence to Community law. Commentators have noted that it has now become normal and accepted for courts to refer to earlier cases and use these earlier cases as the rationale for decisions, which begins to feel like precedent. However, even given these suggestions of openness to the concept of precedent there is no suggestion that the ECJ would ever reach a decision that it did not want to purely because of other cases deciding matters differently. The reverse could, however, occur in the English legal system.

2012 ◽  
pp. 170-170
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Common Law ◽  
Civil Law ◽  
Member States ◽  
Law System ◽  
Community Law ◽  
Nation States ◽  
The Law ◽  
Law Reports

In order to understand the development of the Community and the development of the Union it is necessary to bear in mind several matters: (a) The nature of the Union and the Community. (b) The treaties setting up the Community and then the Union (included here are the founding treaties, the accession treaties, and the amending treaties). (c) The institutions of the Community and latterly the Union. (d) The sources, types and differing effects of Community law. (e) The effect of Community law or EC law on the English legal system. These areas will be considered next. 5.5.3 The nature of the European Community The Treaty of Rome 1957 states the main principle of the Community as the maintenance of economic and social progress, and naturally flowing out of this primary principle are a number of other principles aiming to unite Member States for the purpose of social, economic and legal union. It specifically states it is aiming to lay ‘the foundations of an ever closer union’. Part of the difficulty that can occur in attempting to understand the Community perhaps lies in the fact that it was never a specific place but a way of trading and of relating financially, legally, politically, socially and culturally.

2012 ◽  
pp. 148-148
Keyword(s):  
European Community ◽  
Legal System ◽  
Social Economic ◽  
Social Progress ◽  
Main Principle ◽  
Member States ◽  
Community Law ◽  
Treaty Of Rome ◽  
Ec Law

scholarly journals BREXIT FROM THE LEGAL POINT OF VIEW

2017 ◽  
Vol 3 (4) ◽  
pp. 141-152 ◽  
Author(s):  
И. Чернышова ◽  
I. Chernyshova
Keyword(s):  
Legal System ◽  
Political Process ◽  
Point Of View ◽  
Political Life ◽  
The Political ◽  
The European Union ◽  
Political Aspect ◽  
The Government ◽  
The Uk ◽  
The Eu

In June 2016 the referendum on the minimum majority of votes of British citizens supported a British exit from the European Union, from that moment began the formal process of so-called “Brexit” — a unique event in the political life of the EU and the UK. Apart the political aspect, Brexit also is a difficult challenge for legislators, academics and lawyers both in the EU and in the UK. Over the last forty years, the legislative system of the EU and the UK are closely intertwined and now constitute a single legal system. The notice of withdrawal from the EU has caused differences which led to the consideration of the functions and powers of the government in court. This article discusses how participants of the legal process of brexit (legislators, academics and lawyers) approach to solving this problem: background, development process, proposed legislation and the reaction to it from the professional legal community with the view of the political process and the preparations for the negotiations on the exit procedure and further cooperation. In the article, the procedure and consequences of the brexit are considered from the European and British points of view. The key legislative act defining the brexit consequences for the legal system in the UK will be the Bill on the Great Cancellation, which determines the order of separation of the British legal system from Europe. The article also includes a brief review of the brexit effects for individual areas of British law.

27. The Future of the EU

2016 ◽  
Author(s):  
Brigid Laffan
Keyword(s):  
United States ◽  
European Union ◽  
Leadership Role ◽  
The Political ◽  
The European Union ◽  
Member States ◽  
Future Scenario ◽  
The Future ◽  
The Uk ◽  
The Eu

This chapter discusses the future of the European Union by presenting four scenarios: Disintegration, Piecemeal Adjustment, Functional Federalism, and a United States of Europe. Although systemic disintegration is unlikely, the chapter argues that partial disintegration of the EU may occur because of the possible exit of the UK and the victories of secessionist movements in some member states. It also shows that the political battle concerning the future of the Union is between Piecemeal Adjustment and Functional Federalism. Moreover, it suggests that a United States of Europe is highly unlikely since the member states are not in favour of further federation while the degree of contestation about the future of the EU precludes a transformation of the system. The chapter concludes by considering the potential impact of Germany's leadership role on any future scenario for the EU.

Adab Konstitusi; Upaya Meluruskan Kesesatan Pikir Konstitusi

2017 ◽  
Vol 1 (1) ◽  
Author(s):  
Yogi Prasetyo
Keyword(s):  
Legal System ◽  
The Political ◽  
Legal Basis ◽  
Political Interests ◽  
The World

The Constitution as the legal basis for formation of legislation in the system of Indonesia. The misuse of the constitution (UUD 1945) by the political interests of goverment caused mislead and made the situation of the nation getting worse. Liberal capitalistic value wrapped in modern positivistic legal system that puts the ratio had diverge from culture constitution. needs to be clarified with the balance of conscience through culture constitution. Culture constitution is a constitutional concept who saw citizen of Indonesia as creatures of God by virtue of intelligence and unseen. So with that constitution is formed, conceived and executed to be qualified and to bring the benefit of the world and the hereafter.

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