Revision - Enforcing Rights arising in EU Law

Another "golden oldie" video - which will be relevant if you have exams coming up involving EU Law (such as the Open University's W200 course)





I also have a flow diagram which sets out the steps to answer any problem based upon the issue of whether a right can be enforced? and if so how? (A very frequent exam question in almost all EU Law courses)

(click on image for full size version)

Getting Revision Focused

A starting point in revision is to identify the key topics that need to be covered. 


For W200 Students (or students of English legal System and EU Law)

Below is a MindMap illustrating the key parts of the W200 Understanding Law course. Unit 8, on Scottish Law is not examinable - so I haven't incorporated it.

Once you can visualise the structure of the course - the next task is to draw out the key issues within each major subject. The way that the manuals are structured helps you do that. 

For Example - Units One and Two make up "Introduction to Law
1 Introduction and what is law
2 Terminology and sources of Law

Each unit is subdivided - Unit One -
A General Introduction to the course - no need to revise this
B What is Law?
C The Functions of Law

Note the key themes and further divisions - B1, B2, B3.....
You might want to draw your own MindMap for each Subject and/or Unit.
Briefly summarise the key points as you revise - this involves condensing the information.



(click on the mindmap for the full version)

For W201 Students (or students of UK Constitutional Law; Human Rights & Criminal Law)

Below is a MindMap illustrating the key parts of the W201 The Individual & the State course. 
Once you can visualise the structure of the course - the next task is to draw out the key issues within each major subject. The way that the manuals are structured helps you do that. 

For Example - Units One to Five cover "Constitutional Law"

1 Fundamental Values, constitutions and core constitutional principles
2 The sources of the UK Constitution
3&4 Parliamentary supremacy
5 The institutions of State in the UK

Each unit is subdivided - Unit One -
A Identifying fundamental values
B Constitutions: purpose and classification
C Core constitutional principles (1) Parliamentary supremacy (2) Responsible government
D Core constitutional principles (1) The Rule of Law (2) The Separation of Powers
Note the key themes and further divisions - B1, B2, B3.....




(click on the mindmap for the full version)

Revision

It's that time of year again. I have OU students on the W200 (Understanding Law) and W201 (Law: The Individual & the State). Washminster has, in the past, been a useful resource for those studying at University or for A-Levels in the subjects of Law and Politics. It is my intention to produce posts which may be of especial use to such students.

The subjects I will be focusing on include
# Principles of effective revision
# English Legal System
# UK Constitutional Law
# European Union Law
# Human Rights (with an emphasis on the European Convention on Human Rights)
# Principles of Obligations (Contract and Tort)
# Criminal Law

- but fear not, these subjects are not dry academic subjects. They will be at the forefront of debate across the world. In the UK, there will be a referendum on Britain remaining in the EU. Soon afterwards Michael Gove is expected to announce proposals for the replacement of the Human Rights Act (which gives effect to the ECHR in the UK - allowing its provisions to be raised and applied in English courts [Note - the OU courses concerned deal with English Law - although there is a unit on Scottish Law which is non-examinable]. The proper use of 'constitutions' lies at the heart of current debate in the USA - and concerns about respect for human rights is increasing across the world. So there will be in these posts, something for everyone. There's no need to switch just because you aren't facing an exam!

If you do have family; friends; neighbours or students who might value Washminster as an additional revision tool - please share this post (or our address - http://washminster.blogspot.co.uk/) with them.

And so back to work....

The summer is over (if you have been in Milton Keynes this last weekend, you'd know how true that is - it has rained, and rained, and rained - and I have been wearing a jumper!). Yesterday was the "Late Summer Bank Holiday", the last Bank Holiday here until Christmas Day.

Next week Parliament returns, and on the following Saturday the result of the Labour Party leadership election will be announced. It's time to put away the summer reading and get back to day to day politics.

Washminster returns - and this is the 2200th post. This blog has been running since March 2007. Do please free to look at some of the previous posts. They can be accessed in date order - or through the search function.

Autumn 2015 looks interesting - in the UK (where the major opposition party chooses a new leader, but faces an uncertain future) - This blog will follow the results - and (as in previous years) report directly from the Labour Party Conference at the end of this month. Parliament will be more closely monitored, as I do further research into the evolution of scrutiny. In the USA the long march to the 2016 elections continues - and who knows what further surprises are in store.

As part of my work, I monitor political stories (particularly relating to the work within legislatures - the UK Parliament; US Congress; French Assemblée nationale and the European Parliament) and teach Constitutional Law. Having twice run for the UK Parliament and once for the European Parliament (and participated in numerous elections - from local councils in the UK to three US Presidential elections) - I maintain a keen interest in the 'nuts and bolts' of elections.

So - whether you are studying Constitutional or EU Law or Political Science - or enjoy viewing politics on a comparative basis - or want to pick up anecdotes about history and politics - do become a regular, and welcome visitor to the Washminster Blog.

...and do tell your friends. Posts you like (or which infuriate you - I love a vigorous debate!) can be posted on Twitter and Facebook.

So here goes for a busy few months!!!!

Revising for Law Exams?

 

Washminster is written by an Associate Lecturer on the Open University's W200 and W201 Law courses. These cover what more traditional universities may describe as

• English Legal System
• EU Law
• Constitutional & Administrative Law
• Criminal Law

As a result there are a number of posts designed to assist with exam revision in these subjects (and revision techniques generally). Most of these were published in the August/September of each year (immediately preceding the OU exams).

If you are facing exams (Law Degree; Law A-Levels), do feel free either to use the search engine to the right of this post - or browse through the posts in date order (year & month).

Recent News From the EU

MEPs approved European Commission proposals to revise EU air passenger rights rules. The text approved by the EP would force airlines to be less restrictive in carry-on baggage policies and would make it harder for airlines to avoid paying compensation for delays and cancellations. The revised rules clarify the term 'extraordinary circumstances', which airlines used to get out of paying compensation for delayed or cancelled flights. 

The text adopted by MEPs would mean personal belongings such as coats, handbags or items purchased at the airport would not count toward their maximum cabin baggage allowance. Also, passengers would be entitled to: €300 for journeys of 3,500km or less which were delayed more than three hours. €400 for journeys between 3,500 and 6,000km which were delayed more than five hours. €600 for journeys of 6,000km or more which were delayed more than seven hours.  

 (From EU News Roundup - the European Movement)

Enforcing Rights

Rights aren't much use if the means do not exist to enforce them. That underlies the opposition to the recent Legal Aid "reforms" (if you haven't done so already, it's worth looking at the four videos I posted on Friday - starting here.)

When the treaties which began the development leading to today's European Union were signed, some member states expected that rights for individuals arising in EU law would only be enforceable in the traditional way - by Member States or Institutions taking action against failures by other states or the institutions themselves. They would be the only ones who could stand up for the rights of individual citizens.

But the European Court of Justice developed the concept of "Direct Effect" - which means that, if certain criteria are met, an individual can enforce their right in a NATIONAL Court.

The breakthrough case was "van Gend en Loos v Netherlands Inland Revenue Administration". It's one of the key EU law cases - and every Law student should read it to follow the Court's reasoning  - it's available to read here.

There are other ways to enforce rights if there is no Direct Effect - these are "Indirect Effect" and "State Liability".

The following diagram sets out a logical approach to considering how an individual might enforce a right arising in European Law. (A frequently occurring question in exams). First consider whether there might be direct effect; if there is not, or may not, be direct effect then consider if indirect effect may provide the remedy. If neither of these can help, then the State should be sued under State Liability. Direct and Indirect Effect actions must be brought against the body whose action has immediately affected the individual (The employer; the company...)

Click on the picture to see the full sized version (works on some computers) or click on picture and print). I've highlighted in red the matters which would require detailed discussion - so make sure you are confident in using the relevant case law.

 

 

(If this has been useful to you - please share this post with others)

Cases

It can be very useful to look at old exam papers (OU Law Students can access these through 'Elite') - but even more useful to take a look at examiners reports. These often highlight common mistakes that have arisen. If you read a few reports you'll see that the same issues frequently turn up.

One comment I'd like to stress appeared one year (though it is a perennial) - "Some students in fact forgot to apply the law to the facts at all, and simply listed cases; although these were usually relevant ... it was very important...to apply the rules and principles as well as setting them out."

Cases are important - especially in English Law where precedent plays a key role - but there can be a tendency to fixate on memorising case names and facts. I've known students who have sought to memorise over a hundred cases. (to which I say, how many cases can you discuss in a three hour exam in which up to an hour can profitably be spent choosing the best questions to answer; planning the answers; writing them; and reviewing them?)

Use cases to illustrate a point you are making; to support your argument; to demonstrate different approaches to the issue - but never just recite cases and their facts.

How should you "revise" cases?

The first task is to select the cases that you plan to revise. As you revise each topic, think about which cases are most important. Clues can also be found elsewhere - what has the manual; textbook; tutor stressed most? (My students will be familiar with me banging on about ...)

[W200] - Pepper v Hart; The Practice Statement of 1966; Young v Bristol Aeroplane; R v R (Marital Rape); Donoghue v Stevenson; Costa v ENEL; Factortame (Numbers 1, 2, 5); Van Gend; Von Colson; Foster v British Gas; Marleasing; Francovich;  Dassonville; Cassis de Dijon; Keck;  Defrenne v SABENA; Marshall v Southampton & SW Hampshire AHA; United Brands v Commission...

[W201] Entick v Carrington; Ghaidan v Godin-Mendoza; Campbell v MGN; Carltona v Commissioner of Works; Associated Provincial Picture Houses Ltd v Wednesbury; The GCHQ case (Council of Civil Service Unions v Minister for the Civil Service); Porter v Magill; R v Ghosh; R v R (Marital Rape); R v Cunningham; R v G (Recklessness)...

Prepare brief notes. Students, almost since "time immemorial", have used revision cards to prepare for exams. The value of these cards are that they require you to condense the information. This is a (the?) key process in revision - (there are some professionally written cards on sale - some value, but you lose the process of condensing yourself - similarly, copying out from a text or revision book has the same value-deficit). There is some value in reviewing the finished cards frequently.

Consider the application of cases. Cases should not be used as decoration. They are a vital part of legal argument. Consider where and how you would deploy these cases. This is where using old exam papers can come in useful.

Revision

My Open University students (on the W200 and W201 Law courses) - plus other OU students face exams this autumn. I will be using Washminster to publish material that they should find useful for revision.

The courses cover -

W200 - [Major Subjects] - English Legal System; EU Law
[Short introductions to] - UK Constitutional Law; Rights & Police Powers; Contract; Tort; Criminal Law.

W201 - UK Constitutional Law; Human Rights Law; Administrative Law (focused in on the UK's 'Judicial Review'); and Criminal Law.

But Washminster will continue to follow US Congress; UK Parliament; the European Parliament and the French Assemblee nationale. There will still be posts about history; jazz - and of course the American Football season is about to begin!

It is possible to subscribe to Washminster (see above).

A while ago I made and posted a video about techniques for retaining information from studies. It is republished below

How EU Law is made

An informative video on the EU legislative video. Please feel free to share this post (and the blog itself) with friends; colleagues; students....)

The use of EU law

Interesting story in today's Guardian. Apparently the UK is considering using EU Law to "ensure the Spanish government allows the free movement of people across the border with Gibraltar". One to watch. I can't but help note that the desire to opt-out of anything connected with the EU declines when the advantages to the UK are obvious. Hence the pressure to opt out of the European Arrest Warrant - demanded by the Eurosceptics - is being resisted by the Prime Minister and Home Secretary.

I'm currently marking essays on Free Movement (of Goods). It's another area where consumers have seen the advantages of being in the EU. Customs duties and "charges having equivalent effect" on goods imported and exported within the EU are prohibited. (TFEU) Article 30. Of greater practical significance is the prohibition on "Quantitative restrictions...and measures having equivalent effect [MEQRs]" (TFEU Arts 34 & 35). The case law demonstrates the clever wheezes Member States came up with to discourage goods from other Member States coming in and competing with national products.

Bresciani - a case where a charge was imposed for compulsory veterinary and public health inspections carried out on imports of raw cowhides - even when home country inspections had been undertaken and the cost was disproportionate.

Schottle - charges made for freight involving long distance road journeys, but not short journeys (in other words within Germany)

Dassonville - Belgian requirement that all importers of Scotch whisky have a British certificate of authentication. Direct imports to Belgium would generally have these. Imports from (usually a cheaper source) in another country where such certificates are not required could be discouraged.

Schloh v Auto Controle Technique - Test for imported cars (requiring a fee), even when the car had a certificate of conformity with Belgian rules.

Commission v France (21/84) - French authorities consistently refused to approve postal franking machines from other Member States.

Commission v France (C-265/95) - French authorities had failed to police demonstrations where imported goods were seized and destroyed. Cassis de Dijon - ban on sale of alcohol which had "insufficient alcoholic strength", favouring the German version of 'Cassis' but banning the French version.

Cassis de Dijon - ban on sale of alcohol which had “insufficient alcoholic strength”, favouring the German version of ‘Cassis’ but banning the French version.

In each of these cases the European Court held that the ploy was illegal & couldn’t continue. As a result we as consumers have greater choice.

[This article also appears on my new Blog "Positively European". That website, unlike Washminster, is not primarily an educational website. Instead it seeks to provide some balance to the strongly eurosceptic bias within the UK Press. Please feel free to take a look]

Moving and losing?

Thinking of moving to another country?

There are many advantages and disadvantages. It's easy to overlook the fact that you may have to give up your right to vote - to have a say in decision making which affects you in the new home.

For European Union citizens, freedom of movement need not necessarily mean the loss of all rights. You can vote in local elections (Click here for more details) and in European Parliament elections (Click here for more details) in the new country.

But there is no right to vote in national elections.

A campaign is underway to educate EU citizens about their rights - and to campaign for the right to vote in national elections in the place where a person lives. The website is worth visiting - at http://www.letmevote.eu/en/

You can follow 'Le Me Vote' on twitter - https://twitter.com/letmevoteEU

EU Law - not just an academic subject!

In order to gain a "Qualifying Law Degree" in English Law, it is necessary to have a solid grounding in EU Law. Since Britain joined the EEC (now EU)  in 1973 - it has become as much a part of English law as statutes passed at Westminster and as cases decided within English Courts. [see European Communities Act 1973 s2].

There are some excellent textbooks & casebooks available. But the practical details of the law - the rights it gives to European citizens; to persons trading or working in other Member States; can be found in literature available from the EU institutions.  Sometimes these can be a lot more readable than some academic texts.

It can also be useful to consider how the rules make a difference to individuals (a useful approach for lawyers!)

So here's a short list of links:-

Free Movement of Persons

Looking for work abroad
Cross-border Commuting
Retirement - other than in one's country of origin
Free Movement for EU nationals
How to enforce your rights

Free Movement of Goods & Services

Goods
Services

EU citizenship

There's a question and answer publication by ECAS ['50 Q & A about your rights as a citizen of the EU'] available here.
and from the London Office of the European Commission:
What's in it for me: http://ec.europa.eu/unitedkingdom/pdf/the_eu_for_me_web.pdf
Your Europe: Your Rights: http://bookshop.europa.eu/en/the-euro-area-pbKC3112553/

The implications of withdrawal

One of my OU students joked at a recent tutorial that he now hoped Britain would leave the EU - since that would remove half the work for the W200 course.

Alas, that's not on the cards. For him, the exam will be on the 8th October - and withdrawal won't have happened by then.

But even if Britain were to withdraw - we couldn't ignore EU Law. It will continue to impact on our trading with other EU countries (which makes up a large majority of our trade). Norway has never joined - but is greatly affected - and must abide by EU law - though it has no say in the making of EU Law.

This week the House of Commons Library (which is an excellent, independent, research body) published a paper about leaving the EU. http://www.parliament.uk/briefing-papers/RP13-42.pdf. It's well worth reading. The Times wrote "Britain would face a huge bill from the EU and may still have to obey many of its rules should voters opt to leave Europe, an independent analysis has warned."

The summary states -

"The Treaty on European Union provides for a Member State to leave the EU, either on the basis of a negotiated withdrawal agreement or without one. If the UK were to leave the EU following a referendum, it is likely that the Government would negotiate an agreement with the EU, which would probably contain transitional arrangements as well as provide for the UK’s long-term future relations with the EU. There is no precedent for such an agreement, but it would in all likelihood come at the end of complex and lengthy negotiations.

The full impact of a UK withdrawal is impossible to predict, but from an assessment of the current EU role in a range of policy areas, it is possible to identify issues and estimate some of the impacts of removing the EU role in these areas. The implications would be greater in areas such as agriculture, trade and employment than they would in, say, education or culture.

As to whether UK citizens would benefit from leaving the EU, this would depend on how the UK Government of the day filled the policy gaps left by withdrawal from the EU. In some areas, the environment, for example, where the UK is bound by other international agreements, much of the content of EU law would probably remain. In others, it might be expedient for the UK to retain the substance of EU law, or for the Government to remove EU obligations from UK statutes.

Much would depend on whether the UK sought to remain in the European Economic Area (EEA) and therefore continue to have access to the single market, or preferred to go it alone and negotiate bilateral agreements with the EU."

The Making of European Law

These links demonstrate the process that a legislative proposal goes through (under the ‘CoDecision Procedure’) on its way to becoming an EU Law. It is a current proposal – for a Directive.
 
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the freezing and confiscation of proceeds of crime in the European Union

Legal Basis: TFUE/art 82 par 2, art 83 par 1 (All proposed legislation must show the legal authority in Primary Legislation for the proposed law) 

Explanatory Statement (which is from the European Parliament’s Report) 

The European Parliament has called on the Commission to propose new legislation on confiscation for a long time. By its own initiative report adopted in October 2011, the Parliament stressed in particular the need for rules on the effective use of extended and non- conviction based confiscation, rules allowing for the confiscation of assets transferred to third parties.  In addition, the Parliament encouraged the introduction of instruments in national legal systems which, under criminal, civil or fiscal law, as appropriate, mitigate the burden of proof concerning the origin of assets held by a person accused of an offence related to organised crime.
 
The proposal for a Directive on the freezing and confiscation of proceeds of crime in the European Union was adopted by the European Commission on 12 March 2012. This Directive lays down the minimum rules for Member States with respect to freezing and confiscation of criminal assets through direct confiscation, value confiscation, extended confiscation, non- conviction based confiscation and third party confiscation.   The Rapporteur generally supports the Commission proposal. The adoption of those minimum rules will harmonise the Member States’ freezing and confiscation regimes facilitating mutual trust and effective cross-border cooperation. It will also constitute a step towards strengthening the mutual recognition of freezing and confiscation orders which is an important aspect of the fight against cross-border serious and organized crime in the EU.   With this report the Rapporteur intends to reinforce the provisions of non-conviction based confiscation and extended confiscation so as to make them more efficient in order to actually serve the purpose of preventing the use of proceeds of crime for committing future crimes or their reinvestment into licit activities.
   
Concerning the non-conviction based confiscation the Rapporteur notes that this system which was first used in the USA now appears to be more and more globally spread. Jurisdictions which have introduced non-conviction based confiscation legislation include: Italy, Ireland, United Kingdom, Albania, Bulgaria, Slovakia, Australia, South Africa, the Canadian provinces of Alberta and Ontario. At European level the existent systems of non- conviction based confiscation have been debated both in front of national Courts as well as the European Court of Human Rights and were considered compatible with national constitutional requirements and those of the European Court, provided that they are adopted by a judicial authority, with full respect of the rights of the defence and of bona fide third parties, and that they can be challenged before a court. These basic safeguards have also been included in the present Directive.
   
The provisions on extended confiscation were strengthened so that they provide for a single minimum standard which does not fall below the threshold set by Framework Decision 2005/212/JHA. 

The Original Proposal http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0085:FIN:EN:PDF
p2-5  Context
p6  Consultations
p7-8  Impact assessment
p8-10  Legal Basis; Subsidiarity; Proportionality & Respect for Human Rights
p10-13  Commentary
p13-24  Text of Proposed Directive

The Decision making and consultation process (PreLex is a website which allows anyone to monitor the progress of all proposed legislation) http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosID=201408 

European Parliament Report – [From its Committee on Civil Liberties, Justice and Home Affairs] (sets out the proposed resolution for the Parliament to adopt – p5; and the amendments it proposes – with the original text next to it) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7- 2013-0178+0+DOC+PDF+V0//EN

The EU Council

The EU Council (which used to be referred to as the 'Council of Ministers') shares the legislative function [in most cases] with the European Parliament. It is made up of a minister from each country representing their state on the particular area that the Council is meeting about (so there are different formations).

The House of Commons Library has produced a paper on the workings, in practice, of the EU Council. Students of EU Law & citizens will find this an interesting insight into one of the key institutions.

The Paper can be accessed here. More information about the EU Council can be found on the Council's website.

Scrutiny Overrides

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): The Government work closely with the EU Committee in the House of Lords and the European Scrutiny Committee in the House of Commons to avoid breaching the Scrutiny Reserve Resolutions. Ministers will continue to write to the Chairmen of the Scrutiny Committees to account for their actions when an override occurs.

Between July-December 2012 a total of 498 Explanatory Memorandums (EMs) were deposited for scrutiny, with only 29 overrides, a significant reduction on the 56 overrides between January-June 2012. Fast-moving Common Foreign and Security Policy sanctions and restrictive measures were the single largest category of override, accounting for 15 of the 29. In these instances it was important to agree proposals urgently so that measures could be implemented quickly and effectively. Regrettably, this meant that on these occasions, the Government agreed proposals before the committee had been able to clear the documents from scrutiny.

The figures requested are set out in the table below:

Department	(1). House of Lords override	(2). House of Commons override	(a). No. of overrides in both Houses	(b). Total no. of overrides
Department of Business, Innovation and Skills	1	5	0	6
Department of Environment, Food and Rural Affairs	0	3	0	3
Foreign and Commonwealth Office	15	16	15	16
HM Treasury	3	3	3	3
Department for Work and Pensions	0	1	0	1
Totals	19	28	18	29

The Written Answer I gave to my noble friend on the 20 November 2012 (Official Report, col. WA350), recorded a total of 57 overrides, including one override attributed to HM Treasury incorrectly. This was in respect of European Union Document 10435/12 on the council regulation adjusting the correction coefficients applicable to the remuneration and pensions of officials and other servants of the EU. This figure was incorrectly included as an override. The total override figure for the last period reduces from 57 to 56. The figure for House of Commons overrides reduces from 50 to 49. All other information in my previous answer remains unaffected.

Knowledge and Understanding

This blog is committed to providing resources to enable citizens and students (the two are NOT mutually exclusive!) increase their knowledge - and most importantly - understanding of "government" - be it in the UK; USA; other EU states - or indeed the world.

Today this blog will publish two lectures about the EU and how it works. One is by a Labour MEP; the other one of the most active Conservative Eurosceptics (who chairs the House of Commons European Scrutiny Committee).

 

...of the EU

How the EU Works

Useful guides to the EU Institutions can be found at

PARLIAMENT
(Video) http://www.youtube.com/watch?v=IpotSpz8t-w&feature=relmfu
http://www.europarl.europa.eu/aboutparliament/en/00b3f21266/At-your-service.html (use the tabs at the top to navigate)

COUNCIL OF MINISTERS

http://www.consilium.europa.eu/council?lang=en
http://www.consilium.europa.eu/toolbar/faq?lang=en

COMMISSION

http://ec.europa.eu/atwork/index_en.htm

COURT

http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm

GENERAL
Fact Sheets about the EU: http://www.europarl.europa.eu/aboutparliament/en/displayFtu.html

How Decisions are Made
http://europa.eu/about-eu/basic-information/decision-making/procedures/index_en.htm
http://ec.europa.eu/archives/snapshot_2010/index_en.htm