The Treaty on the Functioning of the European Union (TFEU) is one of the Founding Treaties or Principle Treaties of EU Law, along with the Treaty on European Union (TEU). The European Atomic Energy Treaty (EUROATOM) is of equal standing to the two founding treaties. These treaties are known as primary Union law and were the first source of Union law, and set out the General Principles of EU law, which include equality and non-discrimination, proportionality, sustainability, solidarity and subsidiarity. The Treaties lay a broad framework for the goals and aims, whilst the detail of how these aims are to be achieved is left to the secondary legislation of the Union. The Charter of Fundamental Rights have the same status as the main constituent Treaties (the TEU and the TFEU) due to the Lisbon Treaty. One of the main functions of the Charter is interpreting what is set out in the Treaties and any legislation passed. The Charter was established first in 2001. Declaration No.1 and Article 6(1) of the TEU declares that the Charter “has Treaty status and is fully binding in the member states- hence its classification as primary law within the hierarchy of EU law sources.” (Foster n.d). The sources of EU law are sub-divided into primary, secondary and other sources. As mentioned, the founding treaties make up the primary sources of law, along with protocols and the EU Rights’ Charter. The secondary legislation consists of Regulations, Directives, Decisions, Recommendations and opinions. This legislation is made under the treaties. In addition to secondary legislation is delegated and implementing legislation. General principles and case law of the Court of Justice complete the hierarchy of EU law sources. Acquis communautaire compromises all of these sources. There are no independent law-making powers, the European Parliament share with the Council the power to legislate.
An issue shown in the case of Costa v ENEL (1964) ECR (which shall later be discussed in further detail) is that of direct effect. Direct effect means that any EU legislation or provisions are immediately applicable and become an immediate source of law, and that “no further implementing act is necessary for its application within the national legal order” (Barnard and Peers n.d). It allows individuals to enforce their rights resulting from any Treaty Articles or EU legislation directly in domestic courts. The first case showing the principle of direct effect to be important was Case 26/62 Van Gend en Loos (1963). The case involved a customs tariff being increased by Dutch authorities, which was said to be contrary to Community law, according to Article 12 in the old EEC Treaty (which is now contained in Article 30 of the TFEU) which stated “member states shall refrain from introducing between themselves any new custom duties on imports or exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other” (Foster, n.d). The defendant customs argued that as the Article was addressed to member states and not individuals, it couldn’t be enforced by individuals against the state. This received a lot of support by many other member states, including German and Belgian governments. The Court of Justice held that the Community had sovereign rights which extended to citizens, and allowed individuals to enforce their rights directly in their domestic courts.
Case 14/83 Von Colson provided a resolution for situations where direct effects could not provide a remedy.
Article 18 of the Treaty on the Functioning of the European Union includes the “right not to be discriminated against on the grounds of nationality” (Foster n.d). This right is clearly viewed as important, as it has been included in many treaties throughout the years; it was Article 6 in the Maastricht Treaty, signed February 1992, and was then changed to Article 12 in the Amsterdam Treaty, which was signed June 1997 and was entered into force on the 1st May 1999. It has now been contained, and amended, in Article 18 of the Treaty on the Functioning of the European Union. This shows it is an important right which has been one of the main objectives of the European Union for many years, which is again emphasised in Article 157 of the TFEU which provides for equal pay and equal treatment in the workplace. These Articles both consider equality and provide an equal standing for all nationals and EU citizens. Another point of discrimination in employment is made in Directive 2000/78, which develops the issue on age discrimination which was previously considered in Mangold (supra) and was developed by reference to general principle of equality as shown in Article 19 of the TFEU. It has been used by many individuals to protect their rights to not be discriminated against.
1a. This situation involves a Polish builder applying to work at a construction site in York but being refused the job due to a statute passed in 1869 which states that only British citizens can apply for the post. This involves a conflict between national law and Union law. Normally, when being dealt with solely in the United Kingdom, the statute which was passed in 1869 would be followed with no further discussion, due to the ideology of Parliamentary Sovereignty which rules in the UK. Parliamentary Sovereignty, which is also known and referred to as Parliamentary Supremacy, is a very important aspect in the constitution of the UK law, as the UK’s constitution is unwritten. It means that the Acts of Parliament passed are of the highest form of law and must be followed without question. It also provides that all Acts of Parliament, or statutes, are of equal importance and status, so that there are no Acts which are deemed ‘more important’, or higher than any other Acts, due to the idea of Parliamentary Supremacy. The legislative body has full sovereignty over other bodies and their Acts passed cannot be questioned and must be followed by the courts in the United Kingdom. It allows Parliament to pass any law it wants, and no other body can ignore the legislation passed by Parliament. However, EU law has supremacy over national law; the precedence of European law over national laws is absolute. This is stated in a Declaration which is attached to the Treaty of Lisbon. The fact that EU law is supreme means it overrides the constitutional law of individual member states. Due to the supremacy of EU law, and the European Court of Justice being higher in the hierarchy than even the UK Supreme Court, it has been argued that the European Union, and the principle of the doctrine of EU law supremacy, has weakened the sovereignty of the UK Parliament. AV Dicey, on sovereignty, stated “No person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament- Parliament cannot bind it’s successors” (Dicey 1885). The fact that the European Union can do exactly this clearly adds to the argument that, in having part of membership of the EU, the principle and power of Parliamentary sovereignty has been greatly diminished. The Treaty created it’s own legal order. The doctrine of the supremacy (or primacy) of EU law was shown in the case of Costa v ENEL (1964) ECR, which involved a conflict of laws between Italy and the European Union. This is a landmark case as it emphasises that the European Community laws are taken to be supreme over the national laws followed within the individual Member States’ laws. The Italian citizen had shares with an electricity supply company named Edisonvolta. The state nationalised the electric industry, but Costa wanted to remain with his current supplier, Edisonvolta, instead of the new national company, ENEL, due to his current company being cheaper. Costa argued that “nationalisation was in violation of the Treaty of Rome.” (Catalogue.pearsoned.co.uk,2018). The Italian courts stated that the rules of statutory interpretation applied, meaning that the newer law overruled any older legislation, which was the new Italian nationalisation statute, over the Treaty of Rome which was written earlier. The case was taken to the European Court of Justice, which disagreed with the decision made by the Italian Court. The ECJ stated that the provision of the Treaty of Rome regarding the single market did not have direct effect on individual citizens, which means that only the European Community can bring a charge against one of the member states for violating. However, Costa further argued that the national statute he had been subjected to was incompatible with the EC law. Therefore, the Treaty of Rome, as part of the EC law, was found to be supreme and overruled that national statute. This case is an example of the supremacy of EU law which has been followed in many cases since, and would be applied similarly to this situation with Marek- the courts would issue that the EU law has supremacy over the national statute of the United Kingdom and so EU law would prevail. Article 18 of the Treaty on the Functioning of the European Union would be applied as it is clearly discriminatory against Marek due to him being Polish. It would be argued that, within this Article, Marek has the same, equal rights as any other citizen, and because of the fact that he is living in another EU country does not deny him any rights due to his nationality under this Article. It would be found that the employers at York Minster are acting unlawfully.
1b. This situation involves a German individual in the UK applying for a job in a garage but is unable to apply due to a statute stating that each garage may only employ one German mechanic. The garage which Klaus, the German mechanic in question, already has one German mechanic. Again, Article 18 would be applied, due to the only reason Klaus cannot apply is due to his nationality and not his abilities or skills for the job. This is highly discriminatory against Klaus, and other Germans who may be seeking to do the same thing. Again, it is a question of the Parliamentary Sovereignty of the UK and the ultimate supremacy of EU law. Many scholars are of the opinion that the case of R v Secretary of State for Transport ex parte Factortame Ltd (1990) is the best example of the supremacy of Community law. The Merchant Shipping Act 1894 allowed Spanish boats to fish in UK waters and then sell any fish caught in Spain. However, the Act was amended by the Secretary of State for Transport, to the Merchant Shipping Act 1988. This meant that the Spanish could now no longer fish in the UK waters. Factortame applied It was confirmed in this case that the UK courts could declare that an Act of Parliament is incompatible with EC law, but this does not mean that the Act of Parliament may be annulled, and equally cannot demand that the Act of Parliament is to be repealed, or that a member of Parliament should change the law.