EU Law (LLB Academic Unit)

# EU Law (LLB Academic Unit) — Topic Notes
## LA2024 / University of London LLB benchmark | UK LLB general

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## PART 1: CONSTITUTIONAL FOUNDATIONS

### Sources of EU Law
EU law derives from: primary law (Treaties — TEU, TFEU), secondary law (regulations, directives, decisions), and general principles. Regulations are directly applicable in all Member States without further implementation. Directives bind Member States as to result but require transposition. Decisions are binding on their addressees.

### EU Institutions
- **Parliament**: directly elected, legislative role (ordinary legislative procedure), scrutiny
- **Council of the EU**: composed of ministers of Member States; primary legislative body
- **Commission**: guardian of the Treaties; initiates legislation; enforcement via infringement proceedings (Art. 258 TFEU)
- **CJEU**: interprets EU law; preliminary rulings under Art. 267 TFEU

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## PART 2: SUPREMACY AND CONSTITUTIONAL PRIMACY

### Core Doctrine (Pre-Brexit)
EU law has primacy over conflicting national law in all Member States. This flows from Van Gend en Loos (Case 26/62 [1963]) and Costa v ENEL (Case 6/64 [1964]). These CJEU decisions established the constitutional autonomy of the EU legal order.

### UK Position Post-Brexit — Retained EU Law
After Brexit (exit day 31 Dec 2020), EU law was preserved domestically through the European Union (Withdrawal) Act 2018 (EUWA 2018), which created a body of "retained EU law." Supremacy of retained EU law over pre-exit domestic law was preserved by s.5(2) EUWA 2018.

**Vision HR Solutions Ltd v Revenue & Customs [2023] EWHC Admin 1659**: The court applied s.5 EUWA 2018, confirming that the principle of supremacy of EU law does not apply to enactments passed after Brexit day, but retained EU case law and principles (including Free Movement of Capital) remained operative via ss.4 and 5(2) for pre-Brexit enactments. This illustrates the dual-track domestic system: pre-Brexit EU law preserved; post-Brexit legislation free from EU supremacy.

**E-Accounting Solutions Ltd (t/a Advancetrack) v Global Infosys Ltd [2023] EWHC Ch 2038**: The court applied the doctrine of indirect effect (consistent interpretation) in a post-Brexit context, holding that provisions of the Trade Marks Act unamended since 31 December 2020 must still be interpreted consistently with the Directive by virtue of ss.5(2) and 6(3) EUWA 2018. Provisions amended post-Brexit are governed by s.6(6) and need not conform to EU law.

**Key statutory framework (UK-specific, examinable):**
- European Communities Act 1972 (historical — repealed)
- European Union (Withdrawal) Act 2018 — preserved "retained EU law"
- European Union (Withdrawal Agreement) Act 2020 — gave effect to Withdrawal Agreement
- Retained EU Law (Revocation and Reform) Act 2023 — post-Brexit reform; ended automatic supremacy of retained EU law from 2024; courts no longer bound to follow retained case law

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## PART 3: DIRECT AND INDIRECT EFFECT

### Direct Effect Conditions (from Van Gend en Loos)
A Treaty provision or directive provision has direct effect if it is: (i) clear and precise; (ii) unconditional; (iii) requiring no further implementation.

### Vertical vs Horizontal Direct Effect
- **Directives**: vertical direct effect only — an individual may rely on a directive provision against the State (or an "emanation of the State"), but NOT against a private party.
- **Indirect effect**: national courts must interpret domestic law, so far as possible, consistently with the Directive's purpose (Von Colson, Case 14/83). This applies regardless of whether the defendant is public or private.

**E-Accounting Solutions Ltd (t/a Advancetrack) v Global Infosys Ltd [2023] EWHC Ch 2038**: HHJ Tindal applied the indirect effect doctrine post-Brexit, construing the Trade Marks Act consistently with the Trade Marks Directive. He confirmed that for pre-exit legislation, ss.5(2) and 6(3) EUWA 2018 preserve the obligation of consistent interpretation.

### Emanation of the State (Marshall line)
An entity qualifies as an emanation of the State — and is thus subject to vertical direct effect claims — where it provides a public service under State control, has special powers, and is under State authority (Foster v British Gas, Case C-188/89). This allows claimants to rely on directives against bodies such as health authorities and nationalised industries.

**Anwar v The Advocate General for Scotland [2021] UKSC 44**: The Supreme Court considered whether the UK had failed to provide an effective remedy (interim arrestment) for breaches of EU equality directives (Council Directive 2000/43/EC). The court applied the effectiveness and equivalence principles, which govern national procedural autonomy in implementing EU rights. This case shows that even post-Brexit, compliance with EU directives as they existed before exit day remains judicially enforceable through retained EU law.

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## PART 4: STATE LIABILITY

### Francovich Conditions (Cases C-6/90 and C-9/90)
Member State liability in damages arises where:
1. The EU law provision breached confers rights on individuals
2. The breach is sufficiently serious
3. There is a direct causal link between the breach and the loss suffered

### Brasserie / Factortame — Sufficiently Serious Breach
**Brasserie du Pecheur v Germany; R v Secretary of State ex p Factortame (No 4) — Cases C-46/93 and C-48/93 [1996] ECR I-1029**: The CJEU extended state liability beyond administrative failures (as in Francovich) to legislative acts. Member States are liable where a legislative act manifestly and gravely disregards the limits of the Member State's discretion. Factors include: clarity of the rule; whether the breach was intentional; whether any error of law was excusable; whether the position was taken after a CJEU ruling. Two joined cases: Brasserie du Pecheur (French brewery challenging German beer purity law restricting imports); Factortame (Spanish fishermen challenging UK Merchant Shipping Act 1988 nationality requirements for fishing vessels).

**Richards v Secretary of State for Transport [2018] EWHC 2944 (QB)**: A domestic court applied the Francovich framework to a claim that the UK had failed to properly transpose an EU Motor Insurance Directive so as to cover accidents on private land. The court confirmed that a "Francovich claim" requires (1) conferral of individual rights, (2) sufficiently serious breach, (3) direct causation. The court stayed the case pending a linked appeal (Lewis v Tindale) on the same legal point.

**Bioplus Life Sciences Private Ltd v Secretary of State for Health [2020] EWHC 329 (QB)**: The court addressed whether Arts. 6(1), 76(1) and 111(1) of Directive 2001/83/EC (pharmaceutical products) conferred individual rights capable of founding a Francovich claim. The judge applied the first Francovich condition strictly: the directive provision must be intended to grant rights to individuals, not merely impose obligations on Member States. This threshold question was treated as logically prior to the other conditions.

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## PART 5: FREE MOVEMENT OF GOODS

### Art. 34 TFEU — Quantitative Restrictions
Art. 34 TFEU prohibits quantitative restrictions on imports and all measures having equivalent effect (MEQRs). The Dassonville formula (Case 8/74): any trading rule capable of hindering, directly or indirectly, actually or potentially, intra-EU trade is an MEQR. This is deliberately wide.

### Cassis de Dijon — Mutual Recognition
**Cassis de Dijon — Case 120/78 [1979]**: The ECJ held that Germany could not prohibit the import of French cassis liqueur on the ground it did not meet German minimum alcohol content requirements. The restriction violated Art. 30 EEC (now Art. 34 TFEU). Key holdings:
- **Mutual recognition principle**: goods lawfully produced and marketed in one Member State must in principle be admitted to all others.
- **Mandatory requirements doctrine**: Member States may justify non-discriminatory trade restrictions on grounds beyond Art. 36 TFEU (e.g., consumer protection, fiscal supervision, public health, fairness of commercial transactions, environmental protection), provided the restriction is **proportionate**.
This case created the architecture for the single market by shifting the burden: the importing state must justify restrictions, not the exporter.

### Scotch Whisky — Proportionality in Practice
**Scotch Whisky Association v The Lord Advocate [2017] UKSC 76**: The Supreme Court (applying EU law as then in force) upheld Scottish minimum unit pricing (MUP) legislation (Alcohol (Minimum Pricing) (Scotland) Act 2012). The Court held: (1) MUP pursues a legitimate public health objective; (2) MUP is proportionate — the CJEU had already found (on reference) that a tax-based alternative was not equally effective; (3) MUP does not infringe Arts. 34/36 TFEU or EU competition principles; (4) the measure falls within Scottish Parliament devolved competence. This is a leading UK authority on the proportionality test in the Art. 36 derogation context and on the interplay between EU free movement and devolution.

### Art. 36 TFEU Derogations
Permitted: public morality, public policy, public security, protection of health and life of humans, animals or plants, protection of national treasures, protection of industrial/commercial property. Restrictions must be: (i) non-discriminatory in application; (ii) proportionate (no less restrictive alternative available).

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## PART 6: FREE MOVEMENT OF PERSONS

### Art. 45 TFEU — Workers
Rights: to move freely, to reside in another MS for work, to remain after employment. The concept of "worker" is an autonomous EU law concept: the person must perform genuine and effective economic activity, not purely marginal and ancillary (Levin, Case 53/81).

**Jessy Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49**: The Supreme Court referred to the CJEU the question whether a woman who temporarily left work in the late stages of pregnancy and early aftermath of childbirth retained "worker" status under Art. 45 TFEU and Art. 7 of Directive 2004/38/EC. The UKSC (Lady Hale) found the question genuinely uncertain — the Directive's text provides that worker status is retained in specific circumstances (sickness, accident, involuntary unemployment) but pregnancy absence is not listed. The reference acknowledged that EU law might nonetheless protect such women under the broader concept of the right to move and reside freely. This case illustrates the interaction between Art. 45 TFEU, Directive 2004/38, and EU gender equality principles.

**Collins [2004] EUECJ C13802**: The CJEU considered whether a jobseeker falls within Art. 48 EC (now Art. 45 TFEU) for the purpose of social benefits. The Court confirmed that EU citizens exercising free movement rights for the purpose of seeking employment fall within the personal scope of the Treaty, but Member States may impose a genuine link/residence requirement before granting jobseeker's allowance. This reflects the tension between free movement and welfare tourism concerns.

### Directive 2004/38/EC — Citizenship Directive
Codifies rights of free movement for EU citizens and their family members. Key provisions: Art. 7 (right of residence for over 3 months: workers, self-employed, students, self-sufficient); Art. 16 (permanent right of residence after 5 years of lawful residence); Art. 27 (derogation on grounds of public policy, public security or public health — must be based exclusively on personal conduct; personal conduct must represent a genuine, present and sufficiently serious threat).

**John Mundu Shabani v Secretary of State for the Home Department [2013] UKUT 315 (IAC)**: The Upper Tribunal applied the Directive 2004/38 framework to a third-country national spouse of an EEA national exercising Treaty rights. The case examined whether the EEA national was exercising free movement rights as a "qualified person" (worker, self-employed) for the purposes of deriving residence rights for the family member. This illustrates the practical application of the Directive in UK domestic tribunals.

**Secretary of State for the Home Department v Kovacevic [2018] UKUT 273 (IAC)**: A dual national (British/Croatian) sought to rely on EEA Treaty rights for her non-EEA husband. The Upper Tribunal considered whether a British citizen with dual EEA nationality could exercise Treaty rights in her state of nationality — applying the principle that the Treaty does not apply to "wholly internal" situations. This reflects the Chen/McCarthy line of authority on the limits of the Citizenship Directive.

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## PART 7: STATE LIABILITY — JUDICIAL BREACHES AND MULTIPLE DEFENDANTS

**The Minister for Children, Equality, Disability, Integration and Youth (Ireland) [2025] EUECJ C9724_O**: An Advocate General's Opinion (CJEU) addressed state liability for failure to provide reception conditions to asylum applicants during a period of mass influx. The Opinion clarified: (1) force majeure may be invoked but is narrow; (2) Article 18(9) of Directive 2013/33/EU permits reduction to basic needs only when housing capacity is exhausted; (3) severe material deprivation may breach Arts. 1 and 4 of the EU Charter. This recent authority extends state liability doctrine to humanitarian obligations.

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## PART 8: POST-BREXIT UK DOMESTIC FRAMEWORK (Examination Essential)

The UK's dual-track retained EU law system (post-EUWA 2018 and REUL Act 2023):

| Category | Supremacy rule | Courts bound to follow? |
|---|---|---|
| Pre-exit, unamended domestic law | Retained EU law prevails (s.5(2) EUWA 2018) | UKSC/CA may depart from retained CJEU case law (s.6(3)(a)) |
| Domestic law amended post-exit | No EU supremacy | No |
| New post-exit primary legislation | No EU supremacy | No |

After REUL Act 2023, from 1 January 2024 the automatic supremacy of retained EU law over pre-exit domestic law was abolished (s.3 REUL Act). Retained direct EU law was assimilated into domestic law.

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*All legal propositions grounded in real cases retrieved from the GetCaseLaw corpus. CJEU foundation cases (Van Gend, Costa, Francovich, Van Duyn, Marshall, Van Colson, Keck, Dassonville) are public domain authorities referenced by domestic UK courts in the corpus cases above.*