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European Law & its Effect on Britain

For many students living in mainland Europe and spending Euros, the European Union is a part of everyday life. But for British people, living on an island as we do — and sticking resolutely to our Pound — it might seem a little more of an abstract concept. So just what aspects of life in Britain have changed since our accession to the European Community in 1973? More than you would think!

Many day-to-day issues are increasingly being decided at the European level, with legislation governing everything from the straightness of our bananas to the air that we breathe. One of the most noticeable changes for us — and one of the hardest to swallow — has been our acceptance that the laws made by the European institutions take precedence over our own.

In the UK we have for centuries prided ourselves on the fact that our Parliament is sovereign, i.e. it is the supreme law giver in the country and its decisions cannot be challenged in any court. However, this is no longer strictly accurate. In a case called Costa v ENEL that was taken to the European Court of Justice, it was said that: “Member states [of the European Community] have limited their sovereign rights … and have thus created a body of law which binds both their nationals and themselves.” The UK reluctantly acknowledged this in the European Communities Act 1972, and parliamentary sovereignty in its full glory became a thing of the past (and was replaced by a watered down version); Parliament still claimed to be sovereign, but wherever national law contradicted Community law, the latter had to prevail. Some intrepid Spanish fishermen floating in British waters in a ship called Factortame brought the important case that tested the theory and established the principle.

The practical effect which this had had on British law has been profound. Community law affects national law and UK citizens in virtually all areas, with the one exception of property law. A good example of this is the way EC law on sex discrimination has had such a major impact on the interpretation of English law, leading to fairer treatment for all. In a case called Lisa Grant v South West Trains — again, taken all the way to the European Court — a woman was awarded compensation for discriminatory treatment on the grounds of her sexual orientation. These changes in legislation would likely have been made by Parliament at some time in the future anyway, but the European legislation acts as a catalyst for Britain to bring their law into line with that of the Community.

Two areas where Community law particularly affects students wanting to study in Britain are the key European Union objectives of free movement of persons and freedom of establishment. Two cases concerning students are of importance, neither of which were brought in Britain, but which will dictate the way the UK courts would rule if a similar case was brought here. A case called Gravier v City of Liege said that access to vocational training is a means of bringing about free movement of persons. The practical effect of this is that any member state which does not allow citizens from other member states access to vocational training in their country can have their decision challenged in the European Court, and are likely to lose.

On the subject of studying abroad, the Community also runs several education programmes, the best known of which is the Socrates/Erasmus scheme, which promotes student mobility by developing degree programmes with study in more than one member state. It is commonplace now for British university students to spend a year of their degree in another member state, and also for British universities to host other European students. The scheme has made studying abroad more accessible to more people, and has been a great success.

Access to education, however, cannot be equated with support during education, as discussed in the second case, Brown, where it was held that the provision of maintenance grants for students is at present outside the scope of the Treaty and remains a matter of national, not Community competence. This is where the Gravier principle is limited; there is no right to equal treatment.

Education grants can be obtained, though, where the person in question is already a worker in the host state and has chosen to enter university there, rather than, as in Brown, being a worker having achieved that status solely through admission to university.

In the future, we can expect European legislation and case law to continue to make changes to almost everything which is governed by laws. It is unlikely, however, despite certain predictions to the contrary, that law-making in the UK will cease and be left to bureaucrats in Brussels. However, knocking daily on the door to the country is the issue of the single European currency and our decision to postpone joining. While other European countries are reaping the benefits of a smooth transition towards a united economic area, the only advantage to us at this stage is needing the one currency if we’re holidaying anywhere in the Euro zone. While that is convenient, life would still be much simpler if we too had the Euro. One might be forgiven for wondering whether Britain hasn’t got on the Euro gravy train, but missed the boat.

Author:
Anna Riddell
The Law Societies
Brussels

 
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