January 2013 articles archive:

EU legislation – are we a nation of cherry pickers?

Those of you who are studying EU law may be forgiven for thinking that EU law has become a dirty phrase and that somehow such laws are scorned by UK residents.

Those of you who are studying EU law may be forgiven for thinking that EU law has become a dirty phrase and that such laws are scorned by UK residents. This has been the effect of recent reports of statements made by the present coalition government.


The reality is that Community law is a major source of law and may be classified as either primary or secondary law. Treaties are the main source of primary law and we usually think of the Treaty of Rome as being a good example. Secondary sources consist of legislation passed by the Institutions of the Community under Article 249 of the Treaty of Rome. Such secondary legislation can be one of three types, regulations, directives or decisions. As a law student one of the issues relating to these sources of law is at what point the various types of Community law takes effect, and whether this is dependent upon some intervention on the part of member states in general and the UK Parliament in particular when matters concern the UK.


Most recently, the Institute of Directors (IoD) and British Chambers of Commerce (BCC) have urged the Department for Business to review cases of “over-regulation” or “gold-plating” involving EU law.


By “over-regulation” the Institute is referring to cases where Whitehall has taken the draft legislation from Brussels and unnecessarily included extra rules that weren’t originally intended.


Those serious law students among you will remember that regulations issued by the EU are 'binding in every respect and directly applicable in each Member State.' So the IoD is not so much opposed to regulations as to directives which have been too generously interpreted by civil servants and government advisers. You will recall that there is one important difference between regulations and directives and that is that directives, unlike regulations, are left to the member state to whom they are addressed to implement. The directives are binding in order to achieve the result, but do not effect legislation in themselves. In the case of the UK such legislation is usually implemented by Statutory Instrument which is a well known form of delegated legislation.


An example of “gold-plating” involves an EU law that came into effect in October 2011, giving temporary workers the same rights as permanent staff. In particular the rules give agency workers that have completed a 12 week qualifying period in a job, the right to the same employment and working conditions as if they had been recruited directly by the employer. The main purpose of the EU directive was to introduce statutory pay and holiday for temporary workers, when the regulations were laid before Parliament they had gone further and included the right to equal pay and holiday.

It seems that such onerous regulations and 'red tape' , which have their origins in Europe, are, according to David Cameron, to become the subject of debate over the coming years while we finally make up our minds about Europe.

In the meantime, it seems as if we can repeal such burdensome parts of legislation where we have gone beyond the terms of the EU directives, but to do so may soon become politically difficult as some may argue that to do so would be pre-empting any future referendum.


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