Contents

European Community law and the principle of direct effect 2

1. The European dimension of English law 3

2. European Community law: an overview 4

3. The nature of criminal law 5

4. Malpractice and Related Claims 7

5. Court Sanctions 9

6. Right to Counsel 10

7. Conflicts of Interest 11

8. Adversary Justice 13

European Community law and the principle of direct effect

As we have said, the EC Treaties themselves are part of English law, and as Lord Denning stated in Bulmer Ltd v Bollinger SA' 'any rights or obligations created by the Treaty are to be given legal effect in England without more ado'. Any rights or obligations enjoyed by or imposed on any individual by the Treaties, therefore, are actionable in the English courts, and this is essentially the meaning of the terms 'direct effect' and 'direct applicability', as interpreted by the European Court. It is not always clear, however, exactly which provisions in the Treaties are in fact capable of being of direct effect:

Some provisions are regarded as binding on, and enforceable by, States alone; others are too vague to form the basis of rights or obligations for individuals; others are too incomplete and require further measures of implementation before they can be fully effective in law. Whether a particular provision is directly effective is a matter of construction, depending on its language and purpose as well as the terms on which the Treaty has been incorporated into domestic law.

Apart from the substantive content of the Treaties, however, Article 189 of the EEC Treaty provides, as noted above, that the Council and the Commission may make rules and recommendations, and deliver opinions. Article 189 further provides mat:

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member States.

A directive shall be binding, as to the result to be achieved, upon each member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force.

Regulations, like the Treaties, are of direct effect and are directly applicable. Upon enactment, they immediately and automatically become binding law in all member states. Directives, which may or may not be of direct effect (see below), must usually be specifically implemented by the governments of member states. For example, the Directive concerning liability for defective products was enacted into English law by means of the Consumer Protection Act 1987.

Regulations and Directives are the most important of these various measures, since, as can be seen, these may well affect the domestic law of each member state either by - in the case of a Regulation - raising actual or potential conflict between the EC rule and a pre-existing domestic law or by - in the case of Directives - requiring the member state to enact the contents of the EC rule in new domestic legislation or by some other method which will have the effect of rendering the Directive part of domestic law.