3.1 - European Union law and England and Wales
This lesson teaches the AQA 7162 law-making topic on European Union law and England and Wales: the EU institutions in the specification, the main EU legal sources, and the ways EU law affected domestic law. It supports AQA success by turning a broad constitutional topic into precise AO1 definitions, careful AO2 application, and legally grounded AO3 evaluation.
AQA Scope And Framing
This topic sits inside 3.1 The nature of law and the English legal system, under law making. AQA requires knowledge of:
- the institutions of the European Union: the Council, Commission, Parliament and Court of Justice of the European Union
- the sources of EU law: treaties, regulations and directives
- the impact of EU law on the law of England and Wales
The safest way to write about this topic is to keep three questions separate.
| Question | What the answer should do | Common mistake |
|---|---|---|
| Who makes, proposes, applies or interprets EU law? | Name the correct institution and its function. | Treating every EU institution as if it were a court or legislature. |
| What kind of EU source is being used? | Distinguish treaties, regulations and directives. | Saying directives and regulations work in the same way. |
| What is the impact in England and Wales? | Explain the historical influence of EU law, then handle withdrawal legislation carefully. | Making a blanket claim that is true only for the UK as an EU member, or only for post-withdrawal law. |
For AQA, most marks come from accurate distinctions rather than long political history. You should be able to state a function, source type or impact in one clean paragraph, then evaluate it using legal criteria such as certainty, sovereignty, democratic accountability and effective enforcement.
EU Institutions And Functions
AQA names four EU institutions. Treat each one as a legal tool with a different job.
| Institution | Core function for AQA | Legal consequence | Common confusion |
|---|---|---|---|
| Council of the European Union | Represents the governments of member states through national ministers. It takes decisions on EU legislation, commonly with the European Parliament. | Gives member states a role in adopting EU law. | Do not confuse it with the European Council of heads of government, or with the Council of Europe, which is separate from the EU. |
| European Commission | Proposes new EU legislation, manages EU policy, and monitors whether member states properly apply EU law. | The Commission can begin enforcement action where a member state fails to comply with EU law. | Do not say the CJEU begins the case: the Commission may start enforcement; the Court decides it. |
| European Parliament | Directly elected body representing EU citizens. It scrutinises, debates and adopts legislation with the Council in the ordinary legislative process. | Provides democratic representation within EU law-making. | Do not treat it as identical to the UK Parliament: it shares law-making power within the EU system. |
| Court of Justice of the European Union | Interprets EU law and ensures it is applied consistently. It gives preliminary rulings and decides legal disputes involving EU law. | Its rulings can determine how national courts apply EU law in member states. | Do not describe it as a domestic appeal court for ordinary English cases. Its role is EU-law interpretation and enforcement. |
The ordinary legislative pattern is: the Commission proposes, the Parliament and Council adopt, member states or EU bodies apply the measure, and the Commission and CJEU supervise compliance. This sequence matters because AQA has assessed whether students can identify the institution responsible for beginning enforcement action against a member state: that role belongs to the Commission, not the CJEU.
Sources Of EU Law
The AQA source types are treaties, regulations and directives. They are not interchangeable.
| Source | Legal category | How it operates | Consequence | Common confusion |
|---|---|---|---|---|
| Treaties | Primary EU law. | Treaties create the EU's constitutional framework: institutions, competences, obligations and legal principles. | EU legislation must be made within powers conferred by the treaties. Some treaty provisions may create enforceable rights if sufficiently clear. | Treaties are not ordinary domestic Acts of Parliament. For England and Wales, their domestic effect historically depended on UK legislation giving EU law effect. |
| Regulations | Binding EU legislative acts. | A regulation is binding in its entirety and applies across the EU. While the UK was an EU member, regulations took effect without needing a separate UK Act to copy them into domestic law. | They promoted uniformity because the same rule applied across member states. | Do not say regulations need national implementation in the same way as directives. |
| Directives | Binding EU legislative acts as to result. | A directive sets a goal that member states must achieve, but leaves national authorities to choose the form and method of implementation. | In the UK, directives were commonly implemented through Acts or delegated legislation. Failure to implement could lead to EU enforcement. | Do not say a directive automatically becomes domestic law in the same way as a regulation. |
Two distinctions are especially useful.
Direct applicability means a measure becomes part of the legal system without further implementing legislation. EU regulations are the AQA example.
Direct effect means an individual can rely on a sufficiently clear legal rule in a national court. In Van Gend en Loos, the Court of Justice recognised that a clear treaty obligation could create individual rights for national courts to protect. Direct effect is about enforceability by individuals; direct applicability is about whether the measure needs implementing legislation.
Domestic Effect During Membership
To explain the impact of EU law on England and Wales, start with the period when the UK was a member of the EU. During that period, the European Communities Act 1972 was the domestic gateway through which EU law took effect in the UK legal system.
The operational rules were:
- EU law could create enforceable rights. If a treaty provision or other EU rule was clear enough, individuals could rely on it in national courts. Van Gend en Loos is the tool for this point: EU law was not just a set of obligations between states.
- EU law had priority where it conflicted with national law. Costa v ENEL is the EU-law authority for primacy: member states could not use later national law to override EU obligations.
- English courts could disapply inconsistent national law where EU law required it. Factortame is the England and Wales impact case: parts of the Merchant Shipping Act 1988 were not applied because of conflict with directly effective EU law. The key word is disapply, not "repeal". Courts did not delete the Act from the statute book; they refused to give effect to it in the conflicting situation.
- Domestic legislation could be interpreted in line with EU obligations where possible. Marleasing supports the idea of consistent interpretation, especially for directives. This did not give judges a free power to rewrite clear statutory wording, but it did encourage a purposive reading where the language allowed it.
These rules show why EU law was a real limitation on ordinary parliamentary law-making in practice. The sharper constitutional explanation is that Parliament itself created the domestic gateway through the 1972 Act. That is why a strong answer can discuss both legal supremacy of EU law during membership and continuing parliamentary sovereignty in constitutional theory.
Impact On England And Wales
The impact of EU law on England and Wales can be organised into four categories.
| Impact category | What changed in legal reasoning? | Example of AQA-ready explanation |
|---|---|---|
| Law-making | EU institutions could produce legal rules affecting domestic law. Directives also required national implementation, often through delegated legislation. | EU law was an external source of law influencing the content of Acts and statutory instruments in England and Wales. |
| Statutory interpretation | Courts increasingly used purposive reasoning and interpreted domestic law consistently with EU obligations where possible. | The interpretive question became not only "what did Parliament literally say?" but also "can this wording be read consistently with the relevant EU obligation?" |
| Parliamentary supremacy | EU law created a practical limit on inconsistent domestic law during membership. | Factortame is the key example because English courts disapplied incompatible primary legislation. |
| Rights and remedies | Individuals and businesses could use EU law arguments in domestic courts where EU law created enforceable rights. | EU law was not only institutional: it could affect private litigation, public-law challenges and remedies. |
Application should map the facts to one of these categories. Suppose Parliament passes an Act while the UK is a member of the EU, and a company argues that the Act conflicts with a directly effective EU rule. The material facts are the conflict, the directly effective EU rule, and the domestic measure. The likely legal consequence, during membership, is that the court considers whether the national rule must be disapplied to give effect to EU law. The answer should not wander into a general discussion of Brexit unless the question asks about current law.
Evaluation also needs legal criteria. EU influence can be defended because it promotes uniformity, legal certainty across member states and effective rights protection. It can be criticised because it complicates parliamentary supremacy, can feel democratically distant to domestic voters, and makes legal authority harder for non-specialists to trace. A balanced conclusion should say which criterion matters most in the question asked.
Post-Withdrawal Framing
AQA still requires EU content, but answers must avoid unsupported current-law claims. The careful framing is:
- The UK left the EU, and the European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972 and created continuity by preserving or converting much existing EU-derived law into domestic law.
- The Retained EU Law (Revocation and Reform) Act 2023 changed the terminology and interpretive position after the end of 2023. Remaining retained EU law is generally described as assimilated law, and the general principle of EU supremacy is no longer part of domestic law after the end of 2023.
- For AQA, do not say that new EU regulations automatically become law in England and Wales as a general current rule. That was the membership-era position. Current effect depends on domestic legislation and any specific legal arrangements.
- Do not erase the historical impact. EU law remains important in AQA because it shaped legislation, interpretation, constitutional debate, and the body of domestic rules carried over after withdrawal.
A precise answer can use this sentence:
Historically, EU law affected England and Wales through direct applicability, direct effect, supremacy and purposive interpretation; after withdrawal, its continuing domestic influence depends on withdrawal and retained/assimilated-law legislation rather than automatic membership obligations.
This framing lets you answer both older-style specification content and newer post-withdrawal awareness without overclaiming.
AQA Answer Method And Recap
For AQA, choose the method that matches the command.
| Command style | Best response method | What earns credit |
|---|---|---|
| Define or identify | One precise sentence plus one legal consequence. | Accurate institution/source distinction. |
| Explain | Short structured paragraph: category, function, authority, consequence, common confusion. | Clear AO1 and legal vocabulary. |
| Apply | IRAC with material facts linked to source type or institutional function. | A supported conclusion, not a narrative summary. |
| Evaluate | Strong argument, counter-view, legal criterion, reasoned judgement. | AO3 based on certainty, sovereignty, democracy, rights protection or institutional competence. |
Use this miniature application model:
Scenario: A state does not properly implement an EU environmental directive while it is an EU member. A campaign group says the wrong institution is being blamed because the CJEU should have started enforcement.
Issue: Which EU institution begins action against a member state for failure to apply EU law properly?
Rule: The Commission monitors application of EU law and can begin enforcement action. The CJEU interprets EU law and decides disputes brought before it.
Application: The failure concerns member-state implementation of EU law, so the Commission is the correct starting institution. The CJEU may later decide the case, but that does not make it the body that begins enforcement.
Conclusion: The campaign group is likely wrong: it has confused the prosecutor-like role of the Commission with the adjudicative role of the CJEU.
Recap: in an AQA answer, first identify the institution or source; then state how it operates; then explain its consequence for England and Wales; then evaluate only where asked. The highest-value distinctions are Commission v CJEU, regulation v directive, direct applicability v direct effect, and membership-era supremacy v post-withdrawal assimilated law.