Common Professional Examination (CPE) EU Law and Legal System Skills Syllabus

What is the purposive approach to statutory interpretation?

An approach (strongly influenced by EU law) under which the court interprets legislation to give effect to the purpose or intention behind it, looking beyond the literal words to the spirit and objective of the Act. It is broader than the mischief rule.

Define the three rules of language: ejusdem generis, expressio unius est exclusio alterius, and noscitur a sociis.

Ejusdem generis: general words following a list of specific items are limited to the same class as those items. Expressio unius est exclusio alterius: express mention of one thing implies the exclusion of others not mentioned. Noscitur a sociis: a word's meaning is gathered from the context of the words surrounding it.

What are intrinsic and extrinsic aids to statutory interpretation? Give examples of each.

Intrinsic (internal) aids are found within the statute itself, e.g. the long and short titles, preamble, headings, marginal notes, schedules and interpretation sections. Extrinsic (external) aids are outside the statute, e.g. dictionaries, the Interpretation Act 1978, Hansard (per Pepper v Hart), Law Commission reports, and earlier case law.

What did Pepper v Hart [1993] decide about the use of Hansard in statutory interpretation?

It relaxed the exclusionary rule and held that courts may refer to Hansard (parliamentary debates) as an aid to interpretation where: (1) the legislation is ambiguous, obscure or leads to absurdity; (2) the material relied on consists of statements by a minister or promoter of the Bill; and (3) those statements are clear.

Set out the interpretative obligation imposed by section 3 of the Human Rights Act 1998.

Section 3 requires that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. This is a strong interpretative duty that may require courts to depart from the literal meaning of words.

What is a declaration of incompatibility under section 4 of the Human Rights Act 1998, and what is its effect?

Where a court (of High Court level or above) cannot interpret primary legislation compatibly with Convention rights under s.3, it may make a declaration of incompatibility under s.4. This does not invalidate or set aside the legislation, which remains in force; it signals to Parliament that the law may need amending (potentially via a fast-track remedial order under s.10).

Under section 2 of the Human Rights Act 1998, how must UK courts treat the jurisprudence of the European Court of Human Rights?

Section 2 requires UK courts to take into account (but not necessarily follow as binding) the judgments, decisions and opinions of the European Court of Human Rights in Strasbourg when determining a question concerning a Convention right.

Name the principal political and judicial institutions of the European Union and the main role of each.

European Commission (executive; proposes legislation and acts as guardian of the Treaties); Council of the European Union / Council of Ministers (represents member states' governments; legislates jointly with Parliament); European Parliament (directly elected; co-legislator and budgetary authority); European Council (heads of state/government; sets political direction); and the Court of Justice of the European Union (ensures the law is observed in interpreting and applying the Treaties).

What is the role of the European Commission within the EU?

The Commission is the EU's executive: it has the near-exclusive right to initiate (propose) legislation, acts as "guardian of the Treaties" by enforcing EU law (including bringing infringement actions against member states), administers EU policies and the budget, and represents the EU externally.

Distinguish between the Council of the European Union and the European Council.

The Council of the European Union (Council of Ministers) is composed of government ministers from each member state and is a co-legislator with the European Parliament. The European Council is composed of the heads of state or government of the member states plus its President and the Commission President; it sets the EU's overall political direction and priorities but does not exercise legislative functions.

What are the two courts that make up the Court of Justice of the European Union (CJEU)?

The Court of Justice (the higher court, which hears preliminary references and major cases) and the General Court (which hears, among others, direct actions brought by individuals and companies). Together they constitute the CJEU.

Distinguish between the primary and secondary sources of EU law.

Primary sources are the founding Treaties (e.g. the Treaty on European Union and the Treaty on the Functioning of the European Union) and the EU Charter of Fundamental Rights. Secondary sources are legislation made under the Treaties, namely Regulations, Directives and Decisions, plus non-binding Recommendations and Opinions.

Distinguish between an EU Regulation and an EU Directive (Article 288 TFEU).

A Regulation has general application, is binding in its entirety, and is directly applicable in all member states without further national implementation. A Directive is binding as to the result to be achieved upon each member state to which it is addressed, but leaves the choice of form and methods to national authorities, and requires implementation into national law by a deadline.

What is an EU Decision, and how does it differ from a Regulation?

A Decision is binding in its entirety; where it specifies those to whom it is addressed (e.g. a particular member state or company), it is binding only on them. Unlike a Regulation, it is not of general application to all member states unless addressed to all.

What was the constitutional mechanism by which EU law was given effect in the UK while it was a member, and what repealed it?

The European Communities Act 1972 gave EU law effect in UK domestic law and provided for its supremacy (s.2(1) and s.2(4)). It was repealed by the European Union (Withdrawal) Act 2018 with effect from "exit day" upon the UK leaving the EU.

What is "retained EU law" / "assimilated law" under the European Union (Withdrawal) Act 2018?

On exit day, the EU (Withdrawal) Act 2018 converted the body of existing EU law into domestic UK law (retained EU law) to ensure legal continuity, preserving directly applicable EU legislation and EU-derived domestic legislation. It was later renamed "assimilated law" (under the Retained EU Law (Revocation and Reform) Act 2023), with its supremacy and special status largely removed.

What is the principle of supremacy (primacy) of EU law, and in which case was it established?

The principle that, in case of conflict, EU law takes precedence over the national law of member states. It was established in Costa v ENEL (1964), and confirmed in relation to constitutional provisions in Internationale Handelsgesellschaft (1970).

What did the Factortame litigation establish about the supremacy of EU law in the UK?

In R v Secretary of State for Transport, ex parte Factortame, it was established that UK courts could (and must) disapply an Act of Parliament (the Merchant Shipping Act 1988) where it conflicted with directly effective EU law, and could grant interim injunctions against the Crown to protect EU-law rights.

Define the doctrine of direct effect and the case in which it originated.

Direct effect is the principle that provisions of EU law which are sufficiently clear, precise and unconditional may be relied upon directly by individuals before their national courts. It originated in Van Gend en Loos (1963).

Distinguish between vertical and horizontal direct effect.

Vertical direct effect allows an individual to rely on an EU provision against the state (or an emanation of the state). Horizontal direct effect allows an individual to rely on an EU provision against another private individual or body. Treaty articles and Regulations can have both; Directives can have only vertical (not horizontal) direct effect.

Why do Directives only have vertical direct effect, and what conditions must be met for a Directive to be directly effective?

Directives bind member states (per Marshall v Southampton AHA), so an individual cannot enforce an unimplemented Directive against another private party (no horizontal effect). For vertical direct effect, the Directive's provision must be clear, precise and unconditional, and the implementation deadline must have passed without proper implementation by the state.

What is the doctrine of indirect effect (the von Colson / Marleasing principle)?

The duty on national courts to interpret national legislation, so far as possible, in conformity with the wording and purpose of an EU Directive, so as to achieve the Directive's result. It provides a route to give effect to Directives (including in horizontal situations) without relying on direct effect.

What is state liability under the Francovich principle, and what are its conditions?

State liability allows an individual to claim damages from a member state for loss caused by the state's failure to implement or properly apply EU law. The conditions (refined in Brasserie du Pêcheur/Factortame III) are: (1) the rule infringed was intended to confer rights on individuals; (2) the breach was sufficiently serious; and (3) there is a direct causal link between the breach and the loss suffered.

What is the preliminary reference procedure under Article 267 TFEU?

A procedure by which a national court or tribunal may (or, if a final-instance court, must) refer questions on the interpretation of the Treaties or the validity and interpretation of acts of EU institutions to the Court of Justice of the EU, which gives a ruling that the national court then applies to decide the case.

Distinguish between a court's discretion and its obligation to make a preliminary reference under Article 267 TFEU.

Any court or tribunal against whose decisions there IS a judicial remedy has a discretion to refer ("may"). A court or tribunal against whose decisions there is NO judicial remedy (a final court) is obliged to refer ("shall") where a decision on the EU-law question is necessary, subject to the acte clair exception.

What is the acte clair doctrine in the context of preliminary references (CILFIT)?

Established in CILFIT, it holds that a final court need not refer a question to the CJEU where the correct application of EU law is so obvious as to leave no scope for reasonable doubt, or where the question is materially identical to one already decided (acte éclairé).

What are the "four freedoms" that underpin the EU internal (single) market?

The free movement of goods, the free movement of persons (and the freedom of establishment / provision of services), the free movement of services, and the free movement of capital.

What do Articles 34 and 35 TFEU prohibit in relation to the free movement of goods, and what is the key concept from Dassonville?

Articles 34 and 35 prohibit quantitative restrictions on imports and exports and all measures having equivalent effect (MEQRs) between member states. The Dassonville formula defines an MEQR as any trading rule enacted by a member state capable of hindering, directly or indirectly, actually or potentially, intra-EU trade.

What is the difference between a primary and a secondary source in legal research, and which should be cited as authority?

Primary sources are the law itself: legislation (statutes, statutory instruments) and case law (law reports). Secondary sources are commentary on the law: textbooks, journal articles, encyclopaedias (e.g. Halsbury's Laws) and practitioner works. Only primary sources are cited as binding authority; secondary sources are used to find and understand the law and are at most persuasive.

In legal citation, what does the neutral citation 'R v Smith [2001] UKHL 10' tell you, and how does it differ from a law report citation?

It is a neutral citation: [2001] is the year, UKHL identifies the court (House of Lords), and 10 is the judgment number. Neutral citations are court-assigned, medium-neutral and report-independent. A law report citation (e.g. [2001] 1 AC 215) instead identifies the specific published report series (AC = Appeal Cases), volume and page where the case is reported, with square brackets used where the year is essential to locate the report and round brackets where it is not.