Fiat Lex - Case study: comparing the process of implementation of the Acquired Rights Directive in the United Kingdom and in Sweden to examine the effect of legislative procedure on material law.

Sammanfattning: This is a comparative study of legislative procedures of the United Kingdom and of Sweden. The aim of the thesis is to investigate if and how legislative procedure can affect legal material outcome. This is done through a comparative study of the implementative process of the Acquired Rights Directive, 77/187/EEC. Both transposition, the process of adopting the measures in directives into national law, and application, the administration of the transposition in concrete situations are studied. When considering lawmaking in the United Kingdom, three aspects are described in the first part of the thesis: Statute Law, Case Law and implementation of EC directives. Statute Law can either be in the form of Acts of Parliament, which undergo extensive procedures in the hands of both governmental departments and the Houses of Parliament before they can come into force, or Statutory Instruments, which are delegated legislation made primarily by governmental departments but often subjected to lighter Parliamentary procedures. Case Law is important through its special standing founded in the traditions of Common Law and the doctrine of precedent. To understand Case Law it is necessary to consider Common Law elements, the rules of statutory interpretation, court hierarchy and how judgements are made. EC directives are normally implemented through statutory instruments in the frame of the European Communities Act 1972. The Acquired Rights Directive was transposed in the United Kingdom through the Transfer of Undertakings (Employment Protection) Regulations 1981 made by the Under-Secretary of State in 1981 after having been approved by Parliament. In Sweden it was mainly transposed through additions and amendments to the Employment Protection Act and Employment (Co-Determination in the Work-place) Act passed by the Riksdag in 1994. Application took place in four cases in the UK House of Lords and 20 in the Swedish Labour Court and Supreme Court. The Material Law resulting from the implementation was in many ways similar, but there were noteworthy differences in the scope of the provisions, the rules regarding collective agreements, information and consultation, and the use of the optional articles of the Directive. There appear to be certain procedural features that affected the material result: how the transposition was integrated in existing law, the scope of power of the legislating body, the material produced in the process and available for application, the difference in time between the two transpositions, and the position of the courts and the types of cases they adjudged. There are procedural aspects that have been identified for the Acquired Rights Directive, which can probably play an influential role in much directive implementation, and even in lawmaking in general. Legislative procedure appears to have some effect on its material result.