European Community Law - Essay Example

? of the of the of the European Community Law The EC law provides a number of rights to individuals in the EU. It is incumbent upon the domestic courts of the Member States to respect and uphold these rights. Thus, the judiciary plays an important role in the protection of these rights. As such, the courts are required to interpret the provisions of Community law. A Member State has to compensate individuals for the damage caused to them, by its infringement of Community law. In addition, such compensation had to be made to a person, even if the infringement was the outcome of a decision of the court of last instance. However, the court would be liable, only if the violation was sufficiently serious and a direct causal relationship could be established between the infringement and the harm caused to the injured party (Kobler v Austria). Moreover, the highest national courts act as the court of last resort for individuals to rely on the rights provided by EC law. These courts of final instance are also duty bound to request a preliminary ruling, on the basis of the provisions of Article 234(3) EC. The ECJ, after taking these issues into account has ruled in favour of state liability being extended to judicial infringements. The ECJ rejected the argument that the principles of legal certainty and res iudicata would be affected adversely. It stated that proceedings to make a Member State liable would not have an impact on a national court’s decision as res iudicata. This opinion of the ECJ was founded on the contention that “proceedings seeking to render the State liable do not have the same purpose and do not necessarily involve the same parties as the proceedings resulting in the decision which has acquired the status of res iudicata.” (Council of Europe). This line of reasoning of the ECJ was held by some to be specious. Their arguments were based on the premise that the national courts were compelled to reconsider disputed decisions, in order to determine whether such decisions were really infringing EC law (Council of Europe). They were also required to find out the reasoning behind such decisions Individuals can claim against a Member State if it fails to implement a Directive or if its domestic law infringes European Community (EC) Law. In addition, no Member State can enact legislation that attempts to exclude state liability. The misinterpretation of provisions of EC Law will be treated as infringement (Traghetti del Mediterraneo SpA, in liquidation v Repubblica italiana). Furthermore, the Community law disallows the enactment of legislation that seeks to limit liability to instances of intentional fault and serious misconduct of the courts. Such limitation is in the context of laws that are aimed at circumventing the liability of the Member State in other case, wherein there had been an explicit breach of the relevant law (Traghetti del Mediterraneo SpA, in liquidation v Repubblica italiana). Hence, the competent national courts have to investigate the gravity of the infringement in the decision of a court. Such competent courts have to consider the judicial function of the infringing court and ascertain whether this infringement was obvious. It was also held by the ECJ that conditions, such as the special length-of-service increment under Austrian law, served to hinder the free movement of workers. Any hindrance to the free movement of goods or workers was against the objectives of the European Union; consequently, the Austrian condition was untenable (Wissink 419). In Brasserie du Pecheur, the ECJ established the concept of state liability. However, there was considerable confusion as to whether such liability was applicable to infringements committed by national courts. The ECJ eliminated this muddled understanding, via its decision in Kobler (Council of Europe). In this case, it ruled that Member States were also liable for breach of EC law by their national judicial authorities. In Kobler, the ECJ clearly established that breach of EC law by domestic judicial authorities are not excluded from the application of the principle of state liability. Member States are liable to pay damages to individuals who suffer injury due to a breach caused by their judicial authorities. By making Member States liable for such breaches, the ECJ significantly improved the effectiveness of EC Law. As such, the ECJ plays a significant role, as a pillar of the EC legal system, in enforcing EC Law to the maximum extent possible, throughout the EU (Council of Europe). Kobler case gave rise to a number of issues. There were a significant number of arguments that were in favour of and against the principle of state liability. The supporters of state liability for judicial infringements of EC law contended that such application of liability would enhance the effectiveness of EC law. Moreover, it was contended that the liability of the Member States was not to be limited to infringement of EC Law, by the legislative and administrative wings of the state. In other words, state liability was to be applied to all organs of the State that were responsible for infringement of EC Law. The exclusion of liability would have several outcomes for individuals. This situation was also believed to transpire in the case of judicial breaches (Council of Europe). Eventually this would weaken judicial protection to individuals. Opponents to the principle of state liability argued that excluding state liability for judicial breaches could be justified on the grounds of legal certainty and res iudicata. The principle of legal certainty ensures certainty in decisions. On the other hand, the principle of res iudicata is comprises of two aspects, namely, a formal approach and a material approach. The formal approach states that if a dispute is resolved by using all legal remedies, then such resolution cannot be challenged by the same type of proceedings. In the material approach, the reasoning of the decision has to be treated as final and it cannot be questioned any further (Council of Europe). Inter alia, a number of apprehensions were brought to the fore. Some of these related to the independence of the judiciary; the reduction of authority of national courts; and the designation of a competent court to determine the seriousness of the breach resulting from the decision of a court. In Rechberger, the applicant incurred losses due to the incorrect implementation of the EC Directive on package – travels, by the government of Austria. This Directive provided security for buyers of the package – travels in the event of a travel company becoming insolvent. The Directive established certain rules which were to be applied to all travel contracts from the 1st of January 1995 ( Walter Rechberger and Renate Greindl, Hermann Hofmeister and Others and Republic of Austria). However, the applicant contended that the Austrian legislation applied only to package – travels, with departures after the 1st of May 1995. It was held by the ECJ that the Directive was to be effected in accordance with the date specified. Hence, Member States could not apply the Directive from a subsequent date. Moreover, no Member State could apply the provisions of the Directive, subsequent to the date mentioned in the Directive (Walter Rechberger and Renate Greindl, Hermann Hofmeister and Others and Republic of Austria). Thus, Member States had no discretion to defer or prevent the application of the Directive. The ECJ ruled that Austria had committed a serious breach of EC Law, by not implementing the Directive in a timely manner. Moreover, in Lindopark, the claim for damages was with respect to the Sixth VAT Directive. It was alleged by the claimant that this Directive had been incorrectly transposed, resulting in heavy losses for him. The Swedish authorities had enacted a general exemption in relation to this Directive. However, the ECJ ruled that this general exemption was incompatible with the Directive, as it had no basis in it (Svenska Staten (Swedish State) and Stockholm Lindopark AB and between Stockholm Lindopark AB v Svenska Staten (Swedish State)). In addition, the ECJ held that Sweden had committed a sufficiently serious infringement, merely by breaching the EC law, due to the gravity of the situation. In Larsy, a Belgian State authority had implemented a national law that was clearly detrimental to a person working in two different Member States. These rules precluded a person working in two Member States, during the same period, from receiving overlapping benefits. In a previous decision, the ECJ had held that persons working in two different Member States were entitled to receive overlapping benefits (Gervais Larsy and Institut national d'assurances pour travailleurs independants (Inasti)). As such, under the provisions of Regulation no. 1408/71, individuals who were required to pay insurance in both the Member States were entitled to such benefits. In the present case, the ECJ found that the Belgian authority had breached the EC law by applying national rules that disallowed overlapping benefits. In addition, the ECJ was categorical in its opinion that the Belgian authorities had committed a serious breach of EC law (Gervais Larsy and Institut national d'assurances pour travailleurs independants (Inasti)). A preliminary ruling of the ECJ should address the issue of proper explanation of EC Law, direct effect of Community Law and the legality of Community acts. A special system has been created in the context of the domestic courts and the ECJ. In this system, it is essential that the ECJ should not accord its decision in such instances. All the same, whilst providing the necessary interpretation, the ECJ, in effect determines the outcome (Metcalf and Papageorgiou 47). On occasion, a national court may not refer to the ECJ for a preliminary ruling. In such cases, the EC Law issue in question may be sufficiently simple for the national court to decide on its own. This constitutes the doctrine of acteclaire. In addition, the ECJ might have provided its clarification regarding some legal query, in a previous case (Metcalf and Papageorgiou 48). In such cases, the national court may prefer to be guided by this preliminary ruling. All the same, the national court has the option of making a second reference to the ECJ on the same issue. It is very important to note that the ECJ does not lend much credence to precedent. Thus, there is always the possibility that it may change its ruling in a similar case, if it perceives that the altered social situation and justice demand such change (Metcalf and Papageorgiou 48). Obviously it is an onerous task for the national courts to keep abreast of all the preliminary rulings emanating from the ECJ. Consequently, the doctrine of acte eclaire is not of much practical value. On the other hand, the doctrine of acteclair is of considerable value, on account of the fact that the EC Law has been in operation for quite some time (Metcalf and Papageorgiou 48). This has generated the interpretation of several issues that are of a non controversial nature. It is the task of the domestic court to determine the pertinent issues and to determine the manner, in which the clarifications obtained from the ECJ, are applied to a specific case. Due to this state of affairs, it can be surmised that there is a cooperative framework, in which the courts function, and that this structure is not hierarchical. Although, the ECJ could provide advice on abstract issues, in a preliminary ruling, the questions addressed by it must relate to real matters (Metcalf and Papageorgiou 47). The case law of the ECJ clearly demonstrate that Member States are guilty of a serious breach of EC Law, when they infringe it, despite being provided with a very narrow margin of discretion. This was extended to the judiciary of the Member States, via the decision in Kobler, wherein a national court had infringed the EC Law. The case law of the ECJ makes it crystal clear that national courts have to invariably interpret the provisions of EC law. Works Cited Walter Rechberger and Renate Greindl, Hermann Hofmeister and Others and Republic of Austria. No. Case C-140/97 ECR I-3499. European Court of Justice. 1999. Brasserie du Pecheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others. No. Joined cases C-46/93 and C-48/93 ECR I - 01029. European Court of Justice. 5 March 1996. Council of Europe. State Liability for Judicial breaches of European Community Law. 19 February 2011 . Gervais Larsy / Institut national d'assurances sociales pour travailleurs independants (INASTI). No. Case C-118/00 ECR I-5063 . European Court of Justice. 2001. Kobler v Austria. No. C-224/01 All ER (D) 73. European Court of Justice. 30 September 2003. Metcalf, Katrin Nyman and Ioannis Papageorgiou. Regional integration and courts of justice . Intersentia nv, 2005. Svenska staten (Swedish State) v Stockholm Lindopark AB and Stockholm Lindopark AB v Svenska staten (Swedish State). No. Case C-150/99 ECR1 I-00493. European Court of Justice. 2001. Traghetti del Mediterraneo SpA, in liquidation v Repubblica italiana. No. C-173/03 ECR I - 05177. European Court of Justice. 13 June 2006. Wissink, Mark H. " EuGH, 30.9.2003, C-224/01, Gerhard Koblerv. Republik Osterreich -- Liability of a Member State for Damage Caused to Individuals by Infringements of Community Law for Which It Is Responsible." European Review of Private Law (2005): 13.3: 419 – 442. Read More