The European Union Law - Essay Example

?EU law Introduction Article 189 of Treaty of Rome provides for a directive of the European Union to be binding on Member s with flexibility have their legal text of their transposition according to their national peculiarities. In other words it can be so worded so as to be compatible with their national legislation. The aim of a directive is achieve the substance rather than the form. Thus, Member States are free to achieve the end-result required by a directive in suitably incorporating in their national laws.1 Case discussion with relevant legal principles Although the employer has allowed rest period 10 minutes as permitted in Estate Facilitators Act 1965 as against 15 minutes allowed by the EU Directive 2005/666, the employer has failed to give the facilitator the training on the equipment required both by the Act as well as the Directive. Thus, regardless of the non-transposition of the directive, the employer is bound to give training to the facilitator on equipment as per the Act if not the enhanced rest period under the Directive. Besides the rights available for the estate facilitator under the Health and Safety Regulations and the Employment Rights Act regardless of the EU directive as far as the failure to give training by the private employer, the employee (the facilitator) has the right to make complaints in his individual capacity to the European Commission for failure by the Member State to transpose the directive into the domestic law. European Commission will investigate the complaint and call for explanation from the Member State. If the explanation is not satisfactory, the Commission can order the Member State to comply with the Directive within one month failing which the matter can be referred to the European Court of Justice (ECJ) by the Commission. In the case adverse finding against the State, the ECJ can order the Member State to give compensation to the individual. ECJ’s decision is final and there will be no further appeal.2 Under the EU law, a “direct effect” action is available for union citizen. Direct effect is a principle under EU law by which Union Citizens can bring action within their own Member State instead of as above whether or not the Member State has transposed the directive into its national law. It can also apply to regulations, treaty provisions and decisions. The ECJ introduced the principle in NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen,3 The conditions laid down by the ECJ for warranting a Direct Effect of the “Primary EU Law” are that the provisions of the directive must be clear and precise, they must be a standalone conditions without being dependant on any other legal provision, and must bestow a specific right based on which the citizen can make a claim. If these are satisfied, it will have the same legal effect as Regulations under the Article of 288 of TFEU. Thus, as established in Flamino Costav ENEL4, EU Law on labour, enjoys supremacy over domestic law rules and claims can be made before national courts overriding the domestic law as also held in Defrenne v Sabena. 5 But this related to an Article 141 of EC now 157 of TFEU and not a directive which may or may not be applicable throughout the European Union. However, in the case of the directive in question, it is not discriminatory and hence applicable to all member states and hence the Estate Facilitator who is a European Citizen can move his national court for the infringement of his rights over the rest period for every three hours of work and training of the lifting equipment once in every six months as provided. This Direct effect can be applied as Horizontal Direct Effect and Vertical Direct Effect depending on whom the right is enforced against. If the entity is the State or its emanation, vertical direct effect will apply. In a vertical direct effect, there is an alignment between the EU law, National Law and the State’s obligation to ensure that its national legislation is in consonance with EU law. This was established in Foster v British Gas,. British Gas being a public sector at the time. 6 In the instant case, if the employer is a local authority, it is considered as an emanation of the State and hence has the same obligation as applicable to the State. Thus, the Estate facilitator can bring action before the national court invoking the ‘vertical direct effect. It must be noted that directives cannot have horizontal direct effect since they only affect relationship between an individual and the State or local authorities or public sector industries. They do not deal with relationship between private individuals. This leads to the position that a State alone can be forced to apply a non-transposed labour law directives applicable the employees of State or its emanations. In order to have direct effect, after passing of the deadline for transposition, the Directives must grant rights to individuals and they must be clear, precise and unconditional7 as held in Van Duyn v Home Office 8 If the employer is private, it is not an emanation of the State and hence there is chance it would become aware of the directive unless transposed into the National law by the State. Hence vertical direct effect cannot apply. The principle of ‘Horizontal direct effect.’ which can be relied by citizens against each other is however not applicable to Directives. Since the directives are directed against Member States, the ECJ has not allowed to extend the horizontal direct effect for claims by individuals against other individuals or private employers. 9 It was the Francovich 10case that paved way for suing of the Government by the individuals for any losses due to failure to implement a Directive. UK‘s enactment of The European Communities Act 1972 was to facilitate direct effect of Community law in the U.K. to be enforced by individuals as their rights. Section 2(1) and (4) and section 3 together make the supremacy of the EU law over the domestic laws of the State. Especially section 3 directs national courts to adopt the decisions of the ECJ as precedents to be applicable to the national courts. It may be pertinent to state that the private employer could have applied the directive after the expiration of the three years period, the UK had for transposition. In Case No 148/78 Pubblico Ministero v Ratti,, R was engaged in the business of selling solvents and varnishes and he had complied with Directive 73/173 requiring a certain manner in which dangerous substances had to be labelled. Since the Italian government had not transposed it, R’s compliance with the directive was in violation of the un-amended Italian legislation. He was therefore prosecuted by the Italian government for breach of the Italian labelling law. Since he took defence on the basis of the Directive before the Milan Court, the latter referred to ECJ to clarify whether the Council’s Directive could be a directly applicable legislation giving personal rights upon the individuals which the National courts must protect. The ECJ clarified that merely because the Regulations under Article 189 are directly applicable producing direct effects, it did not mean that other categories under the same articles could not have similar effects. Otherwise, effectiveness of such acts would be weakened if individuals were prevented from applying them. Thus, a Member State which does not adopt a directive within the prescribed time limit for transposition, may not act up on the individuals.11 This leads to a rationale that the present estate facilitator can rely on the enforcement of the directive in the national court as an individual against the member state both for denial of rest period and training on the lifting equipment whether he is under a under a private employer or a local authority which is an emanation of the Member State. Article 31 of the Charter of fundamental rights of the European Union provides for fair and just working conditions for the workers. Art 31 (1) states that the working conditions for the workers must safeguard their health and safety besides being consistent with their dignity. Art 31(2) states that workers are entitled to daily and weekly rest periods besides a limitation to maximum working hours.12 This is however not a law. Conclusion In conclusion, Naveed, the Estate Facilitator as a citizen of the European Union can move the national court for his rights under the Directive against his local authority employer who is considered as an emanation of the State by invoking the principle of vertical direct effect. As regards the private employer, he can only make a complaint to the Commission in the prescribed format and the Commission will direct the Member State to give him necessary relief towards loss sustained by him. In case of the Member State failing to do, the Commission will bring action before the ECJ for failure transpose the directive within the prescribed time limit. The idea that he can follow the example of Pubblico Ministero v Ratti above is only suggestion and final decision depends again on the interpretation by the ECJ. Bibliography Cases Defrenne v Sabena CAe 43/75 [1976] in Direct Effect, Eurofound accessed 24 Aug 2011 Falminio Costa v ENEL, Case 6/64 [1964] in Direct Effect, Eurofound accessed 24 Aug 2011 Foster v British Gas. Case c-18/89 in accessed 24 Aug 2011 Francovich and Bonifaci v Italian Republic [1991] ECR I-5357 in Falkner Gerda, (2005) Complying with Europe: EU harmonization and soft law in the member states. Cambridge, Cambridge University Press. NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62 [1963] in Direct Effect, Eurofound accessed 24 Aug 2011 Van Duyn v Home Office [1974] ECR 1337 in Falkner Gerda, (2005) Complying with Europe: EU harmonization and soft law in the member states. Cambridge, Cambridge University Press. Books Falkner Gerda, (2005) Complying with Europe: EU harmonization and soft law in the member states. Cambridge, Cambridge University Press. Gennard John and Graham (2002) Employee Relations, 3rd Ed, London, CIPD Publishing Tillotson John (2000) European Union Law; text, cases and materials, 3rd ed London Routledge. Websites What are E.U.Directives, Application of EU Law, European Commission accessed 24 Aug 2011 Direct Effect, Eurofound accessed 24 Aug 2011 Charter of fundamental rights of the European Union, 2000/C 364/01, Official Journal of the European Communities, 18.12.2000 < www.europarl.europa.eu/charter/pdf/text_en.pdf> accessed 24 Aug 2011 Read More