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EU law - Essay Example

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Article 189 of Treaty of Rome provides for a directive of the European Union to be binding on Member States 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…
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EU law
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Download file to see previous pages 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 ...Download file to see next pagesRead More
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