Cases and Materials on EU Law - Essay Example

? Business law essay of Business Law essay This was a decision made by the European Court of Justice. This is the court that established the principle that member of the European Union had liability to compensate any individual who suffered a loss as a result of a member state’s refusal or failure to import a directive given by the European Union into the country’s law. The principle established in this case is what is sometimes referred to as the ‘Principle of state liability in European Union law.” The European Court in this case held that the Government of Italy had breached its obligations and was therefore liable to pay compensation to workers who had suffered loss as a result of the breach. The court went on further to state that such damages should be made available in matters before various national courts. However, before such remedies could be made available, one had to prove that the directive he is alleging has not been implemented conferred upon him some specific rights that could be identified as well as an existing link between failure to implement it and the loss occasioned. It encompasses the doctrine of indirect effect where national courts are required to ensure enforcement of European Union obligations and ensure that interpretation of domestic law is consistent with the directives of the European Union. It can be said to be an additional and corollary of the direct effect doctrine. It is very vital in the enforcement of European Union law and rights that have been breached by private individuals in what is seen as a horizontal effect. Since directives usually have direct effect concerning claims on those directives on private individuals, it is therefore prudent to note that domestic law could be the only one that provides a basis for commencing an action against someone. The national courts are therefore expected to make sure that they interpret domestic law consistently with the directives given by the European Union. However this is only possible where the national law is not entirely inconsistent with the European Union law. The European Community is now entering into many international agreements in its capacity as an independent party. The agreements it enters into qualify to be community law in so far as they are covered by the competence of the community. Before community law can be effective, there must be liability on the part of member state. This is what led to the question as to whether a private individual can make a member state liable where they are in breach of an international agreement. It is good to note that the European Community’s relations externally are mainly characterized by existing legal and political conditions, the answer as to whether an individual can sue a member state will be shaped by the jurisprudence of the courts. This therefore depends on the will of the court to give effect to its earlier jurisprudence. This is the jurisprudence by the court that answered the question in the affirmative. However, the principle remains uncertain in majority of the cases. In R. v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas, [1996] ECR I-2580, para. 104, the court upheld the decision in Francovich that there was need to ensure that community law was effective which could only be achieved through its uniform application. The court held that member liability which was inherent was one of the greatest to secure effectiveness of the community law. The court developed principles through which it could be possible to extend the liability of member states to cover external relations as well. The principle developed by the court was that first it was important to determine whether such international agreements have eventually formed community law worth of according primacy. This concept has been further developed by courts as evidence by the many decisions that have been delivered by the courts. For example the court in the case of Dillenkoffer and others v. Federal Republic of Germany, Cases C-178-9/94, 188-190/94 [1996]) held that; If different organs of state violate the European Union law, liability will lie on the state. The rationale was that a state should be responsible for such acts because it is the one that has delegated the performance of its specific responsibilities. In this case, the court held that failure by a state to import a certain directive by the European Union to its state policies within the time stipulated amounted to a breach and consequently attracting state liability. Responsibility arises in the nature of compensation. Compensation is a way of reparation to offset damages sustained due to the infringement in question. In the case of Von Colson and Kamann v. Land Nordhein-Westfalen, Case 14/83, (1984) ECR 1891), the court held that the doctrine of indirect effect is intended to achieve through judicial interpretation of national law by the courts. The result is obtainable through direct effect doctrine which holds that courts should interpret national law to be as consistent as possible to the directives that have been given by the European Court. The court went on further to note that, in order to achieve this result, the domestic law should not have many inconsistencies with the community law. The courts also in the case of Pecheur v. Germany and R. v. Secretary of State for Transport, ex parte Factortame and others, [1995] ECRI-1066, para. 17, made reference to the case of Francovich and retaliated on the need to ensure that full effectiveness of the community law has been secured. This could be through its uniform application as well guaranteeing legal sanctions. It appears as if the court considered the ‘inherent’ principle of liability of a member state as one mean through which primacy of community law can be secured. To determine whether member state liability principle can extend to matters to do with external relation, it would be prudent to determine the question on whether international agreements that have been made by the community will be part of community law being accorded primacy. Further in the case of Haegeman v. Belgium, the court held that the agreements that had been entered into by the community and Greece as per Article 300 will be considered to be forming community law. Therefore, we need not emphasize the fact that such agreements should exhibit all the characteristics peculiar to community law. The principle underpinning liability of member states must be seen to exist in external relation. In the two cases of Brasserie du Pecheur and Factortame III there was a confirmation by the court that there existed liability on the part of a member states. This was in cases the damage was occasioned by the national legislation that was in breach of what the treaty provided for. This decision was arrived at after taking into account the provisions of the treaty In the case of Maclaine Watson v. Council and Commission, The court upheld the decision of the court in the Francovich case that such indirect liability could lie on the member state where such member state was in breach of the community law. It stressed further on the need to transpose the community law into the domestic law of a member country to minimize the inconsistencies that could prevent the upholding of the community law. It’s good to note the development that community law only existed where the community was competent. It ought therefore to apply having regard to its primacy. This is one of the greatest essential characteristic of the community law. It should also be seen to exist within community competencies limits. The competence of the community to make international agreements has been evolving over time. This especially in matters to do with mixed agreements. However, there is uncertainty as to the extension of liability of member states in external relations. One notable point on how the courts have approached the issue of liability of member states where there is a breach of provisions of the treaty. In the case of Brasserie du Pecheur and Factortame III, 13, there was a confirmation by the court that there exists liability on a member state in cases for an action seeking compensation for damages incurred as a result of domestic legislation being in breach with the provisions of the treaty. The court interpreted Article 252 (2) equivalent to the now Article 288 (2). It held that this was a manifestation of the important principle of liability of states that is peculiar to the member state’s laws. Fourteen courts found it vital to consider while considering Article 288 (2) the question as to state liability. In Watson v. Council and Commission15, the court held that in its bid to analyze the question as to the availability and admissibility of damages, it would constitute a manifest overstatement for the court to hold that actions for damages was inadmissible in cases of actions by a country in international relations. There was also need by the courts to provide guidance to assist in determining the extent to which the many international agreements could be characterized as international agreements that were either pure or mixed. It is only where an agreement constituted community law that liability of a member state could arise. This determination is found on the court’s ruling on jurisdiction. That is consideration as to whether the court had power to make a determination or a ruling on a matter involving enforcement of community law as provided in Article 234 of the treaty. The question of jurisdiction is most common in mixed agreements. The courts also considered the question of mixed agreements in community law. This was in Haegeman case, 28. In this case the issue as to whether it is good to regard mixed agreements as community. There was a calling on the court to make a preliminary decision on what association agreements provided as between the European Community and Greece. The court read Article 228 together with Article 238. The court held that it was upon the council to make international agreements. This, together with the power of the court to make constitutional review of the community as provided in Article 177 (1) (B) which is equivalent to Article 239 (1) (B) today. In light of these considerations, the court held that; “The provisions of the Agreement, when they came into force, form an important part of Community law. Within the framework of this law, the Court accordingly has jurisdiction to give preliminary rulings concerning the interpretation of the Agreement.” In making this conclusion it is important to note, the provisions that the court was asked to rule on were openly dealing with community matters. The jurisdiction of the court was therefore not in contention. However, there were provisions in the agreement that were based on competencies of member countries. More significant, was the fact that the court ignored the existence of the fact and went ahead to make a ruling that what the agreement provided was part of the community law. The court did not however clarify whether the jurisdiction claim that had been premised on Article 234 (1) (b) also involved the agreement parts that were touching on the competence of member countries. After ten years of making the decision in the above case, the court was faced with a similar situation in the case of Demirel. The case involved a situation where the German and British government were in denial that the court had jurisdiction to interpret the agreement that was in place as between the European Community and Turkey and in particular the protocol that provided that workers should be allowed to move freely. Both governments advanced arguments that; German and the United Kingdom ought to take the position that where there was mixed agreements and the agreement together with the protocol was at issue, the court’s interpretation should not go beyond the question as to whether the countries have entered into commitments. In light of these arguments, it would be prudent to consider that the court should note its jurisprudence in interpretation to those provisions that form part of community law. But the courts rejected the arguments advanced by member states and held that they were not relevant in the instance case. In Dillenkoffer case, the court held that the indirect effect doctrine is coined to achieve through judicial interpretation of national law by the courts enforcement of community law. The result can be obtained through direct effect doctrine which advances the argument that courts should interpret national law to be as consistent as possible to the directives that have been given by the European Court. The court went on further to note that, in order to achieve this result, the domestic law should not have many inconsistencies with the community law. From the analysis of the cases, we note that the courts in the subsequent decisions involving community law, they have upheld the decision of the court in Francovich v. Italian albeit with slight modifications and improvement. References Craig, Paul P. Burca, G, D. (2008) EU law: text, cases, and materials.Oxford University Press. London. United Kingdom.1148 pages Horspool Margot. (2006). European Union Law.Oxford University Press,. London. United Kingdom. 558 pages. D. A. C. Freeston, J. S. Davidson. (1988). The Institutional Framework of the European Communities. Routledge. 240 pages Anthony, Gordon. (2002). UK Public law and European law. Hart Publishing. Manchester. United Kingdom Kaczorowska, Alina. (2008). European Union Law. Taylor & Francis. London. United Kingdom.1152 pages Sueur, P. A. (2004). Building the UK's new Supreme Court: National and comparative perspectives. Oxford University Press Journal of Supreme Court History. Volume 19, Issue 1, pages 33–44, December 1994 Martin A. Frey, Phyllis Hurley Frey. (2011). European Community law. Cengage Learning. New York. United State. Chandler, Adrian. Brow, Ian. (2007 and 2008). International Agreemnts. Pearson Longman. London. United Kingdom Collins, Hugh. (2003). Cases on European Community Law. Oxford University Press. London. United Kingdom. Koffman, Laurence. Macdonald, Elizabeth. (1989).Understanding the EU Agreements. Pearson Longman. London. United Kingdom. Stone, Richard. (2009). Cases and Materials on EU Law: Seventh Edition. Routledge. London. United Kingdom. Read More

 

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