Analysis of Directives and Regulations of the European Union - Assignment Example

?Problem A In order to analyze this problem, an analysis of directives and regulations must first be expounded upon. Regulations and directives are important for legislating in the European Union (EU). Regulations are binding upon member nations. Directives are principles which are also binding. The directives are outcome based, which means that the member states may implement the directive in the manner in which they choose, but they must implement regulations and laws which achieve the objectives of the directive (Lejeune and Denberghe, 2005). Directives are principle based because every nation has sovereignty, therefore they need to be free to implement their own laws, yet there must also be harmony in the international system. Therefore, by issuing principles to the member states in the EU, not rules to implement, directives accomplish the needed goal of harmonizing Union law while acknowledging the freedom that member states enjoy in implementing their own laws. In this case, there is a conflict between the directive set forth and the municipal law that the UK adopted to implement the directive. Specifically, the UK law is more draconian than the directive. A case which would helpful to Blokkia in this regard is that of Luciano Arcaro Case C-168/95. In this case, Luciano Arcaro was accused of discharging dangerous chemicals into water. In this case, the municipal law stated that there was a distinction between new plants and existing plants, and when the plant was existing, there was not a requirement for authorization for the discharges. The directive upon which this law was based did not make such a distinction. Therefore, if the directive is the law which governed this particular case, Arcaro, who was operating an existing plant, would be liable, as he did not get authorization to discharge these harmful chemicals. On the other hand, if the municipal law is the one which governed this case, Arcaro would not be liable and could not be prosecuted, as he was within the purview of the municipal law. The court in this case found that the municipal law would be the one which controlled. Their reasoning was that the directive imposed an obligation which hadn't been incorporated into existing municipal law, and it had the effect of aggravating the liability in criminal law for persons who act in contravention of this law. In this case, Blokkia might argue that the inverse of Arcaro would be true. This is that there is a contradiction between the directive and the municipal law. Specifically, the municipal law imposes criminal penalties for situations which the directive does not address. The directive does not state that mobile phones may not be sold to children under the age of 10, and that doing so would constitute a criminal offence. It does state that there must be warnings on these products and details about the risks printed on these packages. As in Arcaro, the directive and the municipal law are inconsistent, and the municipal law has the effect of aggravating the directive law. Blokkia is within the purview of the directive law, assuming that they did label the product and included the information that the directive requires, so it may state that, since the municipal law aggravates the directive, that the directive is the law which should govern, by using the logic of the Arcaro court. In the case of Federal Republic of Germany v. European Parliament and Council of the European Union Cas C-380/03, there is further instruction upon which Blokkia might rely. Specifically, this case concerned a directive which prohibited the advertising and sponsorship of tobacco products by the printed media and radio broadcasts. This case stated that there were disparities which existed between the individual Member States' national laws, and that these disparities were such that the free movement of goods and the freedom to provide services were implicated. This court notes that if there are disparities between the member states in implementing this directive's principles, such that it has a direct effect on the internal market, as well as obstruct the fundamental freedoms of the individuals in these member states, then recourse to the Article 95 EC would be appropriate. Further, the Germany v. Council court found that when member states take divergent measures which respect a product or a class of products, and these measures bring about different levels of protection, which therefore inhibits the product from moving freely about the community, then the Community legislature may step in and adopt appropriate measures to achieve the principles of proportionality. In this case, the court noted that the member states were adopting different laws regarding tobacco advertising – some member states banned it outright, while other member states accepted some advertising, as long as it complied with certain conditions. Therefore, the community legislature could step in. Another similar case is Gourmet International Products [2001] ECR 1-1795. In this case, the issue was the advertising of alcoholic beverages. The court found that when national provisions restrict or prohibit certain selling arrangements that they must not be of the type which may prevent access to the market by products from another Member State or to impede access to any more than the impeded the access of domestic products. Keck and Mithouard [1993] ECR I-6097 states that if national provisions do not apply to all relevant traders who are operating within the national territory, or affect them in the same manner, that there would be an obstacle to trade between Member States. Gourmet International Products states that, when it comes to health regulations that potentially hinder trade within the member states, that the regulations must be proportional to the objective that they are trying to achieve. In other words, they cannot be overreaching, nor implementing regulations which are not proportional to the hazards that it purports to address. A law is not proportional if the ends could be attained by lesser means. Such is the case when there is an outright ban on alcohol advertising when the concern is that alcohol is detrimental to children and adolescents. The lesser means which can achieve the objective of keeping children away from alcohol products may be that advertising cannot target children or may not be allowed in certain public places where children may be. In other words, a outright ban would be disproportional to the objective, thus running afoul of the Gourmet International Products decision. In this case, the argument by Blokkia AB is that the particular regulation that the UK has implemented was not proportional to the hazards that it is purports to address, therefore would run afoul of the decisions in the Gourmet International Products case and the Germany v. Council case. The directive states that the hazards may be addressed by simple warnings and information which is passed onto the consumer regarding the health risks. Outright bans would therefore be disproportional to the harm that the directive addresses. Because this is a national law which is bound to be in conflict with other national laws, then the community legislature could step in to decide if this law is valid, or if the directive should be the law which controls. Furthermore, the Treaty of the European Union 4.3 is implicated here, which dictates that member states must assist each other in carrying out the tasks which flow from treaties. Appropriate measures may include the refusal to apply inconsistent national law. If this particular law is inconsistent with the treaty or with other national laws, then this may not be applied, and the directive may be applied. B. Assume that the Directive 2008/13 would not come into force until 2013 – would this make a difference? In this case, the directive would not yet have taken effect. That said, there are still obligations that member states must undertake to make sure that the principles of the soon to be implemented directive are respected. For instance, in the case of Mangold v. Helm (2005) C-144/04, the facts consider this very question. In this case, Germany's law stated that, for individuals over the age of 52, that the requirements of fixed term contracting are lawful. For individuals under the age of 52, these fixed term contracts are unlawful unless they are justified. The Employment Equality Framework Directive was an upcoming directive that was not yet implemented, and would not be implemented until the end of 2006. This directive stated that when legislation lets employers treat people of different ages differently that these laws offend the principles of the prohibition of discrimination on the basis of age. National courts must set aside any provision of national law which conflicts with this directive, even though this directive has not yet been implemented. Another case regarding this is the Inter-Environnement Wallonie ASBL v. Region Wallone Case C-129/96. In this case, the Inter-Environnement Wallonie had asked the Belgian Counseil d'Etat to annul an order of the Walloon Regional Executive on toxic or hazardous waste because it was contrary to provisions of the Community directive. This court noted that the directive had not yet taken effect, and that the end of the period prescribed for the transposition of the directive had not yet occurred. This court had to determine what the obligations were for the member states with regards to conforming with this directive - “the obligations of the Member States before the end of the transposition period must be determined before the obligations laid down in the directive are taken into consideration.” (Inter-Environnement Wallonie ASBL v. Region Wallone Case C-129/96). This court found that Member States are under the obligation to take all the measures necessary to achieve the result of the directive, and that this obligation is binding. The legal effect of the directive is such that the Member States must abide by it from the moment that they are notified that the directive would be forthcoming and implemented in the future. The Member States must not take steps which contradict the principles of the directive, although they are not required to take positive steps to achieve the directive. These cases pose an interesting paradox for the facts at hand. On the one hand, member states are not required to take positive steps that would implement the directive, but they must refrain from taking actions which would run afoul of the directive. While it would be tempting to answer that the results would not change – the directive would be the controlling law if the national law is seen as disproportionate to the objectives of the directive – this might not be necessarily true. This is because the law put forth by the UK actually goes further than the directive, so it cannot be said that that the law contravenes the principles of the directive. The UK would not be under an obligation to implement positive laws which implement the directive, but it cannot be said that, under the principles put forth by the cases above, that member states and the decisions regarding their national laws would be interpreted the same as if the directive was in full force. Therefore, in this case, the directive would not have the full force of the law, and it could not be seen as an alternative to the national law. The national law, in this case, could control for this reason. C. Assume that the case is referred to the Court of Justice of the European Union.... National courts are taxed with the obligation to ensure that European Union law is implemented properly, but there is a disadvantage in that national courts may rule inconsistently from one another. Therefore, if there is some doubt as to the validity or the interpretation of a given directive or other mechanism of EU law, the Court of Justice may give advice and may issue preliminary rulings. Further, member nations cannot implement directives in a partial way, and member states cannot avoid EU regulations by claiming that the regulations contradict domestic law. The Court of Justice's role is therefore that of ensuring that the member states are implementing directives and other EU regulations properly and fully. If the Court of Justice did not exist, then member states may implement directives and regulations partially and inconsistently, because the member states would be looking to the principles of their domestic laws when making the interpretations. In this case, Bulmer v. Bollinger [1974] 3 WLR 202, offers instruction on how the courts would proceed in this case. Bulmer acknowledges that there can be a wide variance in interpretation of the statute, and how the municipal law conforms with the statute. The Bulmer court specifies that treaties are principles based, and, as such, are meant to be general. It is therefore up to the court to fill in the gaps of what the treaty says. Therefore, the judges would be tasked with reading the directive and deciding if the directive which is general – the Article 1, which is written in a general way and set forth general principles – would countenance the measure that the UK government took in carrying out this principle. Re Adidas AG (C223/98) is another case which provides guidance. In this case, it specifies that the court, when it is making its interpretation, must take context into account, as well as objectives. Also, the court states that, if there are multiple interpretations, that the court must look to the one which makes the provision the most effective. In light of this case, the court may look to the seriousness of the problem and the objective of the directive. If the problem is a serious one – say that there is hard evidence that is coming from the scientific community that cell phones are definitively linked to cancer in children under the age of 10, then, in this case, the court would be more likely to give effect to the UK law banning the cell phones. On the other hand, if the evidence is flimsy or non-existent, and the directive was put into place to head off possible problems, as opposed to existing problems, then the UK law may be said to be overreaching in combatting the problem, so, in that case, the directive may take precedence. Moreover, the court may also look to the objective of the directive – is the objective to ensure that children do not have access to cell phones, or that there merely should be a warning that makes parents aware? Arnold Andre GmbH & Co.KG C-434/02 & C210/05 March ECR 2004 is instructive in this as well. This case states that member states may make laws if there is comprehensible data regarding health risks, and that the ECJ cannot deny member states the rights to make laws on the basis of comprehensible data. Therefore, since there is comprehensible data on the subject, one can argue that the UK may make laws as they see fit to address the concerns put forth in this data. That said, there is still the issue of proportionality. For this reason, the courts may not give the same result, it just depends upon how they interpret the scientific evidence about the issue. There will certainly be “dueling experts” on both sides of the debate to present evidence to the court, and it will depend upon whom the court finds more credible. If the expert on the side of the dangers presented by the cell phones is more persuasive, then the court may decide that the UK law is proportional, so Blokkia would lose. If the expert on the side of the lack of dangers presented is more persuasive, then the court will go the other way. This is probably what the case will turn on in interpreting the directives as opposed to the municipal law. Bibliography Arnold Andre GmbH & Co.KG C-434/02 & C210/05 March ECR 2004 Kolpinghuis Nijmegen BV C-80/86 [1987] ECR 3969 Lejeune, I. & Van Denberghe, W. (2005) The Enlargement of the European Union: Opportunities for Business and Trade (John Wiley & Sons). Luciano Arcaro Case C-168/95 Federal Republic of Germany v. European Parliament and Council of the European Union Cas C-380/03 Gourmet International Products [2001] ECR 1-1795 Keck and Mithouard [1993] ECR I-6097 Treaty of the European Union 4.3 Mangold v. Helm (2005) C-144/04 Inter-Environnement Wallonie ASBL v. Region Wallone Case C-129/96 Bulmer v. Bollinger [1974] 3 WLR 202 Re Adidas AG (C223/98) Read More