UK Public Law and European Law - Assignment Example

? EU LAW –AN ANALYSIS Problem A In European Union, the most important legislative instruments are regulations and directives. A regulation is a general rule that is obligating upon member nations in whole and is directly applicable to all member states. Obligating in whole connotes that the member states has no preference as to method and form. On the other hand, directives are general rule, but they are binding as to their result. For each member state, it is expected, a directive is obligating as to the outcome to be accomplished. As to the choice to method and form, the institutions of the member states can exercise their power. There is less clarity about their direct impact due to the wider policy freedom given to member states in transposing EU directives. Nonetheless, one should not underrate the impact of directives, and the national rules shall have to be construed in such a style that is most in harmony with the directive under reference1. Because of its own breakdown to carry out the commitments which the directive requires, a Member Nation which has not espoused the enacting initiatives as demanded by the directive within the stipulated time may not bank upon it as against such persons. At the request of an individual who has adhered with the stipulations of a directive, may request a municipal court not to direct to implement a municipal rule which is contrary to the directive not implemented into the domestic official system of a contravening Member Nation. Further, it must sustain that demand if the commitment in issue is sufficiently precise and unconditional.2. S2 European Communities Act 1972 stipulates that “all such privileges, authorities, responsibilities, commitments and limitations ... arising by or created under the Treaties ... as in agreement with the Treaties are devoid of further ratification to be accorded official impact or employed in the UK, shall be ... imposed so ... “ Further, any designated Minister, Her Majesty may by Order in Council, and or department may by rules, make provision ... for the purpose of implementing any Community commitment of the United Kingdom. Directives fall under secondary legislation of the source of EU law. A directive is a most significant legislative mechanism together with the EU regulation. Its main aim is to bring together the dual aims of both ensuring the needed consistency of Union law and honouring the diversity of national structures and customs. It is to be remembered that directive chiefly aims for the harmonization and not for the unification of the law. The rationale is to get rid of conflicts and contradictions between national regulations and laws or progressively to weep out contradictions, so that, a uniform stipulation exists in all the member nations. It is to be noted that a directive is obligatory on all the member nations as to the goal to be accomplished, but it assigns it to the national officials to fix it on how the consented community goal is to be implemented into their domestic legal structures. Especially, the member nations can take into the picture of unique domestic scenarios when implementing the community rules. What is important that an EU directive does not surpass the laws of member nations but puts a commitment on the member nations to fine -tune their national law in harmony with Community regulations? Hence, there will be two –phases of law- making practice prevail in EU3. Source - eur-lex.europa.eu › EUR-Lex Home › Help In UK, the “General Product Safety Regulations 2005 “is in force and these regulations are enacted in conformity with the “section 2(2) of the European Communities Act and transpose the Directive 2001/95/EC on general Product Safety” into UK law. The main aim of the General Product Safety Directive (GPSD) is to make sure that all goods aimed for or probable to be used by UK residents under realistically and normal predictable stipulations are safe. In case of mobile phones, the GPS Regulations will extend to those-aspects of safety in UK. The GPSD is applicable to all suppliers of products used by citizens in UK, and the supplier term includes either “distributors” or “producers.” Under GPSD, there is an obligation for distributors and producers to supply only products that are safe. Further, the producers or distributers are required to market the products that are safe and should undertake to assure that the product remain safe whole of its reasonable predictable phase of use. Distributors and producers should offer all specific warnings and information to the consumers about the probable risk that may emanate from such product4. As per GPSD, a distributor is needed to function with due care to assist to make sure that the products he market are safe. Especially, he should not supply the products which may create health hazards or to be unsafe. Enforcement authorities under GPSD should first bring the product safety issues to either to the producer or to the distributor and even after that, if no remedial measures are being taken by them, then enforcement authorities may serve a safety notice to them. The enforcement authorities should give adequate opportunity to present their views before perusing any measure. Further, as per the severity of the risk, the following any of the measures can be initiated by the enforcement official like issue of suspension notice, withdrawal notices, a requirement to a mark and requirement to warn and forfeiture and destruction. In Arnold Andre GmbH & Co .KG 5& in Swedish Match6 , it was held that the principle to extend risk should be realistic and plausible based on the recognition of probable harmful impacts on safety and health, and if there is availability of comprehensible data on the evaluation risk through either premier or international research institutes. A distributor is entitled to make an appeal against any suspension notice, etc within 21 days after the issue of notice. In case of recall notice, an aggrieved person can apply to the court within 7days from the service of such notice. The GPSD contains a number of health and safety offences that are punishable by fines and/or imprisonment. The offenses failing to meet commitments as regards to supply of safe products and a court can levy a fine of ?20,000 or one-year imprisonment for serious offences and for lighter offences, a fine of ?5000 or 90- day imprisonment. EU directive 94/27/EC intends to stop the nickel sensitization by limiting the usage of nickel and its compounds in goods and products that come in close contact with skin. Thus, this directive is aimed at regulating the nickel content in mobile phones. In the given case , UK has not only adopted EU’s fictitious directive 2008/103 on the Safety of Mobile Telephones as it is evidenced from the statement that the directive has been enforced in all of the Member Nations at this point in time. Further, as per In Arnold Andre GmbH & Co .KG 7& in Swedish Match8 , as there is availability of comprehensible data on the evaluation risk through either premier or international research institutes, UK has enacted the (fictitious) “Prohibition on Sale of Mobile Phones Act 2010”, now makes it a criminal crime to offer or to sell a mobile phone to a ten-year old child. As regards to Blokkia AB is a Swedish manufacturer of mobile phones, as one of its retail distributors was charged for the offence of selling a (correctly labelled) mobile phone to a child by the Local Authority Trading Standards Department, in the problem, there is no mention about any information regarding whether any adequate opportunity to present Blokkia AB dealer’s views before perusing any measure has been given is not clear. Blokkia AB dealer cannot argue that UK Trading Standards Department cannot charge them for any offence, as a matter of EU Law will not hold true in the background of verdicts given in the Arnold Andre GmbH & Co .KG 9& in Swedish Match. As per the severity of the risk, the following any of the measures can be initiated by the enforcement official like issue of suspension notice, withdrawal notices, a requirement to mark and requirement to warn and forfeiture and destruction unless adequate opportunity is given to Blokkia AB’s dealer to vent his views. In Pubblico Ministero v Ratti,10 it was held that A national law cannot be adapted even if it is provided with penal provisions as there was no compliance by the member state, and hence it could not be enforced11 However, in this case, UK already implemented the EU’s directive as regards to labelling. Hence , application of the UK law cannot be ruled out. Even after warning by the UK officials , If Blokkia AB dealer found selling mobile phones to children under the age of 10 ,then UK officials have every right to initiate action against him under The (fictitious) “Prohibition on Sale of Mobile Phones Act 2010 “as stated in the GPSD. PART B There may be issues when the member states are not implementing directives in the manner they should be. In Pubblico Ministero v Ratti12 , Italy was sluggish in making legislation to give impact to some Directives of the Council. The EU legislation was meant to remove some barriers to trade between Member States that were created by various technical needs over the labeling of chemicals. In accordance with the community directives, Signor Ratti decided to label some of his solvents. He was convicted by the” Italian Pubblico Ministero for the violation of the Italian law as the Old Italian was still in force at that time.” The European Court, on its reference from the Italian court, held that after the expiry of the time mentioned for the carrying out a Directive, a member nation may not extend its domestic law to an individual who has adhered with the conditions of the Directive. A national law cannot be adapted even if it is provided with penal provisions as there was no compliance by the member state and hence it could not be enforced13. In Thoburn v. Sunderland City Council14 , the plaintiff was a trader, and he used to sell products by the pound in lieu of kilogram. This was regarded to be in opposition to UK legislation, which was promulgated to give impact to an EC directive. Sunderland City Council prosecuted and convicted him for the above offence. He appealed, and the case was pertaining to UK legislation that had been enacted to give effect to EC directive, and the question of direct effect was not in issue. The main argument in this case was that EC directive 2 (2) and (4) could not be legally employed to alter the 1985 Act that was enacted well before the EC directive. It is to be observed that UKs 1985 Act permitted the prolonged usage of either metric or imperial measures for business without preference and an authority ushered by a statue enacted in 1985 could not be employed to snuff out this stipulation in favour of a newer metric system. Applying the provision of the decision held in Thoburn v. Sunderland City Council, as Directive 2008/103 provided that it would not come into force until 2013 only, it is an offence for selling a (even correctly labelled) mobile phone to a child under the (fictitious)” Prohibition on Sale of Mobile Phones Act 2010”, as it now makes it a criminal crime to vend or to offer a mobile phone to a 10 -year old kid in UK. Since the (fictitious) “Prohibition on Sale of Mobile Phones Act 2010 “is in existence well before the enactment of the EC (fictitious) Directive 2008/103 on the Safety of Mobile Telephones, an infringer can be prosecuted, and imprisonment may be awarded if found guilty. However, the other formalities like a dealer of Blokkia AB should be given an adequate opportunity to put forth his views, issue of issue of suspension notice, etc should be followed before initiation of prosecution of the dealer of Blokkia AB in UK. PART C To make sure that the EU law is properly applied in a member nation, it is the responsibility of the national courts in every EU nation to see that it is being implemented properly. However, the national court of each nation may interpret the EU law in a different way. To avoid this, whenever the national court is in doubt about the validity or interpretation of an EU law, it may ask the Court of Justice for its advice, and this is known as preliminary ruling. Further, a member nation has no authority to implement an EU regulation partially or to choose only those stipulations of which it acknowledges as a way of making sure that a mechanism which it contrasted at the time of its implementation or, which runs in contradict to its apparent national concern, which is not given effect. A member nation shall not engage in precluding the statutory application of an EU regulation by invoking provisions or practices of its domestic law. The courts, the governing institutions and the member nations are liable directly by EU law and have to abide by in the same style with that of their national law. In this case, on reference from UK to ECJ, the main points to be analysed by ECJ will be the following: The (fictitious) Directive 2008/103 of EU on the Safety of Mobile Telephones is already implemented by the UK and UK had enacted (fictitious)” Prohibition on Sale of Mobile Phones Act 2010,” as it now makes it a criminal crime to vend or to offer a mobile phone to 10- year old kid. Whether the UK’s (fictitious) “Prohibition on Sale of Mobile Phones Act 2010” is overriding the EU (fictitious) Directive 2008/103? Whether UK has the right to punish the dealer of Blokkia AB for selling the mobile phone to a child under 10 years old? Further, a member nation has to implement any directive of the EU within a specific time-frame. In Francovich and Bonifaci15, it was held by the Court of Justice that member nation is bound to defray damages where loss is incurred due to failure to execute a directive either in part or in whole16. In ECJ cases, the Advocate General will offer an outlook on the legal dispute to the Court. However, the opinion of the Advocate General will not be binding on the ECJ. The single judgment with no dissenting opinion will be delivered by the ECJ on any referred issue. In Costa v Enel17," in deference to subsequent domestic laws, the administrative machinery of Community law cannot differ from one nation to other, without endangering the accomplishment of the aims of the Treaty18. “ In “Amministrazione Delle Finanze Dello Stato v Simmenthal SPA”19, supremacy of EU directive was maintained and any state law that excludes the legal implementation of new state lawmaking initiatives to the degree to which they would be contrary with Community provisions20. On 27 January 1998, in the Italian Parliament, a sketch bill to administer labelling demonstrating the geological source of the different varieties of olive oil was presented. This pushed the Commission to put forward legislation of its own regarding the labelling of olive oil later. However, the Italian government passed its legislation in the mean time. Unilever supplied olive oil to Central Food Spa of Italy, which did not stick to the Italian law and hence Central Food Spa declined to make payment as Unilever21 failed to mention the origin of oil in the label. For enforcing the payment against its supply, Unilever initiated legal action in the Italian Magistrate Court. The Pretore submitted the impact of non-adherence with the Municipal as being on the foundation for the court to bypass it and thereby helped the Unilever to claim the same under private law. As regards to labelling of mobile phones, UK has already implemented the EU directives relating to the same. Further, as per In Arnold Andre GmbH & Co .KG 22& in Swedish Match23 , as there is availability of comprehensible data on the evaluation risk through either premier or international research institutes, UK has enacted the (fictitious) “Prohibition on Sale of Mobile Phones Act 2010,” now makes it a criminal crime to supply or to vend a mobile phone to 10 -year old kid. Since, UK action of is totally fallen within the decision made in Arnold Andre GmbH & Co .KG 24& in Swedish Match, ECJ cannot deny the UK rights to make law on the basis of availability of comprehensible data on the evaluation risk through either premier or international research institutes, for the “prohibition of sale of mobile phones to 10 -year old” even though the label is having adequate warning. 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