Constitutional law of the European Union - Essay Example

Constitutional law of the European Union Introduction European Union law historically known as "European Community law" comprises treaties and legislation. In this respect, we can take the examples of Regulations and Directives, which have direct or indirect bearing on the laws of member states of the European Union. The European Union Law derives from three channels that are primary law, secondary law and lastly, supplementary law. The mother of primary law is a treaty, which includes regulations and directives. The legislation of the European Union is composed of EU Parliament and the Council of EU, which under the treaty is regarded as secondary law to chase the objectives enumerated in the Treaties1. The cited law is usually referred by the judiciary of the member states. Where the laws of member states do not provide due rights, the EU law can be enforced through courts of member states. If it is transposed into the laws of member states e.g. Directives, then European Commission can initiate proceedings against the member state at fault under the EC Treaty. The Court of Justice of the EU is the apex court to interpret the laws where required. The supplementary sources of EU law are backed by the case laws, international and the common principles of EU law2. Research Questions 1. Looking at all relevant sources of EU law can your client rely on any cause of action in the UK courts under EU law? 2. Should the UK Supreme Court make a preliminary reference to the CJEU over the interpretation of the term “armed forces”? 3. The Supreme Court in January 2013 confirms the Court of Appeal’s judgment. Can your client claim damages for the UK’s infringement of his EU law rights under Directive 2000/78/EC and general principles? 4. How can your client challenge the adoption of Regulation 2010/666/EU in the CJEU and its validity before the domestic courts? Research Methodology In this paper, it is planned to conduct a literature review with the support of internet research and manually found books on European Union Law. Literature review comes under the category of qualitative research. In a number of researches, we have seen literature review as part of introduction section whereas most of the professors prefer a detailed review separately. The literature review contains many important functions such as it ensures not to re-introduce the things, gives credit where the credit is due, demonstrates thorough knowledge relating to research problem, informs research issues concerning research questions, assists in the ability to critically evaluate concerned information, supports to integrate the literature in vogue, provides new insights of the conceptual framework for research and finally, ensures that the researcher should be capable of influencing reader’s mind about the new research that carries value added information3. Qualitative Research is well established. Qualitative research enables the research to scrutinize already available literature on the topic related to the research. Literature review is a sort of qualitative research. Internet research is a very useful information tool to gather information of all sorts whether general or specific. It provides focused and purposeful information; the sources are internet-based resources (appropriate forum for discussion to the literary personnel) and it provides immediate access to desired information. A variety of information on each and every subject is available on the Internet, which provides great help to the researchers in their research work. The internet information is not confined to researchers only. Any one (students, teachers, doctors, engineers, scientists, journalists etc.,) can access to the information4. Keywords Used Keywords play an important role in a research assignment. Once they are in place, they can be used to discover the untapped opportunities. Of course, searching through internet is not time consuming exercise; you just click for the desired data. The keywords that are used for this research paper are “European Union Law”, “Directive 2000/78/EC”, “discrimination in Article 1 in employment”, “Equality Act 2010”, “ Regulation 2010/666/EU (fictitious)”, “Article 153(1)(a)TFEU (health and safety of workers)”, “adoption of Regulation 2010/666/EU in the CJEU”, “Constitutional law of UK”, “treaties in European Union Law”, “European Court of Justice”, “Discretion of Chief Justice of the European Union Court” and “Age discrimination in Equality Act 2010”. Essential ingredients of Case Law To handle specific issue within the scope of law, one should know what legal problem is and how it is to be handled. By handling legal problems, the counsel can plan the research accordingly. Mentioned type of research paper requires existing legislation on the subject as a primary source of information. In this respect, researcher may consider statutes, regulations, Acts, Ordinances and by laws in order to float a strong idea which subsequently follows the appropriate legislation to handle the specific problem and get it approved through law making body. Research plan also includes following measures a) pen down concerned legislation if it exists b) add legislation in the list which comes as a result of thorough search c) update hand on legislation accordingly and d) research on the legislation for judicial review. The sources, which would be fruitful in gathering the details, are case laws. Full attention of the researcher is required on court level and jurisdiction. Following steps are to consider while carrying out research on the issues in question a) consider leading cases that can be applicable on the current subject b) add another case of similar nature c) includes in the list other legal cases, that derives out from secondary sources d) number of other cases that relates to legislation for judicial treatment e) research the cases history to find out its currency and f) key cases for judicial adjudication. In nutshell, basic understanding of a legal system is very important to know what to do and what not to do, what to find out and where to find out. The legal system of any country mostly is based on federal laws, state laws, and administrative laws in practice. The case example of Van Gend en Loos v Nederlandse Administrative der Belastingen, wherein the European Court of Justice (ECJ) held that the provisions of EU laws will have a direct bearing on the courts of member states and it is helpful in providing answer to the asked questions of the research. It provides an alternative option to the victim of member states to seek justice. Initially the victims have to refer the matter to the native courts for justice5. The case of Costa v ENEL [1964] ECR 585 is also crucial as the European Union Court of Justice was of the opinion that where there is a conflict of laws between the members states and the EU laws, the EU laws will enforce since incompatible unilateral act with concept of the community can not prevail. In other wise situation, Maastricht Accord 1993, does not intervene in the matter of member states with reference to introducing or maintain strict laws relating to the working condition of employer and the employee, social responsibility, consumer interest protection and the environment as long as these are compliant with the Rome Treaty6. European Union Law Introduction European Union law historically known as "European Community law" is comprises treaties and legislation. In this respect, we can take the examples of Regulations and Directives, which have direct or indirect bearing on the laws of member states of the European Union. The European Union Law derives from three channels that are primary law, secondary law and lastly, supplementary law. The mother of primary law is a treaty, which includes regulations and directives. The legislation of the European Union is composed of EU Parliament and the Council of EU, which under the treaty is regarded as secondary law to chase the objectives enumerated in the Treaties7. The cited law is usually referred by the judiciary of the member states. Where the laws of member states do not provide due rights, the EU law can be enforced through courts of member states. If it is transposed into the laws of member states e.g. Directives, then European Commission can initiate proceedings against the member state at fault under the EC Treaty. The Court of Justice of the EU is the apex court to interpret the law where required. The supplementary sources of EU law are backed by the case laws, international and the common principles of EU law8. Constitutional Law As we have said earlier on that there are three main sources of EU Law that are primary, secondary and supplementary law. The primary law is based on the Treaties establishing the European Union (TEU). Another source is the legal instrument, which rests upon the treaties and unilateral decisions. However, Supplementary sources of laws are not taken into account by the TEU, which include case law by the CJ of EU, International law and the common law of the European Union9. Treaties The basic necessary laws of the European Union consist of treaties of EU, familiar as primary TEU and TFEU. It contains formal and substantive clauses that enable to frame the policies of EU institutions. It determines the competence level between the EU and the member states, which are twenty seven in number. The laws of TEU are applicable on metropolis territories of the member states besides different islands and the foreign territories, namely Canaries and the French departments operating in foreign land. These laws of EU are also applicable to Gibraltar and the associated islands. The TEU allows its Council to adopt specific provisions from region to region e.g. customs related matter in Gibraltar and in Saint Pierre-et-Miquelon. It excludes from its jurisdiction the Faroe Islands10.   European Court of Justice The Court of Justice of the European Union came into being vide Article 19 of the Maastricht Treaty. According to the mentioned treaty, three courts came into surfaces that are Court of Justice, Generalized Court and the Specialized Court in order to ensure that treaties are observed in letter and in spirit in the member states. The apex court have a single judge from each member state, similarly, the Generalized Court will have at least a judge from each member state. The judges of the aforesaid courts are appointed for a term of six years. It is the responsibility of the apex court of EU to interpret the reference filed by the member state, its legitimate institution and the individual having legal entity11. Discretion of Chief Justice of the European Union Court The preliminary reference to the Chief Justice of the European Union by the referring court of member state should be in the form of a court judgment or ruling, which is addressed only to the referring court. Before sending the judgment or ruling, it is to be ensured by the member states that the ruling has substance with regard to EU laws for interpretation12. It is to be noted that the CJEU is not a fact-finding institution. Moreover, the national court has no authority to refer a question involving EU laws for a correct interpretation of the facts in the main proceedings. Hence, the examination of the facts is the legal jurisdiction of the national court13. The CJEU is not enjoying the status of court of appeal on the outcome of the main proceedings that were lying before the court of member states. Art 267 does not empower the CJEU to decide the validity of laws in vogue of the Member States. In accordance with the provision of Art 234, domestic courts of the member states are bound to interpret national rules and regulations. The Apex Court of European Union helps member states in resolving the interpretative issues with reference to European Union Laws14. Apart from the above, the CJ of EU lacks the authority of giving advisory opinion on a generalized issue or issues. Its rulings are binding on all domestic courts and tribunals of the respective member states to be complied with. Therefore, it helps to ensure its uniform application amongst the countries of the European Union15. Conflict of Laws The member states are bound to apply European Union law in their countries. In case of any conflict with regard to lesser rights, the laws of European Union prevail. The courts of member states shall decide the cases accordingly. Further, the European Commission will take a note of any violation of the EU treaty and take action against the member state that is at fault. The Court of Justice of the EU, which is the highest judiciary of the EU, has the discretion to interpret the laws. It has the authority to implement its decision in the member states.   Case Examples We may cite here the case example of Van Gend en Loos v Nederlandse Administrative der Belastingen, wherein the European Court of Justice (ECJ) held that the provisions of EU laws will have a direct bearing on the courts of member states. It provides an alternative option to the victim of member states to seek justice. Initially, the victims have to refer the matter to the native courts for justice. If judgment is ambiguous in terms of existing treaty, then the victim has every right to knock at the door of CJ of EU for justice in accordance with EU Laws. The pre-requisite in terms of direct bearing is that the provision on which, the petition of a victim is filed should be based on sufficient, clear and unconditional substance in the plea. After receiving the judgment from the courts of EU, the courts of member states have no right to intervene in its implementation16. However, in the case of Costa v ENEL [1964] ECR 585 the European Union Court of Justice was of the opinion that where there is a conflict of laws between the members states and the EU laws, the EU laws will enforce since incompatible unilateral act with concept of the community cannot prevail. In other wise situation, Maastricht Accord 1993, does not intervene in the matter of member states with reference to introducing or maintain strict laws relating to the working condition of employer and the employee, social responsibility, consumer interest protection and the environment as long as these are compliant with the Rome Treaty. In the recent past, we have witnessed some resentment from the member states about the doctrine of supremacy. Although the mentioned supremacy was not challenged in the court of EU, however, the apex court encouraged legal interpretation by the courts of member states to provide an option to repeal and amend those laws that are in contravention with the EU law17. Equality Act 2010 If we study Equality Act 2010, it transpires that it provides legal protection against the discrimination within the workplace and in the broader spectrum to the people who suffered at the hands of discriminatory attitude of their employers. The cited act replaced all the former anti-discrimination laws, making the laws easier and more understandable in terms of protecting the rights of the employees18. Age discrimination The Equality Act 2010 negates discrimination of all sorts in whatever form it exists. Amongst other things, the Act in question also handles the issue of age discrimination against adults in terms of provision of employment and other services. Such bans came into force on October 1st 2012. Under the mentioned Act, legally it is unlawful to discriminate on the basis of age till the ban is replaced through an exception. Otherwise, good reasons to be shown for indifferent attitude19. The ban on age discrimination provides protection to would be victims against unfair treatment meted out at the hands of employer resulting in an unjustified discrimination. It favours certain treatment provided they are justifiable or beneficial20. However, we may not find any ban on age discrimination on the basis of age, with regard to health and social care services. It means that age discrimination if challenged in the court of law should be justified21. Prohibition of discriminatory attitude -Directive 2000/78/EC The captioned law, which was introduced in the year 2000 prohibits discrimination in the light of Article 1 relating to employment and occupation on the basis of age. Whereas the Article 3(4) allows members of European Union to prohibit its applicability on the directives to the armed forces as far as the age is concerned. The latest version of non discriminatory laws transposes the above directive. The Article 3(4) provides derogation on the basis of age only for armed forces. In pursuance of the above article, members of the armed forces are to retire at the age of 55 years22. In May 2012 the Court of Appeal of UK in May 2012 interpreted the term “armed forces” to accommodate “private sector military contractors”. The case under discussion soon will be heard by the apex court. Mentioned military contractors provide employment to individuals in accordance with the terms and conditions of contractual employment. Before deploying their head counts at a selected point anywhere around the globe, the employee has to sign a contract which concluded with the Ministry of Defence. Though they are not under the direct command of said ministry but the employees under contractual obligations have to obey the orders of private sector military contractor. The Chief Justice of European Union in the month of June 2012 interpreted the term “armed forces”. However, the Lord Chief Justice did not consider “private sector military contractors” in his decision23. Health and Safety of Workers-Regulation 2010/666/EU In the year 2010, European Parliament and the Council adopted a Regulation 2010/666/EU (fictitious), based on Article 153(1) to deal with the issue of health and safety of workers. The mentioned regulation sets out the parameters of working conditions for the member of armed forces. Moreover, the Article 3(1) of the Regulation determines maximum weight 100Kg which requires for serving in the military. The regulation in question implemented in the month of September 2012 to handle the issues of Weight Requirements of armed forces personnel, employed by the private sector military contractors. However, in French and German legislation the weight requirement sets at 90 kg24. Advice The Article 3(4) of Directive 2000/78/EC provides derogation on the basis of age only for armed forces. In pursuance of the above article, members of the armed forces are to retire at the age of 55 years. Since the prescribed age as per law is 55 years of age whereas the military contractor severed the services of my client at the age of 53 with one month notice period is against the existing laws and natural justice25. The cause of action appears in the light of above development. My client may invoke the discretion of UK courts under the European Union Law to decide the case accordingly. The UK Supreme Court can make preliminary reference for interpretation provided the term of “armed forces” is ambiguous against the backdrop of existing treaty of European Union Laws. The preliminary reference should identify the legal questions involved in the judgment of national Apex Court. The judgment of CJ of the EU against the preliminary reference shall be final and binding on the referring country. Failure to implement the decision of the highest judiciary of the European Union will attract punitive action from the Council of European Union. In accordance with Maastricht Accord 1993, the European Union does not intervene in the matter of member states in respect of introducing or maintaining strict laws relating to the working condition of employer and the employee, social responsibility, consumer interest protection and the environment as long as these are compliant with the Rome Treaty. Under the mentioned scenario, my client cannot invoke the jurisdiction of European Union Court for fringe benefits under Directive 2000/78/EC and general principles26. The Article 3(1) of the Regulation determines maximum weight 100Kg for serving in the armed forces / military. The regulation in question implemented in the month of September 2012 to deal specifically with the Weight Requirements of armed forces personnel, employed by the private sector military contractors. Since the weight of my client at the time of termination of services was 93Kg whereas the weight fixed for military services under the Article 3(1) of the said regulation is 100Kg. Therefore, my client cannot approach the domestic courts for redress of his grievances under the regulation. Further, he cannot refer the matter to CJ of EU for a remedy as the European Union Law does not intervene in the matter of employment of member states. Bibliography Berry, E., & Hargreaves, S. (2007). European Union Law. OUP Oxford. Chalmers, D., Davies, G., & Monti, G. (2010). European Union law: cases and materials. Cambridge University Press. Cooper, H. M. (1998). Synthesizing research: A guide for literature reviews (Vol. 2). SAGE Publications, Incorporated. Costa v ENEL [1964] ECR 585 Douglas-Scott, S. (2002). Constitutional law of the European Union. Pearson education. Drummond, J. (2012). Supreme Court guidance on when a disadvantage is age discrimination. Human Resource Management International Digest, 20 (6). Equality and Human Rights Commission. (2010). Equality Act 2010 guidance for English public bodies (and non-devolved bodies in Scotland and Wales). Fink, A. (2009). Conducting research literature reviews: from the Internet to paper. SAGE Publications, Incorporated. Folsom, R. (2012). The History and Growth of the European Union: Part One.San Diego Legal Studies Paper, (12-089). FORSTER, A. (2012). British judicial engagement and the juridification of the armed forces. International Affairs, 88(2), 283-300. Foster, N. G. (2010). EU Treaties & Legislation. Oxford University Press. Hepple, B. (2003). Age discrimination in employment: Implementing the Framework Directive 2000/78/EC. Age as an equality issue: Legal and policy perspectives. Kaczorowska, A. (2009). European Union Law. Routledge Cavendish. Schiek, D. (2006). The ECJ decision in Mangold: a further twist on effects of directives and constitutional relevance of community equality legislation.Industrial law journal, 35(3), 329-341. Van Gend en Loos v Nederlandse Administratie der Belastingen ((Case 26/62) [1963] ECR 1 Read More