Questions in an EU Law - Essay Example

? LAW i) The of the court is Belgian Conseil d'Etat, the administrative supreme court in Belgium. (ii) The President during these proceedings was G.C. Rodriguez Iglesias (iii) The Court of Justice construed that the first question required a determination of whether Articles 5 and 189 of the EEC Treaty prevented the Member State so that they could not approve measures which were contrary to Directive 91/156 during the time which had been given for its transposition. The Court reasoned that in accordance with Inter-Environment Wallonie there was prescription that if a directive was transposed before the expiry of the period it should be in compliance with the said directive. It was further pointed out that countries like Belgium and United Kindgom thought that they were free to adopt any measure till the time of expiry of transposition. The Court reasoned that there was a binding obligation on the Member State to take measure so as to achieve the desired result in the directive and this was clearly stipulated within Article 189 of the Treaty. Furthermore, the duty was on all authorities which included courts of the Member States. The Court also relied upon Article 191 and stated that directives had legal effect from the time of notification to the Member State. As for directive 91/156 the court stated that the time provided was to allow Member States to take measures to achieve the prescribed result. The Court cited that according to Article 5, Article 189 and the directive measures which would seriously compromise upon the prescribed result should be refrained from. The Court finally went on to give what the national court had to consider, for example the implementation of the directive in stages, certain provisions not transposed and its effect on the overall result. b)i) The name of the Advocate General was J.Kokott (ii) The employer was Ellinikos Organismos Galaktos  (iii) The Court in this question considered what would happen if a directive is transposed belatedly and the relevant provisions do not have direct effect. The first reasoning that was provided was that when the national courts were interpreting domestic law they should take into account the directive and its conformity exclusive of the adoption of the directive. The courts did consides the rules of legal certainty and non retroactivity but went on to say that that interpretation should be in a manner so as to give effect to objectives of the directive. The court cited authorities which included Frankovich wherein the requirement of making good damage to individuals and the criteria within was dealt with. The Court considered Article 10 and 249 EC and stated when it applies that is lack of direct effect. The court went on to consider the fact that expiry of time allows the interpretation and conformity requirements. The Court reasoned that after expiry of time limit if transposition had not been done then the courts of Member States should refrain from interpreting domestic law so as to compromise on the prescribed objective. Thus the court stated that belated transposition means that the domestic court are bound to interpret domestic law in line with the directive so as to achieve the results prescribed therein. (iv) The Court in respect of the case at hand went at length about the details of indirect effect. Furthermore the conditions of non retroactivity and legal certainty were also discussed. The important aspect in respect of this case was the fact that even though in indirect effect there has been the long standing phenomena that case that came under its head were where the time limit for bringing such an action had passed, in the case it was stated that the national courts were under a duty to take into account of the directive even when the time for the directive had not passed and the time limit had not expired. Thus the courts took a new approach in respect of indirect effect whereupon the courts of the member states have been placed under and obligation to interpret domestic legislation in line with the directive which has not been implemented. Such an issue clearly undermines the longstanding arguments of primacy of the member states and clearly gives the argument of primacy of EU law over member states an edge paper. Thus the case can be said to be an important judgment in respect of interpretation of indirect effect in the member states. 2)i) The appeal was dismissed. ii) Lloyd-Briden v Worthing College and Centrosteel Srl v Adipol GmbH (iii) Mr. Underhill distinguished between the other two authorities and pointed out that when the complaint was made UK had transposed legislation which was said to have giving effect to the Directive. He further went on say that direct effect was not a matter which was to be concerned and the primary focus was on the domestic legislation. He further went on to state that that it was not logical to consider whether the act had been implemented sooner than required. (iv) The case clearly goes on to portray the fact that the court considered the fact that if the implementation had been done earlier it did not matter as the courts would follow that because if it did not then there would be two different outcomes that is before and after date of expiry. Thus the court reasoned that the interpretation should be as close as possible to the domestic law which had been implemented even before the elapsing of time and this means the indirect effect principle that has been laid down meaning interpretation of domestic law in accordance with directive even before implementation has been partially agreed upon. This is a judgment which tends to tilt its favour towards the understanding and implementation that had been given by the European Courts who have stated that even when the time for the implementation of the directive has not expired there is an obligation on the court to consider the directive and implement it in close line and interpret domestic legislation accordingly. However, it can be argued that in respect of this case the domestic legislation had been implemented and that was the only reason why such an argument in respect of the interpretation in accordance with the directive was made. b)i) The solicitors for the claimant in this case were Mr J Nesbitt (instructed by Ford & Warren) (ii) The driving license in this case was Group 2 driving license (iii) The case was Von Colson and Kamann v Land Nordrhein-Westfalen (iv) The appellant argued that a purposive interpretation should be adopted. It was found that the purposed was to provide minimum requirements for issuing of driving license on road safety grounds and the facilitation of mutually recognized licenses. Thus for such harmony there was minimum standard that was required in respect of physical and mental illness so as to drive different class of vehicles. Further it was stated that since the directive was with consultation of member states it could only be derogated after permission of the Commission and compatibility with medical science. Thus the ordinary meaning was given to normal binocular vision. The court went on to say that the normal meaning would be considered because the court has to decide on an individual case basis where there would be possibility of not having normal binocular vision so even in this situation it is not necessary that normal binocular vision should be given a different meaning. References: Westlaw STEINER, J., WOODS, L., TWIGG-FLESNER, C., & STEINER, J. (2006). EU law. Oxford, Oxford University Press Read More