Advice on Frances Rights under the Law - Essay Example

Advice on Frances’ Rights under the Law A directive adopted on December 1, 2009 by the council had not been implemented by January 1, 2012 by the United Kingdom as stipulated in that directive for all member states of the European Union. This directive reads thus (“From the Instructions”): "Consumers who have purchased goods and services through mail order outlets in any member state shall have the right to withdraw unilaterally from the contract within 15 days of the date of placing the order by giving notice in writing to the supplier. Within 7 days of receiving such a notice, the supplier shall make a full refund of the contract price to the consumer, subject to the deduction of a reasonable amount in order to cover any costs incurred by the supplier for carriage and administration." (“From the Instructions”) The facts of the case are that Frances made the order for the computer system on June 5, 2012, and paid the full amount of £3,000 to Avalon Computers Ltd. Avalon is a mail order firm. The system was delivered three days later, but Frances wished to return the computer system, still in its box and unopened/unused, a week later. She asked to return the system in exchange for a refund via fax, but Avalon said no. The objective of this note is to be able to give Frances advice on her rights under the laws of the European Union, related to her being able to secure the refund from the mail order company Avalon. This note also covers advice on where else, by way of person or body, Frances may be able to get redress for her situation (“From the Instructions”). It is worthwhile, as a prelude to giving advice, to go over the relevant legal literature on the issue at hand. First, the quoted legalese above is in the form of a directive, and it is worthwhile to know the nature of a directive under the European Union laws. Directives are one of three types of legislation in the European Union, with regulations and decisions being the other two. Directives, in essence, are “general rules to be transferred into national law” by member countries as the countries see fit or appropriate to do so. This is opposed to a regulation, which has the force of a national law, with the exception that regulations have the force of being a law applied to all of the member countries. A legal decision, meanwhile, is different from the first two, in that it has specific application to particular organizations or persons (European Commission). The European Commission itself has the compliance and application responsibilities as far as the laws are concerned, for all of the member states. The work includes making sure that the countries infuse into their national laws the laws of the European Union. The Commission is also responsible for monitoring the compliance of member countries towards EU directives as they are timed for implementation (European Commission (b)). One discussion further reinforces the differences between directives, which are binding in general to the member states for their own implementation and translation into the national laws of the country, and regulations, which are generally applicable to all the member states without need for legal translation into the countries’ individual national laws (BBC): Under the process known as "transposition" the directive sets the framework but the practical details of implementation are left for the member states to decide. By contrast, regulations have "general application". That means they are binding on individuals and effectively form part of domestic law as soon as they are made. It is generally only necessary to amend existing national provisions that are inconsistent with regulations, rather than make new legislation altogether. (BBC) It is to be made clear that regardless of whether the UK has complied with the directive or not, the intention is for the UK, being bound by European Union law, is compelled to implement the directive, and that the non-compliance by the date specified does not mean that the UK is off the hook on its legal obligations with the European Union. This flows likewise from the fact that EU law either inspires or directly affects UK laws, with the latter being a derivation in the main of the EU laws. On the other hand, the UK, like all member states, may find directives difficult to translate into national laws, and the implication is that where a country such as the UK has not implemented a directive, it is either in the process of doing so, or finding it difficult to go through the process to reach completion At any rate, the UK as all member states are compelled, under pain of legal action and fines, to implement the directives and translate them into national laws, as is the case with the directive being considered here, on refunds for mail order goods (BBC): European law emerges out of policy areas that are delineated differently to those described by departmental portfolios at domestic level. The UK government has to comprehensively consult stakeholders and consider which areas of law might be affected. A balance has to be struck between giving effect to the European legislation and maintaining the effect of pre-existing national legislation where possible. (BBC). The next question is, given that the deadline has lapsed, is the UK compelled to enforce the expected outcome of the law, here in the form of a directive? The definitions and the enforcement power of the law as reflected below give us some guidance (European Commission (c); “The legal system of the European Union”): Directives are legislative instruments which reconcile the dual objective of both securing the necessary uniformity of Community law and respecting the diversity of national traditions and structures. Directives are binding on Member States as to the result to be achieved but leave it to the respective national authorities to decide how the Community objective set out in the directive is to be incorporated into their domestic legal systems before a specified date. A directive does not acquire legal force and effect until the date for implementation of the directive has expired (European Commission (c)). On the other hand, the consensus is that there are failures in transposition, or the translation of EU directives into national laws, some through no fault of the countries, and some as a form of explicit protest through this indirect means of not translating the EU directives into country laws. There is literature that discusses also the limits of what the Commission can do in terms of enforcing the directives. These limits are by way of the Commission being unable, in process as well as because of the sheer logistics of the necessary enforcement processes, to police the correctness of the transposition of the directives into the local laws. The Commission instead has been shown to focus on the way countries fail at notification, under the processes approved to be followed in the wake of the approval of EU directives for implementation. There is some vagueness therefore with regard to whether the UK, by not translating the directive into a national law and failing to meet the deadline for the transposition, is bound to honor the substance of the directive being considered here, relating to the refunds for mail order products, or not. From the literature considered here, it seems that Avalon may be able to argue that the directive does not have the power of law in the UK, given that the UK has failed to honor the deadline for the directive’s implementation and has failed to translate the directive into a UK national law. On the other end, the conclusion from several studies point to the limited powers and capacity of the Commission, because of the sheer amount of work necessary, to police the member states for compliance with the directives, and for the general inadequacy of current systems for ensuring compliance. Moreover, some countries almost routinely ignore the implementation of directives and get away with it, while some are unable to properly transpose directives into laws once in a while. The view from the ground further makes it unlikely for any case against Avalon to thrive, given the lack of an enforcing counterpart national law to the directive, and the difficulty of tracking compliance and the inadequacy of the Commission to enforce compliance and process complaints (Hartlapp 1-2; Falkner et al. 1-4; European University Institute). Meanwhile, that the fines for non-compliance are so small, and that given that states who do not comply with the EU directives can exist without any form of punishment at all for the first ten-years of non-compliance, further add to the factors that go against the UK acting in the short term to comply with the EU directive here considered, and for Frances to get relief under that piece of directive in the UK courts (Nicolaides and Suren; European Commission (d)). On the other hand, precedence exists where directives are able to be enforced in the courts as having the effect of influencing the interpretation of the laws to follow the spirit if not the exact letter of the directives. These sets of precedence can be grounds for Frances to be able to sue Avalon under existing UK laws, to be able to get her refund. Put another way, precedence exists where the EU courts have ruled that directives have the force of guiding the interpretation of the national laws existing, and of guiding the decisions relating to disputes involving the letter of the directives themselves (Eurofound): Additionally, invoking the need to achieve effectiveness of EU law (effet utile), the European Court has decided that individuals may make claims in national courts for rights provided in directives under certain conditions: where the individual rights specified in the directive are clear, precise and unconditional, and the right is being violated by the state or an emanation of the state (vertical direct effect)…However, the Court has refused to extend the direct effect of directives to allow for claims by individuals against other private individuals, including private employers (horizontal direct effect). (Eurofound) In the passage above, the precedent decisions on the interpretation of the national laws to align themselves with existing directives of the EU council has the caveat that they do not apply to compelling private entities to be liable under the law, but there are other legal principles that have been applied that essentially achieve the same objectives and give private individuals whose rights are protected by certain directives to get justice under the law (Eurofound): The European Court’s doctrine of indirect effect achieves indirectly, through the technique of judicial interpretation of domestic law, the result obtainable through the doctrine of direct effect: national courts are required to interpret their national law so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result required by the directive…The principle of state responsibility has potentially far-reaching implications for the enforcement of EU…law. If an individual has a definable interest protected by the directive, failure by the state to act to protect that interest may lead to state liability, where the individual suffers damage, provided causation can be demonstrated. (Eurofound) The literature provides a wealth of case law that reflects the power of the EU laws to supersede national laws where the EU laws, in the form of directives for instance, have the clout to protect the rights of citizens in some cases, as in the case of labor law disputes, which can be extended to other disputes where other rights of citizens are involved. Precedent cases include G. Defrenne v. Sabena Case 43/75 (1976) ECR 455. This case relates to the protection of the rights of women for equal pay with men. In this case an existing EU directive was used as guidance for interpreting local laws so that they in effect follow the letter of the EU directive. Meanwhile, there is precedent as well with regard to making sure that the states interpret the laws of their countries so that they are in line with existing directives. This is the case in Von Colson and Kamann v. Land Nordhein-Westfalen, Case 14/83, (1984) ECR 1891. In the present directive being considered in this case, the issue at hand is the protection of the rights of consumers where the mode of consumption is via the mail order system. The doctrine of supremacy of the laws of the EU over the laws of the member states has given rise to the possibility that Frances can set precedent with regard to getting a refund from Avalon, by citing the way the directive at hand can be used to make a case against Avalon, even in the absence of the transposition that is required of the UK by the EU Council under the directive (Eurofound; Eurofound (b)). On balance, therefore, there is some ambiguity with regard to Frances being able to run to the law and to cite the existence of an EU directive on the refunds for mail order goods in order to get her refund for returning the system she purchased from Avalon. Technically, her case fits exactly with the letter of the EU directive in question. On the other hand, from the preceding discussion, since the UK has not transposed the directive into a UK law, and given that the difficult environment for the enforcement of the directive within the European Commission itself, enforcement is problematic and Frances may fail to get her justice via this route. The discussion is convoluted but its import for Frances is pretty straightforward. Avalon can point to the fact that the directive does not have the power of law, and cannot be used against them to compel them to return the money used to purchase the system back to Frances. On the other hand, in other areas of the law, the courts of justice have ruled that where directives are explicit about what rights are being protected or rules enforced, with no room for ambiguities as to their interpretation, then the national courts are compelled to interpret any existing pertinent national laws so that those interpretations are essentially consonant with what the directives want to achieve. In other words, in the case of Frances, though the directive does not have the force of law, in the absence of an enabling translated local law for the UK, Frances can turn to the courts to try and get justice. The courts can weigh the merits of the case and make a ruling that can be in line with precedent in other areas of the law, such as in the labor laws that were discussed earlier in this note. That precedent, as discussed above, is directives, when they grant citizens certain rights, can be used as guides in the interpretation of national laws, and in deciding cases, so that the general and specific aims of the directives, the substance of them, are enforced and honored (Eurofound; Nicolaides and Suren; European Commission (d); Hartlapp 1-2; Falkner et al. 1-4; European University Institute). II. Advice If Legislation Was Introduced Not as a Directive But By Means of a Regulation If the legislation introduced in the EU Council and approved was via a regulation rather than a directive, then of course the rules are different, and this note is different also in the way it is able to give appropriate advice to Frances as to her rights under EU law for the case at hand. As has been discussed earlier, regulations differ from directives in that regulations have the force of country laws, but are universally applicable to all countries who are members of the EU, without the need for transposition or the crafting of equivalent national laws country by country (European Commission): Regulations are legislative instruments of general application. They apply to abstract rather than individual situations. For example, many regulations apply to operators in the agricultural sector. Regulations are binding in their entirety. This means that a Member State has no power to apply regulations incompletely or to apply only those provisions of which it approves. Regulations are also directly applicable. This means that regulations do not need to be transposed into national law by the respective Member States in order to take effect. (European Commission (c)). As can be gleaned from the discussion above, regulations have direct application, and do not need to be translated by the member states in any way. They also have to be enforced in their entirety, rather than piecemeal, meaning that the exact letter of the law has to be adhered to. In the current case, therefore, the letter of the directive is clear. Within the prescribed time period, the buyer can make a written request for a refund and for the rescinding of the purchase contract, and the seller has to give the refund, minus the expenses tied to processing the refund and taking back the good. Avalon fits into the description of a mail order company offering a mail order good. The time within which Frances communicated her desire for a refund is within the 15 day period prescribed in the directive. Moreover, the fax communication by which Frances expressed her desire to reverse the purchase transaction and ask for a refund qualifies as the written communication prescribed in law. That the good has not been opened or used does not even seem to be a material aspect of the case at hand, as the directive does not mention it as a prerequisite for the granting of the refund. If the legislation was passed as a regulation, in other words, the legislation has the force of a national law, which the UK then has to honor as part of its own laws. This would be a clear-cut case for Frances without any ambiguities at all, and she would be entitled to the refund. If Avalon refuses still to grant that refund, then Avalon would be deemed in violation of the national laws of the UK, and would be punished and meted penalties as appropriate by the UK justice system (European Commission; European Commission (c)). III. Steps to be Taken to Make Sure the United Kingdom Implements It, by the Appropriate Implementing Party The European Commission is the primary party for enforcing the implementation of the directive in this case, as is the case for all directives issued by the EU council. Technically though, it is the UK, as the nation to which the directive is directly binding, that has the responsibility for transposing the directive into the UK legal system, as part of the national laws. The European Commission is the enforcing party that polices compliance, and institutes legal action in order to ensure that the UK complies with the directive’s implementation within the country, within the deadline tied to the directive’s issuance (European University Institute). The steps are in the form of proceedings for infringements made by countries on the countries’ commitments under the EU Treaty. Taking a step back, there are five types of such infringements. These are the following: Provisions, Decisions and Regulations of the Treaty being violated; Directives not being subjected to transposition; directives implementation that is not correct; improperly applied directives; and European Court of Justice or ECJ judgments that are not complied with (European University Institute). On the other hand, there are six stages to the proceedings that the European Commission has recourse to in order to make sure that the UK implements the directive in this case, and any directive for that matter. These proceedings are embodied in the so-called EC Treaty, in particular in Article 226 of that Treaty, ex-Article 169. The first stage is suspected infringement, for country violations of so-called Community Law. This applies to the current case, where for instance the UK fails to communicate to the European Commission that it has properly undertaken the transposition of the directive into UK law. This can also be triggered by interested Community parties, such as NGO’s, companies, and individual citizens filing complaints before the Commissions, as well as by petitions to the EU Parliament (European University Institute). The second stage is called formally as “Formal Letter of Notice”. This is a formal communication from the Commission to the country involved to basically engage that country in a discussion, with the country being invited to send in its observations. This stage prepares both parties for progression through the other stages of the proceedings: reasoned opinion; referring the matter to the ECJ; the ECJ passing judgment; and proceedings after the litigation (European University Institute). Works Cited BBC. “Q&A: How UK adopts EU laws”. BBC News. 2009. Web. 15 January 2013. Eurofound. “Directives”. Eurofound.europa.eu. 2011. Web. 15 January 2013. Eurofound (b). “Supremacy of EU Law”. Eurofound.europa.eu. 2011. Web. 15 January 2013. European Commission. “Legislation”. European Commission. 2012. Web. 15 January 2013. . European Commission (b). “Application of EU Law”. European Commission. 2012. Web. 15 January 2013. . European Commission (c). “Sources of EU Law”. European Commission Representation in Ireland. 2012. Web. 15 January 2013. . European Commission (d). “Guide to the implementation of directives based on the New Approach and the Global Approach”. ec.europa.eu. 2000. Web. 15 January 2013. < http://ec.europa.eu/enterprise/policies/single-market-goods/files/blue-guide/guidepublic_en.pdf>. European University Institute. “EU Infringement Proceedings”. Robert Schuman Centre for Advanced Studies. 2013. Web. 15 January 2013. Falkner, Gerda et al. “Non-Compliance with EU Directives in the Member States: Opposition Through the Backdoor?” West European Politics 27 (3)/ wzb.eu. 2004. Web. 15 January 2013. From the Instructions”. Hartlapp, Miriam. “(Non-) Compliance, EU Commission, Enforcement and Differing National Responses”. Social Science Research Center Berlin. April 2005. Web. 15 January 2013. Nicolaides, Phedon and Anne-Marie Suren. “The Rule of Law in the EU: What the Numbers Say”. EIPASCOPE. 2007. Web. 15 January 2013. “The legal system of the European Union”. Europedia. 2011. Web. 15 January 2013. Read More