European Union Law: Problem Question - Case Study Example

European Union Law - Problem Question According to the Directive 2008/48, Member s should adopt measures to prevent the private use of carbon based fuels. The UK government, while adopting this Directive, by means of Statutory Instrument SI /1432/09 of 15th January 2009, had authorised private energy providers to supply commercial energy, using renewable and non - renewable energy sources. If the provisions of the Directive are ambiguous or less precise, conditional and its implementation requires the action of the state, then the principle of indirect effect makes them effective. Secondly, the provisions of a Directive can be enforced against private parties indirectly. In this case the defendant must not be a state entity. The requirements of Directives can be applied horizontally between two private parties1. The UK instrument requires commercial providers of fossil based fuels to limit their quantity to 50% of their total output. On the other hand, the Directive limits this to just 40%. This In addition, this statute permits the use of candles and other fossil based fuels, without any restriction; whereas the Directive clearly specifies that these fuels are to be used, only for religious and cultural ceremonial rituals. Member States have to implement Treaty provisions, without fail. They have to incorporate the EC law in their national legislation, and they have to adopt and implement the EU law appropriately. In the event of failure by a Member State, in this regard, the EU will approach the ECJ to initiate necessary action against the Member State. National governmental entities, private or public utility organisations and firms must invariably apply EC law provisions at the national level. Since, the context, purpose and content of the Directive have been comprehended, the extent to which the UK Government had implemented its provisions, has to be examined. All the same, this Directive is significant, because it recommends the least intrusive method for achieving its objective. It is rendered effective, if its purpose, namely the use of renewable energy is achieved. This Directive aims to deter dependence on carbon based fuels. Article 249 of the Treaty, specifies that Directives are binding upon Member States. The form and methods to be employed in achieving a Directive's objectives is left to the discretion of the national authorities2. Member States are obliged to pay compensation to individuals if the latter incur loss due to the non - implementation of Directives. In the case of Francovich and Others v Italy, the ECJ held that in order to make a Member State liable for such damages, three conditions have to be fulfilled3. First, the Directive must be intended to provide rights to individuals. Second, it must contain the description and scope of the rights that it intends to provide. Third, the Member State must have failed to implement the Directive and such failure must have caused the damage to the individual4. Individuals can insist on the enforcement of a Directive. This applies even though the Directive has a horizontal direct effect limitation, which hinders its enforcement. In Francovich, the ECJ had established this principle. It also held that Member States will have to pay compensation for damages or losses to individuals under the concept of state liability, if they failed to implement a Directive5. The ECJ had further extended the scope of this decision in the subsequent joint cases of Brasserie de P'cheur6 and R v Secretary of State for Transport, ex parte Factortame (No. 4)7. The ECJ held that individuals who sustained loss could demand compensation from the Member State if it failed to implement the EC Law. This also applies if the Member States had violated the provisions of EC Law. If an individual sustained a loss or damage due to the incorrect or non - implementation of EC law provisions by a Member State, then that individual can sue against the state in the national court and seek compensation for such damage. Moreover, individuals can invoke the provisions of EC law before their national courts, in order to seek redressal. The Van Gend en Loos v Nederlandse Administratie der Belastingen case was the first such case. In that case, the plaintiff, a Dutch company sued the Dutch customs authorities in a Dutch court by invoking the provision of the EC law to obtain compensation for damages8. The national court referred the case to the ECJ for an interpretation, in this regard. Moreover, the Dutch government argued that mere infringement of the EC law provisions did not enable individuals to seek damages. The ECJ ruled that the new legal system of the Treaty confers rights on individuals and held that the Dutch government had infringed the provisions of Article 25 EC, which prevents Member States from imposing new customs duty on imports and exports9. Since the UK had not implemented this Directive properly, POKE can prefer claims against Northern Lights under the principle of indirect effect. Northern Lights is a private entity, hence POKE cannot prefer claims under the vertical direct effect. It can proceed only under indirect effect or horizontal direct effect. The European Court of Justice (ECJ), by means of its case law, has clarified that Article 141 EC disallows discrimination on the basis of gender. Such discrimination could be gender specific or direct; or indirect that is based on aspects that despite seeming to be unrelated to gender prove to be disadvantageous to a particular sexual category10. Indirect discrimination assumes great significance, because employers generally employ it and attempt to vindicate their actions by relying on factors that ostensibly seem to be objective11. In Bilka Kaufhaus GmbH v Weber von Harz, the ECJ held that indirect discrimination is objectively justified12. In our case, Audrey was paid a lower salary than her male colleagues. The employer's justified this by stating that they had to incur additional expenditure, on account of insurance and other facilities, to be made available, solely to her at the workplace. This permits Northern Lights to pay Audrey a lesser amount. Audrey was paid a lower salary than her male colleagues. The employer's justified this by stating that they had to incur additional expenditure, on account of insurance and other facilities, to be made available, solely to her at the workplace. This permits Northern Lights to pay Audrey a lesser amount. As such, Audrey cannot make a claim of gender discrimination. In order to ensure the enforceability of council Directives, the ECJ extended the scope of definition of state. In Marshall, the ECJ held that individuals can rely on the rights provided by Directives. In a similar fashion, individuals can bring legal action against health authorities under the rights established by the Directives. The reasoning behind this is that a health authority is an organ of the state13. As per the ruling in Bilka Kaufhaus GmbH v Weber von Harz, wherein the ECJ held that indirect discrimination is objectively justified14; Northern Lights will not be liable for gender discrimination, in respect of the lesser salary paid to Audrey. This is on account of the fact that Northern Lights had provided exclusive insurance and facilities to Audrey, at the work place. The POKE was distressed by the use of incinerators by Northern Lights and attempted to prevent it from doing so. It is incorrect to contend that POKE cannot initiate legal action Northern Lights, on the grounds that the UK had not implemented Directive 2008/48. A Member State is liable for non - implementation of a Directive, according to the decision in Brasserie and Factortame cases15. Directives have direct effect and they have to be incorporated into national legislation. With R v H.M. Treasury, individuals can claim damages incurred due to non - implementation or inappropriate implementation of a Directive16. In Von Colson, the Court developed the novel concept of indirect effect. This principle ensures effectiveness and enforceability of Directives even though they had not been implemented by Member States. It also enhances the effectiveness of the Directives if they had been improperly implemented17. Consequently, POKE can sue the UK government under vertical direct effect for non implementation of the Directive. POKE had entered into an agreement to import bio degradable briquettes from Moldova. A licence to this effect had been procured by it from the UK authorities. Subsequently, the Commission took a decision prohibiting the importation of such fuel. Since, the Court of First Instance constitutes the supreme court of the EU; POKE can approach it for redressal the Commission's decision that would result in a loss to it. In International Fruit Co v Commission, the ECJ held that the Regulation in question had been addressed to a specific class of persons. Therefore, it can be challenged by an individual or legal entity that pertained to that specific class, under Article 230 EC18. Furthermore, POKE had written a letter of complaint to the Commission, regarding the non - implementation of its Directive by the UK government. The Commission in turn will issue a letter of formal notice to the UK and a reasoned opinion that an infringement had occurred, which is to be rectified within some specified time. If there is no reply to the reasoned opinion, then the Commission may place the matter before the ECJ19. Since the Commission's decision would have resulted in substantial loss to POKE, which had ordered briquettes from Moldavia, prior to the prohibition by the Commission, it can make a claim for redressal against the Commission. List of References Case C-170/84 Bilka Kaufhaus GmbH v Weber von Harz [1986] Case 152/84 Marshall v Southampton & South West Area Health Authority [1986] ECR 723 Case 14/83 Von Colson v Land Nordrhein- Westfalen (1984) ECR 295 Case C-106/89 Marleasing (1990) ECR I-4135 Case C-91/92, Paola Faccini Dori v Recreb Srl [1994] ECR I-3325 C-6/90 and C-9/90 Francovich and Others v Italy (1991) ECR I-5357 Case C-48/93 Royal v Secretary of State for Transport, ex parte Factortame Ltd and Others ECR I-1029; (1996). 1 CMLR 889 Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, [1963] ECR 1 International Fruit Co v Commission (1971) ECR 411 Joined Cases C-46/93 & C-48/93 Brasserie du P'cheur and Factortame III [1996] ECR I-1029; [1996] 1 C.M.L.R. 889 R v H.M. Treasury, ex parte British Telecommunications plc (1996) ECJ I-1632 436 The EU Single Market. Infringements. Retrieved from http://ec.europa.eu/internal_market/infringements/index_en.htm on May 9, 2009 Read More