'Enforcing Community Law Rights Before National Courts - Case Study Example

Mandy had been employed since May 2004, as a secretary, at the of West Mercia. For the past six months she had been suffering from a pain in her right hand, and had lost a considerable degree of mobility in her wrist and hand. A medical specialist informed her that this injury had been caused by the constant use of word processing equipment at work. Mandy's union representative advised her that she could rely upon the Health and Safety in Offices Directive, which covered injuries sustained in that kind of working environment. This Directive was passed in October 2002, requiring member states to implement it by December 2003 at the latest. The United Kingdom had not implemented this Directive by the required date but the Minister of Health, had issued a statement in the House of Commons to the effect that the United Kingdom's existing legislation, in respect of occupational injuries was fully compliant with this Directive. However, the legislation provides a remedy only to those employees who had been working, for the same employer for at least three years. The Health and Safety Regulations 19921 states that a business employing staff who have to work on computers for a long time, is duty bound to, first, assess and reduce risks. Some of these risks are aches and pains in the upper limbs, known as repetitive strain injury or RSI and headaches and stress. In order to mitigate the deleterious effect of this type of work, it is imperative that a correct posture has to be adopted for computer use and persons working on computers have to take regular breaks from looking at the screen. Further, it has to be ensured that workstations meet the minimum requirements, namely the provision of adjustable chairs and non-glare lighting. This also includes the general work environment issues such as congestion in the office. Commensurate with the intensity of the work, recesses from work have to be planned and implemented. During these breaks, employees should be permitted to stop using the computer. Such employers have to provide either free or reimbursable ophthalmologic tests to their employees. If special spectacles are prescribed for use while doing the job, then the employer must pay for such spectacles. In addition to this employers have to provide health and safety information and training to their employees, who should know how to use their workstations correctly.2 The EEC Treaty - Article 118a states that the Member States should pay particular attention to encouraging improvements. This is to be especially enforced in the working environment giving special emphasis to the health and safety of workers. Further, the Member States' objective should be the harmonization of conditions, with due attention being given to maintaining the improvements already made. In order to help achieve this objective the Council, acting by a qualified majority on a proposal from the Commission, in cooperation with the European Parliament and after consulting the Economic and Social Committee, should adopt, by means of directives, minimum requirements for gradual implementation, taking into consideration the conditions and technical rules obtaining in each of the Member States. The provisions adopted pursuant to this Article should not prevent any Member State from maintaining or introducing more stringent measures, which are formulated for the express purpose of protecting the working conditions of workers, compatible with this Treaty. Employees on fixed term contracts should be treated as favorably as permanent workers are. There are two sets of regulations required to implement the EC Fixed Term Work Directive 1999/70/EC (the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002). The basic idea of the new fixed term work regulations is to make it unlawful to treat a fixed-term employee less favourably than a comparable non-fixed term employee engaged in similar work (subject to a defense of objective justification). Several other related issues are also covered, notably automatic conversion of fixed term contracts to contracts of indefinite length after four years; removal of the current ability for an employee to agree that he will not claim statutory redundancy pay on expiry of a fixed term; and making the completion of a task contract count as dismissal for unfair dismissal purposes. The basic idea of the new part time work regulations is to ensure that it is not possible for an employer to "escape" from the fixed term work regulations by employing fixed term workers on a part time basis.3 Health and safety has been given wide prominence in the EU context. It encompasses not only the avoidance of accidents and prevention of disease but also all aspects of the worker's well-being. The competence of the EU to intervene in the field of health and safety at work is defined by the provision in Article 137(1) EC, which authorises the Council to adopt, by means of directives, minimum requirements as regards 'improvement in particular of the working environment to protect workers' health and safety' (Single European Act 1986). The significance of this very broad scope of 'health and safety' is immense, as it underpins the potential of EU health and safety policy to prescribe minimum standards to protect all aspects of the worker's well-being. The adoption of the Single European Act 1986 gave new impetus to the occupational health and safety measures taken by the Community. Article 118A allowed the Council of Ministers to adopt directives intended to protect workers' health and safety at work. Of significant importance to the level of protection in Member States is that directives adopted under Article 118A lay down minimum requirements concerning health and safety at work. Accordingly, the Member States must raise their level of protection if they are lower than the minimum requirements set by the directives and the provisions adopted do not prevent any Member State from maintaining or introducing more stringent measures for the protection of working conditions. The area of health and safety at work has been an area of intense activity on the part of the EU and approximately two-thirds of all social policy directives are in this field. As a natural corollary to this further six sub-directives, came into effect by 1 January 1993. Since then, EC law has produced a large number of further directives, which have increasingly dominated the field of health and safety at work, covering conditions in the workplace, requirements as to work equipment and exposure to dangerous substances (chemical, physical and biological agents). In order to monitor the safety of workers at their work place the European Agency for Safety and Health at Work has been created, and the Commission has made increasing use of its powers to coerce Member States towards better implementation. The Senior Labour Inspectors' Committee (SLIC) was established in 1995 to 'give its opinion to the Commission, either at the Commission's request or on its own initiative, on all problems relating to the enforcement by the Member States of Community law on health and safety at work'. Failure by Member States to comply with the EC law on health and safety allows the Commission to complain of such violations to the European Court of Justice (ECJ) under Article 226 EC. The general framework directive establishes the principle of employee involvement in the enforcement of health and safety, but does not deal with other aspects of enforcement, such as the role of civil (employers' liability) or criminal liabilities.4 The remedy available to Ms Mandy is that, she can initially approach the national court for redressal, for injustice done to her due to the violation of EU regulations. In the remote instance of the national court not ruling in her favour, she can approach the European Court of Justice. As an individual, she can proceed against the state in the ECJ, and this constitutes the principle of vertical direct effect in EC Law. This is applicable in case the employer is the Public Sector or the Government. If it is assumed that she is working for a private concern, then she has to approach the National Courts of UK for redressal. The fact that the EC Treaty provides for other means enforcement of EC law was made clear by the ECJ in the famous Van Gend en Loos case, which established the principle that allows private individuals to bring actions before their national judges based on Community law. Community law relies heavily on national laws of Member States for its enforcement. By virtue of Art 234, individuals are able to invoke Community law and urge a national court to certify the question of whether and how Community law should be applied to the ECJ. The direct effect on EC law is surely the most important and also the most effective possibility in order for individuals to enforce EC law. Moreover, article 10 of this Universal Declaration of Human Rights Charter grants everyone with the right to a full, impartial and public hearing by an independent and impartial tribunal. In the event of her not securing justice in the national courts she can approach the Human Rights Commission for redressal of her grievance. In addition, she can file a case with the European Court of Justice (ECJ) under Article 226 EC. The term Directly Applicable means that the UK Parliament need not make further legislation to make such a law applicable. Regulations are Directly Applicable and are therefore automatically the law of UK. On the other hand the Direct Effect of a Directive implies that a provision can create rights and individuals can rely upon such created rights in the local courts of their country. In other words when a Directive is Directly Applicable, then no further legislation has to be passed and the Directive is by itself the law. On the other hand if the Directive has Direct Effect, further legislation has to be passed in order to make its provisions rights.5 There has been a gradual decline in the power of the legislature and executive to the benefit of the judiciary in the UK, due to the precedent set by cases concerning EU law and the relevant ECJ rulings. Judicial activism has increased to the extent that judges are literally overruling ministerial decisions and challenging Crown Immunity. The effect of EU law has been that it granted the right to the judiciary to quash Acts of Parliament differing from EU law. The European law supersedes UK law and it is a statutory requirement to enforce EU law over UK law and the ECJ is now the highest level of the UK legal system.6 The EU has a unique, complex and highly developed system of law. This law takes precedence over the national laws of its Member States. It has three sources, first, primary legislation or the treaties some of these are The ECSC Treaty of 1951 or the Treaty of Paris, The EEC Treaty of 1957 or the Treaty of Rome, the EURATOM Treaty of 1957, etc; second, secondary legislation which consists of regulations, directives, decisions, recommendations and opinions of the Union's institutions and third, decisions of the ECJ and the Court of First Instance.7 The 1957 Treaty of Rome forms the basis of many of the principles of the European Law. The four main divisions through which the EU functions are: The Council (of Ministers), The Commission, The European Parliament and The European Court of Justice. A very recent development has been the December 2005, meeting of EU leaders at the Royal Palace in Laeken, Belgium wherein plans to make the EU the new superpower were unfolded. The EU represents around 400 million people in 15 countries with a common president, legal system, central bank, bill of rights and so on. A major proposal at this meeting was to empower the EU's legal code by authorizing the issuance of union - wide arrest warrants. The effect on the EU citizens will be like in respect of the British Citizens who "can be seized and handed over to an EU country to face trial, even if they have done nothing wrong under British laws." In principle, an Englishman could be arrested and prosecuted for offences against Turkish law, causing many a Crusader including Richard the Lionhearted to turn in their graves. The power and influence of the EU can be gauged form the fact that this EU - wide arrest warrant system was approved just after its parliament resolved not to extradite suspected terrorists to the Unites States, until and unless the US Administration changed its stance on capital punishment and trial by military tribunals.8 Bibliography. Allott P., "'Parliamentary Sovereignty--From Austin to Hart'", ( 1990) 49 Cambridge LJ 377. Bell A., "'Enforcing Community Law Rights Before National Courts--Some Developments'", ( 1994) 1 Legal Issues of European Integration111. Berger D., and Bernstein R., "'An Analytical Framework for Antitrust Standing'", ( 1977) 86 Yale LJ809. Blair R. D., and Page W. H., "'Speculative Antitrust Damages'", ( 1995) 70 Wash. L Rev. 423. Borrie G. "UK Antitrust Law and Policy: A Retrospective", (1993) 19 Fordham Corp. L Inst. 331 ( G.Hawk, ed.). Read More