Contemporary Developments in EC Law - Case Study Example

Part A The facts of the dispute are that , Sonja a sixteen year old girl, working as a temporary farm labourer sustained sunburn injuries requiring hospitalization in 2005. One is assuming that EC has adopted a fictitious Directive on Ultraviolet Radiation Protection at Work. This Directive requires the supply of adequate protective gear to people working outdoors. Sonja contends that she had not been provided with any such protective gear and that this was the cause of her having sustained serious sunburn injuries. Inter alia the Finnish Farm Labourers Union had with Governmental approval, formulated an independent arbitration scheme, which was empowered to settle disputes vis--vis pay and working conditions. The arbitrator's decision in such matters was held to be legally binding without providing the right of appeal. 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. (Employment Law, 28th April 2004 ). From the foregoing, it is evident that Sonja though a non-fixed term employee, has the rights that the regular workers have. We arrive at this conclusion based on the EC Fixed Term Work Directive 1999/70/EC, which states that the treatment meted out to non-fixed term and fixed term employees should be the same. When such is, the case Sonja should have been provided with protective gear. Since, she was not provided with protective gear, at least her hospitalization bills should have been paid in full. Since the questions of Sonja's rights are settled unequivocally, it remains to consider as to how Sonja is to gain redressal for her grievance. In this regard, the recent developments in the EC Law are next enumerated, 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. (Health and Safety, 30th November 2005). Further, the law of the EC is that children and adolescents must be considered specific risk groups, and measures must be taken with regard to their safety and health. In view of the nature of the transition from childhood to adult life, work by adolescents should be strictly regulated and protected and every employer should guarantee young people working conditions appropriate to their age. In addition to this, employers should implement the measures necessary to protect the safety and health of young people on the basis on an assessment of work-related hazards to the young and very pertinently, Member States should protect young people against any specific risks arising from their lack of experience, absence of awareness of existing or potential risks, or from their immaturity. (COUNCIL DIRECTIVE 94/33/EC of 22 June 1994 on the protection of young people at work, Official Journal L 216 , 20/08/1994 P. 0012 - 0020 (ES, DA, DE, EL, EN, FR, IT, NL, PT) Finnish special edition: Chapter 5 Volume 6 P. 0138). From the foregoing it is evident that the management had not taken proper precautions at the workplace for ensuring the safety of the adolescent girl Sonja and the E C law is very clear in its directives that young people have to be afforded more protection than adults. The management instead of doing this has crassly stated that Sonja being a non-fixed term employee had no rights and further that she was not entitled to any compensation for injuries sustained while working for this management, and what is worse the arbitrator denied her the right to appeal against his judgement. Even though she is not a permanent employee of that organization or a member of the farm labourers union, it must not be lost sight of that she is a human being. Further, she is a 16-year-old girl. The organization should have taken proper precautions to protect her at the workplace. Article 3 of the Universal Declaration of Human Rights states that everyone has the right to life, liberty and security of person. The organization by not implementing proper safety measures to protect her life and person have violated this fundamental right granted by the United Nations Charter, 1948. 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. Since, the arbitrator has precluded her from approaching a court of justice; 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. Part B. Keck and Mithouard were prosecuted in France for selling imported beer and coffee at a loss as French law prohibits such sales. However, the very same law does not ban sale at a loss by manufacturers. Keck and Mithouard argued that this law was contrary to the Community law concerning free movement of goods, persons, services and capital and the principles of free competition within the Community. The case was referred to the ECJ in June 1991 by the Tribunal de Grande Instance, Strasbourg. The national court referred two questions to the ECJ. Whether, the prohibition in France of resale at a loss under Article 32 of Order 86-1243 of 1st December 1986 was compatible with the principles of the free movement of goods, services and capital, free competition in the Common Market. Moreover, whether this was in consonance with non-discrimination on grounds of nationality laid down in the Treaty of the 25th March 1957 establishing the EEC, and more particularly of Articles 3 and 7 thereof. Since, the French legislation was liable to distort competition because first, it makes only resale at a loss an offence, exempts the manufacturer from such resale, and secondly, in that it distorts competition, especially in frontier zones between the various traders based on their nationality and place of establishment. As is evident the questions were not articulated clearly and precisely but the ECJ considered them all the same. Conceding that the purpose of the prohibition was to ensure fairness of commercial transaction it was evident that it could impede imports in two particular ways, first, by prohibiting resale at loss a technique used when launching new products and secondly, because an importer might be in competition with French manufacturers who can sell directly on the market. The Advocate General in had opined in the first Sunday trading case that the ECJ should adopt a more reserved approach towards national rules not intended to regulate intra-Community trade, by declaring Article 28 applicable to rules of the type which had the effect of screening or partitioning the market. The ECJ did not accept this contention, so he assumed that in this case the Court would adhere to the broad Dassonville-formula. Then he stated that the ECJ owed a duty to the national courts to state this clearly in order to avoid confusion. (Keck and Mithouard, Bjrn orvaldsson, Faculty of Law, Lund University, 2002). In this case, Keck and Mithouard claimed that the French law was contrary to Article 30(now 28). The ECJ held that by virtue of Article 30, quantitative restrictions and all measures having equivalent effect were prohibited between Member States. The Court had consistently held that any measure capable of directly or indirectly, actually or potentially, hindering intra-Community trade constituted a measure having equivalent effect on quantitative restriction. In view of the increasing tendency of traders to invoke Article 30(now 28) of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States, the Court considered it necessary to re-examine and clarify its case law on this matter. Accordingly, the reply to the national court is that Article 30 of the EEC Treaty is to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss. (Thailand Law Source, 15th January 2006). In the Oberkriesdirecktor Des Dreises v. Handelsonderneming Moorman case, the Federal Republic of Germany maintained its legislation providing for systematic inspection of particular goods passing its border. The ECJ held that where the Community directives provide the harmonization of measures necessary to ensure the protection of animal an human health, recourse to Article 36(now 30) on the protection of health and life of humans animals or plants grounds, is no longer justified. Therefore, Germany legislation violated Article 30(now 28) and could not be justified by Article 36(now 30). This illustrates the fact that with the increasing harmonization of the law within the Community, there is corresponding reduction in trade restrictions under Article 30(formerly 36). Therefore, the harmonization of the laws will be one of the best ways to break down the technical barriers because with the harmonization of laws, the Member States would no longer be able to justify such legislation. In German Beer case, Commission v. Germany, German law required that the word Bier could only be used for beer produced from malted barley, hops, yeast and water. In other Member States, beer was produced from rice and cereals with some additives. The Commission challenged the German law as being violative of Article 30(now 28). Germany argued that they had consumer protection in mind, as these additives were dangerous. The ECJ held that the compulsory affixing of suitable labels giving the nature of the product sold would enable the consumer to make his choice with full knowledge of the facts and would guarantee transparency in trading and in offers to the public. Consequently, the German law prohibiting the import of beer was contrary to the principle of proportionality and was therefore not covered by the exception provided for in Article 36(now 30) of the EEC Treaty. Similarly, in German Sausages case, Commission v. Germany, German law prohibited the sale of sausages containing prohibiting additives in Germany. This law applied to both German products and products from other EC Member States, even though, the additives were not prohibited by the law of origin in Member State.The ECJ held that the ban was an unlawful restriction under Article 28(formerly 30) and could not justified under the rule of reason because consumers could be adequately protected by means of proper labelling of these products. The above cases indicate that there two essential principles for the proper functioning of the EEC Treaty. The first principle is that of equivalence, which states that the harmonization of the law in all the member states ensures free movement of goods. The second is that of the Rule of Reason, which states that in the absence of Community legislation, free movement of goods can be curtailed if such actions are necessary to satisfy mandatory requirements relating to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. Thus, it is evident that after the landmark judgement in the case of Keck and Mithouard, free movement of goods in as much as the interests of the individual member countries and their consumers are not affected has become the order of the day and we can conclude that there is a proper balance between state responsibilities and the free movement of goods under article 28 of the EC Treaty. This is because the principle of equivalence is operative here. According to this principle there should be harmonization of law between the member states. If there is such a harmonization of law then there will perforce be effective free flow of goods between them. Sources. The EEC Treaty - Article 118a Employment Law,28th April 2004, http://www.hrmgt.co.uk/law Health and Safety http://www.eurofound.eu.int/ areas/ industrialrelations/ dictionary/ definitions/ HEALTHANDSAFETY COUNCIL DIRECTIVE 94/33/EC of 22 June 1994 on the protection of young people at work, Official Journal L 216, 20/08/1994 P. 0012 - 0020 (ES, DA, DE, EL, EN, FR, IT, NL, PT) Finnish special edition: Chapter 5 Volume 6 P. 0138 Universal Declaration of Human Rights, United Nations Charter, 1948 Keck and Mithouard, Bjrn orvaldsson, Faculty of Law, Lund University, 2002 Thailand Law Source, 15th January 2006, http://members.tripod.com /asialaw /articles /saravuth2 Oberkriesdirecktor Des Dreises v. Handelsonderneming Moorman, (German Beer case,) Court of Justice of the European Communities, Reports of Cases before the Court, 1987-3, "Free Movement of Goods: Commission v. Germany," 1227-1277, March 12, 1987. German Sausages case, Commission v. Germany Bibliography. Andrew Evans. A Textbook on European Union Law. Hart Publishing-Oxford 1998 Christopher Harding and Ann Sherlock, European Community Law, Text and Materials, Longman Law Series, 1995 F. Burrows. Free movement in European Community Law. Clarender Press-Oxford, 1987 John A Usher. Plender and Usher's Cases and Materials on the law of the European Communities. Butterworths, London, Dublin, Edinburgh, 1993 John Maclean. LLB. European Community Law Casebook. HLT Fifth Edition. Publications, 1994 Lasok & Bridge. Law & Institutions of the European Union. Sixth Edition, Butterworths 1994 Read More