Directive, Which Was Adopted by the UK Council on 1st May 2005 - Case Study Example

An (Imaginary) Directive, which was adopted by the Council on 1st May 2005, which the UK government has failed to practice. Discuss the legal implications. Introduction: This essay deals with the legal structure as related to EC law and discusses an imaginary directive adopted by the EU Council which the UK government has not upheld suggesting that certain individual may bring legal proceedings against the UK government on the basis that the UK has failed to practice certain laws laid down by the EU. Case Scenario: An (imaginary) Directive, which was adopted by the Council on 1st May 2005, provides as follows: "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." The Directive provided that it was to be implemented in all Member States by 1st May 2007, but the UK government has so far failed to do so. Christina runs a graphic design business based in Brighton and ordered a new computer system on 5th July 2007 from Avalon Computers Ltd., a mail-order firm specialising in computer equipment designed for professional graphics use and based in Reading. Christina paid 3,000 in full for the equipment and it was delivered to her studio a few days later. However, the next day she learned that she had lost an important order from clients in America for future design work, and reluctantly decided that she could not afford the new computer system at the present time. She immediately contacted Avalon by fax and asked the company to take back the computer (still boxed and unused) and refund the money paid. The company refused. Christina has turned to a firm of London solicitors for advice. I am a trainee in this firm and have been asked by my boss to prepare a report on Christina's situation. The aim of this report is to 1. Advise her clearly and fully as to her rights under European Community Law (if any) to obtain a refund of the money she has paid for the goods from Avalon. If she is unsuccessful in doing so, can she obtain redress from any other person or body 2. How (if at all) would the answer to Question 1 above differ if the legislation had been introduced by means of a Regulation rather than a Directive Background: Ibanez (2004) studied the legal procedures against member states for breaches of EC law and the different aspects of the European Commission enforcement procedure under EC Treaty Articles 226 and 228. Ibanez discusses the policy and strategy in enforcement proceedings and the European model that is followed for enforcing and supervising EC law. The Commission can sue Member States before the European Court of Justice or ECJ under Article 228 if a member state breaches the laws as required to be followed by the states. The enforcement of Commission decisions would be related to new developments and procedural aspects at the European level. The general procedures of the EC law show that the EC Treaty grants the Commission the power to "ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied." This relates to the EC Treaty Article 211 that grants a general power to the Commission and the EU can use the provisions of the EC Treaty for fighting Member State noncompliance. For an imaginary directive adopted by the Council in May 2005, if any one member state fails to keep up to the directive of EU law or the EC Treaty, according to the Articles 211, 226 and 228, the European Commission can take legal action against any member state that fails to comply to EC Treaty requirements or as expected from a member state. Article 226 is in fact based on a legal model of integration between the member states and the Commission. The ECJ or European Court of Justice ensures the interpretation and application of the EC Treaty and determines the legal limits of the Commission and settles disputes between member states as well between member states and the EU and also decides whether there has been breach of obligations by member states1. In this case, Christina has sought the advice of London solicitors as the firm where she placed order for equipment refused to return her money when she cancelled the order in a few days. According to EU directive customers can return orders or products bought and ask for a refund within 15 days of placing the order and merchants would be obliged to refund deducting costs of carriage. Similar cases: A case related to Commission v. Ireland was filed in 2005 for failure of a member state to fulfill obligations under Article 226. The case was described as such- "Failure of a Member State to fulfill its obligations - Protection of underground water against pollution caused by hazardous substances - Directive 80/68/EEC"2. Member state in this case has failed to protect groundwater from pollution of dangerous substances and thus has not fulfilled obligations related to EU directives. This could cause adverse environmental consequences for the member state and would be against EU law and requirements as well. In another judgment (2007), the case was between Italian Republic v Commission that was filed in 2006 citing "Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Environmental impact assessment"3. The aim of the directive upheld by EC is to ensure biodiversity and conservation of natural habitats and wild fauna and flora. The Commission claimed that Italy did not carry out an impact assessment in connection with a series of constructions, and this could have environmental consequences. However the European Court of Justice refused the request of EC to declare that Italy has no fulfilled obligation of EU directives as member state. In another case decision, which was decided in favor of EU on 14 June 2007, the ECJ ruled that Belgium had failed to fulfill its obligations under Directive 2002/30/EC on noise related operating restriction at community airports as it has continued regulating night flights of certain types of civil subsonic jet airplanes that has caused the noise against the EU directive and its obligations as a member state. Thus there are many cases that suggest the obligations of member states and the EU directives as in EU law and the conflicts between the EC and the member states and decisions given by the ECJ either in favor of the Commission or in support of member states. Legal Implications and Possible Course of Action Considering cases against member states by the European Commission, several judgments suggest that member states are obligated to follow certain EU directives failing which cases are filed as seen from examples above. Thus an imaginary directive adopted at the Council and not practiced by the UK government can entitle the Commission to file a case against UK government stating violations of the proposed directive. Under Article 226 of the EC Treaty, any legal action could be taken by the Commission against member states to ensure that member states have fulfilled obligations or there are no violations of the EC Treaty and its directives. In case of violation of directives and obligation, cases are filed as in this case. Christina's case is a clear deviation from the EU directives and thus Christina could seek the ECJ's ruling in this case as Britain has failed to carry out EU regulations. Christina thus has legal rights under EU law to seek justice on Britain's failure to implement regulations or directives specified by EU. Failure to seek justice on this could enable her to seek support from consumer rights groups. However Christina's case being supported by a Directive rather than a regulation, her appeal seems stronger and a judgment in her favor from the ECJ is more likely. Article 226 of the ECT Treaty has the following provisions 'If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice'. If a Member State fails to comply with the Court of Justice the provisions under Article 228 states that, 'If the Member State concerned fails to take the necessary measures to comply with the Court's judgment within the time limit laid down by the Commission, the latter may bring the case before the Court of Justice. In so doing it shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it'4. With regard to Christina's case, the European Commission could file a case against the UK as the UK has failed to practice a certain directive laid down by the EU and has thus not kept up to its obligations as a Member State. If the UK fails even to comply with the judgment of the Court of Justice, heavy penalties could be imposed on UK by the ECJ with the recommendations of European Commission. As this is a case of member state noncompliance, the European Commission could use Article 226, 228 and 2115 for filing legal suits against the UK's failure to practice or maintain the directive and later if UK continues to violate the concerned directive. The implementation of the directives of the Treaty is a requirement in EU law and is emphasized in all cases and judgments. Conclusion: This discussion thus deals with the limits and applications of EU law and how new changed directives apply to member states and what are the responsibilities of member states towards these EU directives. In case of breaches of obligations, as seen in this case, it is possible by the European Commission to bring in legal proceedings against Member states due to failure to fulfill obligations and maintain EU directives. In certain cases member states are required to pay a penalty as well if they fail to act on the Commission's request or directive. The relevant articles here are 226, 228 and 211 that shows the importance of maintaining obligations and the application of the Treaty, the penalty system and the legal procedures that could allow the Commission to act against the Member States for breach of obligations. A case scenario presented hereabout a consumer Christina is thus explained in terms of the EC Treaty, these three relevant articles and the possible judgment. References - Ibanez Alberto J. Gil (2004); The "Standard" Administrative Procedure for Supervising and Enforcing EC Law: EC Treaty Articles 226 and 228 Law and Contemporary Problems, Vol. 68, 2004 Industrias Qumicas del Valls, SA v. Commission C-326/05 P, ECJ 18-07-2007 Commission v. Kingdom of Belgium C-422/05, ECJ 14-07-2007 Commission v. Ireland C-248/05, ECJ 25-10-2007 Italian Republic v. Commission C-179/06, ECJ 4-10-2007 Commission v. Greece C-334/04, ECJ 10-25-2007 EC Treaty, retrieved 2007 http://eur-lex.europa.eu/en/treaties/dat/12002E/htm/C_2002325EN.003301.html ECJ, retrieved, 2007 http://curia.europa.eu/en/instit/presentationfr/index_cje.htm Read More