European Community Law Rights - Essay Example

European Community Law Rights The ECJ gave a very important judgment in Kobler1. In its ruling the ECJ had clearly established the fact that the Member States are liable for the breach of Community law by their national courts of last instance. The Kobler case has given rise to a number of legal comments with regard to the Member State liability in the event of breach of Community law by their national judiciary. This case has addressed the tangible remedial contents as well as national autonomy and its scope in applying the Community law within the national legal systems2. The ECJ had reviewed the role of the national courts and maintained that the spirit of the EC law would be harmed if individuals were deprived of availing themselves of redressal for damages suffered due to the infringement of EC law by national highest courts of last instance of the respective member states. The ECJ specified that the national courts that constitute the very last forum were truly the last judicial entities available to individuals. At that stage individuals attempt to assert the rights provided by Community law. Thus the judicial bodies that are in effect the last resort of individuals at the national level should invariably follow the provisions of Community law. The ECJ also pointed out that Article 234 EC is an indicator of the spirit of the Community and the Treaty Scheme that protects individual rights conferred by the Community law. Therefore, the national courts of last instance should not infringe Community law3. The ECJ’s ruling in Kobler paved the way to initiate elaborate discussions on several legislative issues concerning state liability. The Advocate General asserted that judges of national courts should not confine themselves to the national law alone, but that they have to act within the purview of the EC law, in order to maintain the spirit of the EC Treaty. This requires national judges to critically assess the scope of national law and the application of the EC law over national law, since EC law has supremacy over national law. Moreover, they have to ensure that their national law is in conformity with the Community law. This would result in the judges of the domestic courts, ignoring pieces of national legislation that were enacted lawfully under the national procedure for enacting laws, in order to give preference to EC law. In such situations the fundamental doctrine of separation of powers would have to be infringed. This role allotted to the judiciary is akin to the role allotted to the higher courts that have to uphold the justiciable provisions of the Constitution4. The European Court of Justice’s judgment in the case of Kobler5 was of great significance as it addressed member state liability from the perspective of European Union. However, Dutch laws limit state liability to a considerable extent. The case law of the Dutch Supreme Court clearly indicates that the court restricts state liability in cases of wrongful application of European Union Law by the judiciary. State liability arises only when the national courts violate the legal provisions with regard to Article 6 of the European Convention on Human Rights or the ECHR. Under Dutch Law, if the court unintentionally ignores or incorrectly applies either the EU Law or the national legislation, the aggrieved party cannot claim compensation or damages. This situation was drastically affected by the judgment in the Kobler case and a number of legal luminaries made several apt comments on the decisions taken by the Dutch legal system. The ECJ has made it very clear that the member states have to rescind national legislation, which is in conflict with the EU law, with regard to public authorities. However, the ECJ, in its judgment in Metallgesellschaft, it did not make this mandatory, with respect to private persons. In other words, the rescinding of contradicting legislations with respect to private persons does not repeal their right to be awarded compensation for damages and such a failure should not affect their right to claim damages. In contrast to this, failure to do so, in case of the pertinent public authorities, cannot be put forward as an excuse to evade the state liability. The ECJ’s ruling serves to impose greater responsibility on public authorities to respect the rights of the citizens of the EU6. In the Press Release No. 30/03, 8 April 2003 on the opinion of the Advocate General it was mentioned that a referral was made to the ECJ, in order to obtain an interpretation on the burning issue of the liability of a Member State in respect of the compensation to be awarded to individuals, due to the loss or damage caused by the violation of EC law by a national court of last instance. The Advocate General Léger had opined that the Member States were obliged to make good the loss incurred by the individuals due to breach of Community law. Moreover, the Community law regulates the standards for such reparation. He further stated that the ECJ had to give its ruling in respect of the liability of a member state in respect of the damage suffered by an individual due to a mistake committed by the national court of final instance. Such loss had to be redressed by the state in accordance with the provisions of Community law7. The national courts are under an obligation to refer cases to the ECJ, wherein there are conflicts, as per the provisions of Article 234 EC. This issue was highlighted by the German Federal Constitutional Court that a non referral by the Federal Administrative Court would be tantamount to a breach of the fundamental principle of law and the Basic Law’s Article 10 (1). The underlying principle for such a decision was that no individual should be deprived of access to justice8. It is evident from and established by the ruling in Kobler that the decisions made by the national courts of final instance, would make the State liable for violation of Community law. Placing such restriction on the national courts, that act as the last instance courts, would promote the integrity of the Community. Further, it would preserve the roles of national and Community courts to seamlessly enforce the rights of individuals conferred by Community law9. The interpretation of the Community law has to be done according to Article 234(3) EC, which is only applicable to national courts that are the final adjudicators. Therefore, individuals have to first sue in the national courts and those who fail to do so would not be permitted to avail themselves of this provision. The European Court of Justice had addressed the principle of state liability, for the first time in the year 1991 in Francovich,10 for the infringement of EC law by member states. The ECJ had established in that case that state liability was the fundamental principle of the Community law and as such the member states were obliged to compensate for losses and damages to individuals, which resulted from their breach of EC law. The ECJ had also established that the conditions that caused such a breach empowered the concerned individuals to seek reparation. Such compensation depends on the nature of breach of the EC law. The member states are accountable for any breach of EC law in their country. This principle was fortified in the subsequent cases and developed to the extent that member states were also liable for the actions of their courts of final instance. This was established in Kobler case in Austria in the year 2003, in which the ECJ held that a member state could incur liability for actions by their courts of last instance. However, the extent and conditions for such liability for the decisions of national courts of last instance was not clarified. Member States will have to face liability if their national supreme courts fail to interpret EC law correctly and appropriately. The ruling of the ECJ in the case of Traghetti established to some extent the repercussion on states by their national court of last instance in deciding cases involving complex competition11. The national supreme courts interpret the provisions of the Community law either in the context of the case or in accordance with a particular set of provisions applicable to specific cases. The courts of last instance generally deal with cases that had been dealt with by lower courts. Thus the courts of last instance, deal with facts that had been left unresolved by the lower courts or on appeals made by parties with regard to legal provisions. Gradually the ECJ developed the principle of state liability through its judgments in subsequent cases. In the Brasserie and Factortame12 cases, the ECJ developed this principle to a major extent. The Court upheld the state liability principle, under Article 215 EC Treaty, for breach of Community law. The ECJ is trying to clarify queries relating to liability of the Member States as well as the EU, by means of its case law. The Court has developed a common principle compatible with the member states’ legal orders, thereby making a member state that is in breach of the EC law, to fall under an obligation to compensate to the loss incurred by an individual, due to such breach. At the moment, it can be construed that a jus commune is emerging through the rulings of the ECJ. Under the general principle developed by the ECJ, the Member States have to incorporate all the directly effective Treaty provisions into their national legal systems. If any Member State fails to properly incorporate a directive into its national legislation then it becomes liable in the following three cases. First, if there is a violation of the rule of law that confers certain rights on individuals; second, if there is an apparent and serious violation or infringement and third, if there is a causal connection between the states’s violation of the obligation and the damage caused to the party. Subsequently, changes were made to this practice. In Dillenkofer13, the ECJ ruled that the conditions specified in Brasserie14, British Telecommunications15 and Hedley Lomas16 were similar and based on the condition of serious breach. In Francovich17 the condition was based on the circumstances of the case. Article 10 EC Treaty lays down that Community bodies and national courts have to work in a spirit of mutual cooperation and should help each other while interpreting Community law and EC Competition law. In situations, where the cases require the interpretation of EC competition law, referral has to be made to the ECJ under Article 234 EC Treaty. The parties involved in the case may request the national court to use their good offices to ensure cooperation stipulated in the 1994 notice. This may happen even before the case reaches the national court of last instance at which point Article 234 EC takes effect. Under Article 15(1), national courts can seek the direction of the Commission for guidance on questions relating to the EC competition rules. Under Article 15(3), the Commission can initiate proceedings, under such circumstances and endorse its suggestions to the national courts that made a referral to it. This is possible only when the application of Articles 81 or 82 EC requires such an initiation of measures or when it becomes apparent that the decision of the national court would hinder the integrity of the EC case law or bring about a departure from the established principles regarding that particular aspect. EC law has supremacy over national law and as such member states have to abide by the Community law. In Costa v Enel18, it was held that the member states need to modify their national legal systems so as to conform to the Community legal system. Individuals can sue the state in the national court to obtain compensation for the damages caused to them due to the non – implementation of EC law by the state. Furthermore, individuals can invoke the EC provisions before national courts to seek redressal. Van Gend en Loos v Nederlandse Administratie der Belastingen19 was the first case in this respect. In this case, a Dutch company sued the Dutch customs authorities in a Dutch court. The company had invoked the EC law in its claims and the national court referred the case to the ECJ for interpretation. The government argued that infringement of the treaty provisions would not enable individuals to claim damages. The ECJ held that the new legal system of the Treaty provides rights to individuals. The ECJ pointed out that the Dutch government had breached Article 25, which prohibits member states from imposing new customs duty on imports and exports. In Alfons20, the ECJ had ruled that a member state had to pay compensation to an individual for having failed to implement a provision of EC law within the stipulated time. In Sabena21, the ECJ held that an individual can invoke EC law in his claim against a state and against an individual under horizontal effect of the EC law. In this case the claim was in respect of the infringement of Article 141 EC, which provides for equal pay for equal work for both men and women. Under Article 249, regulations issued by the Commission can be directly implemented in member states. Regulations do not require to be incorporated in the national legislation. If any regulation specifically requires to be incorporated into national legislations then it should be incorporated without fail. Directives have direct effect as such they should be invariably implemented without delay. To address this problem, the ECJ developed the new principle of indirect effect. In Brasserie du Pecheur and Factortame the ECJ had held that the principle of state liability remains in force, irrespective of the branch of government that is guilty of violating Community law. Further, the court recognized the significance of the role enacted by the national courts in enforcing the Community law in respect of individuals. Moreover, the ECJ will scrutinize the effectiveness of such law if any individual is prevented from being compensated due to the mistakes committed by the national courts. In particular the ECJ stressed the importance of the decision of a court of last instance, which erroneously, deprived the rights of an individual devolving from Community law. This is due to the fact that such an erroneous decision is very difficult to rectify. Therefore, individuals should not be precluded from holding the state liable for its failure to protect the rights of individuals, which are provided by Community law. Thus, the ECJ held that an individual, who had undergone a loss due to the erroneous judgment of the court of last instance, should be permitted to seek redressal in a national court for such damages22. In the Kobler case the ECJ resorted to the procedure of indirect enforcement of the EU Directives. In addition, it made the states liable for violation of the Community law, in respect of individuals by the domestic courts23. The EC law protects the interests of the citizens of Europe rather than the European commission. Thus individuals can seek redress against their own country in the event of infringement of EC law. Individuals can make complaints directly to the Commission against their own country. If member states fail to adopt the provisions of the EC law or if they fail to integrate their national legislations with the EC law, then they become liable to compensate individuals for damages caused by such failure. Bibliography 1. Annex VI Application of Community Law by national courts: A Survey," 19th Annual Report on Monitoring the Application of Community Law (2001), COM(2002)324, 28/6/2002, available online at the Commissions Website: http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm 2. Anthony Lowry BL, Suing the State for Breaches of Community law by the Supreme Court. Retrieved 4 January 2008 from http://www.lawlibrary.ie/documents/publications/June04.pdf 3. Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, [1963] ECR 4. Case 48/65, Alfons Lutticke GmbH v. Commission, 1966 ECR 19,27 5. case 43/75 Defrenne v Sabena (no 2) [1976] ECR 455 6. Case C-392/93 R v HM Treasury, ex parte British Telecommunications [1996] ECR I-1631; [1996] 2 C.M.L.R. 217 7. Case C-5/94 Hedley Lomas [1996] ECR I-2553; [1996] 2 C.M.L.R. 391. 8. Case C-224/01 Gerhard Kobler v Austria [2003] ECR I-10239 9. Case C-173/03 Traghetti del Mediterrano, O.J. 2003 C 158/10 (5 July 2003). 10. Falminio Costa v. ENEL Case 6/64 [1964] ECR 585, 593 11. Francovich, [1991] ECR I-5357, [1993] 2 C.M.L.R. 66 12. Joined Cases C-178, 179 and 188-190/94 Dillenkofer and Others [1996] ECR I-4845; [1996] 3 C.M.L.R. 469.Eliantonio, Mariolina. Maastricht Faculty of Law Working Papers 2006/4 13. Joined Cases C-46/93 & C-48/93 Brasserie du Pêcheur and Factortame III [1996] ECR I-1029; [1996] 1 C.M.L.R. 889 14. Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, [2001] C.M.L.R.32 15. Von Bogdandy, Amin and Bast, Jurgen. Principles of European Constitutional Law. 2006. Hart Publishing. P. 286. ISBN: 1841134643 16. Zuaan, Jaap Willem. The European Union: Liber Amicorum Alfred E. Kellerman. 2004. Cambridge University Press. P. 166. ISBN: 9067041874. . Read More