The European Commissions Fundamental Duty - Assignment Example

Law of the European Community Q A The European Commission’s fundamental duty, as the guardian of the EC Treaty, is to ensure the proper implementation of EC law, throughout the EU by the Member States. The Commission monitors and supervises the implementation process. It is the regulatory authority and provides guidelines to the Member States, whenever required. The Member States must incorporate the Directives issued by the Commission into their national law completely, correctly and within the stipulated time1. Furthermore, they have to apprise the Commission about the steps and measures taken, in order to implement Directives. If they fail to do so, the Commission can initiate action under the provisions of Article 169 EC. As such, the Member States have to change their national legislation to accommodate and give effect to Directives2. The Member States have to transpose a Directive into their domestic law. Such incorporation is satisfied if the transposition is done in a clear and precise manner. For instance, if some rights are provided to an individual by a Directive, then subsequent to transposition, that individual should be able to initiate legal action in national courts, duly relying on those rights3. In Plaumann v Commission4, the Commission had restrained the German Government from reducing duty on the import of clementines. The plaintiff, Plaumann, was an importer of clementines. He challenged this decision of the Commission in the ECJ. The Court applied the test of individual concern to this case; and examined whether the plaintiff was affected by the decision. The plaintiff was held to be a member of the class of clementine importers. The Court also examined whether the plaintiff could be differentiated from that class, by virtue of the attributes peculiar to him. It ruled that as Plaumann belonged to that particular class of importers, he was not individually affected by the Commission’s decision. In addition, the Court opined that anyone was free to become an importer5. In the Greenpeace case, both the Court of First Instance and the ECJ refused to admit the plea of the applicants. The latter, residents of the Canary Islands, had requested the Court to annul the decision of the Commission to provide financial aid for the construction of two power plants in these islands. It was held by the CFI and the ECJ that the applicants were not individually concerned. They were residents like any other residents on the Canary Islands, and that their environmental concerns were similar to that of the other residents. Hence, both the CFI and ECJ refused to annul the decision of the Commission6. An association can initiate legal action, and it can be individually concerned by the issue in question, if it had participated in the decision making process in the issue that had led to its adoption. Legal standing is subject to three conditions. First, the EC law must have provided some kind of procedural right to the association. Second, the contested decision must have affected the interests of the association. Third, if its individual members can initiate legal action, then the association can also initiate legal action7. In this problem, the UK government had failed to implement the Directive 2006/2001. Due to this Fattenem, felt no compulsion to upgrade its waste water facilities. In addition, this factory increased the use of the chemical ABC in its products. The implementation of the Directive would have prohibited the use of this chemical. Fattenem’s acts resulted in polluting the surroundings of this factory. Most of the local streams and ponds started to emit a foul smell. Moreover, the gardeners in this area, developed stomach disorders on consuming the vegetables grown in this area. As per the case law discussed above, the people who had not been affected by the pollutants cannot rely on the provisions of the Directive. On the other hand, the gardeners, who had been specifically affected by these pollutants, can initiate action against the government, for not having implemented the Directive, under the provisions of vertical direct effect of Directives. In respect of Fattenem, which is a private organisation, the gardeners can rely on the indirect effect of Directives, to seek redressal. Q 1 B The ECJ had established via its case law that Environmental Directives bestowed environmental rights upon individuals within the EU. These can be employed by them to initiate legal action before their national courts. Therefore, rights that are implemented at the national level empower individuals to invoke in national court proceedings. The case law of the ECJ provides guidelines to the Member States for the implementation of Directives. There are practical problems, involved in the incorporation and application of Directives. This task of transposing a Directive entails the provision of information regarding the transposition in a timely manner by the Member State, and the requirements of national implementing rules8. In Ratti, the ECJ held that if an individual claimed rights under a Directive, which had not been implemented by the state authorities, then the state could not defend itself for its failure to implement the Directive9. In Fratelli, the ECJ extended the interpretation of the term state. By doing so, the Court included autonomous regional authorities in the definition of state, in respect of the concept of vertical direct effect of Directives10. Moreover, the ECJ included some state agencies that had been subsequently privatized, in the definition of state, if they continued to enjoy certain exclusive rights that had been granted by the government11. The Court also ruled that non – implemented Directives could not have horizontal direct effect, or that they could not be applied in a manner that could prove to be unfavourable to individuals12. There are several tests to establish individual concern. Thus if the producers can show that all the potential applicants, in the context of a measure, could be identified, at the time of its enactment, then this would be sufficient for compliance with the closed class test. For instance in the Plaumann v Commission case, there was a measure that affected clementine importers. The ECJ held that this measure did not individually affect that particular applicant; hence such applicants did not belong to a closed class13. In DOW AgroSciences, the Commission had included certain chemicals in the class of substances that were deemed to be harmful to the environment. The EC Directive 2000/6086, which was issued in this regard, contained this list of prohibited chemicals. The plaintiff company was the producer of these chemicals14. This Directive required the Commission to propose measures to the Parliament and Council, regarding what was to be done about these chemicals. However, mere inclusion in the list could not imply that the Commission would proscribe them, or initiate measures against them. The role of the Commission was to propose measures, and it was upto the Parliament and Council to adopt those measures. The ECJ held that mere inclusion of chemicals in the list, did not affect the legal position of the plaintiff, nor place him under any obligation15. In respect of chemical XYZ, the UK government applied the Directive 2006/2002 partially. Therefore, Fattenem took advantage of this lacuna and allowed the concentrations of this chemical to increase to dangerous levels. The outcome of this was the same as what had transpired due to the excessive use of the chemical ABC. As such, in instances of incorrect implementation of a Directive, an aggrieved party can invoke the principle of Directive confirming interpretation, to the extent possible, can be invoked. Or in the alternative, State liability can be invoked, so as to ensure the rights of citizens and the governance of undertakings16. Thus, in our present problem, the affected residents and gardeners can seek redressal under the provisions of indirect effect of Directives. Moreover, they can invoke state liability against the UK government for the improper implementation of Directive 2006/2002. Q 2 In general, the decisions of the Commission are addressed to a particular group or organisation. Sometimes, such decisions affect other individuals who are affected either by the peculiar attributes of the decision or by the circumstances created by the decision. Such individuals can prefer a claim for damages. The outcome of the decision should have differentiated them from other individuals, if they are to be deemed to have been individually affected by the decision. Article 230 EC deals with judicial review of Community decisions. There are several aspects to judicial review in EC law. Moreover, such judicial review has attracted wide spread criticism. Applicants for judicial review may find it difficult to challenge the measures adopted and decisions made at the EU level. The ECJ imposes several difficult procedures to access judicial review. The interpretations of the ECJ are very narrow in application. The main criticism is focused on the ECJ, because of its narrow interpretation of the Treaty text. Article 234 EC provides the nature and definition of individual concern. The ECJ interprets this definition, narrowly, in order to prevent entities from seeking a judicial review17. Article 230(4) EC Treaty, requires individuals to have locus standi or legal standing to initiate action in the court. The case law of the ECJ requires individuals to have a specific interest in the dispute, in order to invoke an action under Article 230(4). However, there is no express requirement in the Article for such legal interest by individuals. In practice, this requirement prevents unnecessary challenges to the decisions of the Commission18. In Exporteurs in Levende Varkens et al v Commission, the CFI held that the legal standing of an association, which was not addressed by a measure or decision of the Commission, would be in two forms. First, it must have participated in the procedure of decision – making and its power of negotiation must have been directly affected by the measure in question. Second, it would have legal standing, if its members had been allowed to initiate legal action against a measure. The association must represent the members who had brought the legal action, in order to have legal standing19. In Casu, the Court ruled that associations engaged in activities relating to the general policy on State aid would have legal standing. Similarly, associations that had been active in specific aid projects in the textile sector were deemed to have legal standing. Such associations were to act in the interest of their members, and all the members should be working in the same sector20. The Court of First Instance had also agreed that there would be numerous suits based on hypothetical circumstances if that requirement had not been made essential. The applicants must prove that at the time of filing the suit, they have a legal interest21. If the suit is based on a future circumstance, then the applicant is required to show that the decision would be prejudicial to his interests. The applicant is also required to prove that such prejudice is already certain pro-future22. The Qualified Majority Voting is restrained by judicial control. The Court can review any proposed revision relating to facts and the law. It also has to check whether the revision would affect the existing economic or technical conditions. However, it is important to note that the revision of the powers of the Commission could harm the basic Treaty objectives, or modify the allocation of powers amongst the Community Institutions23. The ECJ has established legal certainty within the EU. However, its refusal to permit a horizontal direct effect, in respect of unimplemented or improperly implemented Directives had deprived protection to a particular class of individuals. The latter were those who had believed in the rights and obligations that were to emanate from EC law24. According to the discussion in respect of judicial review relating to Qualified Majority Voting decisions, the UK government can seek a judicial review of the EC Decision that requires it to slaughter its diseased sheep. In accordance, with the ruling in Casu, organisations that evince an interest in the welfare of its constituents have the required legal standing to seek a judicial review. Hence, the SFA have the necessary locus standi to challenge the Decision. Bibliography Bhaskar Nath. 1998. Environmental Management in Practice. Routledge Case 25/62 Plaumann v Commission (1963) ECR 95 Case 14/63 Forges de Clabecq v High Authority (1963) ECR 719 Case T-159/98 Torre and Others v Commission (2001) ECR – SC I-A-83 and II-395 Case T-138/89 NBV and NVB v Commission (1992) ECR II-2181 Case T-45/02 DOW AgroScinces BV v Commission (2003) ECR II-1279 Case T-585/93 Stichting Greenpeace Council v Commission (1995) ECR II-2205 Case 148/78 Ratti (1979) ECR 1629 Case 103/88 Fratelli Costanzo v Commune di Milano (1989) ECR 1839 Case C-188/89 Foster v British Case (1990) ECR I-3313 Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (1986) ECR 723 Cases T-481 & 484/93 Exporteurs in Levende Varkens et al v Commission (1995) ECR II-2941 Case T-380/94 Association Internationale des Utilisateurs de Fils de Filaments Artificiels et Synthetiques et de Soie Naturelle (AIUFFASS) et al v Commission (1996) ECR II-2169 Clarence J. Mann, 1972. The Function of Judicial Decision in European Economic Integration. Martinus Nijhoff. Laurence W. Gormley. 2000. Judicial Review in EC and EU Law – Some Architectural Malfunctions and Design Improvements? Retrieved on 8 December 2008 from http://www.dur.ac.uk/resources/deli/annuallecture/2000_DELI_Lecture.pdf Norbert Reich et al. 2003. Understanding EU Law. P. 336. Intersentia nv. Ronald Levin. July 2006. Administrative law of the European Union: Judicial Review. Retrieved 8 December 2008 from http://www.abanet.org/adminlaw/eu/Reports-Judicial-draft_07-2006.pdf Tim Well & Jenny Steele. 1998. Law in Environmental Decision – making. Oxford University Press. What must an individual show if they are to be recognized as having ‘individual concern’ for the purposes of Article 230? Retrieved on 8 December 2008 from http://www.oup.com/uk/orc/bin/9780199230358/01student/questions/ch09/?view=za Read More