European Union Law - Assignment Example

European Union Law A. The core of the principle of subsidiarity is to be found within Article 5 (formerly 3B) of the EC Treaty that is intendedto effectively define the relevant competencies of both the individual member States as well as the entire European Community of member states. Title III (Articles 8-16) deals with the division of competencies between the Union and Member States. Article IA (TEU) sets out the objectives of the community: “The Community shall act within the limits of the powers conferred upon it by this treaty and of the objectives assigned to it therein.” However, Article specifies three kinds of competencies - exclusive, shared and supporting action*2. It does not classify competences into those that belong to the State vis a vis those that will fall under the jurisdiction of the Community. Article 5 states: “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States.”*3 Therefore, according to the provisions specified above, the Community is to act only with the scope of the powers that have been conferred upon it. In areas that do not fall within its exclusive jurisdiction, the Community will act to the extent that is required, according to the principles of subsidiarity, to achieve the stated aims. There are two aspects to this article (a) subsidiarity will prevail only when the achieved objective cannot be achieved by the Member State; therefore there is a preference for power to be allocated to the smaller unit, i.e, the member States*4 (b)Subsidiarity also denotes an efficiency test, i.e, when a desired goal can be achieved with better efficiency by the Community. Moreover, the issue of subsidiarity will not arise in areas that are the exclusive competence of the Community, because there is no issue of conflict with competence, since Community law will be supreme in those areas where there is exclusive competence. The question of subsidiarity arises in areas where the Community shares powers with those of the Member States.*5 The principle of subsidiarity deals with the allocation of powers to pre existing institutions and therefore is meant to shape democratic structures. For example Article I TEU states that decisions will be taken “as closely as possible to the citizen.”*6 the reason why the principle of subsidiarity was first included within the Maastricht Treaty was mainly to placate the Memebr States who felt that power from shifting from national level to European levels.*7 Therefore, on the basis of subsidiarity, the EC does not enjoy unlimited competence to act, rather it must work within the constraint of the powers attributed to it through the Treaty. However, in practice, what has emerged is that there are no areas that may be designated as off limits to the EC and exclusive to the Member States.*8 Hence, in many instances, the principle of subsidiarity is increasingly giving way to conferring of powers upon the EC. On example that may be cited is the case of Grogan.*9 In this instance the cross border provision of information about abortion led to the conferring of power on the EU. Competences that may appear to be the domain of the member States, such as jail conditions or banking for example, will also fall within the provisions of EU law on the free movement of goods and people within the member States. Therefore, the question of subsidiarity arises in conflict with other legal principles that affect the distribution of power within the Community. The EC has therefore designated its areas of exclusive competence as deriving not only from the Treaty Provisions but a general duty to take upon itself the powers that relate to the regulation of actions that concern the free movement of goods, services, people and capital within the European Common market*10. Under Article 230 of the EC Treaty, the ultimate power of interpretation is provided to the European Courts over the national Courts. Moreover, the supremacy of EC law has been established time and again through involving the Direct Effect, where matters upon which a European Directive exists are such that Member States are obliged to modify their national laws to incorporate the provisions laid out by the Directive. A notable example of this is the case of Andrea Francovich et al v The Italian republic.*11 In this instance the issue was the implementing of a Directive that required employers to pay compensation to workers suffering damage due to the employer’s insolvency. Therefore, in order to claim damages from the State, it became necessary for Italy to also incorporate the provisions of the Directive into its own national laws. In the case of United Kingdom of Great Britain v the Council of the European Union*12, the UK Government brought an action for annulment of Article 1(2) of the Council regulation (EC) no: 519/94, according to which rules were specified for imports from some third countries. According to the Directive, certain exceptions were made for some countries in terms of quotas and surveillance measures that were applicable at community levels. The Government of the UK contended that in the interest of uniformity within the European Union in imports, it was arbitrary on the part of the EU to set out any kind of restrictions on some states. The EU stated that “certain sectors of community industry were sensitive to imports from China” and that it was under no obligation to explain its decisions on the basis of uniform application of the Law because its actions represented the exercise of its discretion in the interest of achieving a desired objective. "Where a measure is taken to prohibit or restrict economic activity, it must be appropriate and necessary in order to attain the objective.” Another instance of exercise of a Directive and the overriding role of the EC in achieving the specified objective may be seen in the case of Commission v UK*13. A special kind of dim-dip lighting regulation was required by the UK Government and in this case, the EC sought to establish whether the relevant EC Directive incorporated this provision. In justifying why the Directive did not include such provision, the Court clarified that it was not applicable to the entire European Community and therefore could not be included in the Directive. In its judgment, the Court stated: “……..it was not considered appropriate to adapt Directive 76/756/EEC, after its entry into force, so as to take account of technical progress - - by bringing dim-dip devices within the scope of the latter directive.”*14 The external competences of the EC when rising in conflict with those of the Member States were at first regulated by a jurisprudence which regarded any hindrance to inter community trade unfavorably and strictly. Any measure to restrict market access was treated with strict disfavor by the EU and the result was a restriction on the powers of the member States, such as that which occurred after the case of Cassis de Dijon*15. Thus, through the above cases, the EC established the fact that it has broad discretion in legal matters and its intervention would be deemed to be violative only when it was proved to be “manifestly inappropriate” in regard to the objective that was sought to be achieved.*16 It is in view of the conflicts that arose between Community and State powers that the doctrine of pre emption was mooted. The problem that arises is the maintenance of the validity of the Community legal order vis a vis the maintenance of the regulatory powers of member States*17. Rather than invoking the supremacy of EC law and subordinating national law, it is better to introduce pre emption, which is based upon the premise that the EC has wide room for judicial discretion when considering the issue of regulation of Community vs State powers. When there is a conflict that may arise between the rules of member States and those of the Community, the doctrine of pre-emption enables the RC to intervene and establish a uniform code that will be applicable to all member states in order to achieve the desired Community objectives. This may often be achieved by the preclusion of Member State powers. However, this pre-emption occurs only when there is a conflict of state powers and rules with the desired objectives of the Community, therefore preemption provides the modality for the adjudication of powers between the member States and the European Community. While subsidiarity is aimed to prevent the centralizing force of Community law, preemption on the other hand involves the preclusion of Member State powers. While these may appear to be opposing forces, preemption in fact has developed in order to ensure that the objectives of the EC are met. It is not in the interest of the community as a whole to allow subsidiarity to preclude Community action, since this would impact negatively upon the common goals of the European community. Rather preemption ensures that the diversity and independence of member states is preserved through Community interference only when it is deemed to be necessary in Community interest. Ans B: Article 28 of the EC treaty states: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.”*18 The goals of the European Commonwealth have been established in Article 2 of the EC Treaty which favors the fostering of competition and the free movement of goods and services within the internal market. Therefore, in effect, by banning the import of the three particular chemicals that the UK Government considers to be noxious, there would be restrictions imposed upon trade between Britain and the Swedish and German manufacturers. However, it must be noted that Article 30 however qualifies this clause by including certain provisions that are deemed to provide enough justification for the imposition of restrictions on trade, such as for example, “on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.”*19 In the instant case, the UK Government may be able to contend that in the interest of protecting the health of its citizens, it is anxious to ensure that chemical substances that have been deemed to be noxious should be restricted in imports. However, case law has established that in all such matters which were once in the province of national law, it is now EC law that will pre-empt national laws. For example in the case of R v Ministry of Agriculture*20 para 18 clarifies that it would not be possible for a member State to resort to this provision when there is a clear Community Directive with a different objective that has been established for the harmonizing of relevant measures between nations. In this case, since there is in existence an European Directive 201/03 EC, which states that the chemicals in question have been declared to be safe for use as pesticides, the preemption of the Community Directive will mean that the UK cannot resort to the provisions of Article 30, even if they may be considered to be justified in protecting national interests. When a substance is considered to be toxic or hazardous, it has been regulated by the EU Directive on restrictions of Hazardous Substances.*21 The goal of establishment of such a Directive is to ensure the protection of the environment. Through this Directive, certain substances have been identified as potentially hazardous, therefore this inevitably raises the issue of conflict with competition and free trade, since import of such goods will be deemed to be prohibited. However the EC has not set out any definite guidelines in this regard, it has only designated a few specific substances as hazardous and left the rest to the discretion of the member States to determine. One example of this that may be cited is the case of the ban on certain flame retardants such as PBB and PBDA in EEE, which will become effective on 1.7.2006.*22 However, the imposition of such a ban on limited substances does not restrict member States such as Sweden for example, in banning the use of certain other flame retardants such as TBBPA.*23 This implies that there is a degree of flexibility that is granted to the Member States in view of subsidiarity and it is only those substances that are expressly prohibited in the EU Directive that will be subject to the ban on imports on a universal basis while in the case of other noxious substances, it will be left to the discretion of the Member States. In the instance case however, this degree of flexibility afforded by subsidiarity will not apply, because the EU Directive specifically indicates that the substances identified as chemicals are not deemed to be unsafe, therefore it would be illegal and contrary to the EC Directive for Britain to prohibit their import. The existence of a Directive therefore gives individuals the right to contest national legislation through the Direct Effect. Individual rights specified in this Directive state that the substances in question are not noxious and EU law is geared towards the promotion of free trade, as a result of which a bar on imports would constitute a violation of the EU Directive. Through the vertical Direct Effect of the Directives, the EU allows individuals to press their claims against Member States. In this connection, the imposition of Directives have often conflicted with national laws and member States in this instance have been forced to make reparation to individuals for violations of EU Directives. For example, in the case of Francovich cited above*24, the individual Plaintiffs were eligible to claim compensation for damages when their employer became insolvent from the State of Italy, through its national Courts. Similarly, in the case of Commission v UK*25, the Court made it mandatory for the UK to set up a system of worker representation where no such system had existed before. This was in order to ensure that the provisions of two EU Directives could be carried out effectively. The Directives in question required the Member States to ensure that workers were well informed and in a position to intervene through their representatives in the event there was any transfer of a particular undertaking and the designation of worker representatives was also an important part of the enforcement of this Directive within the Member States. Through the supremacy of EU Directives, case law this far ahs established that the enforcement of labor law, remedies and necessary procedures will be conditioned by EU laws and not by national laws. EU labor laws need to be enforced through national Courts, and whenever there is a conflict between the two, it is necessary that EU principles must override national laws. Therefore, in this instance the EU Directive on the safety of the chemicals in question will override the ban imposed by the UK on the import of these substances. Under these principles of supremacy of EU law, individuals can now claim compensation from States when their rights have been violated. In the case of Francovich, damages were paid to the Plaintiffs by the State for the losses they had incurred. Similarly, in the case of Marshall v Southhampton*26, the provisions of UK legislation were overthrown. According to UK law, there were certain limits that were imposed upon the damages that could be claimed under the grounds of sex discrimination. However, in view of the right to privacy and the individual rights to freedom from discrimination that are specified in the European Convention on Human Rights, it was EU law in this regard that was supreme. The ECJ abolished the limits on compensation that had been set by the UK Government through its legislation, as a result of which the compensation due to the Plaintiffs was increased considerably, on par with the extent designated by the EU. In a similar way, the Swedish and German manufacturers in this case can also reply upon the European Directive that exists, in order to enforce their rights to carry on with the trade agreement. In reference to whether British or EU legislation will predominate, the concept of primacy of the EU Directive will mean that it will be the EU Directive that will predominate over UK legislation and the Plaintiffs can challenge the validity of UK legislation banning the import of the specified substances in the European Court of Justice. In regard to damages, the Plaintiffs will be entitled to press for these damages from the British Government. Since they have long term contracts with the British sources for the supply of these pesticides, any refusal of the Government to restrict imports would constitute a restriction of trade and would constitute a breach of the terms of the contract the German and Swedish suppliers have with British Companies. The grounds which are being cited by the UK Government for banning the chemicals in question will no longer hold good in view of the supremacy of the EU Directives and the obligation of the member States to honor those Directives. Therefore damages for breach of contract can be claimed together with revenues that would have been generated if the contract had continued. Bibliography * Article 4, Joint text approved by the Conciliation Committee on the Directive of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS), 8.11.2002. * Barner, N.W . The limited modesty of subsidiarity . European Law Journal, 11(3), 2005, pp 308-325 * Bernard, N, "The Future of European Economic Law in the Light of the Principle of Subsidiarity" 33 CML Rev 633, 1996. * Bermann, G, ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’ 94 Columbia Law Review 331, 1994, at pp 338–344 * Consolidated version of the EC Treaty” [Online] Available at: http://europa.eu.int/eur-lex/en/treaties/dat/C_2002325EN.003301.html; accessed 1/15/2006 * Estella, A, The EU Principle of Subsidiarity and its Critique Oxford University Press, 2002: Chapter 3 * Jeffcoat, Harold G, The Subsidiarity principle in European Community Law. [Online] Available at: http://www.txwesleyan.edu/president/subsidiarity.htm; accessed 1/15/2006. * Proposal for a Directive of the European Parliament and of the Council on Waste Electrical and Electronic Equipment. COM(2000) 347, (13 June). * Soares, Antonio Goucha, Pre-emotion, conflicts of powers and subsidiarity. European law Review 23(2), 1998, pp 132-145. * Sweden goads EU on brominated flame retardants Environment Daily, 2002, 6 June * Title III: The Union Competences [Online] Available at: http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldeucom/61/6104.htm; accessed 1/15/2006. * Weatherill, Stephen, Better Competence Monitoring, European law review, 30(1), 2005, pp 23-41 Cases: * See Joined cases C 6/90 and 9/90 (1991) ECR I – 5357. * Case C-84/94 UK v Council * Case 60/86, Commission v UK (dim-dip lighting devices) (1998) ECR 3921 * Commission v UK, Ibid n.13, at para 10 * Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein ("Cassis de Dijon"), [1979] E.C.R. 649 * C/159-90, SPUC v Grogan (1991) ECR I-4685 * Case C-5/94, R. v. Ministry of Agriculture, Fisheries and Foods, ex parte Hedley Lomas, [1996]E.C.R. I-2553. * Case C-271/91, Marshall v. Southampton and South West Area Health Authority (No. 2) (1993) Read More