Constitution of the European Union Law - Term Paper Example

The European Council implements laws in the Member s of the Union by means of ‘Directives’. This device implements the harmonisation of laws in the Union. The European Community had a significant impact upon the legal systems of the Member States. It regulates the rights and interests of its members by developing its own institutions and a unique and autonomous legal system that binds each member. This is accomplished fundamentally through the Treaties, a crucial form of EC legislation that becomes the source of all other European Law. The ECJ has taken its own view as to the nature and effect of treaties and this is known as the doctrine of ‘direct effect.’ The direct effect is a notion that facilitates an aggrieved individual to seek Redressal by referring to a directive’s provisions in a domestic court if the Member State has not implemented the same. The concept of Direct Effect of EC law was developed by the ECJ to allow individuals and organisations to use the provisions of EC law within their Member States’ domestic courts without having to wait for the Member State to fulfil some obligation which it had omitted to do. The ECJ stated that certain requirements needed to be satisfied to allow a provision of EC law to gain Direct Effect. This jurisprudential concept means that individuals can obtain the required mandate directly from community law, for enforcement in their own national courts. It also places control in the hands of ordinary individuals, as contained in Article 226 EC, which enables the Commission to initiate proceedings against Member States for breaches. Direct effect allows every citizen of the Union to play a role and has brought the community into their lives. Its legal foundations were established in Van Gend En Loos 1 in which the Court held that an individual was entitled to invoke Article 25 EC in order to prohibit Member States from introducing new customs duties on imports and exports and other charges having equivalent effects. The Court held that the Article 25 EC was directly effective and could be challenged by individuals in the national courts. However the ECJ reasoned that direct effect exists and the individuals may have the rights conferred upon them directly under EC treaties. This reasoning was based on the need to carry out the political and legislative programme that the treaties had set out to create a community not only of states but also of persons…that calls for the participation of everybody. The essence of the preamble to the EC implies that reference has to be made not only to member governments but also to individuals, and is therefore, more than an agreement which creates mutual obligations between the contracting states. In this way it is distinct from other international treaties and constitutes a new legal order of international law for the benefit of which the stated have limited their sovereign rights, although within limited fields, the subjects of which comprise not only member states but also their nationals. Therefore it was concluded that, community law…is intended to confer upon individuals rights which become part of their legal heritage. The Advocate General, although accepting that certain treaty provisions could produce direct effect, believed that Article 12 was not one of these; articulation concerns that to hold it directly effective could lead to a non-uniform application of that Article and questioned whether the authors intended to product the consequences of an uneven development of the law….consequences which do not accord with an essential aim of the community. The legal basis for the decision in Van Gend En Loos is highly controversial. The ECJ construed Article 25 EC as intending to confer rights on individuals. Therefore the preliminary reference procedure in Article 234 EC, which permits parties to raise questions of Community law in the national courts does not leave any meaningful discretion to member states and does not require further state action for its implementation. Other forms of community legislation known as secondary sources states that in order to carry out their tasks the Council and the Commission shall, in accordance with the provisions of this treaty make regulations, issue directives and recommendations and deliver opinions and that regulations are, binding in their entirety and directly applicable in all member states2. These Regulations have become a part of the domestic law of the Member State and do not require further incorporation into national legislation and confer rights which can be enforced in the national courts. In Commission v Italy3, the ECJ enforced the direct effect of regulations and criticised the attempts by member states to alter the requirements of a community regulation. Article 249 EC directives bind any member state as to the result to be achieved while leaving domestic agencies competence as to form and means. They are flexible and provide states with discretion and scope for national differences. Their true purpose must be properly secured and failure to do so constitutes a breach. From this it appears that the very nature of directives is incompatible with the notion of direct effect as laid down in Van Gend En Loos; it grants some discretion to member states and requires further state action for its implementation and sets out its term in general terms since it is merely a framework. However, this failed to deter courts from considering whether directives may still give rise to direct effect and they developed on this fundamental question through a line of important cases. In Van Duyn v Home Office4, a Dutch national taking up employment with the Church of Scientology in UK was not allowed to enter the UK as she was a scientologist. She relied on Directive 64/221 which regulates the freedom of movement of workers within the community. The ECJ on being queried as to whether this directive had direct effect held that directives were capable of being directly enforceable by an individual against a member state if they had not been properly implemented. It contended that it would be incompatible with the binding effect attributed to a directive by Article 249 to exclude the possibility that the obligation which it imposes may be invoked by those concerned and may be invoked by individuals in the national courts. They further stated that each provision had to be examined in its context to determine whether its purpose was to grant rights to individuals and whether it was sufficiently clear and precise to be capable of being applied directly by a national court. In this case, the problem in relation to the directive was that it gave member states discretion to take measures restricting the movement of non-nationals on the grounds of public policy. Nevertheless the court held that the exercise of this decision was controlled by a provision of the directive, and thus it was capable of being directly effective. In this case, some of the Member States felt that the court had exceeded its limits by advancing this concept, since the intention of directives was to allow member states some discretion as to the form and means and in allowing individuals to invoke rights directly from the directives. In Pubblico Ministerio v Tullio Ratti5, the applicant was subjected to criminal proceedings under domestic legislation for breaching Italian legislation in accordance with the provisions of a directive which was more stringent in the matter of packing solvents. Ratti based his defence on the direct effect of the community directive and this led to a preliminary reference being made to the ECJ. In order to maintain the direct enforceability of directives, the court placed an estoppel argument. The reasoning followed was that if the state failed to implement a directive in an appropriate time or did not implement it properly, then it would be estopped from refusing to recognise its binding effect if appealed against by individuals relying on rights under that directive. The case also confirmed that individuals could only rely upon rights directly under the directive at the end of the prescribed period and in the event of a member states default, at which point the Member State forfeits any discretion they was given and the directive becomes directly effective. The direct effect of directives was restrained by the concepts of vertical and horizontal effect. Van Duyn and Ratti affirmed that directives only have vertical effect so that an individual who is affected by the states’ failure to implement a directive properly or not at all only has rights against the state and not against a non-state entity or other individuals as the directive imposes the obligation of implementation upon the state. Therefore a horizontal limitation was placed upon the scope of the direct effect of directives. This principle was addressed in Marshall v Southampton and South West Hampshire Health Authority6, in which the applicant who was employed by the Health authority, was required to retire at 62 when men doing the same work did not have to retire until 65. Although under national law, by virtue of the Sex Discrimination Act, this was not discriminatory, she succeeded in her claim for unfair dismissal by relying on the Equal Treatment directive, which had not been implemented in the UK. The directive was sufficiently clear to have direct effect but the courts took the opportunity to confirm that, that a directive may not of itself impose obligations on an individual and that a provision may not be relied upon as such against such a person. Therefore since the health authority was an organ of the state, the directive had vertical direct effect. The argument is that directives were not capable of having horizontal direct effect as in accordance with Article 249 EC, the binding nature of a directive …exists only in relation to ‘each member state to which it is addressed’ and thus since it does not address individuals it cannot be binding upon them. This argument is not strong as the phrase from Article 249 EC seeks to distinguish between different Member States and not between individuals and Member States as the ECJ had assumed. The Advocate General in this case, held that to accord horizontal direct effect to directives would, primarily, totally blur the distinction between regulations and directives. Since Marshall, the position has been confirmed by subsequent case law and in Duke v GEC Reliance7, Mrs. Duke was unable to rely upon the Equal Treatment Directive, as Mrs. Marshall had, because her employer was a private individual. Similarly in Paola Faccini Dori v Recreb srl8, the Italian Government failed to implement a directive in respect of consumer rights to cancel certain contracts negotiated away from business premises. Dori having concluded a contract at a railway station was unable to rely on the directive to claim a right of cancellation as the court refused to extend the concept of direct effect to the sphere of relations between individuals. Clearly, such decisions illustrate an unfair distinction between the rights of state employees and those of private employees, but the ECJ firmly held that such a distinction may easily be avoided if the member state concerned has correctly implemented the directive into national law. However this problem regarding the ‘horizontal’ limitation on the scope of directives has been alleviated with the courts developing a number of other measures through which directives can have legal effect in Member States and thereby enhance their domestic application. The Court has expanded the definition of ‘state’ against which directives can be enforced. In Marshall it was accepted that individuals could rely on rights set out in the directive against health authority as it could be regarded as an organ of the state. However the question of what constituted the ‘state’ was left largely unanswered with the Advocate General suggesting that this was a matter for each member state to determine. This issue was somewhat clarified in Foster v British Gas9, in which the state was defined as any organisation or body subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable between individuals. The court specified this as including tax authorities, local or regional authorities, constitutionally independent authorities responsible for the maintenance of public order/safety and public authorities providing health service. In accordance with this the court considered a company in the position of British Gas to be an organ of the state. Clearly this has significantly broadened the definition of state since Marshall and critics have argued that this undesirable in the sense that ‘state’ should be a body which has the power to effect the implementation of a directive and rights should only be invoked against them as they are the ones under the obligation. Local authorities and nationalised industries such as British Gas do not have such power and cannot affect the states decision on how and when to implement directives. In respect of this, the position laid down in Marshall regarding horizontal effect is undermined as individuals are able to enforce rights against bodies who would in any other context be non-state entities. Similarly the effectiveness of non-implemented or incorrectly-implemented directives that do not have direct effect through the horizontal limitation has been enhanced through the doctrine of indirect effect, which emerged from Von Colson10. In this case the ECJ held that national courts are required to interpret their national law in light of the wording and the purpose of the directive so that the directive is given some effect despite the absence of proper domestic implementation. This principle may be used under two circumstances; first, where the defendant is a state entity but a directive is not vertically directly effective as its provision are insufficiently precise, conditional and require further state action for their implementation. Second, the provisions of a directive could be indirectly enforced against a non-state entity i.e. it could apply horizontally as between individuals. The court was confronted with a ‘horizontal’ situation in Marleasing11, in which this position was confirmed. Therefore, if national law was in existence that could be read in conformity with a non-implemented directive, then an individual could enforce a legal remedy against another individual through the interpretative route without seeking to enforce the directive directly and encountering the barrier to horizontal effect. The Advocate General’s opinion in this case suggested that the general principles of community law must be respected, particularly the principles of legal certainty and non-retroactivity. Therefore an interpretation that would impose a ‘civil penalty’ upon one of the parties would contravene these principles so that harmonious interpretation would not be possible. However beyond this the ECJ has subsequently left it to the discretion of the national court as to whether or not an interpretation in conformity with a directive is possible. It can essentially be seen as a usurpation of the legislature’s power as well as undermining the precision and certainty of the law. In the case of Luciano Arcaro,12 a limitation was imposed based upon the possible impact of the interpretation. It was held that the EC did not require national law to be read in light of a directive where to do so would be to impose on an individual an obligation contained in a directive which has not been transposed. The final manner, in which it is possible for an individual to enforce a directive when the barrier to horizontal direct effect is encountered, was established in Francovich,13 in which it was declared that Member States may be liable to make good damage for its failure to implement a directive. The doctrine of direct effect has clearly had a significant impact on the legal systems of all Member States, providing a means for individuals to enforce rights derived from community legislation in their own national courts and in this sense can be considered a liberating concept. However, the position, particularly with regards to directives, remains complex and even highly volatile, undermining to some extent the certainty and effectiveness of community legislation that the concept set out to achieve. Although it is certainly a significant feature of the EC, the ECJ does lack jurisdiction over some areas of community law and therefore cannot determine the legal effect and nature of certain provisions. Problem Case. It is assumed that an Article 2(2) of an (imaginary) Directive adopted by the Community on 1st April 2003 entitled “Teachers’ Employment Rights”, exists and that it states that “Teachers employed in schools and in higher education establishments and working in the territory of any of the Member states shall have the right to take a meal break of a minimum duration of one hour after every single teaching session lasting two and a half hours or at the end of any series of consecutive teaching sessions lasting a total of three hours.” This imaginary Directive was to have been implemented by the 30th of June 2005. In this regard, the government of UK had not taken any measures to implement the directive in the state with the reason that an Education Act passed in 2000 was already in place, which covers the working hours of teachers. The UK had voted against this directive when it was adopted by a qualified majority vote in the Council. Rachel is a teacher working in a public sector school. The government of UK had not implemented the directive into the national law. If the school authorities resorted to dismiss her from services, it will become unfair dismissal and as discussed earlier, Rachel can seek enforcement of her rights under the EC Law by the government of UK under the procedure of Vertical Direct Effect in the national courts. If even after this, her rights are not upheld she can approach the EC for Redressal. As such the State is responsible for any damages or inconvenience caused to Rachel in the course of her employment as a teacher in the public sector school. In the case of José, a Spanish citizen, works for the Pan-European University a private institution running a specialized post-graduate course in European cultural studies in London. When he reported for work in January he was required by his head of department to deliver a three-hour lecture on Spanish history each Wednesday without a break. He then represented to them that he was not prepared to work for such long hours without a break and that he would deliver two separate lectures of one and a half hours each instead. At this juncture, José was threatened that he would be dismissed from the job if he fails to follow the instructions. Subsequently, José’s father being a leading lawyer in Barcelona told him that the UK should invariably implement the directive and that he is therefore making representations to senior EC and Spanish government officials in order to put pressure on the UK government to do so. It is possible for an individual to get a directive enforced when a barrier to horizontal direct effect is encountered; this was established in Francovich,14 in which it was held that Member States are responsible for damages to an individual in the case of failure to implement a directive. The Court had further extended the applicability of this principle in the joined cases of Brasserie de Pêcheur15 and R v Secretary of State for Transport, ex parte Factortame (No. 4)16 by holding that the aggrieved individual can claim damages against a state in the event of a non-implementation or serious breach of the EC law. The bone of contention was whether the aggrieved individuals could claim damages against the state in the national courts. The ECJ clarified that the state had to pay compensation for the damages and that the conditions laid down for such claim of damages must not be less reasonable than for a domestic claim and that the Member State should not complicate the claim process unduly. Concerning damages, the ECJ further held in R v H.M. Treasury, ex parte British Telecommunications plc17, that parties who had sustained loss as a result of incorrect implementation of a directive by a state can claim damages for the loss. In contrast to this, where a state has failed to fulfill its obligations regarding directives, whether by non-implementation or incorrect implementation, an individual can not request invocation of the horizontal direct effect of a directive against another individual. In Compagnie des Forges de Châtillon v High Authority, the ECJ held that, “A measure emanating from the competent authority, intended to produce legal effects and constituting the culmination of procedure within that authority, whereby the latter gives its final ruling in a form from which its nature can be identified18.” Based on the above discussion, José can seek legal action against his employer in UK courts for failure to implement the directive. The EC constantly enforces the infringement policies and applies pressure on Member States to harmonize and discharge the Community obligations. Therefore, Jose can impel the EC to compel the UK government to implement the Directive. Bibliography. 1. Craig P and de Búrca G, ‘EU Law: Text, Cases and Materials’, 2nd edition, 1998, Oxford University Press. 2. Craig PP, ‘Once Upon a Time in the West: Direct Effect and the Federalization of EEC Law’ (1992) 12 OJLS 453. 3. Hartley TC, ‘The Foundations of EC Law’, 4th edition, 1998, Clarendon 4. Hunnings NM, ‘The European Courts’, 1996, Cartermill. 5. Lasok D, ‘Law and Institutions of the European Union’, 6th edition, 1994, Butterworths. 6. Lewis C and Moore S, ‘Duties, Directives and Damages in European Community Law’ [1993] PL 151. 7. Ludden B and Wyatt D (eds.), ‘Basic Community Laws’, 6th edition, 1996, Oxford University Press. 8. Maltby N, ‘Marleasing: What is all the fuss about?’ (1993) 109 LQR 301. 9. Pescatore P, ‘The Doctrine of Direct Effect: An Infant Disease of Community Law’ (1983) 8 ELRev 155. 10. Ross M, ‘Beyond Francovich’ (1993) 56 MLR 55. 11. Steiner J, ‘Enforcing EC Law’, 1995, Blackstone. 12. Tillotson J, ‘European Community Law: Text, Cases and Materials’, 2nd edition, 1996, Cavendish. 13. Usher J, ‘Plender and Usher’s Cases and Materials on the Law of the European Communities’, 3rd edition, 1993, Butterworths. 14. Weatherill S, ‘Cases and Materials on EC Law’, 2nd edition, 1994, Blackstone. 15. Weatherill S and Beaumont P, ‘EC Law’, 2nd edition, 1995, Penguin. Read More