Fundamentals of European Law - Essay Example

Melinda’s rights against the United Kingdom are determined by reference to her relationship with the United Kingdom and its status as a Member within the European Union. There are essentially two systems of law relevant to determining Melinda’s rights in the context of the directive issued by the European Union. The three systems are contained in the European Union’s Treaties which are referred to as primary legislation, Directives which are referred to as secondary legislation and Decisions which are handed down in the European Court of Justice.1 The United Kingdom, as a member of the European Union is bound by the provisions of the current Treaties as well as any future Treaties. Section 2 of the European Communities Act 1972 provides that ‘all such rights powers liabilities obligations and restrictions... created by or arising under the Treaties ... shall be recognised and available in law, and shall be enforced, allowed and followed accordingly.’2 This is the context in which Melinda’s rights fall to be determined. Melinda’s case involves the interpretation and application of secondary legislation as her rights are directly connected to the validity of a directive issued by the Council of the European Union. Although directives require enactment by the legislators of individual Member States, they are binding on all members.3 Article 249 (formerly Article 189) of the Treaty of Rome 1957 makes provision for directives to be binding on ‘each state to which it is addressed.’4 Although the United Kingdom is at liberty to use its own discretion as to how to implement the directive issued by the European Union on patio heater specifications, it has an existing duty under the current law to implement the directive. That fact that the directive is contrary to unfair competition policies in the United Kingdom and compromises existing local directives on the same device does not make the directive by the European Union any less applicable. In Van Gend en Loos v Nederlandse Administratie der Belastingen, the European Court held that the European Community represents a ‘new legal order’ which binds its members. Moreover, in the event a law issued by the European Community contradicts a domestic provision, the European Community’s law will prevail.5 In Publico Ministero v Ratti [1979] ECR it was held that by virtue of Article 189 of the Treaty of Rome, regulations are capable of having the force of law in each Member State if they contain language indicating that the regulation is ‘unconditional and sufficiently precise.’6 This ruling will also apply equally to Directives. The European Court held that Regulations and Directives are unconditional provided they were not subject to some measure of ‘judicial control.’7 In this case, Van Duyn v Home Office, the European Court held that a provision which related to the freedom of movement in respect of workers was not effective since it was ‘subject to limitations justified on grounds of public policy, public security, or public health’.8 The facts of Van Duyn v Home Office can be distinguished from the facts of Melinda’s case. The directive issued by the European Union is specific and unconditional. There is no provision for discretion on the part of any body, it merely makes provision for a more relaxed standard of patio heater specification and seeks to bring into effect a uniform standard for all Member States Directives are single minded of purpose as they place legal obligations on the Member State and while they are not applicable to suits between individuals, an individual may pursue the State or any of its agents if a Member States fails to comply with the directive. By virtue of the ruling in Francovich and Bonifaci v Italy, Melinda is at liberty to pursue an action in damages against the United Kingdom for any loss sustained as a result of the government’s failure to implement the patio heater specifications.9 In Francovich and Bonifaci v Italy the plaintiffs faced circumstances and facts not unlike Melinda’s case. Like Melina, Francovich and Boniface’s dilemma followed Italy’s failure to implement a European Community directive designed to protect employees from the consequences of employer insolvency. The Italian legislators had failed to organize a committee that would effectively arrange for compensating employees in respect of unrealized claims. The plaintiffs sued the Italian government on the grounds that they had suffered damages as a result of Italy’s failure to implement the relevant directive issued by the European Community. The European Court, in recognizing that the individual had a right to pursue a Member State in such circumstances ruled in favor of the plaintiffs.10 The impact of the Francovich principle can be said to be twofold. ‘It performs not only a compensatory but also a dissuasive function, the latter consisting in the imposition on the public authorities of an indirect pressure to live up to their EC law obligations, in the knowledge that they may be otherwise called to make good any loss their violation causes to individuals.’11 The European Court in Van Gend en Loos v Nederlandse der Belastingen, developed the principle of ‘direct effect’ under which individuals such as Melinda may pursue the United Kingdom for consequential loss. Maintaining that some provisions have direct application in Member States the European Courts held that these provisions create ‘individual rights which national courts must protect’.12 By virtue of this ruling, Melinda as an individual can pursue the United Kingdom as a Member State for its failure to implement the directive issued by the European Community. Melinda’s right to pursue damages against the United Kingdom is based upon the ruling in Foster v British Gas [1990] ECR 1-33313 where the European Court ruled that in the case of un-implemented directives, individuals could pursue damages against the Member State or an agent of the Member State. An agent was defined as an organization or body that was under the control or direction of the State.13 The department of customs is a division of the government of the United Kingdom and operates under the name and style of Her Majesty’s Revenue and Customs.14 It is also important to advise Melinda that the United Kingdom will not benefit from an argument that the Directive was not implemented at the time of her importation of patio heaters and therefore could not be law. The European Community laws adequately make provision for the retroactive application of its directives to Member States. In a manner characteristic of the European Community, the heating directive was issued to the Member States leaving each State to their own discretion as to how they would incorporate the directive into domestic law. Moreover, the European Community set a time limit for the implementation of that directive. The time fixed was January 1st, 2006. Owing to a combination of time constraints on Government resources and a general disagreement with the content of the directive itself, the United Kingdom did not get around to implementing the directive until August 1st of the same year. Obviously there was a delay in the implementation of the directive and Melinda was caught by it. While Directives are not enforceable against individuals if they are not implemented by the law of the applicable State this is not so in cases of ‘direct effect’ against the actual Member State. The ruling in Emmot v Minister for Social Welfare and the AG [1991] explains the reason for this proviso. Individuals are not expected to know the law prior to its implementation as it is not law. Government and government bodies are a different matter entirely. The fact is, the Government has duty to implement the directive in the first place and it would be unconscionable to permit the Member State to benefit from its failure to do so.15 It was held in Becker v Finanzamt Münster-Innenstadt (1982) ECR 53 at 70-71) 16that particularly in cases in which the Community authorities have, by means of a directive, placed Member States under-a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law. The fact that the United Kingdom had its own specifications for patio heating is also of no consequence. It had a duty to construe preexisting provisions in such a way as to conform with the new directive issued by the European Community. Sir Gordon Slynn maintained that ‘it is thus plain that where legislation is adopted to implement a directive, or consequent upon a Treaty obligation, national courts should seek so far as possible to construe the former in such a way as to comply with the latter.’17 In light of the authorities cited the general trend among the jurists sitting in the European Court of Justice is clear and unambiguous. Member States, by joining the European Community indorse the jurisdiction of the European Courts and are bound by the primary and secondary legal provisions. Not only are Member States bound to follow all regulations and directives, they are also expected to make domestic provisions for implementation. Failure to do so will not exonerate the offending Member State and the rights of individuals will be protected by reference to the Community laws. With this in mind, together with the law discussed in the preceding passages, Melinda has a strong case against the United Kingdom. Bibliography Anagnostaras, Georgios. State Liability v Retroactive Application of Belated Implementing Measures: Seeking the Optimum Means In Terms of Effectiveness of EC Law. [2000]1Web JCLI http://webjcli.ncl.ac.uk/2000/issue1/anagnostaras1.html Viewed November 29, 2006 Becker v Finanzamt Münster-Innenstadt (1982) ECR 53 Emmot v Minister for Social Welfare and the AG [1991] ECR 1000 European Communities Act 1972 European Union Law. http://www.leeds.ac.uk/law/hamlyn/european.htm Viewed November 29, 2006 Foster v British Gas [1990] ECR 1-33313 Foster, Nigel. Blackstone’s EC Legislation. (2006) Oxford University Press. Francovich and Bonifaci v Italy, [1991] ECR I-5357 HM Revenue and Customs http://www.hmrc.gov.uk/ Viewed November 29, 2006 Marshall v Southampton and South West Hampshire Area Health Authority [1986] IRLR 140 Publico Ministero v Ratti [1979] ECR 1629 Treaty of Rome 1957 Van Duyn v Home Office [1974] ECR 1337 Read More