Features and Cases of European Community Law - Coursework Example

European Community Law Ans The doctrine of Supremacy: Article 5 of the EC Treaty sets out the distribution of power between the European Community and the States, designating certain areas of “exclusive competence” where EC law will prevail over domestic laws.1 In those areas where the community shares power with the member States, the principle of subsidiarity operates2 to require that Community law should operate only when a desired goal can be achieved with better efficiency by the Community. However, in practice, through the case precedents set by the European court of Justice, 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.3 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.4 Under Article 230 of the EC Treaty5, the ultimate power of interpretation is provided to the European Courts over the national Courts. Moreover, the supremacy of EC law over national laws has been established time and again through the case precedents of the ECJ, including the Direct Effect6, wherein EU law creates rights for individuals that must be upheld by national courts and through the introduction of EU Directives that must mandatorily take effect within the member states, even if national laws are in contravention of those Directives. In the case of United Kingdom of Great Britain v the Council of the European Union7, 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 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.8 Any measure to restrict market access has been treated with strict disfavor by the EU and the result has been a restriction on the powers of the member States, such as that which occurred after the case of Cassis de Dijon.9 Another example that may be cited is the decision of the European Court of Justice in the case of Commission v United Kingdom10 in which no system of worker representation existed under the UK legal framework but the State was required to create one under two European Directives which “require[d] Member States to take all measures necessary to ensure that workers are….in a position to intervene through their representatives……”11 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, despite the principle of subsidiarity that was initially intended to allocate power to the smaller unit – i.e, the States12. For example in the case of R v Ministry of Agriculture13 clarifies that it would not be possible for a member State to resort to provisions under Article 30 of the EC Treaty to justify national restrictions on trade when there is a clear Community Directive with a different objective that has been established for the harmonizing of relevant measures between nations. Failure of the Member State to implement a Directive could also hold a variety of public bodies liable under EC law14. This liability can even extend to horizontal direct effects as held in the case of G Defrenne v Sabena15 where national courts were required to uphold the principle of equal pay for men and women and Craig has pointed out how the opposition of the States to the horizontal direct effect of Directives only imputes additional financial liability on them16. 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 UK17 where a special kind of dim-dip lighting regulation was required by the UK Government and in this case, the EC held that it was not necessary that such a regulation be applied to vehicles from other member states. The European Court of Justice has handed down several landmark decisions, of which its decision in the case of Van Gend en Loos18 was notable in establishing the direct effect doctrine. In this case, the Court held that under certain conditions, the provisions of the EC treaty could have a direct effect in the member States and those states who were not honoring their Community obligations were liable to face legal action in their own national courts. In the case of Marshall v Southhampton19, 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. The doctrine of Supremacy has therefore established the broad discretion of EU law in national 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.20 In the case of Costa v ENEL, the European Court of Justice has stated in so many words that the supremacy of EC law means that in effect, national laws are subordinated and there is a “permanent limitation of their [the Member States] sovereign rights”21 which explains why it has been received guardedly by Member States. Ans 2: The Treaties of Maastricht, Amsterdam and Nice: The Maastricht Treaty on the European Union 199222 was first established to consolidate and amend the provisions of previous treaties of Rome, which were geared towards the achievement of common objectives within the European states. The purpose of this treaty was to advance the goals of deepening European political and economic unions through the development of a common market. The Maastricht Treaty created a new model for the European Community23 which was primarily centered around three major pillars - economic relations, foreign affairs and home affairs, intended to serve the objectives enshrined in the original treaties of Rome – namely to promote cooperation and interaction between the various European states. It transformed the governmental structure – the Commission was in charge of economic activity, while the other two pillars were to be controlled by the European Council. The goal was to share common interests and strengths and develop a common internal market in order to facilitate trade and commerce within the European states, with all three pillars linked under the umbrella of the European Union. The Maastricht Treaty resulted in the official creation of the European Union, which was equivalent to a European Government that regulated the common market and represented the common interests of the European states. It also resulted in the European Economic and Monetary Union and the origin of the Euro – the common European currency. While there were only a few countries initially that joined the European Commonwealth, the number of nations has been increasing. The Amsterdam summit of 1997 resulted in the drafting of a treaty that built upon the Maastricht treaty to prepare the European Union to expand to include more nations and assume a more democratic framework.24 The Treaty of Amsterdam was significant because the European parliament was finally accorded powers to pass legislation together with the Council of Ministers on various issues that related to the European Union – such as health, employment, social policy, environment, etc. The Schengen Convention pushed for open borders among the countries of the European Union and resulted in an expansion in Common Foreign and security policy and increased membership. It also allowed for foreign policy decisions to be made on the basis of majority voting. The Treaty of Nice built upon the developments of the Treaty of Amsterdam, enhancing the powers of the European council of Government . Justice and home affairs were in the hands of the Commission. The Treaty of Nice also altered the manner in which decision making took place within the European Council, since some members could cooperate closely among themselves without the necessity of unanimity. On October 27, 2004, the President of the European Commission Jose Manuel Barroso was forced to withdraw his team and ask for time to nominate new members, who would have to be approved by the European Parliament.25 This incident served to highlight the growing influence of the European Parliament which is confirmed by the fact that most of the members of the European Parliament felt that it was their job to weed out weak Commissioners and that they had served the democratic purpose they were intended to satisfy by confirming the entire body of members of the European Commission. The UK Telegraph summed it up succinctly when it stated; “The paradox of yesterday’s events is that they are a great victory for the European parliament but not for democracy.”26 There can be little doubt that the powers of the European parliament are expanding, especially in the wake of the Amsterdam and Nice Treaties. When the EC Treaty was first implemented, the EU was visualized as more of a regulatory body that would serve to merely coordinate its various member States, rather than that of ascribing to the European parliament a power that is gradually growing to be on par with that enjoyed by the Parliaments of individual Member States. The principle of subsidiarity that formed the basis of the Constitution of the European union has gradually given way through precedents established in cases such as that of Van Gend27 and Francovich28, there are no areas that may be designated as off limits to the EC and exclusive to the Member States29. Moreover, while the European Commission was intended to be the only body responsible for introducing European legislation, its subordination in ultra vires issues to the ECJ and the European parliament raises the ultimate question of who is the ultimate power in law making? The growing power of the European parliament over the years has ensured that it can no more be dismissed merely as a “talking shop’. The enhanced powers of the European parliament under the EC Treaty: Article 192 of the EC Treaty laid out the powers of the European Parliament to request the Commission to submit any proposals that may be considered as Community Acts. However, the power to introduce new legislation in the form of EU regulations is the province of the European Commission. Through the law making principle of co-decision, the Commission is to propose and the Council, is to decide upon a procedure that is to be implemented.30 Thereby the EU Parliament is permitted to propose amendments and also to veto the proposed laws. While the European Commission has the monopoly in proposing all the EU laws, the procedure is to obtain a simple majority among the members of the Commission and a subsequent majority among the members of the European parliament. However the fact that the European parliament has the power to veto the legislation proposed or to propose amendments, and that in the event of a dispute the proposed law will fail, means that the European Parliament has been imbued with the power to legislate for the European Union. In view of the diminishing importance of subsidiarity of the member states, it may be seen that the power of the European parliament is growing steadily and may soon be a match for the powers enjoyed by the Parliaments of the individual member states. The developments in the various Treaties have only paved the way for a clear delineation of powers between the Commission and the Council, and the fact that membership in the European Community is growing is increasingly working in favor of the development of a European based Government rather than the preservation of separate, distinct national Governments. Bibliography Books/Journal Articles/Websites: * Barner, N.W , 2005. The limited modesty of subsidiarity . European Law Journal, 11(3), pp 308-325 * Bernard, N,1996. "The Future of European Economic Law in the Light of the Principle of Subsidiarity" 33 Common Market Law Review, 633 * “Consolidated version of the EC Treaty” [Online] Available at: http://europa.eu.int/eur-lex/en/treaties/dat/C_2002325EN.003301.html * Amsterdam treaty [online] available at: http://news.bbc.co.uk/1/hi/world/europe/3595155.stm#s23 * http://europa.eu.int/eur-lex/lex/en/treaties/dat/11992M/htm/11992M.html * Craig, Paul and deBurca, Grainne, 1995. “EC Law, text cases and materials.” * Craig, Paul P, 1997. “Direct effect, indirect effect and the construction of national legislation” European Law Review, 22(6): 519-538 * Jeffcoat, Harold G, The Subsidiarity principle in European Community Law. [Online] Available at: http://www.txwesleyan.edu/president/subsidiarity.htm * Maastricht Treaty [online] available at: http://news.bbc.co.uk/1/hi/world/europe/3595155.stm#s23 * Press review: Strong criticism of Barosso Europe’s world. [Online] Available at: http://www.euractiv.com/Article?tcmuri=tcm:29-131602-16&type=News * Roxburgh, Angus, 2004. Analysis: EU Commission in turmoil. BBC. [Online] Available at: http://news.bbc.co.uk/1/hi/special_report/1999/02/99/e-cyclopedia/297559.stm .* Title III: The Union Competences [Online] Available at: http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldeucom/61/6104.htm * Weatherill, Stephen, Better Competence Monitoring, European law review, 30(1), 2005, pp 23-41 Cases: * Andrea Francovich et al v the Italian Republic; Joined cases C 6/90 and 9/90 (1991) ECR I – 5357. * Case 26/62, Van Gend en Loos  v. Nederlandse Admistratie der Belastingen,1963 E.C.R. 1. * Case C-271/91, Marshall v. Southampton and South West Area Health Authority (No. 2) (1993) * Costa v ENEL, Case 6/64 (1964) ECR 585 * Commission v UK (1994) C-382/92 at para 23 and C-383/92 at para 26 * Case C-5/94, R. v. Ministry of Agriculture, Fisheries and Foods, ex parte Hedley Lomas, [1996]E.C.R. I-2553. (see para 18) * Case 43/75 (1976) ECR 455 * Case 60/86, Commission v UK (dim-dip lighting devices) (1998) ECR 3921 * Case C-84/94 UK v Council * Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein ("Cassis de Dijon"), [1979] E.C.R. 649 * Case C-382/92 and case C-383/92 (1994) Read More