European Community Law - Assignment Example

 European Community Law Ans 1: Supremacy Of Eu Law: The legal doctrine of Supremacy means that EC law takes precedence over national laws, especially in matters related to labor and industrial relations. The formal role of the European Court of Justice, as set out in the Treaty, is merely to “ensure that in the interpretation and application of this Treaty, the law is observed.”1 According to George Bermann, the “EEC Treaty.....was conceived as an international agreement, and only later came to be viewed as a constitutional document.”2 However, as pointed out by D. Anderson, the judicial activism of the European Court of Justice has “appoints[ed] the European Court as meeting place between the legal order of the Community and those of its member states.”3 The judicial activism of the ECJ has produced the subordination of the subsidiarity principle upon which the Treaty was initially conceived to placate member States who felt that power was slipping away from national levels to European levels.4 The result is, there are no areas that may be designated as off limits to Community law, which has achieved a position of supremacy over national law5. The decision of the European Court of Justice in the case of Van Gend en Loos6 was notable in establishing the direct effect doctrine, wherein the Court ruled that the protection of EU law applied to individuals as well as member states. The case of Francovich7 also established liability that would rest upon a Member State for the infringement of individual rights. Since then, a succession of cases8 have extended the principle of Member State liability to cover other instances of infringement of individual rights that could reasonably have been foreseen by the State. Application of national law where individual rights may be violated, will be limited by the obligation of the Member States to implement the EU Directives.9 However, in the process of establishment of the supremacy of Community law over incompatible member state law, the rights of member states have been notably diminished by the supremacy doctrine. This may be noted especially in the case of Costa v ENEL, where the Court stated: “The transfer by the states from their domestic legal systems to the Community Legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.”10 The Court has drawn an analogy between the liability of the member states and the tortious liability of the Community institutions under Article 215(2), where the Community enjoys a wide discretion in the exercise of its powers and is liable for violations and incurs liabilities only when it can be firmly established that it had seriously disregarded the limitations of those powers and their attendant responsibilities. Therefore the doctrine of supremacy of EU law means that state liability may therefore be incurred regardless of which administrative section or body was responsible for the breach.11 This was also the position taken by the ECJ in the cases of Factorame II12 and Brasserie13. In the case of Factorame III, the point at issue were the provisions of Part II of the Merchant Shipping Act of 1988, which spelt out conditions relating to the nationality, domicile, etc of fishing vessels registered within the United Kingdom and were deemed to be in violation of Article 52 of the EC Treaty. Therefore, the first condition of the qualification of the national law as breaching the rights of individuals endowed by the Treaty was established. The UK legislature enjoyed a wide scope of discretionary power in the implementation of its powers in reference to the registration of vessels. The ECJ held that this discretionary power had been seriously disregarded. Preceding case law was drawn upon by the ECJ in arriving at its decision.14 In both Brasserie and Factorame, the Courts were prevented by their own laws from awarding damages to the individuals in question.15 The question of liability of a State for incorrect or improper implementation of an EC Directive was also an issue in the case of R. v. H.M. Treasury16 and in the case of Hedley Lomas.17 The case of R v H.M.Treasury, ex parte British telecom18 concerned the incorrect implementation of a Directive for which State liability was imputed by the Plaintiff and the case of Lomas concerned the rights of the applicant which had been breached by a national authority under the provisions of Article 34 of the EC Treaty. Both these cases illustrate the overriding of national law by EC law in the event of a dispute between the Community and the State in implementing a Directive, thereby providing some insight into the reasons for the guarded response of Member States to the judicial activism of the ECJ, implemented through the doctrine of supremacy. Other significant cases that have established the supremacy of EU law over national laws also extend into areas such as sex discrimination, as in the case of G Defrenne v Sabena19 where it was held that national courts have a duty to protect the right to equal pay for men and women enshrine din EU law. Similarly, in the case of Commission v United Kingdom20 the ECJ held to mandatory for the UK to ensure that workers are informed, consulted and empowered through a system of worker representation in accordance with EU laws while no such provision existed in the UK, thereby overriding national law. Another remarkable instance of the overriding of UK national law was that of Marshall v Southampton and South West area Health authority (No: 2)21 which abolished the limits that existed in UK law on compensation in sex discrimination suits. The supremacy of Community law over national law, especially where the provisions of the EC Treaty according rights to individuals are breached, has been established by all these cases and is contrary to the original intent of subsidiarity to empower member States22, thereby clarifying the guarded response to supremacy by member States. Ans 2: The European Parliament: The Maastricht Treat is also referred to as the Treaty of the European Union and brought into existence, the Commonwealth of European member States. It was the culmination of earlier attempts that had been made by member states to enter into productive associations on common interests and resources. Economic and monetary union was at the forefront of the goals and objectives of the EU Treaty, also known as the Maastricht Treaty, which is also the best known among the treaties because of the difficulties that arose with member States ratifying the treaty. As a result of this treaty, 12 European countries officially became members of the European Union , and was also responsible for setting out the steps for European Monetary Union which has led to the development of the Euro – the common European currency. The economic aspect was only one of the pillars of the foundation of the commonwealth states – other aspects were foreign affairs and home affairs, although the UK initially opted out of the social chapter, which covered issues such as health and safety regulations and worker pay within individual member States23. The Amsterdam treaty however clarified and updated the Maastricht Treaty and the primary purpose behind this Treaty was to enable the expansion of the European Union so that more members could join24. The sections in the Maastricht Treaty that dealt with public health issues and consumer protection were tightened up, but the most significant aspect of this treaty was the introduction of qualified majority voting, so that the emerging European Union comprised of a greater number of States began to assume a more democratic role. There was a clear distinction made between the duties of the European Commission that was provided the job of proposing legislation while the European Parliament which also had a Council of Ministers was given the job of legislating on a variety of matters concerning the European Union, including employment issues, social policies and the environment. The Treaty of Nice only built further on the Treaty of Amsterdam and further clarified the division of powers, including provisions for the entry of eastern bloc nations into the European Commonwealth. Therefore, the effect of these treaties was to bring about significant changes in the manner in which the European Union functions, including the regulation of the Common market and the development of a common monetary policy including the use of the Euro as the common currency used within the entire European Union. It may be noted that the role of the European Parliament has evolved from that of a purely regulatory, supervisory role to a much more active one. As compared to the Parliaments of individual member states, especially the UK, the European parliament did not at first enjoy any overriding power. Within the UK, Parliament is sovereign, therefore no person or organization has the power to act in contravention of the expressed will of parliament, except Parliament itself25. However in the case of the European parliament, this was not the intent under which its role was spelt out within the EC Treaty. While in the UK, even the judicial authorities are subject to Parliament and the scope of their function is restricted to interpretation of the law of parliament, in the European Community, the European Commission was to be the supreme legislative body. However, as more members are joining the European Union, the European Parliament has become 732 member strong26 and when the provisions of the Amsterdam Treaty that allowed qualified majority voting are applied, it may be noted that the European Parliament is growing in strength as compared to the Parliaments of the individual nations, especially when combined with common monetary and fiscal policies for the European Union. Several steps have been taken in the direction of European legal unity through the development of the EU Charter of Rights and as noted by Heinz Kotz: “….a serious effort must be made to develop a common core of European legal principles and rules, to engage in the construction of a European lingua franca…..and thus to lay the basis for what will be needed when the ripe is ripe to undertake the project of a European Civil Code.”27 Many other experts also believe that a common community is emerging in the European Union and that national legal systems should be converged into the framework of the European Union.28 Therefore the role of the European Union is changing. When the EC Treaty was formulated, the EU was seen to have a regulatory function, however with the principle of supremacy of Community law being established and accepted by most Member States, the supremacy of European law is being established. An early instance of the emergence of the supremacy of the European Parliament occurred in 1998 when there was a conflict between the elected members of Parliament and the appointed members of the European Commission. The European Parliament is the only elected body and considers itself the watchdog of maintenance of democracy within the European Union.29 However, in an instance where there was a conflict between the European parliament and the Commission which has an overriding role since it directs legislation and policy within the European Union, the entire council of 20 Commission members headed by Jacques Santer resigned, so that victory was effectively conceded to the European Parliament in this case. Since the members of the European Parliament also belong to political parties, the role of the European parliament is therefore changing and its function becomes more important in relation to the Commission and the Council. This institutional uncertainty between the bodies of the European Union such as the Commission, the Council and the Parliament has opened the way for a more comprehensive role for the European parliament in determining the affairs of the European Union. Therefore, it appears that as more countries join the Union, there is a strong likelihood that a common European Government may be the result. With the judicial activism of the ECJ, EU law has assumed primacy over national laws and now it appears that EU Government will gain primacy over national Governments. Bibliography * Amsterdam treaty [online] available at: http://news.bbc.co.uk/1/hi/world/europe/3595155.stm#s23 * Anderson D, 1995. References to the European Court, London, Sweet and Maxwell, p. ix * A. Estella, The EU Principle of Subsidiarity and its Critique Oxford University Press, 2002: Chapter 3 * Bermann, George A , 1994. "Taking Subsidiarity Seriously: Federalism in the European Community and the United States," Columbia Law Review 94 : 355 * Barner, N.W, 2005 . The limited modesty of subsidiarity . European Law Journal, 11(3), pp 308-325 * Craig, Paul and de Búrca, Grainne 2003. “EU Law: Text, Cases and Materials” (3rd ed.) Oxford: Oxford University Press, at pp 262. * Craig, Paul P, 1997. “Once more unto the breach: the Community, the State and Damages Liability” Law Quarterly Review 113, pp 67-94 * Dicey, A.V. 1959. “The Law of the Constitution” (10th edn, ECS Wade) * Europe’s power struggle: Commission v Parliament BBC News report. March 16, 1999. * Gerven,W, 1995. "Bridging the Gap Between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies?" (1995) 32 CML Rev 679 * Kotz, Heinz, 1998. "Towards a European Civil Code", in P. Cane and J. Stapleton (eds) The Law of Obligations, Essays in Celebration of John Fleming, Clarendon, pp. 243-4. * 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 * Weatherill, Stephen, Better Competence Monitoring, European law review, 30(1), 2005, pp 23-41 Cases: * Andrea Francovich and Danila Bonifaci and others v Italian Republic, Joined Cases C-6/90 and C-9/90, European Court Reports 1991 page I-05357. * Brasserie du Pecheur SA v Germany (C46/93) [1996] E.C.R. I-1029 (ECJ). * Costa v ENEL, Case 6/64 (1964) ECR 585 * Case 26/62, Van Gend en Loos  v. Nederlandse Admistratie der Belastingen,1963 E.C.R. 1. 28 Van * Case 43/75 (1976) ECR 455 * Commission v United Kingdom Case C-382/92 and Case C-383/92) (1994) * Case C-246/89, Commission v. United Kingdom [1991] E.C.R. I-4585 * Case C-5/94 R v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd, The Times, June 6, 1996 * G Defrenne v Sabena Case 43/75 (1976) ECR 455 * Marshall v Southampton and South West area Health authority Case C-271/91 (1993) * R. v Secretary of State for Transport Ex p. Factortame Ltd (C48/93) (1996). * R v H.M.Treasury, ex parte British telecommunications Case C-392/93 * R. v. H.M. Treasury, ex parte British Telecommunications Plc [1996] 2 C.M.L.R. 217 Read More