How to Bring Law and Order to European Countries - Assignment Example

 Primacy of EU Law over National Law Upheld Through Indirect And Direct Effect Doctrines Introduction The most salient features of the new “Constitution for Europe,” which was finalized in 2004, are the provisions on the so-called Community Method and on “subsidiarity.” For the first time, the Constitution also gives European citizens the right to ask the Union to launch initiatives. Under the Community Method principle, the EU law has primacy over the law of member states. This means that any EU law is an integral part of the law in each member state, whose courts are duty-bound to apply it. As for subsidiarity, this new principle enshrined in the new Constitution dictates that if member states cannot transpose EU laws into national laws, the Community would act to see that the objectives of these legal actions are achieved at the regional and local levels.1 Except for treaties and international agreements, EU law comes mostly as regulations and directives intended to underpin the national laws of member states. Regulations are laws with general application, such that member states are under no strict liability to adopt them into national law. In the case of directives, that obligation is unconditional on the part of member states, although they can choose the form and methods by which to implement an EC directive 2. These provisos in the new EU Constitution are highlighted by this paper in its discussion of how to bring law and order to European countries if the EU law relevant to a particular case contravenes the national law of a member state; if an EC regulation favors one national group over another; or if an EC law that could bolster a local case has no equivalent version in the member state that is hearing the case. In so doing, the paper presents two make-believe cases involving consumer welfare promotion and environmental protection, two areas of concern high on the agenda of the new Constitution as embodied in Article II-62 and Article II-97, respectively. Both areas need state legislation to give them real substance. Test Case #A In 2006, EC issued Environmental Protection Directive 100/06 to all member states enjoining them to adopt its core provisions into national laws by March 25, 2006. The directive imposes criminal liability on anyone who keeps toxic chemicals in his property without sufficient safeguards to prevent leakage. If the stored chemicals, which were specified in the EC directive, escape into the atmosphere and cause harm to people, the offense carries a maximum fine of 150,000 euros or its equivalent. In UK, authorities believed there was no need to enact a new law based on the EC directive because there is a similar environmental law already in place. In March 2007, or one year after UK member states were supposed to have introduced the EC directive into their own legal systems, a man named Simon fell ill after eating vegetable grown in his garden, which is adjacent to a warehouse of Otis Chemicals Ltd. that stored the chemicals identified in the EC directive. QUESTION 1: If you’re a lawyer representing Otis Chemicals, do you think Simon can sue your company in UK under the EC environmental directive based on the direct effect principle? Can UK authorities also prosecute Otis under the same EC directive? ANSWER: Assuming that the chemical substance in question is among those identified in the EC environmental directive, Simon can invoke the same EU law in bringing a case against Otis Chemicals before UK courts. This he can do whether or not UK has adopted the provisions of the said EC law into a national law. Under the Community Method principle of the new EU Constitution, any law enacted by the Community automatically becomes an integral part of the law of a member state, whose courts are duty-bound to apply it. In C-456/98 Centrosteel v Adipol (2000) ECR I-6007, it was acknowledged that in the absence of a proper implementation in national law, an EC directive cannot by itself impose obligations on individuals. However, national courts are enjoined to interpret national law based, as far as possible, on the wording and purpose of relevant directives. That interpretation, the ruling in the case added, does not have the effect of determining or aggravating criminal liability but it can lead to the imposition of civil liability or civil obligation on an individual 3. Thus, Simon can expect Otis to be held at least for civil liability if he hales the company to court based on the EC directive. The same ruling was laid down in C-106/89 Marlesing SA v La Comercial Internacional (1990) ECR I-4135: “In applying national law, whether the provisions in question were adopted before or after the EU directive, the national court called upon to interpret it is required to do so based on the wording and purpose of the directive in order to achieve the result pursued by the latter 4.” In an imaginary Simon v Otis Chemicals case, it appears then that the direct-effect principle applies in that the complainant suffered an illness because the company ignored a directive that is supposed to cover all of Europe about the need for the proper safekeeping of certain chemicals. Based on another ruling set in 41/74 Van Duyn v Home Office, EC directives unimplemented in member states can have a direct effect if certain conditions are satisfied 5. As for the question whether UK authorities can prosecute Otis for the same act of negligence under the EC environmental directive, this is a doubtful proposition. The new EU Constitution specifies that “a national authority may not rely, as against an individual, upon a provision of a directive whose necessary implementation in national law has not yet taken place 6.” Thus, Simon can use the EC directive to sue Otis in an individual capacity, but UK as a national authority cannot do the same. It can only do so once it enacted the EC directive into national law. Under the dual vigilance doctrine, EC law can be enforced against national law in two ways – through a legal action initiated by individuals as per the direct effect and state liability principles; and by direct proceedings against the member state concerned, as provided for under Articles 226-228 of the Treaty. This condition was practically acknowledged by UK from way back, when it passed the European Community Act 1972 providing for the direct effect and supremacy of EC law 7. QUESTION 2 Based on the same situation, in which UK insists that there is no need to implement the EC directive because its provisions duplicate an existing national law, can Simon still sue Otis and can UK authorities also prosecute the company under the indirect effect principle? ANSWER: The supremacy of EC law over the laws of member states, while not spelled out in the new Constitution, is implied through the fidelity or loyalty clause in Article 10, as well as through the indirect effect and state liability principles. This means that Simon can still sue Otis for damages notwithstanding the direct effect assumption that, being a citizen of UK, which has yet to implement the EC directive, the directive does not cover him. The Constitution says that the EC law, whether of general or specific application, must prevail over any national law and that in case of conflict, the national law must be adjusted to conform to the EC law 8. The implications are that coverage of EC law does not distinguish between direct and indirect effects in regard to individual European citizens, such that they can avail of the EC law’s provisions to complain against any violation. If this happens in March 2007, the state liability principle operates and UK may be at fault for not implementing the EC law on the prescribed date, which was March 25, 2006. For that reason, UK authorities cannot prosecute Otis on behalf of Simon, something they can do only once EC law was adopted as national law. Under Article I-14 of the new Constitution, EU has exclusive power and competency over customs, common commercial and monetary policy, but shares with member states responsibility over such areas as environmental and consumer protection, transport, energy and internal markets. Since the EC environmental directive calls for shared responsibility, UK has an obligation to implement the EC law and, pending such a national law, it may not be possible for UK authorities to invoke the indirect effect principle to prosecute Otis. In C-334/92 WagnerMiret v Rondo di Garantia Salarial (1993) ECR I-416911, the rule is that “a national authority may not rely, as against an individual, upon a provision of a Directive whose necessary implementation in national law has not yet taken place.” 9 For UK to apply its own environmental law, which was promulgated without regard for EC law, is also out of the question as demonstrated in 6/64 Costa v ENEL (1964) 585 with the ruling: “the Treaty created its own system to become part of the legal system of member states and which their courts are bound to apply. Therefore, the member states cannot give precedence to a unilateral and subsequent measure.” 10 Test Case #B Mario of Italy produces orange jam under the label “Marmalade Italiana,” a brand name he had registered back in 1986. In March 2006, EC passed Regulation 101/06 providing that the word “Marmalade” may be used only by British and Irish companies because it describes a product of high quality manufactured by traditional methods. Mario thinks his business will suffer if he changes the brand name of his product to something else, so he decides to challenge the EC regulation. QUESTION 3: Can Mario bring such a legal action before the European Court of Justice? If not, where can he go or what can he do to challenge the EC directive? ANSWER Under the new Constitution, all European citizens have rights to move and reside freely within EU territory, vote and run for election in member states and in the European Parliament, and petition EU institutions for redress of grievances. The Constitution introduced a new system called European Citizen’s Initiative, which allows EU citizens to propose a new law or recall an existing one if they think it is necessary and justified. These proposals could involve child protection on the Internet, nature conservation, food labeling, health and safety at work, etc. 11 Thus, it is within Mario’s rights to petition the Community for a reconsideration or recall of EC Regulation 101/06, which he thinks caused him injustice. Article 249 of the new Constitution provides for the direct applicability in member states of EC regulations and imposes a ban on all forms of implementation other than those set in the regulation itself. This puts the direct effect principle at play, such that Mario may go direct to ECJ to question EC Regulation 101-06, which he believes runs counter to the basic EU goal of effecting a level playing field in the European business landscape. For this purpose, EC has in fact cited a number of member states for breach of Treaty, among them France, Italy and Ireland. In C-265/95 Commission v France (1997) ECR-I6959, EC faulted France authorities for failing to take appropriate measures to prevent farmers from obstructing the free movement of fruits and vegetables, which violated Articles 10 and 28 of the EC Treaty. Italy was also found to have breached the Treaty by a ban on pork products from other EU member states (7/61 Commission v Italy), while Ireland was faulted for allowing a situation in which Irish consumers discriminated against products from other EC member states 12. The EC regulation giving exclusive use of the word “Marmalade” to British and Irish manufacturers was evidently issued at the behest of these particular manufacturers with the consent of their respective governments. By the indirect effect principle, UK and Ireland may be included as respondents in the complaint to be filed by Mario before EC. This is expected to be a strong case when you consider the question: Since when can a particular manufacturer appropriate for its exclusive use an ordinary word in the English language? Mario needs to establish, however, that he is a privileged applicant before he can go direct to ECJ. Under the new Constitution, he has to bring his case to the Court of Fist Instance if he fails in this criterion and becomes classified instead as a “non-privileged” complainant. Member states that fail to uphold the supremacy of EC law over their own law are subjected to infringement proceedings, the main objective of which is to cause the state to fall in line. Penalties are exacted on member states that fail to do so. The Francovich principle established in C-6 and 9/90 Francovich v Italy (1992) ECR I-5357 provides: “If member states manifestly and gravely disregarded the limits on its discretion, it is a serious breach of Community law.” However, the infringement proceedings consider whether the breach is intentional or involuntary, excusable or inexcusable, and whether the Community’s position may have contributed to the infringement. A member state commits a breach of Treaty only when it “deliberately ignored or disregarded the Community law.” 13 References: 1. Craig & De Burca (2003). “EU Law.” 3rd ed., Chapter 1. 2. De Witte, B. (1999). “Direct Effect, Supremacy and the Nature of the Legal Order.” In The Evolution of EU, Craig & de Burca (eds), OUP 1999. 3. EC Website. “Questions and Answers on the Constitution.” Available online at: http://europa.eu/constitution/download/faq 02 en.pdf 4. Fairhurst, J. (2005). “Law of the European Union.” 5th ed., Chapter 1. 5. Foster, N. (2006). “Foster on EU Law.” OUP 2006, Chapter 1. 6. McLeod, I. (2002). “Legal Method.” 4th ed., Palgrave Law Masters, Chapters 5 & 6. 7. Sionaidh-Scott, D. (2002). “Constitutional Law of EU.” Longman 2002, Chapter 1. 8. Steiner, Woods & Twigg-Flesner (2006). “EU Law, 9th ed., OUP 2006, Cpater 1. 9. Ward, I. (2003). “A Critical Introduction to EU Law.” 2nd ed., Butterworth 2003. 10. Wiler, J. (1999). “The Transformation of Europe.” In The Constitution of Europe, OUP 1999. 11. Weatherill, S. (2006). “Case and Materials on EU Law.” 7th ed., OUP 2006, Chapter 1. Read More