How Far Are The Member States of the European Union Free to Protect Their Citizens by Use of Conflict of Laws Rules - Essay Example

 How Far Are The Member States of the European Union Free to Protect Their Citizens by Use of Conflict of Laws Rules? The rights of a citizen in the European Union are mentioned in the articles 8-8e of the Treaty of European Union. The relevant rights however apply only to those people that obtain a ‘full citizenship’ of a specific member state. Under these terms it is noticed by Muller (1999, 35) that “citizenship means the right to hold the common format European passport, to live and work anywhere on EU territory and to vote in and stand for local and European Parliament elections in other member states”. The Treaty on European Union, signed in Maastricht in 1991 has been a significant text regarding the establishment and the development of the Union. The above Treaty has become a fundamental text for any person who is interested in working within the Union. In accordance with the relevant document, a right of citizenship is recognized to foreigners that would possibly meet specific requirements. At a next level, the study of Springer (1994, 1) proved that the above document “gives citizenship in the new European Union to the citizens of the member states; it gives authority to the institutions of the European Community to make policies of immediate concern to the new Eurocitizens”. As for the trade – related activities these should be organized in accordance with the needs of the countries (member states) and their financial institutions. In a meeting held in Madrid in 1995, several issues arose regarding the conditions and the terms of partnership in the business sector of the international (and the local) community. The above meeting led to the creation of New Transantlantic Agenda which includes all necessary information regarding the confrontation of any business activity. In accordance with the above plans, members of the European Union would have to follow a series of specific principles when designing their policies related with the activation of foreign firms in their territory. In this context, the main target of policy makers in the case of New Transantlantic Agenda should be the application of the following principles/ ethics: “a) Promoting peace and stability, democracy and development around the world; b) Responding to global challenges; c) Contributing to the expansion of world trade and closer economic relations and d) building bridges across the Atlantic” (External Relations, 2004). Under these terms, the protection of European Union’s citizens should be formulated in accordance with the principles included in the particular sector. Regarding specifically the business operations in the European Union area, this is regulated mostly by the rules stated by the Union directly (regulations) but also the Treaties that have been signed throughout the years. However, it should be noticed here that specifically for Treaties it is necessary for them to have been ‘verified’ by the relevant States in order for their ‘terms’ to be applicable directly in a particular case within a country of the European Union. Furthermore, Fischer (2000, 12) found that “global trade deals seldom are limited by national boundaries and may therefore be subject to the law and jurisdiction of several sovereigns; if the sector is covered by some international agreement and dispute-resolving system (like the WTO), then resolution ought to be achievable”. On the other hand, there are many case which cannot be regulated using the principles of WTO. In such cases, the use of the national laws is necessary in order to retrieve a feasible solution. The conflict between the national and the international interest is then unavoidable. In the area of the European Union, differences between the legislation and the practice followed by the member states and those followed by the Community can create severe conflicts between these two parties while the superiority of the interest of the Union should not be considered as always applicable. Particularly regarding the trade activity, European Union has established specific rules which should be followed (in the terms described above) by the member states. In accordance with a relevant report of the European Commission (2007) the trade policy followed by the European Union aims “at opening world trade through the progressive abolition of restrictions on international trade and the lowering of customs barriers, as well as the promotion of multilateral trade rules covering all the main aspects of trade in goods and services (tariff and non-tariff barriers, trade defence)”. The problem related with the application of the above policy (like all other policies implemented by the European Union) is its ‘harmonisation’ with the national rules, i.e. the legislation applied in the member states regarding the particular subject. The significance of the European Union as a powerful international trade competitor (“the world largest trading block”, European Commission, 2007) cannot justify the superiority of the European rules over the national laws. Apart from that, member states have the obligation to provide to their citizens the appropriate protection in cases that their interests are threatened. As for the power of the European Union to impose its rules, it has be noticed by Van Gerven (2005, 37) that “the Union exercises its power within a defined geographic space, which coincides with the territory of the Member States; the Union enjoys full authority without regard for any external actor (other than the Member States acting within their own territories), and is empowered, within its sphere of competence, to regulate movements across and within its borders”. The level of Union’s power to impose its rules has been traditionally a point of conflict for the legislators in the Community. More specifically it has been doubted whether the power of the Union to impose its legislation should be considered as ‘stronger’ than the relevant power of the member states to protect their citizens. The answer in this case should be negative at least for now. In order to justify his thoughts regarding the power of the European Union to impose its rules on the member states, Fischer (2000, 37) mentions that “EU is a legitimate customs union, with minimal internal barriers and a common external tariff; it is not uncommon for it to use standards or subsidies to protect or aid its own products and to exclude foreign products; moreover, it has established preferential trading relationships with other European states through a European Economic Area (EEA) and with African, Caribbean and Pacific (ACP) countries--most former colonies--through the Lomé convention”. In accordance with the above the power of European union regarding the regulation of specific issues within the territory of a particular member state can be explained by the power of this ‘block’ in the international marketplace. In other words, because European Union is an important global trade competitor, it can be assumed that its rules are accepted by the member states without any reaction. Regarding this issue it should be mentioned that despite the financial and political power of the European Union, its rules cannot be implemented ‘automatically’ in the member states but there is a specific procedure that has to take place, named ‘verification’. On the other hand, it should be noticed that the power recognized in the European Union, refers to all industrial sectors. Especially in the area of commercial activity, the equal participation of all countries (member states) in the relevant activity is protected through an extensive net of rules which guarantee the existence of competition inside the European market. More specifically, in accordance with the article 85 of the treaty “agreements between undertakings . . . and concerted practices” are prohibited in terms that “they have as their object or effect the prevention, restriction or distortion of competition within the common market” Fischer, 2000, 110). The choice of law in the case that there is a conflict between the national and the Community law is a really challenging task. At a first level, it is supported by Collier (2001, 4) that “if the case contains no foreign element, the conflict of laws is irrelevant; however a question of jurisdiction and one of choice of law may both be involved in a particular case but they can arise independently; the court may clearly have jurisdiction but it has to answer the choice of law question; or there may be no question as to what law to apply but there would be a question whether the court has jurisdiction”. In any case, the national court in order to intervene in a particular despite has to examine primarily its jurisdiction. At a next level, the possible conflict of national with the community law will be examined. In this context, a member state can provide sufficient and effective protection to its citizens regarding a particular dispute arisen in the European Union area. However, it is necessary that this dispute has a ‘relevance’ with the member state – given by the parties (in the case of contract, the choice of a particular state to resolve any disputes that would appear in a particular agreement) or by the law directly (in criminal actions, a relevance of the country of origin is always assumed to exist). Generally, it could be state that European Union has an ‘increased’ power over the state’s rules, under the prerequisite that its rules have been recognised by the specific member state. In this context, the issue of ‘dominance’ of the Union can be interpreted differently. More specifically, it has been found by Fischer (2000, 111) that “dominance may be defined in terms of turnover in a single state, or the Community, or the world; if a narrow limit is set, then every member state ought to have one or more players in each field of business; but, if this approach is taken, the largest operators in Europe may be too small to compete on a global scale; if, however, European firms are allowed to merge into large multinationals without fear of becoming too dominant, then it is likely that there would be just a few major players in Europe”. If such a definition would be accepted, then the power of the US multinationals in the international community would be reduced. The level of commercial activity between European Union and USA proves that such an outcome would be negative for both sides of the Atlantic. In this case we should refer to a report published in the Social Education (2002, 1) in which it is stated that “the EU and the US share the most important commercial and strategic relationship in the world; every single day, some $3 billion in goods, services and investment flow across the Atlantic; these economic ties create wealth and jobs in Europe and the US”. The practices followed by firms established in the member states can therefore impact directly the level of commercial activity in the region, particularly regarding the participation of foreign firms. The development of legal framework in European Union especially regarding the commercial activity is continuous. In this context, it is revealed in a report published in Bilaterals (2006) that “on 4 October 2006 the European Commission unveiled a new communication entitled Global Europe: Competing in the world, which outlines how Brussels will pursue bilateral free trade agreements with major emerging economies in order to secure new and profitable markets for EU companies; the EU will also push for stronger intellectual property rights and reduced non-tariff barriers in its trading partners - and for even more business-friendly ‘domestic reforms’ within Europe itself”. In accordance with the above, European Union is strongly interested in expanding its area of commercial activities. As for the type of companies operating within the Union, this has been reviewed in order to meet the requirements of modern commercial markets (to the point that European companies will be called to participate actively in emerging economies around the world as the above report mentions). Under these terms, the power of member states to provide to their citizens sufficient protection against the possible violation of their rights from the activities of foreign firms within the European Union is rather limited but it is still active. The development of the international trade which has been set as a priority for the European Union can be a threat for the rights of the citizens in the member states who may have to face the case of their direct participation in a greater community (the international one which actually has taken place through the participation of Europe as a ‘commercial community’ in many international transactions and agreements) which cannot be evaluated as of its appropriateness – at least for the moment. References Bilaterals (2006), available at http://www.bilaterals.org/article.php3?id_article=6611 Collier, J. (2001) Conflict of Laws. Cambridge: Cambridge University Press External Relations (2004), available at http://ec.europa.eu/external_relations/us/new_transatlantic_agenda/index.htm European Commission (2007) available at http://ec.europa.eu/trade/gentools/faqs_en.htm Fischer, T. (2000) The United States, the European Union, and the "Globalization" of World Trade: Allies or Adversaries? Westport: Quorum Books Muller, K. (1999) Problems of European Union Citizenship Rights at the Periphery. The Australian Journal of Politics and History, 45(1): 35-48 Springer, B. (1994) The European Union and Its Citizens: The Social Agenda. Westport: Greenwood Press Social Education (2002) What in the World Is the European Union? 66(7): 1 Van Gerven, W. (2005) The European Union: a Polity of States and Peoples. Standord: Stanford University Press Read More