Connection with EU Laws - Assignment Example

QUESTION The implementation of the European Communities Act 1972 (ECA) expressly incorporated EC law into national law. Moreover, Lord Denning MR presiding in the case of H.P Bulmer Limited v J Bollinger SA1 asserted that the effect of the ECA was to ensure that “any rights or obligations created by the treaty are to be given legal effect in England without more ado”2. However, the term “directly applicable” has created ambiguity and the principles of direct effect and indirect effect will determine whether the Council Directive relating to paid maternity leave (the Directive) is directly applicable under UK law3. If a provision of EC law is directly applicable, section 2(1) of the ECA asserts that “all such rights, powers, liabilities, obligations and restrictions…… shall be recognised and available in law, and be enforced, allowed and followed accordingly.” The current scenario is concerned with the failure to implement the Directive and this analysis will review whether Angela and Juliette can enforce the rights they would have had if the Directive had been implemented under the doctrine of direct effect, or alternatively, what their rights are against the state for damage suffered as a result of failure to implement the Directive. Ultimately Member States have discretion as to how to implement a directive, however they must comply with the positive obligation to implement the directive in the first place4. Problems have arisen as to whether Directives themselves can be invoked by individuals in national courts as giving rise to individual rights5, further compounded by the question as to whether a Member State can be liable for damage resulting from its failure to implement a directive, which is pertinent to both Angela and Juliette’s position. In order to be directly effective, a provision of EC law must constitute a complete legal obligation capable of enforcement as such by a court6. Moreover, in the case of Francovich v Italian Republic7, it was asserted that the pre-requisite for direct effect was that the relevant provision of EC law had to be sufficiently precise and unconditional. Furthermore, in the case of Van Gend En Loos8, it was suggested that direct effect only applied to negative obligations. However, this has subsequently been abandoned and extended to cover a wide range of EC law, in particular Treaty provisions9. With regard to directives however, the controversy as to whether these are directly effective has continued to exercise EC judicial authorities in practice10. In the leading case of Van Duyn11, the European Court of Justice (ECJ) acknowledged that directives could be directly applicable. Moreover, in the case of Marshall v Southampton and South West Hampshire AHA12 (Marshall II) the Court asserted that the fact that a directive gives a choice to Member States between alternative methods of implementation does not necessarily mean that the provisions in question are not capable of judicial enforcement under the principle of direct effect. If we apply the Marshall reasoning by analogy to Angela’s position, it would appear that the Directive is capable of being directly effective based on the positive obligation on the UK government to guarantee that all employed pregnant women are given six months paid maternity leave. However, the Marshall decision was based on the rationale that whilst the directive in that case had conferred discretion as to the method of implementation, the state had itself chosen to offer pecuniary compensation as its preferred method of implementation. Accordingly, once the state had chosen this method, it was under a positive duty to implement this. With regard to Juliette’s position, although she is an Italian national, she is an employee in the UK and her employment contract is governed by UK law. Moreover, discriminatory treatment on grounds of nationality is contrary to Article 39 of the EC Treaty regarding the free movement of workers. Treaty provisions are directly applicable under UK law and as such, UK national law has to be implemented in compliance with Treaty provisions13. On this basis, Juliette will be able to rely on the provisions of UK national law relating to the rights of pregnant employees and the next issue to consider is whether Angela and Juliette can claim rights under the Directive. With regard to the current scenario, whilst the Directive itself required member states to implement national measures to ensure that all employed pregnant women are given six months paid maternity leave, it nevertheless granted discretion to member states as to how to implement this. If we consider by analogy the Francovich14 decision, the ECJ held that the minimum guarantee requirement to provide for pension payment provision in the directive in the case was not sufficiently precise as the Directive did not specify what form the guarantee was to take. As this was ultimately at the discretion of the member states, the Directive was not directly effective. If we consider this in context of Angela and Juliettes’ legal position, it would suggest that it will be difficult for them to succeed in a claim that the Directive had direct effect under UK law based on the fact that member states had discretion as to what form the national payment scheme was to take. Even if the Directive does have direct effect, the ability of both parties to enforce their rights will depend on the principles of horizontal and vertical direct effect or alternatively indirect effect15. The case of Marshall v Southampton and South West Hampshire AHA (Marshall I)16 stated that Directives were not horizontally directly effective, which was reiterated in the Duke case17. On this basis, Angela would appear to have no claim against her employer under the Directive due to the limitations of horizontal direct effect. Alternatively, Juliette may be able to claim against the Council due to the decision in Foster v British Gas18 which extended the definition of “emanation of state” in order to widen the applicability of direct effect.. With regard to Angela’s legal position, as asserted in Marshall I19, she will only be able to rely on the rights under the Directive vertically against the state. As the Directive has not been implemented, the questions pertinent to Angela’s legal position are as follows: 1) Have the time limits for the implementation of the Directive expired20? And 2) If so, are the relevant provisions of the Directive directly effective?21 With regard to the current scenario, the deadline for implementation was 1 January 2007 therefore the first requirement is satisfied. With regard to direct effect, there is a significant chance that the Directive will fail the sufficiently precise and unconditional test in order to be directly effective as discussed above. Alternatively, it could be argued that as the Directive is relating to paid maternity leave, matters regarding “pay” are covered by Article 141 of the EC Treaty and therefore Angela’s claim could instead be lodged against the State by relying on Article 141 of the EC Treaty itself, which is clear and precise, and as determined in the case of Defrenne v Sabena22, gives rise to direct effects per se23. Another option is the principle of indirect effect or the “Von Colson” principle. In the Von Colson24case, the ECJ held that although a directive may not be horizontally directly effective, the Member States’ courts should take the provisions of a Directive into account when applying national law, thereby according rights to individuals under EC law by the principle of indirect effect. This was reiterated in the case of Marleasing25 and Kopinghuis26 asserting the positive obligation of the ECJ to interpret national law in accordance with Article 10 of the EC Treaty. Finally, although the Francovich 27decision rejected the claimants’ arguments of direct effect, the ECJ did assert that an individual could bring a claim against the state for damages caused as a direct result of failure to implement a Directive. The rationale behind this decision was that member states had a positive duty to implement EC law and failure to do so constitutes breach of Treaty provisions. This principle was refined by the decision in Factortame v Secretary of State for Transport28, which was applied in the British Telecommunications29 case where it was asserted that in order to bring a claim against the state for damages caused by failure to implement a directive, the directive itself had to expressly confer rights on individuals, the content of which was clear and not open to interpretation. If we apply this to the current scenario, the terms of the Directive clearly confer rights on individuals, with the primary purpose being to protect ensure six months’ paid maternity leave to pregnant employees. Moreover, in the case of Dillenkofer,30 it was stated that if the Directive has not been implemented by the prescribed limit, this would be sufficient for a ruling of serious breach of EC law in order to impose state liability. Moreover, in the Francovich31 case, it was determined that damages payable to a claimant must be in respect of all losses incurred directly as a result of the breach. In summary, Juliette can rely on the direct applicability of direct applicability of Treaty Provisions to negate claims that she cannot rely on UK national provisions. It is unlikely that the Directive is directly effective and whilst both women could alternatively bring a claim under the principle of indirect effect, the best option would be to pursue a claim against the state for damages caused by its failure to implement the Directive. QUESTION 2 (a) Robert wishes to challenge an application and I will consider his rights to challenge unlawful EU actions. The main method of direct challenge is Article 230, which reviews the legality of acts adopted, Article 232 and alternatively Article 234 is an indirect method of challenging a treaty whereby an individual can go to a national court which there is no judicial redress to and the court upon its own will can decide to refer to the Court of First Instance or the ECJ for a preliminary ruling on the question. I shall evaluate Robert’s rights in context of these Treaty provisions. The main stumbling block with Article 230 is the time limit, however there is no such time limit under Article 234, which allows the individual broader scope to bring an action32. Moreover, under Articles 230 and 232 the initial difficulty for Roberto will be the issue of locus standi requirements of the Treaty. Individuals can only challenge acts which could and should have been addressed to them33. In the case of Lord Bethell v Commission34 and Holtz v Council35 it was asserted that Regulations are normative acts and cannot be addressed to individuals36. Roberto will only be able to plead the matter under Article 230 and 232 if it can be established that the Regulations concerned him as an individual, however it has been established that Regulations do not directly and individually concern individuals37. On the other hand, Article 234(1) (b) would potentially enable Robert to make a challenge to the validity of acts of the community institutions38. This enables Regulations to be challenged via the national courts. For example, with regard to the current scenario it is arguable that the adopted Regulation imposing restrictions on EU-cross border professionals and qualifications is in breach of Article 39 of the Treaty provisions and Article 141 of the Treaty regarding equality in employment. However, Robert would have to make a challenge in the national courts and is unable to make an Article 234 reference directly as an individual as the ECJ can only hear references made by a recognised court or tribunal of a Member States under Article 234. The inherent problem in this is the discretion afforded to national courts. For example, the French Conseil d’Etat refused to make a reference in the case of Minister of the Interior v Cohn-Bendit39 notwithstanding the fact “that the case clearly warranted such a reference”40. Moreover, in the case of Pigs Marketing Board v Redmond41the ECJ asserted the need to defer to national court discretion as they were in “the best position to appreciate with full knowledge of the matter before it, the relevance of the question of law raised by the dispute and the necessity for a preliminary ruling so as to enable it to give a judgment”42. The leading case of CILFIT 43 clarified the conditions in which national courts are not obliged to make a reference under Article 234; asserting the acte clair principle thus: “the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it”44. If we apply this to the current scenario, on the basis of legal advice indicating that the Regulation was adopted unlawfully and the arbitration panel’s view that the Regulation is unlawful, there are strong grounds for an Article 234 reference to the ECJ. Moreover, as established in the case of Broekmeulen v Huisarts45it is evident that an arbitration board can be recognised under Article 234 as a court or tribunal therefore the Society’s tribunal can make a reference. However, its refusal to do so is Robert’s main stumbling block and as such, he may have to refer the matter to the national courts to rely on Article 234. Alternatively, Roberto’s other point of recourse would be to bring an action for damages under Article 288(2), which the European Court of Justice (ECJ) has jurisdiction to hear under Article 235. However, as stated in the Schoppenstedt case46, Roberto will have to demonstrate that the act or omission on the part of the institutions caused damage to him. Furthermore in cases involving a legislative act, which involves an element of economic policy choice on the part of the Community, a sufficiently serious breach of a superior rule of law for the protection of individuals must be demonstrated47. In the current scenario the superior rule of law is the freedom of persons and Article 39 and Article 141 of the Treaty regarding non-discrimination and equality in employment. The next issue is whether the breach is sufficiently serious. The HNL v Council48 case defined this as “manifest and grave”. Moreover, in the KSH Isoglucose case49, a sufficiently serious breach was defined as “verging on the arbitrary”50. It was further asserted in this case that the following factors had to be considered in determining sufficiently serious breach: 1) nature and effect of the breach; 2) extent of loss suffered – was it beyond the normal risks? 3) the damage sustained must be a direct consequence of the action or omission of the Community51. Accordingly, if Roberto can establish that the nature and effect of the breach of Article 39 has directly resulted in significant loss to him as a professional surveyor, this will strengthen the basis of a claim under Article 288. If the ECJ holds this to be in breach of the Treaty provisions, then it will hold the Regulation to be voidable and inapplicable in the case. Notwithstanding, in the case of HNL v Council and Commission52 it was asserted that a claimant will still have to establish a sufficiently serious breach in order to recover damages. (b) If the Royal Society of Charters decide to attack the validity of the Regulation, as the Decision has been addressed to the Society it would appear to satisfy the test of “direct and individual” concern in order to bring an action Article 232 requiring the Council to Act to remove the Regulation. If the Council then responded and advised that it had decided not to act, it has been stated that the definition of position by the Council in fact satisfies the terms of Article 232 even if the action would have been dismissed53. Failing this, the Society may then make an application under Article 232 requiring the Commission to take action. However, as asserted in the Lutticke case54, the Commission is not obliged to take Article 230 proceedings and if it refuses to do so, it has defined its legal position and thereby brought an end to proceedings. Another option would to be to bring an action under Article 288 and the Society would have to establish the requirements discussed in section a) above. If successful, the Society could use this route to render the Regulation voidable and inapplicable. Alternatively, as highlighted in section a) above, the Society’s arbitration panel may fall within the definition of “court or tribunal” for the purposes of making an Article 234 application under the Treaty to challenge the validity of the Regulation. BIBLIOGRAPHY Craig & Burca (2007). EU Law: Text, Cases and Materials. 4th Edition Oxford University Press. Damian Chambers, Christos Hadjiemmanuil, Giorgio Monti & Adam Tomkins (2006). European Union Law. Cambridge University Press Trevor Hartley., (2004). European Law in a Global Context: Text Cases and Materials. Cambridge University Press. Norbert Reich., (2003). Understanding EU Law: Objectives, Principles and Methods of Community Law. Intersentia. Hanlon, J., (2003). European Community Law. 3rd Edition Sweet & Maxwell. Lasok, D., & Bridge, J.W (1994). Law and Institutions of the European Communities. Butterworths. Franz C. Mayer (2006). Supremacy –Lost WHI Paper 2/06 German Law Journal Vol 6 No 11 pp1497-1507. GF Mancini and T Keeling, (1991) From CILFIT to ERT: The Constitutional Challenge Facing the European Court”. Yearbook of European Law 1. Jo Shaw. (2000). Law of the European Union. 3rd Edition Palgrave Macmillan Steiner, Woods & Twigg-Flesner (2003). Textbook on EC Law. 8th Edition Oxford University Press. All Treaties available at www.eur-lex.europa.eu and www.eurotreaties.com Read More