Constitutional Law of the European Union - Term Paper Example

 «Constitutional Law of the European Union» Question One The United Kingdom’s failure to implement the Directive relating to chemical ABC, led Fattenem, a fertilizer manufacturer to increase its use. High levels of this chemical, resulted in malodorous emanations from the local streams and ponds. Those who consumed the vegetables grown in this area developed stomach ailments. It is to be determined whether the residents and gardeners can employ the provisions of the Directive 2006/2002 to proceed against the UK government and Fattenem. In respect of chemical XYZ, the UK implemented Directive 2006/2002, but it did not implement a compulsory testing regime. Instead, it directed its users to comply with the requirements of this Directive. The legal advisors of the residents are convinced that Fattenem has taken advantage of this requirement and allowed the chemical’s concentration in the ground water to rise far beyond the permissible level. It is to be ascertained if the residents can initiate legal action, on the basis of Directive 2006/2002, against the UK government. Part A Unlike the legislation of other systems, the EU enforces an environmental law system that the Member States must strictly follow. Regulations in the EU system constitute the most powerful instruments for enacting laws. This is due their mandatory nature and direct applicability, without any modification or deviation being permitted. In other words, a regulation becomes part of the national legislation per se1. In direct contrast to regulations, EC Directives, have a binding nature, only in the Member State addressed by them. In addition, there is ample leeway in the form and process of their implementation by that Member State. If the latter fails to implement a Directive, within the stipulated time or if the implementation is incorrect, then individuals can rely on its provisions, while interacting with the Member State2. Under the provisions of Article 226 EC, the Commission has wide powers to punish Member States that fail to adopt and implement Treaty obligations. If there is sufficient evidence that a Member State had deliberately infringed EC law, then the Commission opens the infringement procedure against the latter3. In respect of the environment, the European Union has enjoined upon the Member States to adopt a number of decisions, regulations and directives relating to the environment, in their domestic law. A Member State that fails to comply with these Directives will be proceeded against in the European Court of Justice. These Directives have been issued in a number of critical areas. Some of these are in respect of the exhaust gases from motor vehicles, intractable waste material, standards pertaining to drinking water, quality of the air, EIA, birds and habitats4. The EU Member States have to implement Community law in their nation, and fulfil their obligations under the EC Treaty. The former are also required to adopt and incorporate EC law into their domestic law. Furthermore, any Member State that failed to do so would be subjected to infringement proceedings, in accordance with Articles 226 – 228 of the EC Treaty5. In the Greenpeace case, a decision of the Commission had permitted Spain to grant aid for the building of two power stations in Canary Islands under the regional development programme. The Court did not accept that the residents of the Canary Islands, Greenpeace International and some local environmental organizations were individually affected by the decision of the Commission6. The Court of First Instance did not accept their argument that they had locus standi, because they were not individually concerned7. This was appealed in the ECJ, which upheld the CFI’s decision and dismissed the appeal, because it affected Greenpeace, in a general manner, like any other person. Plaumann v Commission was an important case in the area of individuals’ position in the EU. It provided a platform for individuals to seek judicial review regarding the decisions of the ECJ. In this case the plaintiff Plaumann was a German importer of clementines. The plaintiff sued the Commission in the ECJ, which held that individuals could not bring suits for the annulment of decisions taken by the Commission. The ECJ ruled that an individual could initiate action for setting aside a Commission decision, only if he could establish that the decision directly and individually affected him8. In the Toepfer case, the ECJ held that the decision of the Commission individually affected the plaintiff; because the Commission had taken a decision that directly denied an import license to these importers. The ECJ held that the decision of the Commission was in respect of specific individuals who had applied for import licenses. Therefore, the ECJ upheld the plea of the plaintiff9. In Bock v Commission, the ECJ held the applicant to be individually concerned with the decision of the Commission10. For invoking provisions of a Directive, the claimant should be directly affected by the non – implementation or improper implementation of the Directive. In our present problem, the UK government had not implemented the Directive relating to chemical ABC. Persons who are directly affected by the non – implementation of a Directive, can seek redressal for the loss caused by such non – implementation. The public in general, cannot employ the provisions of a Directive to proceed against the infringers. Nevertheless, the gardeners, in particular, who had been affected by the non – implementation of the Directive, can seek redressal under the provisions of vertical direct effect of the Directive. In respect of the fertiliser company, these gardeners have to seek redressal under the indirect effect, because the fertiliser company is a private entity. Part B In general, Member States find it difficult to transpose Directives. For this reason, the implementation of the Directives is usually delayed. This makes it very difficult for the Member States to implement the Directives within the stipulated deadline. Sometimes, a Directive could be implemented, several months after the expiry of the deadline. This is the chief reason for the Commission’s avoidance or postponement of legal action against a Member States that does not implement a Directive, within the deadline. As such, the Commission initiates the Reasoned Opinion in the first instance and by that point of time most of the Member States would have transposes the Directive. Hence, most of the Member States desire a proper solution to their difficulties relating to the transposition of Directives into their domestic law. The action initiated by the Commission under the provisions of Article 230 EC has brought about an increase in the workload of the ECJ. The increase in the number of infringement cases indicates the increase of the competence of the Community. Some requirements for establishing locus standi have been specified by the ECJ in its decisions on non – privileged respondents11. As such, individuals and representative groups are termed as non – privileged applicants, whose status has not been strengthened, even though the position of the European Parliament has been strengthened. These non – privileged applicants have a pathetic and deplorable status within the EU, which has remained unchanged since the establishment of the EU. The European Parliament restricted its role to merely engendering institutional balance in the EU12. In Codorniu SA v Commission, a regulation had reserved the word crémant as a brand name for sparkling wines that were produced in certain specific regions of Luxembourg and France. The plaintiff was a Spanish wine producer, whose company’s trademark had included the reserved word crémant, which was a 1924 registered trademark. The ECJ held that the measure to reserve the word crémant for wine that was produced in France and Luxembourg, had directly infringed the intellectual property rights of the plaintiff13. In the present problem, the UK government implemented the Directive improperly. The fertiliser company had taken advantage of this improper implementation, thereby causing harm to the residents in the vicinity of its factory. Hence, the residents can seek redressal under indirect effect. Moreover, the residents can seek redressal under the provisions of vertical direct effect against the UK government. Question Two The Council and European Parliament had taken a decision, whereby the UK government had to slaughter sheep afflicted with the foot and mouth disease. The UK was of the opinion that this decision was unlawful, and that it had no other option than to slaughter the affected sheep. Accordingly, the government instructed the Agricultural Department to commence the slaughter. The Sheep Farmers’ Association is a small organisation that promotes sheep farmers’ business interests. Most of the cases filed till 1995 sought judicial review for the decisions of the Commission, which related to economic interests14. Clear interpretation of direct and individual concern is essential for determining locus standi and dealing with it from a legal perspective15. Article 230(4) EC addresses the locus standi of a natural or legal person. Therefore, interpretation must provide the ECJ with a basis to determine locus standi of the parties to a dispute. On several occasions, the Member States had questioned the basis of EC and EURATOM environmental laws16. The conduct and behaviour of the Community remained unchanged, despite the provisions of Article 230 EC, which provide the basis for parties to seek a judicial review on the decisions taken by the Community17. Article 230 EC has been used very rarely, and judicial review petitions filed under it have failed. The burden of proof of locus standi was placed on the applicants by this Article. In most cases the applicants were unable to prove their standing. Hence, it is essential to have a substantial case that efficiently deals with locus standi and environmental protection. The Greenpeace case posed a potential threat to the development of new objectives in the Community18. The EU is a vibrant Community and a dynamic international organisation; and the ECJ protects the Community’s integrity. The ECJ is mainly concerned with the reaction of the Member States. The Court’s role is determined by the political environment and interests in the EU; which slows down the development of new fields. There should by judicial activism and dynamism in the Community to deal with new and unfamiliar challenges. The Greenpeace case had posed a challenge that was unfamiliar to the Community at large19. For filing judicial review petitions, locus standi of the claimant has to be established. The case law of the ECJ in respect of environmental issues, suggested that individual concern of the plaintiff should be present in such cases. In our present problem, for assessing whether the SFA has locus standi, for judicial review, the following case law had been examined. In AITEC v. Commission, the CFI ruled that the Associations had locus standi, because they represented the individual interests of some of its members; and protected the interests of the all its members. The decision of the Commission was set aside20. Since, SFA protects the interests of its members, it can be considered as having locus standi, for filing a judicial review petition against the decision of the Commission. In respect of the government it is to be assessed whether it can apply for a judicial review against the Commission’s decision. In Italy v. Council, the ECJ held that a Member State could unconditionally go in for a judicial review against a Council decision, even it had voted in favour of that decision21. As held in the above case, a Member State could unconditionally apply for a judicial review against a decision taken by the Council. Hence, in our case, the UK government can apply for a judicial review against the decision of the European Parliament. This issue was discussed in the Greenpeace case in which the Court of First Instance referred the case to the ECJ. The latter held that the plaintiffs, Greenpeace and other local residents were not individually concerned with the decision of the Commission. The ECJ also held that neither of them had a locus standi as per Article 230(4) EC. Therefore, they were not entitled to seek judicial review on the basis of environmental damage. In cases relating to environmental interests, the ECJ is more likely to decide on the basis of the facts of the case rather than the spirit of Treaty Articles. The Greenpeace case restricted the scope of the jurisdiction of the ECJ. This case was more famous for this aspect, rather than environmental interests and the protection of environment. The need of the hour is that the Community has to resolve the problems relating to non-commercial interests and the development of the Community, and set up international standards in this regard. The EC has to strive hard to establish its own commitments and implement them. Only then will it be in a position to acquire international credibility. List of References Alan Gilpin. Directory of Environmental Law. 2000. P. 118. Edward Elgar. Adam Cygan. Recent Developments in Judicial Review and Article 230 EC. Retrieved 5 December 2008 from http://www.springerlink.com/content/5173v3u62g828j66/fulltext.pdf?page=1 Alia Papageorgiou. 15 September 2008. The Infringement Procedure explained. Retrieved on 5 December 2008 from http://www.neurope.eu/articles/89723.php Case 25/62 Plaumann v Commission (1963) ECR 95 Cases 106-107/63 Toepfer v Commission (1965) ECR 405 Case 62/70 Bock v Commission (1971) ECR 897 Case C-309/89 Codorniu SA v Commission (1994) ECR I-1853 Case T-585/93 Stichting Greenpeace Council (Greenpeace International) v Commission (1995) ECR II-2205 Case T-117/94 Associazione Agricoltori Della Provincia di Rovigo and Others v Commission (1995) ECR II-455 Case C-62/88 Greece v Council (1990) ECR 1527 Cases T – 447 – 49/93 Associazone Italiana Tenico Economica del Cemento (AITEC) v. Commission (1993) Case 116/78 Italy v. Council (1978) Emily Reid. 2000. Judicial Review and the Protection of Non-commercial Interests in the European Community. Retrieved on 5 December 2008 from http://webjcli.ncl.ac.uk/2000/issue1/reid1.html Ewa Biernat. 2003. The Locus Standi of Private Applicants under article 230(4) EC and the Principle of Judicial protection in the European Community. Retrieved on 5 December 2008 from http://www.jeanmonnetprogram.org/papers/03/031201.pdf Joined Cases C-164/97 and C-165/97 Parliament v Council, judgment of 25 February 1999 nyr Marianela Cedeño Bonilla, et al. Environmental Law in Developing Countries. 2004. P. 20. IUCN. Stephanie Frye. 2004. European Union Trade Policy Monitoring: An Examination of EU Infringement Procedures. Retrieved on 5 December 2008 from http://www.fas.usda.gov/gainfiles/200502/146118684.pdf Read More