European Union Law and European Court of Justice - Research Paper Example

European Union Law Ans The concept of ‘direct and individual concern’ within the scope of judicial review by the European Court of Justice (ECJ) is mainly aimed at establishing the principle of rule of law and to protect the rights of individuals. According to the ECJ jurisprudential rationale the concept of ‘direct and individual concern’ has been regarded as one of the central ideas within the scope of judicial review by the ECJ mainly due to the reason that it aimed at preventing the “abuse of power … in most developed nations”1, more specifically in the developed nation that are enlisted as members to the European union. As the European Union believes in the principle that there must be a harmony and equality of power between both individual entity as well as institutions must exist that why the legal jurisprudence has been changed in such manner. However, there are several such incidents and occasions where, though it is considered that an institution will act neutrally and for the benefit of common citizens, institutions act in a biased manner. Due to this reason it has become important to introduce the judicial protection for the purpose of protecting fundamental rights of the individuals. While analyzing the constitutional functions of the ECJ Frank Hoffmeister has identified, “Ensuring access to Court for citizens was identified as the fourth constitutional function. For sure, as with some national Supreme Courts, there is no right to a constitutional complaint against any Community act, including of a legislative nature, allegedly infringing a human right of an EU citizen. Rather, Article 230 (4) of the Treaty allows bringing an action of annulment against a decision addressed to a person or against a decision, which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.”2 Thus, the aspect of protecting individual rights has been reasserted by such observation and at the same time it has becomes one of the major constitutional functions of the European Court of Justice (ECJ). To serve this purpose and protecting rights of individual citizens, they have not only been provided with the access to the European Court of Justice but at the same time with the aim at strengthening position of the Court the Art 230 has been implemented which is aimed at permitting the court to take the right kind of action to annul community acts. However, the Art 231 is not self sufficient in nature but in the context of providing proper protection to the citizens it is required to receive a strong support from the Art 231 of the European Court, “Article 230 is the primary Community method by which the legality of the acts of the Community institutions may be challenged. If such a challenge is successful, the act will be declared void by the ECJ (Art 231 EC).”3 The Doctrine of ‘direct and individual concern’ through the method of judicial review has received a special empowerment through the Art 230 and 231 of the EC constitution. Empowered by both these legal provisions, though a private party enjoys only a limited scope to challenge decisions of the European Court but at the same time “… a private party may be able to challenge an EC “decision” before the ECJ if that decision is of “direct and individual concern.””4 However, there are sufficient scope for legal disputes and conflicts in such process of challenge. One of the most important of such reasons is that the EC treaty has no where clearly defined what actually is meant by the term ‘decision’. In that context ECJ has clarified the position as it has been specified by the term ‘decision’ as it clarifies that the term actually suggests “a measure taken by [ an EC institution], acting as a body, intend to produce legal effects and constituting the culmination of procedure within the [institution].”5 Many times such decisions taken by an institution cause a great deal of harm to an individual and those aspects do not receive a proper addressing in the EC. Under such situation the ECJ, as it has provided scopes to individuals to challenge decisions, taken by some institutions and such decisions are aimed against ‘direct and individual concern’. In order to determine whether such decisions are aimed against any individual part or not the effective instrument in the hands of the ECJ is the power of Judicial Review. Articles 230 [173] EC, Art 231 [174] and Art 232 [175] contain within their scope the principle of Judicial Review. Legal rights, as enshrined by these provisions an individual is free to appear in the court and ask for legal justice against the decisions made by an institution. In addition to these, “Under Art 233 [176] EC, where a declaration has been given on voidness or failure to act in breach of the Treaty of Rome as amended …. Art 241 [184] EC also provides an opportunity for judicial review.”6 According to the Art 230 EC individuals can challenge the acts “…adopted jointly by the European Parliament and the Council, acts of the Council, of the Commission and of the ECB…and of the European Parliament intended to produce legal effects vis a vis third parties.”7 At the same time it also specifies that except recommendations as opinions, any other act such as regulation, directives or decisions can be challenged by an individual under the scope of Art230 EC. Which are grounds to challenge such acts? In case of incompetency on part of the authority, “infringement of an essential procedural requirement”, “infringement of the Treaty or any rule of law relating to its application” and finally “misuse of power” are the most specific grounds over which a person can challenge acts of an institution.8 An individual’s right to receive access in the ECJ has for the first time attracted attention in the influential case of Van Gend en Loos 26/62 [1963] ECR 1. Decision made by this case conferred an individual with “rights that has become part of their legal heritage.”9 At the same time, it was since that time onwards individual legal enforcement has become one of the most important features of the EC integration strategy.10 The Marguerite Johnston [1986] ECR 1651 is an important evidence of the fact that aftermath Van Gend en Loos 26/62 [1963] ECR 1 the issues of ‘individual and direct concern’ were started being properly addressed in by the EC. The main point of argument of the plaintiff in the case was to question the aspect of equality between genders in the professional field. The council directive responded positively to such argument and consequently it also made clear that any aggrieved person has the right to the ask justice on behalf of his/ her claim according to the norms of judicial proceeding.11 Right to receive healthy and pollution free environment is one of the fundamental rights of the citizens and in any case actions or decision of the authority is depriving an individual from enjoying this right12, can be challenged in ECJ under the scope of Art 226 [169] and Art 227 [170] which clearly specifies that “disputes concerning the failure of Member States to fulfill obligations under the Treaty should be primarily resolved by the ECJ in its capacity as an ‘international’ tribunal….”13. In this context we can cite for one important case that was initiated by the Commission against the government of United Kingdom, Commission v. UK (1993). Though this issue has been addressed by the Commission but it is important to remember that every issue that will raise a point of dispute will not be addressed by the Commission unless it feels that it genuinely requires to be addressed from a legal perspective. In this context the Commission will exercise its power of discretion to decide the issues that need to be sorted out with proper legal application, “… although the Art. 226 procedure offers aggrieved citizens and pressure groups an inexpensive means of attempting to secure compliance; it does not guarantee that the Commission will take any action.”14 Finally, looking at the legal development made by the ECJ in the context of addressing problems of individuals it can be said that it is not restrictive unnecessarily. One of the crucial proofs is hesitation of the nations to give jurisdiction of judgment to the European court. Lord Slynn in this context has expressed his skepticism, “Why is the United Kingdom so frightened about giving the European Court jurisdiction?”15 There is not denial of the fact that on certain occasions the ECJ adopts restrictive approach to address the problems of individual parties but there are justified reasons for it. According to its constitutional functions there are several other functions that are accomplished by the European Court and mostly it includes different types of legal disputes concerning diplomatic affairs, trade relations and several other aspects. Unless the problems of an individual party are not of that magnitude that deals with fundamental human rights, it will not be possible for the ECJ to address the issues. It is due to this reason on several occasions the doctrine of ‘direct and individual concern’ seems to be restricting because it is finally up to the Court to decide if a particular incident is actually amounting to the level of its addressing or not. Ans.3. The first and one of the most important aspects in this case is that Cherie, being a British national, along with her husband and daughter, cannot be treated in the manner as any other person, who, if he is a citizen of Greece. Though Cherie is a migrant to the nation but due to her stay in the country and earning her livelihood depending over the system of governance of the nation she is also liable to the law of the state. However, being an active member of a radical organization like GACC, she is already violating that position. GACC as an organization is actually aimed at protesting against actions of the State, in this case, mainly against the policies, as adopted by the government in the context of privatization policies. Art 28 (1) of the Constitution of Greece clearly specifies that “The generally recognized rules of international law, as well as international conventions as of the time they are sanctioned by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.”16 Final part of the statement, as it has been made by the constitution, is quite relevant in this case, as we see that Cherie has already waved off the opportunity of such reciprocity as she has clearly specified in her speech that due to such policies of the government of the State, she is ready to continue the war. As her statement has also been published accordingly in the GACC website it will be considered as a proof that she actually defied laws of the land. Though she has not taken any direct liability of such act of execution but her admission of the fact that she is part of such an organization, which contains people of such nature who are associated with execution of individual lives, automatically brings her responsibility towards commission of such act against the state. Being a member of the GACC her situation becomes more complicated in the European legal scenario also as we see that the European Convention (4th Nov. 1950) clearly mentions under the Art 5(1), “Everyone has the right to liberty and security of person.” Moreover, “… the First Additional Protocol of Paris of 20 March 1952 … stipulates in Article 1 that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and by the general principles of international law….”17 (Oppenheimer, 2003, p. 291) It is clear from such declaration that such provisions of the international law actually aimed at asserting the basic idea about right to life of an individual. Being a part of such an organization that takes open responsibility of executing people, she has violated the norm of right to life both from the context of Greece as well as at the international plain. In such situation it is not unexpected that the Government Home Office of the Greek would send her a notice for deportation. Against such decision of the government one of her defenses can be that both her husband and her daughter have also been habituated with their regular functions in the national scenario. However at the same time the Greek Immigration Bill 2910/2001 has clearly specified the draft of the Aliens Law 2910/2001 “is not in conformity with the internationally accepted fundamental rights if immigrants in several areas, such as education and healthcare for undocumented children, the duration and continuity of residence permits, excessive charges for state documents and procedures, and the right to work of family members.” 18 As the Aliens Law is not in conformity with these provisions then her defense to stay in Greece for the sake of her daughter and husband will not be relevant. Important information in this context becomes relevant - “In 1996, a provision on the legalization of immigrants was buried in an employment bill, which became law 2434/1996.”19 In this context it can be said that immigration of Cherie, Tony and Martha is not legalized and on such legal grounds the Greek Home Office denies to accept the fact that Cherie is working under the European Union Law. Anna Triandafyllidou and Ruby Gropas have further observed, “Section II of the Greek Constitution (2001), referring to Individual and Social Rights, sets out 18 sets of rights applicable to all individuals living in Greece. Of these, there are eight articles in which the exercise of a right is reserved to Greek citizens only. Thus, immigrants who are legal residents do not have the right to rally (Article 11) not to enter into association (Article 12). Moreover, Law 2910/2001 and Circular 32089/10641/26.5.1993 of the Ministry of the Interior discriminate against immigrants with regard to the processing of a response to naturalization applications.”20 (Triandafyllidou, Gropas, p. 147) Looking at the details of the prevailing legal situation, we also come to know that Greece has been suffering from different types of immigrant criminality and at the same time the state schools of the nation are also becoming overloaded with immigrant children.21 In this context the whole situation seems to be hostile against staying of Cherie, Tony and Martha in Greece because on hand, due to her acts she has become an enemy of the state and at the same time her participation of GACC will not also receive any support from the European Law mainly due to the fact that her organization is liable for killing people unlawfully, and such active participation in the organization also makes her vicariously liable. Thus, the in this context it can be said that against actions o the State, Cherie, Tony and Martha do not have any such concrete defense and Cherie has no other option than agreeing to the fact of deporting by the Government of the land. References 1. Apostolatou, K., n.d., Immigrant and immigration policy-making: A review of the literature of the Greek case, available at: http://www.imiscoe.org/publications/workingpapers/documents/ImmigrantandimmigrationpolicymakingthecaseofGreece_000.pdf, retrieved on: 11th Aug, 2009 2. Bavasso, A., Bustelo, M. R., Alston, P., 1999, The EU and human rights, Oxford University Press (Oxford) 3. Bergkamp, L., 2003, European Community law for the new economy, Intersentia nv (Mortsel) 4. Birkinshaw, P, 2003, European public law, Cambridge University Press (Cambridge) 5. Davies, K., 2003, Understanding European Union law, Routledge (London) 6. Gropas, R., Triandafyllidou, A., 2007, European immigration: a sourcebook, Ashgate Publishing, Ltd. (Surrey) 7. Heenan, J., Bustelo, M.R., Alston, P.A., 1999, The EU and human rights, Oxford University Press (Oxford) 8. Hoffmeister, F., n.d. The Constitutional Functions of The European Court of Justice, available at: http://www.ecln.net/elements/conferences/book_berlin/hoffmeister.pdf, retrieved on: 11th Aug, 2009 9. Linos, K., February 2001, Understanding Greek Immigration Policy, available at: http://www.hks.harvard.edu/kokkalis/GSW3/Katerina_Linos.pdf, retrieved on: 11th Aug, 2009 10. Oppenheimer, A., 2003, The relationship between European Community law and national law: the cases, Cambridge University Press (Cambridge) 11. Stanley, N., Wolf, S., 2003, Wolf and Stanley on environmental law, Routledge Cavendish (New York) 12. Slynn of Hadley, L., Judicial Review by the European Court of Justice, The Liverpool Law Review, vol. XIV (2) [1992], available at: http://www.springerlink.com/content/u16l73226r512m7l/, retrieved on: 11th Aug, 2009 13. Uzelac, G., Ichijo, A., 2005, When is the nation?: towards an understanding of theories of nationalism, Routledge (London) 14. Ward, A., 2000, Judicial review and the rights of private parties in EC law, Oxford University Press (Oxford) 15. Bavasso, A., OKeeffe, D., Baron Gordon Slynn Slynn of Hadley, 2000, Judicial review in European Union law, Kluwer Law International (Alphen aan den Rijn) 16. The Constitution of Greece, 1975, available at: http://www.cecl.gr/rigasnetwork/databank/Constitutions/Greece.html, retrieved on: 11th Aug, 2009 Read More