The Foundations Of European Community Law - Essay Example

The Foundations Of European Community Law What steps can the Commission take in order to enforce EU Law? Are they likely to be successful, and if so, what remedies are available to them? The two supranational bodies that have the power to enforce EU Law are the Commission and the Court. The Commission’s task is surveillance of the Member-States in relation to their compliance with EU law. The Commission is required to call on the Government of the defaulting Member-State to require its defaulting governmental body to take remedial action. The Commission has been empowered to carry out its responsibilities independently. It must not take or seek instructions from any Government, body, institution or office in carrying out its duties or performance of its tasks. Besides, the Union’s legislative tasks can be adopted only on the advise of the proposals of the Commission unless the Treaties otherwise provide. Tasks other than the legislative acts also should be adopted only in accordance with the proposal of the Commission. These are subject to article 18(2) which empowers the High Representative of the Union for Foreign and Security Policy appointed by the Council who is required to carry out acts mandated by the council in the matters of the Union’s foreign and security policy. As per article 17, the Commission has been mandated to take necessary steps in order to promote the general interest of the Union. As stated above, it shall have a watch over the application of Union law with the assistance of Court of Justice.1 Article 226 of the Treaty empowers the Commission to bring a Member-State before the European Court of Justice (ECJ) for failure to comply with the obligations under the treaty. Thus, the Commission is entitled to bring cases of infringement before the ECJ. Article 35(5)(since repealed) of Treaty Establishing the Union however denies jurisdiction to the ECJ to question the Member-States’ prerogative powers relating to the maintenance of law and order and internal security. This is what is considered to encourage the Member-States to breach their obligations. Rights of the individuals are also jeopardised for want of jurisdiction for the ECJ and as such full respect and compliance of free movement of people cannot be ensured.2 The Kobler case recognised the State’s liability before the national courts and ECJ has only recognised the importance of the individuals to seek redress in the national courts for damages caused by the infringement of their rights as a result of a decision of the court of last instance.3 Further, the infringement concept is objective and not necessarily to be qualified by a default. Commission can, therefore, launch an enforcement action so as to require the ECJ to pass declaratory judgement on a Member-State’s failure to comply with community law. Such actions can be launched based on the complaints received from natural and legal persons of the Member-States or can be taken on its own pursuant to its investigations, information through media, pres reports etc. Though there are different steps of the procedure to be followed by the Commission for infringement proceedings, the two step procedure is usually suggested by the experts. They are administrative and judicial proceedings.4 The first one is pre-226 or pre-contentious stage in which steps are taken for negotiations with the Member-State by giving it an opportunity to vindicate its position or reach a compromise with the Commission. In the absence of a compromise being reached, the Member-State will be notified of the infringement by the Commission through what is called letter of formal notice usually giving two months for the State to reply and unless there is urgency, the Commission will take one year to decide on proceeding against the state or to close the case. If undecided, the Commission will give its reasoned opinion. This reasoned opinion will set out the grounds regarding the alleged infringement and a time limit for the State to comply with its recommendations so as to avoid judicial proceedings. If the Member-State still does not comply with the Commission’s recommendations, the latter will be justified in brining the case before the ECJ as part of its judicial stage, the above said being administrative stage or pre-226 stage.5 However it is entirely at the discretion of the Commission to exercise its responsibilities under article 226. The ECJ will only examine whether Member-State has failed in its obligations and not assess the Commission’s interest in brining the action. Existence of interest or absence of interest will not affect the admissibility of the enforcement proceedings. EJC has observed several times that Commission’s discretion under article 226 is ‘wisely exercised”6 The next step possibly the Commission can take is the second infringement procedure under Article 228 if a Member-State fails to comply with Court’s order pursuant to action taken under article 226. This will give an opportunity for the ECJ to impose a lump sum/penalty on the non-compliant Member-State. The procedure is almost similar to that of Article 226. Usually the amount of penalty is suggested by the Commission which the Court is not, however, obligated to accept in its entirety. However the affected individuals are not precluded to litigate a Member-State in connection with failure to enforce EU law.7 Article 39 (ex 48) gives freedom to move within the EU for workers, self employed persons and other persons with sufficient resources to support themselves. Hence it not that any one can move within the EU area without these qualifications. Article 39 prohibits even those who are otherwise permitted, on the grounds of public policy, public security and pubic health.8 British Government is already being criticized for deporting a killer to his home country Italy on the basis of the directive no 2004/38/EC of 2004. The U.K. government is seized of the issue of criminals appealing against deportation exposing the general public to grave dangers. It has been stated that foreign nationals in the prisons of England and Wales has increased from 4,259 to 10,232 in ten years from 1996 to 20069. EU Directive 64/221 requires that an opinion from a competent, and independent, authority other than the one passing the order, before passing an order of deportation. In Regina v Secretary of State for Home Department ex parte Gallagher, the Court of Appeal held that exclusion order against Gallagher suspected of terrorism acts without allowing him to make personal representations and allowing to be interviewed by the Home Secretary’s representative was a breach of EU law but not serious enough to claim damages. The decision was based on the provisions of the Directive 64/221/EC.10 Article 48(2) also empowers the Commission to submit to the Council proposals for amendment of the treaties Thus Commission has powers to recognise the fallout in the case of Gerard in which the UK Government has enacted a statute requiring non-UK nationals to furnish their biometric data which is not in conformity with the EU law. The EU law is that no person should be discriminated in matters regarding free movement of persons. Although the Member State may argue that this Act was in the interest of public security, it carries no meaning why non-UK nationals alone should be subjected to this procedure which is discriminatory. It is a good measure for the sake of public security if it applies to all the nationals. And the Act is also silent on the non-UK nationals who are already in the country prior to coming of the Act. This is again discriminatory among non-UK nationals themselves. When the UK is not in a position to deport known criminals of other member states as seen elsewhere, there is no justification to require non-UK nationals alone to furnish their biometric data. And when the persons with past criminal background from other Member-States are not barred from entering a host country for reasons of equality in EU community, there is no reason why such a measure should be adopted as being applicable to non-UK nationals alone. Thus the Commission which is already seized of the matter has fair chances of success in making the UK rescind its Act at the administrative stage itself. Otherwise, it can initiate judicial proceedings against UK for the desired outcome. Was the Asylum and Immigration Tribunal entitled to proceed without making a reference to the European Court of Justice? Article 234 provides for ECJ to entertain references from national courts or tribunals for preliminary ruling in regard to questions arising out of EC law in cases pending before them. The preliminary ruling can be availed in respect of interpretation of the EU treaty, validity and interpretation of acts of the EU institutions and ECB and interpretation of the statutes of bodies established by the Council through an Act. The reference may be under three circumstances. One, where the national court or tribunal require an interpretation of the treaty. Second, where a national court or tribunal is faced with a question involving any of the above said interpretations, ECJ’s ruling thereon may be requested to enable the national court or tribunal of a Member State to in turn give its judgement. Third, where there is no judicial remedy for the prospective decision of the national court or tribunal under national law, the court or tribunal should bring the matter before the ECJ for a ruling.11 It must be noted that the last of the interpretation requirement above falling under article 234(c) should come from a court of last instance. Hence lower courts or tribunals are not under this obligation to refer for a preliminary ruling. However, there are exceptions. If the ECJ has already passed a ruling on the relevant question or the community law is self-evident, the court of last instance is not required to make a preliminary reference as decided in CILFIT judgment.12 In the instant case, the Asylum and Immigration Tribunal is apparently not a court of last instance since in the Asylum and Immigration Act itself, there are provisions for the first appeal to the adjudicator under section 82 and second appeal under section 84.13 Even as a lower court, it is not under obligation to make reference as the subsections a & b of Article 234 only makes it optional for it to make a reference or not. The procedure for reference implies that ECJ and national courts are equal if not one being superior to other. This puts the ECJ in somewhat a weaker position. The relationship is not one of hierarchy but of co-operation. The reference may not state the question of fact of national law and the ECJ is not required to rule on application of law either to the case in question.14 The court, tribunal or body making a reference can be in any name but must perform judicial functions. Thus subordinate of the government of the Member-State cannot make a reference. In effect, the body must be independent. Thus administrative body hearing disputes between the citizen and the Government is not qualified to make reference.15 The manner in which the reference may be made is not covered by rules of procedure either by the English courts or by the ECJ. But according to the general practice that grown up, the order for reference will set out the brief summary of the facts of the case, procedure adopted prior to the reference, prayer sought by the claimant, account of defence, main arguments of the parties on the community law and the reason for seeking the reference. Though the ECJ has no power to make a ruling on the national law, details of relevant provisions of the national laws will help the ECJ to define the exact issues in question.16 Moreover if sufficient detail is not given, the ECJ is not obliged to allow the proceedings to take place.17 It may be also relevant to state here that all the courts have discretion make reference as per article 234 (a) & (b), even if their respective higher court has already decided on a similar issue.18 In view of the foregoing, the Asylum and Immigration Tribunal is justified in not making a reference to the ECJ by virtue of not being the court of last instance. What remedies are available to Gerard for the Tribunal’s failure to refer? Supposing the decision is from the court of last instance and it has failed to make the mandatory reference in the absence of any CILFIT exceptions, there are two remedies first set out by the German Constitutional Court which can, on receipt of a complaint, review the constitutionality of the national court’s (last instance) decision not to refer and if the violation of article 234 (c) is found, it can quash the decision and remit back to the respective national court of last instance. This is based on the principle of the “lawful judge”. The second remedy is to initiate separate proceedings before national courts for breach of community law, drawing on the principle of state liability as held by the ECJ in Francovich and Brasserie du Pêcheur/Factortame III cases.19 Even under Article 226, the Commission is competent to initiate proceedings if Gerard has made complaints regarding the Asylum tribunal’s decision. Thus, although the Asylum and Immigration Tribunal is within its rights not to make a reference to the ECJ, the aggrieved Gerard by availing of the above said respective remedy by initiating proceedings in national courts for asserting his rights under community law. Alternatively, he can hope for a favourable outcome from the proceedings of the Commission that is already seized of the matter. Alternatively, as it will not cost him greatly, he can return to Ireland and come back again and have his finger prints’ data furnished in the interest of common good. Besides, he can fight for the same requirement to be applicable for all nationals alike in the U.K. U.K., in a way is fully justified in enacting such a requirement in view of the history of onslaught of terrorism on its soil. And the ECJ is most likely not to irk the U.K. by declaring the Act as illegal or as inconsistent with the community law as Member-states are always allowed to make any requirement to be complied with in the interest of public security. Though the requirement exclusively for non-UK nationals appears patently discriminatory, the right step would be to make such a requirement applicable all the citizens of different Member-States alike. Though another possible argument against the U.K can be that the Gerard had done nothing endangering public security warranting deportation, it may not hold good considering the U.K’s inability to deport persons with criminal background who are already in the U.K. It may not be out of place to suggest that Gerard can still comply with the requirement regarding biometric data without being deported by making an appeal to the authorities concerned to that effect. Further, having lived with a British woman and not officially divorced, the point whether he has not become a British citizen entitling to stay back, is a moot point Bibliography Books Hartley Trevor C, 2007, The foundations of European Community law: an introduction to the constitutional and administrative law of the European Community, Oxford University Press, p 266 P.Craig and G.de Burca, 2003 EU Law Text, Cases and Materials, Oxford university Press, p 400 van der Hoek M.P, 2005, Handbook of public administration and policy in the European Union, CRC Press, p 236 Ward Ian, 2003, A Critical Introduction to European Law: Law in Context, Cambridge University Press, p 190 Journals Article 17 nd 18, 2008, Consolidated version of the Treaty on European Union, Official Journal of the European Union, C 115/13-45 Cases Case C-224/01 Kobler v Austria 2003 Case C-200/88 Commission v Greece Corbiau v Administration des Contributions, Case no C24/92(1993) ECR I-1277. See the European Court’s Guidance on References by National Courts for Preliminary Rulings, para 6 (1999) 1 WLR 261 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, Case no. 283/81 < http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61981J0283:EN:HTML > 15 December 2009 Rheinmuhlen-Dusseldorf v EVGF (166/73); Foto-Frost v HZA Lubeck-Ost 314/85 [1988] 3 CMLR 57). Telemarsicabruzzo v Corcostel, cases C-320-2/90 [1993] ECR 1-393 Others Article 234 of Treaty establishing the European Community (Nice consolidated version) Part Five: Institutions of the Community - Title I: Provisions governing the institutions - Chapter 1: The institutions - Section 4: The Court of Justice - Article 234 - Article 177 - EC Treaty (Maastricht consolidated version) - Article 177 - EEC Treaty,< http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12002E234:EN:HTML>15 December 2009 Borisova Lora, 2007, Enforcement Actions under EU Law: The new Member States, Working Paper 2007/W/01 16 December 2009 Single Market: Eu’s Unconditional Freedom Of Movement Of Workers Secured [Article 39]http://www.europeanfoundation.org/docs/Wednesday%206%20February/ARTICLE%2039.mht Magrath Paul, 1996, No damages for breach of European Law, http://www.independent.co.uk/news/people/no-damages-for-breach-of-european-law-1327234.html Nationality, Immigration and Asylum Act 2002 Part 5 Immigration and Asylum Appeals, 15 December 2009 Summary, Violation of the duty to make a preliminary reference under Article 234 (3) EC Treaty, < http://www.eui.eu/Personal/Researchers/mbobek/docs/porus_summary.pdf > 15 December 2009 Read More