Law and Institutions of the European Union - Case Study Example

EU Law I. Maria, Camilla and Bowles Ltd. A. Maria Maria’s problem relates to the incompatible approach by which the UK government seeks to comply with Article 165 TFEU Directive 2009/111. In Maria’s case, the UK government is ignoring the Directive’s definition of sport. Article 2 of the Directive defines sport as “an activity involving physical exertion and skill” “governed by a set of rules or customs and often undertaken competitively”. Section 4(1) of SI/01/10 ultimately adopts this definition with the proviso that at least three persons participate. Nevertheless CAS secondary school felt its curriculum which requires 5 hours of physical activity weekly and includes gaming activities was sufficient to meet the statutory requirements and refused to make additional changes to the curriculum. Since Section 3(1) of the SI which incorporates Article 3(1) of the Directive requires at least three hours of physical activity, the 5 hour requirement is not a problem. There is a danger however, that games which do not meet the statutory definition of sport and physical exertion may be used to satisfy the five hour requirement and is therefore tantamount to the improper application of the Directive. This amounts to a derogation from the Directive’s purpose as set forth in the preamble. The preamble provides that the Directive’s purpose is to promote participation in sport and physical activity with a view to reducing obesity in children under age 16. In order to derogate the UK government would have had to seek permission, but this would not prevent the direct effect of the Directive.1 By virtue of the doctrine of direct effect Maria is entitled to rely on the preamble to the Directive and to insist upon its application insofar as it impacts her. By virtue of the doctrine of direct effect individuals have the right to expect national courts to uphold community law.2 While Maria may not insist on the removal of the gaming activities from the curriculum she can insist that the mandatory requirement of 5 hours of physical activity include at least three hours of sport or physical activity that meet the definition contained in Article 2 of the Directive and Section 4(1) of the SI. To start with, it was held in Publico Ministero v Ratti that Article 189 of the EC Treaty mandates that regulations have the force of law in Member States provided they are “unconditional and sufficiently precise.”3 This ruling will also apply equally to Directives since the European Court held in Van Duyn v Home Office that Regulations and Directives are unconditional provided they were not subject to some measure of ‘judicial control.’4 Directive 2009/111 appears to be unambiguous in that it has a clear purpose to reduce obesity in children under the age of 16 by the year 2015. The fact that the decision to retain the current curriculum came from a local authority does not exonerate the UK government as it is an identifiable state body.5 It was held in Commission v Belgium [1970] ECR 237 that regardless of the “organ of the State” the actions of those organs will be deemed the actions of the Member State.6 B. Camilla Given the purpose of the Directive and the fact that it emphasizes that the measures taken should encourage compliance, the threat to close down Esco Comprehensive School of which Camilla is the head teacher appears to be excessive and contrary to the intent and purpose of the Directive. While directing Camilla to incorporate 3 hours of physical activity into the curriculum in compliance with Section 3(1) of the SI which is entirely compatible with Article 9(1) of the Directive, allowing only four months when the Directive allows at least one year, is inherently inconsistent with the Directive. This is clearly an instance where the UK via its local authorities have “manifestly and gravely exceeded the limits of its discretion”.7 It was also held in Alfons Luticke GmbH v Hauptzollamt Saarlouis [1966] ECR 205 that when a legal provision contained a deadline for implementation it would not have direct effect until that period expired.8 Therefore the UK could be liable by virtue of Article 288 of the EC Treaty with respect to non-contractual liability allegations against institutions within the Community.9 To start with, the Directive allows at least one year for compliance and the threat to close down the school within four months is entirely unfair and contrary given that the EC Directive allows at least one year for compliance. Bowles Bowles’ remedy is against the government since the removal of Bowles by the London Council from its list of recommended sporting activities appears to be an improper interpretation of Article 2 of the Directive which defines sport as an “activity involving physical exertion and skill”. It is difficult to exclude bowling from this definition of sport since it involves a degree of “physical exertion”. This exclusion which is not required by the definition of sport presumably caused the decrease in uptake of Bowles’ sporting activities and resulted in damages to its business. Bowles can therefore contest the London Council to reinstate bowls on the list of recommended sporting activities. This can be done by invoking Article 288 of the EU Treaty which provides that the: the Community, shall in accordance with general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.10 In order to invoke Article 288, Bowles will be required to prove that there was a wrongful act or omission, that there were damages incurred and that those damages were caused by the wrongful act.11 Acts capable of giving way to liability are, “administrative failures”, negligence on the part of institutions and/or their servants and the “adoption of illegal or invalid acts.”12 There was clearly administrative failure and negligence on the part of the local authority in its interpretation of physical activity as contained in the Directive and certainly administrative failure on the part of the UK in defining physical activity erroneously in the SI. II. Remedies In light of the improper enforcement of the Directive by the government,Camilla and Maria may have recourse against the UK government via Article 234. Article 234 confers upon the European Court of Justice the authority to issue preliminary rulings on: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECJ; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. 13 Camilla, Maria and Bowles are at liberty to take action directly against the EU by virtue of Section 2 of the European Community Act 1972. Section 2 essentially requires that domestic laws be applied and interpreted in a manner consistent with EU laws so that all individuals have the rights and remedies conferred upon them by EU laws.14 The UK court would be obliged by virtue of Section 2 of the 1972 Act and Article 249 of the EU Treaty to apply the terms of the Directive. Bowles may take an action against the UK for damages for the improper enforcement of the Directive by virtue of the SI. The right to pursue the government comes under the doctrine of direct effect III. Germany Germany’s situation involves its reluctance to comply with EU Law via Directive 2009/111. In this regard, Article 226 of the EU Treaty is directly applicable and relevant. Article 226 incorporates a system for responding to contraventions by Member States in respect of their Treaty obligations.15 In other words, the Commission can invoke Article 226 with respect to Germany’s opposition to the implementation of Directive 2009/111 in the event, Germany ultimately refuses to implement it.16 Article 226 is designed to ensure compliance but, Germany will have an opportunity to challenge the Directive and to make its case for failure to implement it. The compliance system under the auspices of Article 226 will provide Germany with an opportunity to resolve their differences with the EU over the Directive. Under Article 226 the Commission is required to serve a formal notice on Germany as an infringing state.17 In this regard, Germany is advised to refuse implementation of the Directive and to notify the EU of its reasons for doing so. In this regard, the EU will be obliged to either commence with an investigation or serve a formal notice on Germany, in which case Germany will still have an opportunity to be heard. Article 226’s system of redress against non-complying states is such that it permits EU Member States an opportunity to present their case and to respond to the Commission’s formal notice where applicable. It therefore follows that regardless of whether or not Germany notifies the EU of its intention not to implement the Directive, its failure to implement the Directive will propel the EU into action and formal notice will be served providing Germany with an opportunity to make its case.18 In the event, the Commission decides the issue, it would not end there if German does not agree with it. The Commission will then commence with adjudication proceedings against Germany. Germany should be advised however, that in the event it fails to convince the court of its position, Article 228 confers upon the Commission the authority to impose penal fines against Germany since Article 226 is invoked.19 If the Commission makes a decision following its initial invoking of Article 226, Article 249 will apply. Article 249 provides that: In order to carry out their tasks and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions…A decision shall be binding in its entirety upon those to whom it is addressed.20 It therefore follows that in the event of the Commission’s decision pursuant to system set forth in Article 226 of the EU Treaty will therefore bind Germany under Article 249. Germany’s failure to comply with the Commission’s decision by the deadline set for doing so will be regarded as an infringement which will then fall to be determined by adjudication as provided for in Article 228 which provides for the imposition of penal fines and other sanctions Moreover, Article 211 of the EU Treaty confers upon the Commission the authority to: ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied.21 Cumulatively, the consequences of Articles 211 and Article 249 is to ensure that EU laws are adopted and applied harmoniously throughout the European Union. In this regard, Articles 211 and 249 has as tis aim the imposition of a duty on the Commission to ensure that EU laws are not only implemented by Member States, but are applied for the benefit and protection of all EU citizens. Germany is advised that in all likelihood its efforts to resist the implementation of the Directive will likely fail. There are essentially three guiding principles that apply and have been set forth by the Better Monitoring of the Application of Community Law Com (02) 725 Final. These principles can be summarized as follows: 1. Infringements are those actions or inactions that have the capacity to compromise the rule of law and include, contraventions that challenge or weaken EU supremacy and uniformity of community law and human rights contraventions as they are contained in EU law and cause serious harm the EU’s economic interests. 2. Contraventions that compromise the efficiency of the EU’s legal system. 3. Contraventions that incorrectly implement directives so that they have the potential to undermine public access to EU law.22 Considering that Germany’s main complaint appears to be that the Lisbon Treaty does not compel Member States to implement mandatory sporting activities, the Commission will likely respond with Article 3 of the Lisbon Treaty which reflects the first principle enunciated above. Article 3 of the Lisbon Treaty 2007 compels Member States to “take any appropriate measure” whether “general or particular” for the purpose of ensuring “fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.”23 Article 3 goes on to state that Member States are required to “facilitate the achievement of the Union’s tasks” and to “refrain from any measure which would jeopardize the attainment of the Union’s objectives.”24 Once the EU issues its initial notice, and takes possession of Germany’s submissions and initiates proceedings in the courts, the Commission is at liberty to make an application for an interim order which might have the consequence of compelling Germany to implement the directive until the matter can be adjudicated.25 Germany’s only hope of succeeding will come from an argument that the Directive is harmful to the public health policy, public morals or security or public policy of Germany in general.26 It is difficult to see how such an argument will succeed in light of the fact the EU is seeking to promote public health and reducing obesity among the youth is hardly a case for concerns about public morals, security or public policy in general. Bibliography Alfons Luticke GmbH v Hauptzollamt Saarlouis [1966] ECR 205. Ashmore, D. and Terrett, S. (2009) An Introduction to the Law and Institutions of the European Union. Cambridge University Press. Better Monitoring of the Application of Community Law Com (02) 725 Final. Case C-195/90, Commission v Germany (1992) ECR I-2141. Commission v Belgium [1970] ECR 237. C 46 and 48/93 Brasserie du Pecheur v German and Factortame v UK [1996] 2 WLR 506. European Community Act 1972 EC Treaty 1957. Francovich and Bonifaci v Italy [1991] ECR I-5357 Fratelli Costanzo SPA v Comune de Milanoo [1989] ECR 1839. Gilbanez, A. (2004) “The ‘Standard’ Administrative Procedure for Supervision and Enforcing EC Law: EC Treaty Articles 226 and 228”.Law and Contemporary Problems, Vol. 68:135-159. Kent, P. (2009) Law of the European Union. Pearson Education. Kortas [1999] ECR1-03143. Publico Ministero v Ratti [1979] ECR 1629. Szyszczak, Erika and Cygan, Adam. (2005) Understanding EU Law. London: Sweet and Maxwell. Van Duyn v Home Office [1974] ECR 1337. Word Count: 2194 Read More