European Union Law - Essay Example

European Union Law ment of Facts The European Union has a number of laws that applies across the divide throughout its member s. This is to introduce harmony and peaceful co-existence of member states, as well as, the citizens residing within each state. One of the many directives passed and implemented in the European Union is the Directive 2000/78/EC, which the European Union council adopted in 2000. The provision of this Directive prohibits discrimination of persons, in Article 1, on aspects of employment or occupation on the basis of, inter alia, age and sex. Article 3(4) permits the Member States to prohibit the application of the Directive to the armed forces, as far as it relates to inter alia age. On the other hand, article 18 of the directive requires member states to transpose this directive by December 2, 2003. However, the same article enables member states to extend the period of transposition for a further three years for the provisions on age so long as the Commission receives a forthwith communication of this move1. One of the member states, Ruritania, fails to transpose the Directive within the timeline provided by the commission. It however informs the commission in June 1, 2004 that it would not be able to transpose the provisions on age until December 2, 2006. The main case for the delay in this transposition was due to the construction of the new parliament building, and as such, there were no parliamentary sittings for a period of twelve months, hence impossible for Ruritania to transpose the directives. However, Ruritania still failed to meet its pledge to transpose the Directive by December 2, 2006 until January 2, 2014. This was due to a volcanic eruption that buried the entire capital city, as well as, the new parliament buildings. Most of the administrators and politicians died during this volcanic eruption. Apart from the country losing on its supply of leadership, it also lost all of its parliamentary records. March 1, 2014, the commission adopts another regulation dubbed 2014/666/EU that requires all prison guards to be at least 183 cm tall. Albus and Bellatrix are prison guards under an employment contract with the Prison Service. These two have a direct authorization to carry and use a revolver while on duty. The Prison Service went through a privatization process in December 2005. Albus was to turn 55 years of age by November 1, 2006 and the Prison Service informed him of this. The Prison Service also advised him to reduce his number if working hours per week from 40 to 20 in order to enable the prison service to recruit and train a younger person who would eventually take his place after his retirement. At the same time, the Prison Service adopted another new policy that prohibited every woman in the Prison service to carry a firearm. This led to the redeployment of Bellatrix from her former post to a new role as a prison administrator. No administrators ever rose to the level of being in operational command of a prison. Consequently, because the prison guards carry firearms while on duty, the Prison Service claims that it now falls under the jurisdiction of “Armed Forces”, and as such, demands exemption from the provisions of the Directive. Bellatrix is 168 cm in height whereas Albus is 178 cm in height. The provisions in the directive arouse a number of questions from Bellatrix and Albus2 Issues According to the new directives provided by the European commission, and transposed by the Ruritanian government, Albus and Bellatrix stand a high risk of losing their jobs after the enforcement of these provisions. The first directive passed by the council in 2000, Directive 2000/78/EC, and transposed by the Ruritanian parliament in January 1, 2014 prohibits discrimination on employment and occupation, inter alia, age and sex. These two are a female and a male. One suffers sexual discrimination while the other suffers age discrimination. The two might as well suffer height discrimination owing to the new directive provided by the European Commission Directive 2014/666/EU requiring all prison guards to be at least 183 cm tall. Both Albus and Bellatrix are below this cut off height, since Albus is 178 cm tall while Bellatrix is 168 cm tall, 5 cm and 15 cm respectively shy of the required height. Before this risk, Albus is already due to retire by the time the council adopts the next directive, as he turns 55 on November 1, 2006, and as such, the Prison Service requires him to work for less hours in a week. In fact, he literally cuts his working hours into half, from the original 40 hours per week to only twenty hours per week. This uptake program enables the prison service to recruit and train another younger prison guard that would replace Albus in the event of his retirement. However, this infringes Albus rights in employment and occupation because of his age, which is wrong according to the first directive. It is tricky for Albus because his country is yet to transpose the directive into action by the time this is happening, as Ruritania adopts the law 8 years later in January 1, 2014. Hence, he faces discrimination from the law based on his age, as well as, his height, which fails to meet the recommended threshold3. On the other hand, Bellatrix faces discrimination against her because of her age and her sex. She is 168 cm tall, and as such, does not meet the provided threshold of 183 cm height for every prison guard. This means that she is likely to lose her job in the event the Prison service enforces this law. On the other hand, she suffers gender bias because of the new policy adopted by the prison service that prohibited women from carrying fire arms while on duty. This leads to her redeployment from a prison guard to a prison administrator, which in turn denies her an opportunity to wield a gun like her male counterparts in the force. This also puts down her prospects of career development and growth since no one in the administration department ever rose to become in command of the prison, thus tying her down to that post4. The Court of Justice of the European Union (CJEU) is the body mandated to interpret every law passed and enforced in the European Union. The interpretation undertaken by this court of justice is to ensure that the application of the law is similar across all the countries that are member states of the EU. Furthermore, this court also settles every legal dispute that may arise between governments and institutions within the EU. As such, the court also allows individuals, organizations, and companies to bring their cases before the Court in case they feel an infringement on their rights by any given institution in the EU. The composition of the Court of Justice is one judge for every member states in the European Union. The court gets assistance from nine “advocates-general” whose main job is to present opinions on the cases presented before the court publicly, as well as, impartially. Each judge and advocate general of the court serves a renewable six year term in office based on the consensus agreement by the governments of the EU countries on the nest candidates to appoint. It is difficult for Albus and Bellatrix to seek reprieve from the EU laws in the event the Ruritanian courts take actions against them. This is majorly because in the first directive, the country took almost 14 years before transposing it, and as such, the law was not applicable in the country until then. Henceforth, it would be impossible for these parties to seek reprieve on these laws provided they were not functional in the country during that period for reasons beyond the control of the country. For instance, the Ruritanian court would legally enforce its directive to penalize Albus over his age in order to hire a new younger prison guard for his replacement on retirement. Albus cannot complain because the current law in Ruritania provides for these proceedings to take place legally, unless until the application of Directive 2000/78/EC. The second directive requiring all prison guards to be of 183 cm height also denies Albus an opportunity to seek redress since this comes from the EU itself and enforced by Ruritania. On the other hand, Bellatrix also lacks any chance of getting reprieve from the EU in the event the Ruritanian courts take actions against her height and sex. The question of height is not debatable because it is a directive from the EU and transposed in Ruritania. On the question of sex, she suffers gender discrimination through her redeployment from a prison guard to a prison administrator because she is a woman and prohibited from carrying a firearm by the prison policy. As for the latter aspect, it would be possible for her to get reprieve from the EU since the application of this law would be discriminating against her employment rights based on her sex. She can question her redeployment in court based on the provisions of the first directive 2000/78/EU5. The courts of Ruritania should make a preliminary reference to the CJEU over the interpretation of the term “armed forces” and as such, eliminate the confusion brewing in the prison service, which since they got permission for prison guards to handle firearms while on duty, they began regarding themselves as members of the armed forces. The CJEU interpretation of the armed forces provides it to be the military forces of a country or of a nation, which includes the army, the navy, the air force and the marines. The army fall under the command of the country, and deployed on order of the commander in chief of the nation. However, with the case of Ruritania, the Prison Service is a private institution, and as such, it does not fall under the command of the Commander in chief of Ruritania. Henceforth, the mere carrying of revolvers by prison guards does not elevate them to the prestigious rank of the armed forces. Discussion Directive 2000/78/EC provides that no member states shall discriminate any person on basis of, inter alia, sex or age regarding areas of occupation and employment. Albus and Bellatrix are employees of the Prison Service, a private institution in Ruritania whose main role is to oversee prisons in penitentiary facilities. These two suffer against discrimination on age and sex respectively, due to the application and implementation of Ruritanian law on their work procedures. For the case of Albus, he suffers discrimination based on his age, whereby he is heading 55 by year 2006, and as such, almost nearing his retirement age provided at presumably 60. However, for the remaining five years in his workforce, the prison service demands that he works for fewer hours from 40 hours a week to 20 hours a week. This time reduction provides the prison service with an opportunity to hire and train a new prison guard that would take up his place once he leaves office for retirement6. However, even though the move is good because it provides the prison an opportunity to fill in the gap immediately and as such, suffer no significant workers turnover due to old age and retirees, it denies Albus an opportunity to maximize his earnings from his lifelong career. For working fewer hours, Albus earnings also reduce by half for the period he will be working until he retires. Therefore, he can seek damages against the prison service, as well as, from the Ruritanian courts of law basing on the directive passed by the council barring any kind of discrimination based on age. He should claim to get all the benefits that are rightfully his as an employee of the prison service, such as working for the normal forty hours and getting a full pay for it. If the prison service wants to hire and train new prison guards to replace the old retirees it should do so at its own expense and not infringe the rights and privileges of the existing old employees. This is because old age does not bar them from performing their duties normally like on previous occasions, and as such, need the respect and recognition from the company. According to the directive, Albus can claim damages against the prison service for the reduced number of working hours per week, and consequently the reduced pay per week for working for fewer hours. The prison service will compensate him of all the income he lost since it discriminated his services according to age by reducing his working hours and pay because he was approaching fifty-five years of age7. On the other hand, Bellatrix also suffers discrimination in the prison service because of her sex. The prison service introduces a policy that prohibits every female guard from carrying a revolver while conducting their duties, as is the precedence of all prison guards within the prison service. Consequently, this leads to the redeployment of Bellatrix from working as a prison guard to working as a prison administrator in order to conform to the new prison service policy. However, this is a direct infringement on her rights and privileges, as it denies her an opportunity to grow and advance her career in the prison service. For instance, no one among the prison administrators ever rose to the position of being in command of a prison. As such, redeploying Bellatrix from her former position as a prison guard to her new position as a prison administrator locks her out of the race of becoming a commander of prisons someday. This is a direct infringement of her right and as such, she can claim damages against Ruritania for enforcing laws that deny her EU law rights as provided under the Directive 2000/78/EU. The adoption of Regulation 2014/666/EU that requires all prison guards to be at least 183 cm in height bars both Albus and Bellatrix from performing their duties, as they are both below that height since they are 178 cm and 168 cm tall respectively. As such, since the transposition of this law in the Ruritanian jurisdiction would deny them an opportunity to continue offering their candid services to the prison service, they can challenge the adoption of this regulation in CJEU, as well as, challenge its validity before the domestic courts in Ruritania. One of the avenues to challenge this law would be the nature of their work. Unlike other security forces such as the police and the army, the prison guards do not require a certain level of height in order to perform their duties professionally. This is because most prison guards perform their duties under closed doors of a penitentiary facility whose layout and environment they are fully aware off. As such, any cases of ambush, or surprise enemy attacks are not their preservative. Henceforth, having tall prison guard or short prison guards do not in any way affect the performance of prison guards in any prison facility8. Consequently, both Albus and Bellatrix can fight against the adoption of this new regulation, as well as, question its validity before the local courts following the lack of substantial advantages brought out by this provision. Since nothing changes in performance and duty, then it is not necessary to indite hardworking prison officers from their posts simply because they are short. Conclusion and Recommendation The commission could bring an action against Ruritania to enforce the age provisions embedded in the directive 2000/78/EC to its full transposition if, and when the country fails to adopt the directive on personal grounds. For instance, the country took some considerable amount of time before it adopted and transposed the law into action from 2000 to 2014. However, this delay was mainly due to impossibilities within the country, such as the lack of parliamentary sittings for a whole year owing to construction of a new parliament building, as well as, a volcanic eruption that followed soon afterwards. This eruption collapsed the entire legal and political system of the country as it killed most of the administrators and politicians of the country, as well as, destroying the new parliament building a fresh since it erupted within the capital city. Evidently, the country did not have any control over these conditions, and as such, its delay in adoption and transposition of the Directive would be justified, as there were no parliamentary sittings during this period9. However, in the event the country had normal operations all through this period, and still failed to adopt the directive as a member state of the European Union, then this would be going against the provisions of the Commission, as well as, the regulations set by member states. At the lapse of the three year grace period provided by Article 18 of the directive, all countries that are member states of the EU should adopt this law, unless otherwise with a forthwith communication of any subsequent failure. After these three years, the commission has every right to initiate legal proceedings against the government of Ruritania for failure to adopt and transpose fully the provisions of directive 2000/78/EC because it is now under full contravention of the EC regulations, as well as, the treaties signed by member states. The CJEU can pass judgment against Ruritania for intentionally failing to adopt and transpose the new law, thereby going against the signed agreements and treaties that bind all EU member states. This means that the people of Ruritania would not get equal treatment from fellow member states of the EU because of their government’s failure to adopt and transpose an EU Directive.10 As such, the country, its citizens, as well as, its political leaders and administrators will suffer prejudice and discrimination when dealing with other member states. These may include travel bans, revocation of ongoing treaties and agreements with the nation such as trade pact, or foreign exchange agreements. The CJEU may go as far as setting up embargoes against the Ruritanian nation that put it in a compromise position forcing it to adopt and transpose the directive. Bibliography Alina Kaczorowska, European Union Law (London, Routledge, 2013) Pp. 38-262. 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