European Union Law - Coursework Example

European Union Law Word count: 3315 The European Union The European Union is a political and economic union made up of 28 European countries. The union came into existence in 1993 following the signing of the Maastricht Treaty1. It was preceded by the European Economic Community that was formed was formed in 1958 following the signing of the Treaty of Rome. A major aim for the formation of the union was European integration of the economic, political, cultural, social, and industrial aspects of the member states. The need for integration arose following the numerous problems and challenges that occurred across Europe because of the Second World War. Since then, various efforts have been undertaken to ensure integration between member sates over the years since the formation of the European Economic Community to the formation of the European Union and its subsequent expansion to the current 28 member states. The union functions under a supranational independent institutions system whereby member state governments delegate power of the organization to a specific authority as well as through intergovernmental negotiated decisions2. There are seven major institutions within the union are the European Commission, the European Council, the European Parliament, the European Central Bank, the EU Court of Justice, the Council of the European Union, and the Court of Auditors that have separate governance functions and responsibilities in steering and addressing the various issues and challenges arising within the union. Directive 2000/78/EC The Employment Equality Framework Directive 2000/78/EC refers to a European Union labor directive that aims at prohibiting any form of discrimination regarding employment and occupation within the European Union member states based on religion, age, sexual orientation, disability, and the freedom of association. In addition, this directive prohibits harassment, both direct and indirect discrimination, and giving instructions that lead to harassment, discrimination, and victimization. The European Union was founded based on the principles of liberty the rule of law, democracy, and the respect of fundamental freedoms and human rights. As such, any form of discrimination within the Union member states is prohibited and against the law and major principles laying the foundation of the union. The directive establishes a broad framework governing equal treatment regarding employment and occupation within the European Union member countries. The directive was issued on November 27 2000, and works hand-in-hand with the Equal Treatment Directive and the Racial Equality Directive that are also labor laws prohibiting discrimination based on gender and racial ground respectively. Employment and occupation constitute an important element within the European Union and play an important role in ensuring full citizen participation in economic, cultural, and social aspects of life and the society3. There have been many cases of discrimination within the European Union member states, especially within employment and the labor market. In addition to the prohibition of discrimination based on race, sex, ethnicity, religion, age disability, and sexual orientation, this directive also includes directives on various conditions and aspects controlling the access to employment, vocational training, and various aspects affecting employment and overall working conditions. It also provides a framework for the membership of as well as involvement in employee unions. Sources of European Union law and the cause of action in a ‘Ruritanian’ Court European Union law is the collection of all treaties and legislations governing various aspects within the European Union and its member states. These treaties and legislations bear a direct and/or indirect effect on the various laws and legislations constituted within the European Union member countries. As such, the various courts within the Union’s member countries are required to apply these treaties and legislations in their countries. There are three major sources of European Union law, namely primary, secondary, and supplementary law. Within the European Union context, primary law refers to the various treaties that established the European Union and provide details on how the union should function, provides the various capabilities of the union, and the relationship between the union and the member states4. These treaties are mainly referred to as the Treaties on European Union (TEU) and the Treaties on the Functioning of the European Union (TFEU). Another major primary law source within the European Union is the Charter of Fundamental Rights of the European Union. Secondary law within the European Union context refers to the various legislations and legal acts that are adopted within the European Union with the aim of enabling the union to pursue and achieve the various objectives that are outlined in the treaties establishing the union. The main forms of secondary legislation used within the union include directives, regulations, opinions, decisions, and recommendations. Other forms of legal acts that fall under secondary law include the various actions, communications, green papers, white papers, and recommendations that are created by the various European Union institutions. The European Union has a well-developed legislative function that is carried out by two main bodies, the council of the European Union, and the European parliament, which are the main bodies responsible for developing secondary law within the union5. The European Commission also bears some legislative functions, with the power of these institutions to create legislation being decided based on the legislative procedures used and the policy areas involved. Supplementary law within the European Union context refers to the various uncodified laws and legal acts mainly developed by the Court Of Justice of the European Union (CJEU), which is the judiciary arm of the European Union. The recognized laws under supplementary law include case laws and general principles of law developed by the EU court of justice and its constituent courts, mainly the General Court. These laws are developed in order to interpret various issues that the primary and secondary laws do not address adequately. This case involves the implementation of a European Union directive that aims to prohibit discrimination in employment and occupation based on gender, religion, age, sexual orientation, disability, and the freedom of association. Under European law, directives are binding on all the member countries of the union, although the member countries have a choice in the form and implementation of these directives. As such, directive 2000/78/EC is binding on Ruritania and therefore applies to its laws on the discrimination in employment and occupation. In addition, most directives include the requirement of transposition into the national laws of the member states. The same is the case with this directive, with article 18 of this directive requiring member states to adopt the necessary laws and administrative conditions enabling compliance with the directive by December 2, 2003 and an additional 3 years to implement provisions stated in the directive concerning discrimination on age and disability. Although Ruritania was unable to transpose fully the directive within the required time, this directive is fully binding on the country and therefore any form of discrimination in employment and occupation is prohibited in the country based on the provisions stated in this directive. Conversely, article 3(4) of this directive provides for member states not to apply this directive on discrimination based on age and disability in the case of armed forces. Since Ruritania classifies prison guards as part of armed forces, the establishment of various requirements for the armed forces, including those on age and disability would not be viewed as a form of discrimination under this directive. In addition, age limits within various professions meet the “appropriate and necessary” requirement of the directive and established by CJEU case law based on the justifications for implementing these age limits and therefore do not constitute discrimination. As such, Albus does not have grounds for legal action in a Ruritanian court based on this directive as placing maximum age in the prison may be appropriate and necessary.. Conversely, although this directive does not prohibit discrimination on the basis of gender, it advocates for the equal treatment of men and women regarding access to employment, work-related training, promotion, and working conditions. In addition, the implementation of this directive should include provisions that eliminate inequalities between men and women since women have been discriminated a lot in the past. Therefore, the new policy stating women should not be armed could be a form of discrimination since it limits the possibility of women rising to the operational command of a prison. This action by the prison service constitutes a form of indirect discrimination, as it provides men with an advantage in rising to operational command of prisons over women. This policy therefore contravenes this directive and therefore Bellatrix can seek legal action in court Under European law, regulations are entirely binding and directly applicable. Regulations might be directed towards all the member states, private persons or organizations, or the various institutions of the European Union, which have to fully comply with the regulations by the stipulated date of or the twentieth day after the regulations have been published in the European Union official journal. In addition, regulations supersede any national laws within the member states that are incompatible with the substantive provisions provided by these regulations. As such, Regulation 2014/666/EU requiring that all prison guards be at least 183 cm tall is fully binding on Ruritania and directly applicable on the country’s prison guards. Both Albus and Bellatrix are 178 cm and 168 cm tall and therefore do not meet the minimum height requirements stipulated by the regulation. Consequently, no cause of action can be taken by a court of law in Ruritania concerning their case. Preliminary reference to the CJEU The Court of Justice of the European Union (CJEU) is the main judicial body within the European Union tasked with the interpretation of all European Union laws to ensure that they are applied in a similar manner within all member states. The court also settles any legal disputes that may arise between member states and the European Union institutions. It also settles disputes brought to it by individuals and organizations against the national governments of the member states or against the various European Union institutions. The court has over the years made several interpretations on the various provisions of Directive 2000/78/EC in the course of settling various cases concerning discrimination that have been brought before the court. Although article 3(4) of this directive provides for member states not to apply this directive on discrimination based on age and disability in the case of armed forces, the Ruritanian court should make preliminary reference to the CJEU. Furthermore, most of the cases involving discrimination that have been brought before the court are mainly concerned with the issue of discrimination based on age and therefore there are several case laws developed by the court concerning age provisions in the directive and their effect on the various professions as well as the police and armed forces. This has been the case because of the large youth population within the European Union as well as an increase of the aging population in most countries across Europe. Regarding this case, it is important for the court to refer to CJEU case law regarding the application of the term armed forces within the directive. A better understanding is required on the various issues affecting the armed forces in relation to age and whether the prison service constitutes the armed forces or not. In addition, further advice is required concerning article 6(1) of this directive. This article requires any differences in treatment based on age should be “objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labor market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”6 There is need to make sure whether the new policy stating women should not be armed constitutes any legitimate employment policy and seeks to serve any justifiable legal objective. If evidence of any justifiable legal objective were absent, this requirement would be a form of discrimination since it limits the possibility of women rising to the operational command of a prison. The court should therefore seek reference on the CJEU case law for better interpretation of this issue, especially its effect on age in the armed forces in order to take the appropriate cause of action. Damages under Directive 2000/78/EC Directive 2000/78/EC requires the European Union member states to develop the appropriate and proportionate sanctions and remedies under article 17. The victims of discrimination should be provided with the access to remedies allowing them to dispute the acts of discrimination they have suffered. Each country has developed its own sanctions and remedies for discriminatory action that are based on the national laws and provisions and are implemented in accordance to the provisions of the directive7. These remedies could be of a civil, criminal, or administrative nature based on the nature of the discrimination that has occurred. Some of the remedies developed in different countries are punitive while others are non-punitive. Others are backward looking while others are forward-looking with the aim of adjusting future discriminative behavior. Albus and Bellatrix can claim to be compensated following the country’s infringement of the directive. Compensation is greatly reliant on the ability to proof that the discrimination actually occurred. The person claiming that he/she is a victim of discrimination should provide sufficient evidence that shows clearly that direct or indirect discrimination on the basis prohibited by the directive occurred. Article 10 of the directive requires the victim of discrimination to provide reliable facts that actually prove that the discriminatory act occurred and the defendant should prove that the said breach concerning the purported discriminatory act did not occur. The acceptable evidence and proof required to proof the incidence of discrimination is established within the national laws of the member states. As such, Albus and Bellatrix will have to provide sufficient proof to the court that they are victims of discrimination while the prison service will argue to prove that no discriminatory act occurred in its procedures and policies. Once the substantial proof for discrimination is established, Albus and Bellatrix can claim damages arising from the discrimination based on the provisions for remedies established in the national law of Ruritania. Challenging the adoption of the regulation in the CJEU As stated above, The Court of Justice of the European Union (CJEU) is the main judicial body within the European Union tasked with the interpretation of all European Union laws to ensure that they are applied in a similar manner within all member states. The court also settles any legal disputes brought before it that may arise between member states and the European Union institutions. Over the years, the court has handled five major types of cases regarding the interpretation and application of European law within the union. These are: Cases requiring a preliminary ruling brought to the court by the national courts requesting the court to interpret various European Union laws. Cases involving direct actions brought before the court by individuals, groups, organizations, or companies against various European Union directives, decisions or actions. Cases involving the failure by the member state governments to fulfill or adopt the various European Union laws established within the union. These cases can be brought to the court by the Commission or by another member state. Cases involving requests for the annulment of various European Union laws that are deemed to contravene the European Union treaties as well as the general principles and fundamental rights established within the European Union. Cases involving the failure by various European Union institutions, especially the European Union Council, Parliament, and Commission, to act, make certain decisions, or perform some of their responsibilities as outlined in the European Union treaties. The European Commission adopted regulation 2014/666/EU that requires all prison guards within the European Union be at least 183 cm tall 1 March 2014. As stated above, all European Union regulations are entirely binding and directly applicable. Regulations might be directed towards all the member states, private persons or organizations, or the various institutions of the European Union, which have to comply fully with the regulations by the stipulated date of or the twentieth day after these regulations have been published in the European Union official journal. In this case, Albus and Bellatrix can challenge the adoption of regulation 2014/666/EU in the CJEU as well as its validity before the domestic courts. They can seek the annulment of the regulation since it affects them directly and adversely. Based on their arguments, the court will then determine whether the regulation contravenes any European Union treaty and whether its adoption results in adverse effects on the plaintiffs. Full transposition and compliance with EU directives The European Union institutions tasked with creating laws within the European Union, mainly the European Union Parliament and the Commission, have developed various European Union laws that are adopted by the member states and the concerned institutions and other organizations. The adoption and implementation of these laws entails full transposition into the national laws of the member countries and by the relevant institutions within the union and continued compliance with these laws. The Commission is tasked with ensuring that these laws are transposed and complied with fully by the member states8. All these laws contain provisions on time under which the member states are expected to have fully transposed these laws into their national laws. Once these time deadlines are over, the Commission undertakes a review in all the member states to ensure that these laws have been adopted and ensure that the national laws conform to the provisions stipulated in the European Union laws. In the case of directive 2000/78/EC, the directive was issued on November 27, 2000, with article 18 of this directive requiring member states to transpose and adopt the necessary laws and administrative conditions enabling compliance with the directive by December 2, 2003. In addition, member states were allowed an additional 3 years until December 2, 2006 to implement provisions stated in the directive concerning discrimination on age and disability. Following the passage of this transposition provisions, the member states were required to report on the status of transposition to the Commission by December 2, 2005 and to report to the Commission after every five years on the status of implementation and compliance with the directive to enable the Commission report on the same to the Council and Parliament. In the case of Ruritania, it did not transpose the directive within the stipulated time as a new parliament building was being constructed. Six months later, the country informed the Commission that it would not transpose the age provisions until December 2, 2006, using the additional three years provided for transposing provisions stated in the directive concerning discrimination on age and disability. The commission would have introduced infringement proceedings against the country before the CJEU based on its failure to fulfill full transposition of the directive following the passage of the December 2, 2005 when all countries were required to report to the Commission on the status of transposition. Personal reflection This essay entailed a lot of research in order to understand how European Union law has developed and is implemented across the member states. It is clear that discrimination is a major problem that exists within the Union and therefore there was need for a legal framework to be developed under law to help protect people within the member states from discrimination, especially in the job market. In undertaking this research, I looked for information about how European Union law is created and implemented and the various bodies involved in the whole process. I also looked for information regarding the various steps undertaken to ensure that the member states or the concerned European Union institutions implemented these laws, and the remedies and damages that are available to those who are aggrieved. Bibliography Bermann, George and Katharina, Pistor. Law and governance in an enlarged European Union: essays in European law. Hart Publishing, 2004. Commission, ‘Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘Racial Equality Directive’) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’)’ COM (2014) 2 final. Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. .[2000] L 303.  Gunnar, Beck. The Legal Reasoning of the Court of Justice of the EU. Hart Publishing 2013. McCormick, John. The European Union: Politics and Policies. Westview Press, 2007. Peterson, John, "Enlargement, reform and the European Commission. Weathering a perfect storm?” (2008) 15 (5) Journal of European Public Policy 761. Pollack, Mark. “Delegation, Agency, and Agenda Setting in the European Community”. (1997) 51, 1, International Organization, 99. Staab, Andreas. The European Union Explained: Institutions, Actors, Global Impact. Indiana University Press, 2008. Read More