European Union Law - Assignment Example

European EU Law submision Q1: Can Anna Claim Unemployment Benefits? Is Baahir’s employer obliged to give him any Salary and contribute to his pension? Under article 21, Anna is free to move to another member state but is not eligible for unemployment benefits1. However, under Article 45 TFEU Anna has the right to seek for employment without discrimination on grounds of her nationality. In her case, Anna is seeking for unemployment benefit and does not meet the ‘reasonable period’ of employment under EU laws. In the EU, ‘reasonable period’ is normally 300 days that translates into 6 months. The EU unemployment work benefits system comprises of income-loss insurance and basic Insurance2. The basic insurance is limited to persons aged 20 or more years and unemployment benefits fund members. Conversely, compensation from income-loss insurance occurs only if the person paid membership to unemployment benefits Fund within a minimum duration of 12 months before employment termination3. For one to be eligible for unemployment benefits one must be registered at the unemployment office and the demonstration of active involvement in job search means Anna cannot be asked to leave Sweden4. In the case of Anna, she has never worked in Sweden, and under European laws, Anna’s application to receive unemployment benefit is invalid. Anna needs to understand that under EU law, no EU country citizen has an automatic right to income support as a first time job seeker in a country different from one’s native5. However, under national laws in Anna’s home country, she is entitled to unemployment benefits on condition that she arranged with her home country to ensure she remained covered while away6. For her self-employment, Anna has the rights to self-establishment as provided for in Article 497. With a work permit, Baahir is entitled to a salary and pension, and is entitled to non-discriminatory employment under article 458. In Sweden, employment is by contracts which could be temporary or until further notified. n addition, wages and salaries are agreed upon by collective bargaining in the blue-collar jobs is between employers and trade unions and this differs for Bahiir from other colleagues carrying out the same jobs given that Sweden allows dualism of labor market9. Q2: Can Cuthbert represent Anna and Baahir in Swedish courts? Given Anna and Baahir’s situation, Cuthbert is the best lawyer since he understands British laws and what amounts to criminal or civil case only in the UK. However, while residing in Sweden, a violation of the Swedish law results the prosecution of Anna and Baahir. In this case, as the defendants, Anna and requires a representation by an attorney who understands the Swedish law and who can prove her innocence as an immigrant. Under article 81, Anna’s business raises civil matters that call for judicial cooperation that may consist of adoption of measures that approximate rules and regulations of member states. By residing in Sweden, the expectation is that Anna would be ignorant of the existing practice laws while in the UK, tanning pill businesses are legal. EU laws offer every person the right to fair trial and an autonomous judiciary. Prior to being proven guilty, Anna and Baahir are innocent of the crime according to Article 6 and have the right to be heard by an impartial tribunal10. In addition, Anna and Baahir, who are not Swedish native speakers, deserve an interpreter during their case. Another reason for not requiring an attorney is the fact that the court system determines whether a case is civil or criminal and if criminal, the government offers a defense attorney. The defendant then openly questions or confronts the witness by presenting witnesses and additional evidence on their behalf. In the end, the defendant is presented with government-held evidence related to their case and if convicted, they can appeal or remain free.According to Europa11, rules governing legal practice are regulated principaly by law in chapter 8 of the Code of Judicial Procedure. Any person willing to represent another in court as a lawyer or who needs admission to the bar association must be an EU or EEA and Switzerland resident. The person must hold a Swedish law degree or masters in law degree. Apart from pasing examinations and completing their training, the lawyer must have passed an examination in Sweeden as an indication that they understand sweedish legal system. However, for foreign lawyers the only limitation is representing a party in swedish courts where one is expected to demonstrate knowledge of Swedish legal system. The lawyer must also be a resident in EU, the EEA or Switzerland. For lawyers who want to establish themselves in Sweeden, they have to register with the Bar Assocition for supervision. All other rules for Swedish lawyers also applies to the foreign lawyers.the legala requirements align with EU Article 8212 that requires mutual acknowledgment of ruling and judicial choices in criminal matters. For Bahir, the law in Sweeden does not determine minimum payment rates since this is the role of collective bargaining and only negotiations between employer and Bahir can set the minimum. 3. Is the Swedish ban on the sale of the tanning pills compatible with A34 TFEU and, if not, justified under A36 TFEU? In Sweden, the sale of tanning pill is prohibited on the basis that tanning with artificial lights or sunless-tanning exposes individuals to risky Ultra Violet or UV rays. Incidents of UV exposure end up increasing chances of a victim to skin cancer. This is especially the case when the involved clients are below the age of 35 year. In the European Union, article 34 is the Treaty on the Functioning of European Union supporting the free movement of goods13. This is the case given that free of movement of goods within the single EU market is one of the freedoms that should exist within all EU members14. According to article 34, goods involve all form of goods that can be imported and exported. In addition, according to the goods are defined as product that have a money value attached to them and that are capable of forming commercial transactions subject15. Building of an internal market in EU depends upon the establishment of free movement of goods and this has been a success since the inception of Article 34 TFEU. However, the act of Sweden banning the production or sale of tanning pills on the ground that they may result to hormonal changes in the body of the Swedish consumers degrades the intention of A34TFEU16. Freedom of movement of goods is one of the freedoms in EU market and Sweden is not justified in its move since the production of tanning pills is not forbidden in Britain. In this regard, Sweden does not supply to the existing tanning pill market and does not import from other tanning pill suppliers within the EU. Consequently, the act by Sweden is considered as having the potential to hinder effective trade within the EU and no reason exists to prevent any prosecution against the based on other cases. Article 36 TFEU offers provision for exemptions from Article 34 TFEU that bans any states against quantitative constraints that would have equal impact on other member states17. Only on certain ground are exemptions from intra-EU market trading justified. Through this article, Sweden can justify its position to hinder cross-border trade on tanning pills products. However, article 36 is unreliable to rationalize any divergences from the coordinated EU legislation even though member nations can define independent protection levels18. In the case of Sweden, banning tanning pills production and sale coupled by high importer chargers is justifiable since the ban is based on protection of the health and life of humans on a precautionary principle. The precautionary supports the high charges imposed on tanning pills ingredient importers like Anna. This level of protection by the Swedish government my however fail to be invoked if only it demonstrates proportion such that restriction is only on what is essential in the attainment of public health protection. Since Sweden justifies health protection of its citizens, Anna has to adapt to the nation’s laws even though this is different from the conditions in Britain. 4. Can the charges for inspections and warehousing be applied by Sweden? According to article 34 TFEU, the whole aim of Swedish charges for inspection and warehousing are intended at affecting the entire impact of tanning pills in the internal market and promote compliance with the human health and life protection. This system is viable because it affects the importation of tanning pills importation and ensures that imported ingredients achieve the minimum quality measure that defines them as safe for human use. In this case, Swedish government gives priority to the health of its population unlike the profits gained from selling pills that could influence the hormonal balances in the body19. Although delaying the supply of tanning pills to the Swedish market may be considered discriminative20. Discrimination could be cited by other EU member nations who would claim that Swedish government charges deliberately refuse to allow tanning pills ingredients imported from other from them. Such allegations would arise from the presence of horizontal direct effect21, which should not be there. The horizontal direct impacts in article 34 TFEU is denied in this case on the basis only the qualified products that comply with the recognized restrictions of inspection and quality of ingredients are allowed into the Swedish pharmaceutical market and for the production of tanning pills. In order to testify the attainment of these requirements qualified ingredients shall have a mark of recognition from the Swedish Pharmaceutical Industry. Like in the case of Fra.bo.spa v DVGW2223, countries exporting tanning pills ingredients had to ensure that their commodities satisfied lawful manufacturing and whose marketing was lawful in Swedish market24. In the case of Commission of the European Communities v Italian Republic, the horizontal direct effect is denied given that free movement of goods based on restrictions has equivalent effects for both local tanning pills ingredient manufacturers and member state manufacturer like Portugal. For the other member states, discrimination is perceived as lack of support towards competition.This aligns with Article 28 TFEU and Article 30 TFEU. According to article 28, restricting member states, Sweden in this case, should respect non-discrimination code and mutual acknowledgment of products from legally manufactured and marketed commodities for all other member states25. According to CHEE or Charges Having Equivalent Effect EU, members states prohibited from attempting to define custom duties or charges that if allowed would gravely deform the marketplace26. For any violation, a charge would be subjected to the CHEE rules if levy imposed by member state on goods during the process of crossing the border27. This was the case with the commission of the European Communities V Federal Republic of Germany. From this case, it is evident that charging of inspection and warehouse fees hinders the free flow of goods and does not neutralize the obstacles that could arise from unilateral measures adopted for inspection as in A36TFEU28. Bibliography Barnard, C. The substantive law of the EU : the four freedom (1st edn, Oxford University Press 2013). Bevelandar, P, and N Irastorza. Catching Up: The Labor Market Outcomes of New Immigrants in Sweden Migration Policy Institute 2014). Case C-110/05 Commission v. Italy C-110/05 [2005]. Case C-573/12 Ålands Vindkraft AB v Energimyndigheten - See more at: http://europeanlawblog.eu/?p=2407#sthash.6MTRma1R.dpuf. C-573 (Grand Chamber, April 23, 2009). 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