European Union Law Hypothetical Situation - Essay Example

Number Module and Number work question: European Union Law Hypothetical Situation Word count: 2913 Introduction The Council of ministers adopted Directive 2000/78/EC on 27 November 2000. In this Directive, Article 1 made the discrimination of persons illegal based inter alia, disability and age1. Article 3(4) allows member states of the European Union (EU) to prohibit the application of the Directive to the armed forces in cases where it related to disability and age2. Article 18 of the same Directive required the member states to have implemented the Directive by December 2, 20033. However, it also allowed the member states an extended period of up to 3 years as long as they informed the European Commission (EC) in due time. Rirutania, a member state did not transpose this directive until January 1, 2015 because of issues to do with the accident of the King and a tragedy (Tsunami) that killed most of its politicians and destroyed parliament records. After, transposition, the EC passed Regulation 2015/666/EU4 requiring member states to prohibit clinically obese persons from carrying guns in employment because of safety issues. This affected Katniss and Peeta because Katniss was not promoted to the position of a Lieutenant because of her age and Peeta was dismissed from employment because of being obese. Both of them worked for External Front, a private entity that had been contracted by the government of Ruritania to guard the external sea borders. Looking at all relevant sources of EU law, can Katniss and Peeta rely on any cause of action in a Ruritanian court under EU law for their separate actions? Katniss and Peeta can rely on several causes of action in a Ruritanian court under EU law for their separate actions. First, Article 21 of the Charter of Fundamental Rights of the European Union of 20125 prohibits any form of discrimination on different grounds such as disability, age, genetic factors and sexual orientation among other forms of discrimination. This article applies on all EU bodies, institutions, member states, agencies and offices as provided under Article 516 of the Charter. As a relevant source of EU law, Katniss and Peeta can rely on disability/ genetic factors and age as causes of action in a Ruritanian court under EU law for their separate actions. For Katniss, she can rely on age as a cause of action because the charter as a source of EU law binds Ruritania as a member state to ensure that it does not discriminate people based on age differences. Katniss can rely on this because External Front works for the government of Ruritania, which means that its actions and conducts represent the actions and conduct of the Ruritania government, therefore bound by the provisions of the charter. For Peeta, the cause or reason for his obesity is not known but can be categorized under disability or genetic factors that are listed as forms of discrimination covered under the charter. Therefore, Peeta can rely on either disability and genetic factors or both as causes of action in a Ruritanian court. Directive 2000/78/EC7 allows any individual to bring an action to enforce their rights in a national court. For the Directive to be valid in a court, it must have been transposed, which is the case in Katniss’ and Peeta’s cases. The directive was transposed by the Ruritanian government on 1 January 2015 and can, therefore be used by the two as causes of action in a Ruritanian court. The Principle of Supremacy provided for in Costa v ENEL and Internationale Handelgesellschaft8, national law cannot override EU law. Therefore, in the two cases, Katniss and Peeta can use this principle as a cause of action in a Ruritanian court. The court should give full effect to the EU law to ensure that there is no conflict between national and EU law. In support of the above fact, the Principle of Sincere Cooperation that is set out in Article 4(3) of Treaty on the Functioning of the European Union TFEU states, “[I]t is for the national courts to interpret & apply the legislation adopted for the implementation of the Directive in conformity with the requirements of [EU] law, in so far as it is given discretion to do so under national law”9. This contributes to the causes of action that Katniss and Peeta can use in a Ruritanian court. In Wagner Miret v. Fondo de Garantía Salarial10, the wide reading was reduced ECJ such that national courts were required to strive ‘as much as possible to interpret domestic law towards the achievement of the result intended by an EC/EU directive. Mangold v Helm11 also established grounds prohibiting age discrimination, which adds to the causes of action that Peeta can rely on in a Ruritanian court. Should the Ruritanian court make a preliminary reference to the CJEU over the interpretation of the term “armed forces”? The Ruritanian court should make a preliminary reference to the CJEU over the interpretation of the term armed forces. Article 267(1) of the Treaty on the Functioning of the European Union (TFEU)12 observes that the CJEU has jurisdiction to provide preliminary reference to issues concerning the interpretation of Treaties and the validity of the acts of institutions, member states, bodies, agencies and offices of the European Union. Article 267(3)13 of the TFEU also sets out the interpretation aspects in mandatory case for referral where the tribunal or court hearing a particular case should be against the decisions where there is no judicial remedy under national laws. In R v Stock Exchange, ex parte Else the [presiding judge stated, “…I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the [EU] law issue is critical to the courts final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself…the national court must be fully mindful of the differences between national and [EU] legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Union”14. This statement reveals that in cases where national courts have to make decisions on issues that go beyond their confines, it is important that national courts refer to the CJEU in terms of interpreting the issue at hand. Katniss and Peeta cases fall under this category and the national court should, therefore, make a preliminary reference to the CJEU over the interpretation of the term armed forces. The term armed forces was included in the Directive making it an act that is covered under Article 267 of the Treaty on the Functioning of the European Union (TFEU15). This out rightly means that the Ruritanian court must make a preliminary reference to CJEU because the issue at hand is covered under CJEU and would be sensible for the national court to refer to the CJEU to help interpret the term armed forces. This will be essential in helping the court make an appropriate decision in providing justice for Katniss and Peeta in case they decide to take a legal action against their company. The term armed forces does not just cover application within Ruritanian national bounds, but also European Union bounds because it is provided under a law established by the European commission touching on the conduct of member states with regard to issues of discrimination. In light of this, it would be proper if the court seeks a preliminary reference to CJEU for the interpretation of the term so that when a decision is made it does not conflict national or international law as established by Ruritania and the European Union. Therefore, the Ruritanian court should make a preliminary reference to CJEU to interpret the term armed forces because it will ensure that the verdict does not conflict national or EU laws. Could Katniss and Peeta claim damages for Ruritania’s infringement of their EU law rights under Directive 2000/78/EC and general principles? The issue that comes up both for Katniss and Peeta is state liability. Under Article 1 of the Directive16, no member state was allowed to discriminate on persons based on disability or age. Katniss feels discriminated upon because her promotion to lieutenant could not be effected until she reached the age of 30 because she was 28 years old. Therefore, this brings an issue of discrimination based on age. On the other hand, Peeta was dismissed because the company that had employed him felt that he was obese and according to Regulation 2015/666/EU17 passed On 1 March 2015 by the European Commission, clinically obese people were prohibited from carrying guns in employment based on safety. Peeta was dismissed from work because he was considered clinically obese. Therefore, this issue can be considered discrimination based on disability. Katniss can claim damages for Ruritania’s infringement of their EU law rights under Directive 2000/78/EC18 and general principles. Ruritania transposed the Directive in 2015 meaning that it was bound by the provisions of the directive in terms of the actions and conduct it engaged in to prevent issues of discrimination. External Front, a private company working for the government denied Katniss her promotion rights because she had not reached the age of 30 as required by the company regulations. However, the fact that Rirutania had transposed the directive meant that it was supposed to engage in behaviours and conduct provided for under the Directive. In Regina v. Secretary of State for Transport Ex Parte Factortame Ltd III19, it was decided that the court had to give a ruling regarding, “ the fundamental principles of the Community legal system and, where necessary, general principles common to the legal systems of the Member States”20. This showed that the EC treaty does not address issues of breach of Community law expressly. In Francovich v Italy21, the court provided, “a State must be liable for loss and damage caused to individuals as a result of breaches of Community law”. In the above cases, the rights of individuals must be identified clearly, where a breach occurs, these individuals must be compensated forthwith especially if such a breach had led to interference of enjoyment of a particular right for the individual. In determining whether individuals should be compensated for damages, certain factors must be considered. Examples of these factors include the rule that has been breached, the damage caused and whether it was intentional, whether the breach was excusable or inexcusable and the discretion left by the rule to national or European Union authorities or entities. These issues are provided in Regina v. Secretary of State for Transport Ex Parte Factortame Ltd22. Peeta can claim damages because he was dismissed from work on disability claims showing that the company discriminated upon him, thereby breaching the treaty that Ruritania transposed. Claims made on damages based on disability dismissal can be valid in a court of law, for instance in Johnson v Manpower Direct (UK) Ltd23. However, all the aspects of the claim must be made clear for the court to make a valid decision as in Heritage Homecare Ltd v Mason24. Can Peeta challenge the adoption of Regulation 2015/666/EU, which will prohibit him from carrying out his current job, in the CJEU, and/or challenge its validity before the domestic courts? The issue here is whether Peeta can challenge the adoption of Regulation 2015/666/EU25, which will prohibit him from carrying out his current job, in the CJEU, and/or challenge its validity before the domestic courts. Following the introduction of this regulation, all member states of the EU were supposed to observe the regulation in their employment sectors including the private companies and firms operating in these countries. Peeta is a natural or legal person both in Ruritania and in the EU, and this makes him a non-privileged applicant. Article 263(4) of the TFEU26 outlines the acts where actions can be taken including an act that is directed to the person in question, an act not directed to the person but that which has a direct or indirect concern to him or her and a regulatory act that directly affects the person in question but does not show the implementation measures. Under article 263(4)27, Peeta’s case falls under category three, which is a regulatory act directed to a person of interests and does not outline how it will be implemented. Regulation 2015/666/EU falls perfectly under this provision meaning that Peeta can challenge it. Being an individual, the locus standi of individuals to take a direct action for annulment of EU legal acts has a restrictive stance as provided in Article 263 of TFEU28. In Plaumann v Commission29, it was stated, “Further, the contested decision is not even of individual concern to the applicant. Only persons affected by a decision by reason of their individuality or of their special position may be considered as individually concerned for the purpose of bringing an action”30. In Bavaria v Bavaria Italia31, it was stated that an act of direct concern must affect the individual in terms of his or her legal situation and ensure that no discretion is left to its addressees that are mandated to implement the act coming from Union rules without the application of other intermediate rules. The regulation that was adopted by the European Union and the member states by extension is a regulatory act because it was not adopted through a legislative process and will have a direct effect because there are no implementing measures. Peeta challenge the adoption of Regulation 2015/666/EU 32based on direct concern because his condition is satisfied within this aspect but would likely fail under the Plaumann v Commission33 formula for individual concern. Under Article 263(2) of the TFEU34, Peeta can argue based on lack of competence for wrong legal basis and infringement of Directive 2000/78/EC 35that relates to its application. Therefore, Peeta could challenge under Article 263 of TFEU36 and require the national court to refer on validity issues under Article 267 of TFEU37. However, the European Court of Justice (ECJ) could refuse to hear the case based on Textilwerke Deggendorf v. Germany38. How and when could the Commission bring an action against Ruritania to enforce the age and disability discrimination provisions of Directive 2000/78/EC and its full transposition? What could happen following any CJEU judgment on the issue to ensure Ruritania complies? The issues covered under the probable action against Ruritania would be covered under Article 258 of TFEU39, the defence that Ruritania could launch and Article 260(2) of TFEU 40to ensure compliance of the Directive. For the commission to bring an action against Ruritania, it must search for infringements on EU law. This is not a must because the commission has absolute discretion over investigating such issues but requires evidence to ensure that such issues are admissible in ECJ, such as in SDDA v Commission41. The commission could decide to pursue the action in two was. First, it might decide to engage in an informal stage to resolve the dispute in form of negotiations with the representatives of Ruritania. On the other hand, it could decide to engage in a formal stage where the dispute cannot be resolved through mediation, for example in Commission v Germany. Ruritania transposed the Directive after 10 years had elapsed from the deadline. The Commission had a chance to bring an action on Ruritania after the deadline (2 December 2003) passed or after the amnesty period had elapsed (three years after the first deadline having informed EC forthwith). The commission has this right under Article 358 of TFEU42 procedure. The ECJ would have possibly ruled that Ruritania had breached the EC directive for failure of informing the Commission of transposition measures that it was taking. The ECJ could also have imposed a penalty payment on Ruritania under Article 260(3) of TFEU43 as required by Article 18 of the Directive44. However, Ruritania could also have launched a successful defence based on internal circumstances and force majeure as in Commission v Ireland45 and Commission v Italy46. Nevertheless, the Commission could bring an action against Ruritania because it failed to honour its duty to notify the Commission of its transposition plans and measures, thereby showing lack of compliance to the Directive’s provisions. Bibliography Primary sources Cases Bavaria v Bavaria Italia [2009] ECR I-5491 Commission v Italy [1973] ECR 101 Commission v Ireland [1982] ECR 4005 Costa v ENEL and Internationale Handelgesellschaft [1964] ECR 585 Francovich v Italy [1991] EUECJ C-6/90 Heritage Homecare Ltd v Mason [2015] UKEAT/0273/14/BA Johnson v Manpower Direct (UK) Ltd [2015] UKEAT/0351/14/DXA Mangold v Helm [2006] All ER (EC) 383 Plaumann v Commission [1963] ECR 199 R v Stock Exchange, ex parte Else [1993] QB 534 Regina v. Secretary of State for Transport Ex Parte Factortame Ltd III [1996] Q.B. 404 SDDA v Commission [1996] ECR II-1559] Textilwerke Deggendorf v. Germany [1994] ECR I-833] Wagner Miret v. Fondo de Garantía Salarial [1993] 2 CMLR 49 Legislations Directive 2000/78/EC Charter of Fundamental Rights of the European Union of 2012 Regulation 2015/666/EU Treaty on the Functioning of the European Union (TFEU) of 1958. Read More