European Law Issues - Coursework Example

European Law Advising Laslo In 2002, the EC Council issued a directive on electric shaver specifications and this is to be implemented to all Member States by July 2004. However, this directive was deemed controversial in the United Kingdom as it could expose the unstable UK electric shaver industry to its competitors from other Member States. Moreover, the Parliamentary failed to alter the UK’s pre-existing electric shaver specification regulations on time as the legislation came into force only after 4 years in 2006. In view of the late legislation and controversy, Laslo, an importer of electric shavers, brought in German made electric shavers into the country in August of 2004 but was held up by customs in Felixstowe. As far as the EC directive is concern, the electric shavers met its required specifications. However, during that time, the UK specification regulation was not yet updated to accord with the EC directive issued in 2002. Consequently, the electric shavers were not released to Laslo until February of 2005. Later that year, in December, the Commission commenced proceedings against the UK and following the issue of a reasoned opinion, the UK government was forced to make delegated legislation and implement the directive in February 2006. Apparently, Laslo suffered financial loss as his consignment was being held up in customs for years and for this reason he want to seek compensation for damages done by the UK government. Although addressed to Member States, EC ‘directives’ may confer individual rights on citizens against member of states, which can be enforced and are to be protected by national courts. Originating from a “supranational authority”1 and an “integrated national”2 like EU, these directives supersede all conflicting national law, even if it is 1 Andrew Jordan, 2005, Environmental Policy in the European Union: Actors, Institutions and Processes, Published 2005 Earthscan, ISBN: 184407157X, p.348 2 Bruce Cain, Russell Dalton, and Susan, Scarrow 2003, Democracy Transformed?: Expanding Political Opportunities in Advanced Industrial Democracies, Published 2003 Oxford University Press, ISBN: 0199264996, p. 203 enacted later or is of a constitutional nature. The ‘direct effect’ of directives as in EEC Treaty, Art. 169, provides an infringement procedure, initiated by the Community authorities, to enforce the obligations imposed upon Member States to incorporate and implement the relevant directives. “Direct effect of European law is not a matter of self-evidence”3. It does not stem from the standing of the individual but from the nature of the Treaty4. Recognizing direct effect for directives provides an additional mechanism, using private initiative, to enforce such obligations. The doctrine of direct effect of Community law and agreements form part of monism5. A member state is not released from its duty to incorporate and implement the relevant directive by claiming that it is automatically has a direct effect6. Direct effect according to the explanation of the European Court of Justice as explained by Capelleti et. al. (1985) is a logical outcome of the obligation of the Member States to incorporate and implement the relevant directive. It describes direct effect as the right of individuals to invoke provisions of a directive against a member state or “vertical direct effect”7, which has not fulfilled its obligation of incorporating and implementing the directive.8 3 Amaryllis Verhoeven, 2002, The European Union in Search of a Democratic and Constitutional Theory, Published 2002 Kluwer Law International, ISBN: 9041118721, p.313 4 Gail Elizabeth Evans, 2000, Lawmaking Under the Trade Constitution: A Study in Legislating by the World Trade Organization, Published 2000 Kluwer Law International, ISBN: 9041198067, p. 233 5 Thomas Cottier, 2006, The Challenge of WTO Law: Collected Essays, Published 2006 Cameron May, ISBN: 1905017367, p. 311 6 Catherine Barnard and Joanne Scott, 2002, The Law of the Single European Market: Unpacking the Premises, Published 2002 Hart Publishing, ISBN: 1841132713, p. 16 7 Curtin Deirdre, Heukels Ton, and Henry Schermers, 1994, Institutional Dynamics of European Integration, Published 1994 Martinus Nijhoff Publishers, ISBN: 0792331605, p.337 8 Mauro Cappelletti, Eckard Rehbinder, Monica Seccombe, and Thierry Bourgoignie, 1985, Integration Through Law: Europe and the American Federal Experience, Published 1985 Walter de Gruyter, ISBN: 3110102005, p. 38 To achieve treaty rules by affording individuals the right to base an action in domestic courts on their treaty rights.9 A right conferred by Community law for European citizens10. Legal rules that are directly effective.11 It is “a trite law that where there is a right there must be a remedy”.12 Treaty provisions having direct effect shall be binding immediately and unconditionally and is enforceable without any transformation or further enactment on the part of the Member States.13 Primarily, the conditions for direct effect are that a Member State has not, or has not appropriately, fulfilled its obligation to implement the directive and since the directive by its nature is capable of conferring rights on individuals, EC directives normally have a direct effect and supersede conflicting national law14, 15. “An application of the principle of supremacy of Community law”16 that also empowers national courts.17 It is because Community law as matter of principle has direct effects18 and therefore requires ‘immediate enforceability.19 For instance, in the case of Van Gend en Loos case in 1963, the Court of Justice explained the directives superiority over national law. 9 Mirian Omalu 1997, NAFTA and the Energy Charter Treaty, Kluwer Law Internartional, ISBN: 9041110763, p.61 10 Nico Stehr, Christopher Henning, and Bernd Weiler, 2006, Who Owns Knowledge?: Knowledge and the Law, Published 2006 Transaction Publishers, ISBN: 0765803372, p.227 11 Stephen Hall, 1995, Nationality, Migration Rights and Citizenship of the Union, Published 1995 Martinus Nijhoff Publishers, ISBN: 0792334000, p. 185 12 Mads, Tønnesson, Mads Andenas, and Jacobs Francis Geoffrey, 1998, European Community Law in the English Courts, Published 1998 Oxford University Press, ISBN: 0198265921, p.88 13 Sideek Mohamed, 1999, European Community Law On The Free Movement of capital and The EMU, Published 1999 Martinus Nijhoff Publishers, ISBN:9041111530, p.41 14 Mauro Cappelletti, Eckard Rehbinder, Monica Seccombe, and Thierry Bourgoignie, 1985, Integration Through Law: Europe and the American Federal Experience, Published 1985 Walter de Gruyter, ISBN: 3110102005, p. 38 15 Wolf Sauter, 1997, Competition Law and Industrial Policy in the EU, Published 1997 Oxford University Press, ISBN: 0198264933, p. 13 16 Anthony Pagden, 2002, The Idea of Europe: From Antiquity to the European Union, Published 2002 Cambridge University Press, ISBN: 0521795524, p. 258 17 Nicol Danny, 2001, EC Membership and the Judicialization of British Politics, Published 2001 Oxford University Press, ISBN: 019924779X, p.9 18 Hjalte Rasmussen, 1986, On Law and Policy in the European Court of Justice, Published 1986 BRILL, ISBN: 9024732174, p.11 19 Norbert Reich, Christopher Goddard, and Ksenija Vasiljeva, 2003, Understanding EU Law: Objectives, Principles and Methods of Community Law, Published 2003 Intersentia NV, ISBN: 9050953247, p. 122 When a Dutch company brought a case against the national customs authority for increasing duty payable on their shipment using the provision of Treaty’s custom union rules or Art 12, the court ruled that this provision of Community law generates direct effects and create individual rights, which national courts must protect. This is because the Treaty is more than just an agreement, which simply creates shared obligations between the contracting states. It has constitutional nature that a need to provide direct legal protection of the individual rights of nationals is vital. Moreover, these rights find their Community law effect in obligation, which rest upon others – the states20 & 21. Since only those provisions, which are clear, unconditional, and negative may have direct effect. In addition to Article 12 that requires a Member States to desist from introducing between themselves any new customs duties on imports, exports, or any charges having equivalent effect and from increasing them, the Court decision is in favour of the Dutch company. The Court states that it was “necessary to consider the spirit, the general scheme and the wording”22 or a “sympathetic interpretation”23 of the relevant provision and concluded that Article 12 produces ‘direct effect’ and individual rights that national courts must defend. 20 Sharon Hanson, 2003, Legal Method, Skills and Reasoning, Published 2003 Cavendish Publishing, ISBN: 1843145103, p. 454 21 William Keller, Timothy Darby, and Carl Bevernage, 2004, International Labor and Employment Laws, American Bar Association International Labor Law Committee, Published 2004 BNA Books, ISBN: 1570183902, p. 4 22 Sideek Mohamed, 1999, European Community Law On The Free Movement of capital and The EMU, Published 1999 Martinus Nijhoff Publishers, ISBN:9041111530, p.41 23 Peter Davies, 2004, European Union Environmental Law: An Introduction to Key Selected Issues, Published 2004 Ashgate Publishing, Ltd., ISBN: 1855215829, p.106 Under the present system of European legislation and its functioning, Member State liability for breaches of EC-legislation can happen in various cases, depending on the type of legislation breached. Particularly in the field of implementing directives, Member State has a duty to advance against violators and to cover the individual rights of victims of such violations. However, since directives have been implemented into domestic law, a breach will be treated within domestic and not by Community law24. To give greater effect to Directives, the Court of Justice utilize the doctrine of ‘state liability where a Member State, in certain condition, is liable in damages to individuals who suffer loss consequently of the Member State’s failure to properly implement a Directive into national law. The decision of the European Court of Justice for the Francovich and Bonifaci v Italy [1991] for instance, clearly states that if a Member States failed to fulfil its obligation under the third paragraph of Article [249 EC], to take all measures necessary to achieve the result prescribed by a directive, the full effectiveness of the rule of Community law requires that there should be a right to reparation provided that certain conditions are met. First, the result prescribed by the Directive involves the grant of rights to individuals. Second, it is possible to recognize the content of those rights because of the provisions of the Directive. Clear, precise, and unconditional25 and not contingent on any discretionary implementing measures.26 24 Bert Roosebeke, 2007, State Liability for Breaches of European Law: An Economic Analysis, Published 2007 DUV, ISBN: 3835006533, p. 18 25 Mike Cuthbert, 2003, European Union Law Q and A 2003-2004: European Union Law Q&A 2003-2004 5/e, Published 2003 Cavendish Publishing, ISBN: 1843145014, p.43 26 Takis Tridimas and Paolisa Nebbia, 2004, European Union Law for the Twenty-first Century: Rethinking the New Legal Order, Published 2004 Hart Publishing, ISBN: 1841134562, p.224 Finally, there is a spontaneous connection between the breach of the State’s obligation and the loss and damage experienced by the offended parties27. In short, Member States could be held liable in damages for a variety of breaches including those caused by national legislation. Since ‘State Liability’ is for the national courts of the Member States to enforce, factors like intelligibility and precision of the rule breached. The stance taken by a community institution that may have play a role towards the exclusion, and the adoption or preservation of national measures or systems opposing the community law, should be taken into account by the national courts28. Without the doctrine of direct effect, the enforceability of the basic rights created by the Treaty would have been reliant on the enthusiasm of the council to espouse the required implementing regulations or the willingness of the Commission to pursue Member States under Article 169.29 In the field of Community customs law according to Lyons (2001) provisions relating to the prohibition of custom duties and charges having equivalent effect and those relating to the determination and proof of origin of goods, and discriminatory taxation have been held to have direct effect30. However, in any situation where there is direct risk of penal sanction at the hands of the national authorities, by way of prosecutions for instance, then the doctrine of direct effect in relation to directives will 27 & 28 Colin Turpin and Adam Tomkins, 2007, British Government and the Constitution: Text and Materials, Published 2007 Cambridge University Press, ISBN: 0521690293, p. 314 - 314  29 Federico, Mancini 2000, Democracy and Constitutionalism in the European Union: Collected Essays, Published 2000 Hart Publishing, ISBN: 1841131148, p.41 30 Timothy Lyons, 2001, EC Customs Law, Published 2001 Oxford University Press, ISBN: 0198764928, p.187 enable a company to rely on either the directive or the national according to preference31. Take for instance a case from a court in Belgium where the plaintiff is suing his competitors for libel because they voiced their opinion that its product did meet Belgian technical standards. In principle, the product did not meet the Belgian standards as the complainant was without authorisation to sell the product. However, there are some significant facts to be considered in this case. First, Belgium had not notified its standard to the Commission pursuant to an EU directive. Second, the product had in fact been imported after manufacture to French specification, which had been duly notified and accepted. Consequently, the court held that the complainant have the right to expect national courts to refuse to enforce national technical regulations which have not been notified as required. As a result, the complainant is now in the position to argue that its failure to obtain authorization for its product was of no consequence32. Our case is no different to the above circumstances as Laslo brought in to the United Kingdom electric shavers manufactured in Germany with specifications recognized by EC. In other words, this product’s specification is acceptable to all Member States. However, since UK’s electric shaver specification was not yet updated; custom authorities at Felixstowe seized the product. Apparently, as far as the EC directive and the principle of direct effect is concern, the United Kingdom failed to implement a directive. 31 & 32 Joseph Dalby, 1998, EU Law for the Construction Industry, Published 1998 Blackwell Publishing, ISBN: 063204067X, p. 34, CIA Security SA v Signalson SA (C-194/94) Furthermore, as a Member State, under the principle of ‘state liability’, the United Kingdom is legally responsible for preserving its national practice that is contrary to the Community law. A breach that is clearly caused by national legislation and therefore liable in damages to individuals who suffer loss. Although the United Kingdom finally implement the EC electric shaver specification directive in 2006, its government is still liable as a Treaty provision having a direct effect is binding, unconditional, and enforceable without any transformation or further enactment on the part of the Member States. Thus, when Laslo brought in the German made electric shavers in 2004, the EC’s 2002 directive for electric shaver specification was in principle already in force and the UK’s custom authorities, has no right to hold an EC duly notified and accepted product. The failure of government to accept an EC duly notified product according to Ward (2000) will precipitate an obligation on Member States judges to ‘disapply’ ‘unnotified’ domestic laws33). The national court is bound to apply directly effective provisions of a directive despite the absence of implementing national legislation34. Finally, as a Member State and following the rule of the Community law under the State’s Liability, the United Kingdom should give reparation to the affected party because it has failed to take all measures necessary to achieve the result prescribed by a directive. 33 Angela Ward, 2000, Judicial Review and the Rights of Private Parties in EC Law, Published 2000 Oxford University Press, ISBN:019826822X, p. 12 34 Jans Jan and Prinssen Jolande, 2007, Direct Effect: Convergence or Divergence? A Comparative Perspective, online, http://rechten.eldoc.ub.rug.nl/FILES/departments /Algemeen/Recht1/2005/Directeffect/Direct_ch5.PDF, p.111 Work Cited List Barnard Catherine and Scott Joanne, 2002, The Law of the Single European Market: Unpacking the Premises, Published 2002 Hart Publishing, ISBN: 1841132713 Cain Bruce, Dalton Russell, and Scarrow Susan, 2003, Democracy Transformed?: Expanding Political Opportunities in Advanced Industrial Democracies, Published 2003 Oxford University Press, ISBN: 0199264996 Cappelletti Mauro, Rehbinder Eckard, Seccombe Monica, and Bourgoignie Thierry, 1985, Integration Through Law: Europe and the American Federal Experience, Published 1985 Walter de Gruyter, ISBN: 3110102005 Cottier Thomas, 2006, The Challenge of WTO Law: Collected Essays, Published 2006 Cameron May, ISBN: 1905017367 Cuthbert Mike, 2003, European Union Law Q and A 2003-2004: European Union Law Q&A 2003-2004 5/e, Published 2003 Cavendish Publishing, ISBN: 1843145014 Dalby Joseph, 1998, EU Law for the Construction Industry, Published 1998 Blackwell Publishing, ISBN: 063204067X Davies Peter, 2004, European Union Environmental Law: An Introduction to Key Selected Issues, Published 2004 Ashgate Publishing, Ltd., ISBN: 1855215829 Deirdre Curtin, Ton Heukels, and Schermers Henry G., 1994, Institutional Dynamics of European Integration, Published 1994 Martinus Nijhoff Publishers, ISBN: 0792331605 Evans Gail Elizabeth, 2000, Lawmaking Under the Trade Constitution: A Study in Legislating by the World Trade Organization, Published 2000 Kluwer Law International, ISBN: 9041198067 Hall Stephen, 1995, Nationality, Migration Rights and Citizenship of the Union, Published 1995 Martinus Nijhoff Publishers, ISBN: 0792334000 Hanson Sharon, 2003, Legal Method, Skills and Reasoning, Published 2003 Cavendish Publishing, ISBN: 1843145103 Jans Jan and Prinssen Jolande, 2007, Direct Effect: Convergence or Divergence? A Comparative Perspective, online, http://rechten.eldoc.ub.rug.nl/FILES/departments /Algemeen/Recht1/2005/Directeffect/Direct_ch5.PDF Jordan Andrew, 2005, Environmental Policy in the European Union: Actors, Institutions and Processes, Published 2005 Earthscan, ISBN: 184407157X Keller William, Darby Timothy, and Bevernage Carl, 2004, International Labor and Employment Laws, American Bar Association International Labor Law Committee, Published 2004 BNA Books, ISBN: 1570183902 Lyons Timothy, 2001, EC Customs Law, Published 2001 Oxford University Press, ISBN: 0198764928 Mancini Federico, 2000, Democracy and Constitutionalism in the European Union: Collected Essays, Published 2000 Hart Publishing, ISBN: 1841131148 Mohamed Sideek, 1999, European Community Law On The Free Movement of capital and The EMU, Published 1999 Martinus Nijhoff Publishers, ISBN:9041111530 Nicol Danny, 2001, EC Membership and the Judicialization of British Politics, Published 2001 Oxford University Press, ISBN: 019924779X Omalu Mirian 1997, NAFTA and the Energy Charter Treaty, Kluwer Law International, ISBN: 9041110763 Pagden Anthony, 2002, The Idea of Europe: From Antiquity to the European Union, Published 2002 Cambridge University Press, ISBN: 0521795524 Rasmussen Hjalte, 1986, On Law and Policy in the European Court of Justice, Published 1986 BRILL, ISBN: 9024732174 Reich Norbert, Goddard Christopher, and Vasiljeva Ksenija, 2003, Understanding EU Law: Objectives, Principles and Methods of Community Law, Published 2003 Intersentia NV, ISBN: 9050953247 Roosebeke Bert, 2007, State Liability for Breaches of European Law: An Economic Analysis, Published 2007 DUV, ISBN: 3835006533 Sauter Wolf, 1997, Competition Law and Industrial Policy in the EU, Published 1997 Oxford University Press, ISBN: 0198264933 Stehr Nico, Henning Christopher, and Weiler Bernd, 2006, Who Owns Knowledge?: Knowledge and the Law, Published 2006 Transaction Publishers, ISBN: 0765803372 Tønnesson Mads, Andenas Mads, and Jacobs Francis Geoffrey, 1998, European Community Law in the English Courts, Published 1998 Oxford University Press, ISBN: 0198265921 Tridimas Takis and Nebbia Paolisa, 2004, European Union Law for the Twenty-first Century: Rethinking the New Legal Order, Published 2004 Hart Publishing, ISBN: 1841134562 Turpin Colin, Tomkins Adam, 2007, British Government and the Constitution: Text and Materials, Published 2007 Cambridge University Press, ISBN: 0521690293  Verhoeven Amaryllis, 2002, The European Union in Search of a Democratic and Constitutional Theory, Published 2002 Kluwer Law International, ISBN: 9041118721 Ward Angela, 2000, Judicial Review and the Rights of Private Parties in EC Law, Published 2000 Oxford University Press, ISBN:019826822X Read More