EU Law - Whether Directives Should Have a Greater Legal Certainty - Essay Example

Name: Course: Tutor: Date: European Union Law European Union law, initially referred to as European Community law is a body of legislations, court judgments and treaties which operate in tandem with legal systems of member states affiliated to the European Union. The European law has a direct impact within the member states affiliated to the European Union and in situational cases where disputes or conflicts arise. This law usually overrides the national law attributed to the member states of the European Union (Falsom, Lake and Landa, 3). European Union treaties are the basic source of the European Union law. These treaties set expansive policy objectives and establish bodies that, inter-alia, can enact laws so as to achieve the set objectives (Horspool 11). There are two types of European legislative acts: regulations and directives. Regulations become law immediately they come into force in every member state with no need of any implementing measures. Additionally, regulations override all the contradictory domestic provisions. Directives on the other hand require member states affiliated to the European Union to achieve some result without dictating terms on how to achieve the same. The methods to be employed so as to arrive at a particular result are left to the member states to decide (Nedergaard 52). The aim of this paper is to analyze whether directives should have greater legal certainty. Directives attributed to the European Union law are applicable in several areas such as environmental liability, health care sector, cross border electric links, public procurement, industrial restructuring, mergers and acquisitions, and so on. Article 288, the legal basis under which directives attributed to the European law are enacted provides that member state institutions shall implement directives, opinions and recommendations in an effort to apply the Union’s competences. Further, the article provides that a directive is binding with respect to the goal to be achieved in all the member states. However the method to be applied so as to achieve this goal is left to the member states. Based on these provisions, it is worth noting that there are inherent weaknesses in the European Union law directives with regards to legal certainty. Also of key importance is that Article 288 does not provide clear distinctions between administrative and legislative acts (Garde 52). To facilitate a better comprehension so as to ascertain whether directives affiliated to the European Union are in need of more legal certainties, it is imperative to evaluate a few relevant examples in areas where these directives are applicable. One such area is the health care sector where rulings by the European Law provide that the European Union treaty grants individual patients the right to seek for health care in member states other than their own and be refunded at home. However great legal uncertainties arise on how this right is to be exercised. Specifically, the uncertainties arise with regards to how the reimbursement is to be carried out, liability for quality and safety standards (EU Law News 1). Also of significance as well as of relevance is the case of Marshall vs. Southampton and Southwest Hampshire Area Health Authority. Basically, the case rotated around Helen Marshall who was dismissed by the respondent on grounds that she was above 60 years whereas the authority’s policy provided the age of retirement with respect to female employees to be at exactly 60 years. There was no obligation imposed on women by the national legislation for them to retire at 60 years, neither did the law prohibit employers from discrimination on the basis of gender when it came to issues of retirement age. According to Marshall, her dismissal contravened the 1976 Equal Treatment Directive (Hartley 171). It was held that a directive cannot be applied to individual cases, based on its binding nature, the basis of exercising a directive in a national court can only be applied with respect to each member state to which it is addressed. A directive therefore, cannot impose obligations on individuals and no provision therein may be relied upon to resolve conflicts against individuals (Hartley 172). In light of the two cases highlighted in the two paragraphs above, it can be concluded that directives attributed to the European Union law are to a significant degree legally uncertain as they are ambiguous more so with respect to obligations on individuals. It is against this background that the need for greater legal certainties on directives comes to fore to address the inadequacies and uncertainties inherent in these directives. However, one may argue that the need of imposing more legal certainties may not be necessary as there are mitigating factors to address any inadequacies that may arise and in situations where the directives are implemented in a wrong manner. A typical example of one of the mitigating factors is compensation to individuals to recover any damages suffered (Amull 126). Other than the Marshall case, there have been a few other less similar cases, for instance the Von Colson and the Marleasing case which have exposed the inadequacies and legal uncertainties inherent in directives given by the European Union law. According to Amull (131), the fact that the relevant directives were challenged by individuals, that is, based on the cases pointed out above, it simply means that the broad nature with respect to interpreting directives leads to ambiguity hence the need of greater legal certainty. Incidentally, it is worth noting that several member states affiliated to the European Union have held that directives can only override their respective national legislation if proper respect is accorded to the constitutional provisions of each particular member state. Further, these states argue that interpretation and implementation of the set directives ultimately lies with them as opposed to the European Union establishments giving the directives (Amull, 135). Based on this alone, it is certain that conflicts are bound to arise given that directives are ambiguous in nature and hence lack clarity as to whether constitutional provisions have been contravened. That is, comparing the two is somehow difficult since one, that is, the constitutional provisions have immense legal certainties as opposed to directives which do not have clear legal guidelines as long as the result of interest is attained within the law. The need for greater legal certainties on directives is also essential in developmental issues as lack of it impedes the same. For instance in, the European Union issued a directive for the establishment of an electricity link between Spain and France but this was not established immediately as negotiations over the same went on for many years without any result. An announcement was finally made that a decision had been reached some time later in 2008. The solution reached was attributed to the presentation of a report to the prime minister of Spain Jose Zapatero by the former European Union Commissioner then acting as the European Union coordinator. Another relevant and significant case was on the implementation of the remedies directive where the European Union referred Ireland and France to the European Court of Justice. According to the European Union, the national rules of these two states with respect to a standstill period preceding a notification of an award decision are too broad and not precise enough. Therefore, unsuccessful tenders do not have effective legal defence at a level where infringements can still be rectified - that is before the contract is concluded (EU Law News 2). These two cases are a clear indication of the need to have substantial legal certainty when it comes to issuing directives as issuing directives without providing clear legal directives on how a certain measure is to be arrived at leads to legal implications, impedes development and in some cases denies justice where it is due as has been depicted above. Greater legal certainties on directives issued by the European Union are not only imperative but also necessary. Consequently, taking such an action would save a lot of time spent on interpretation and implementation of directives since clarity of the same would have been achieved. Even though the European Union is attempting to come up with mitigating measures, the measures are not sufficient. What is needed is legal certainty to a significant degree. According to the European Union, directives are aimed at improving, modernizing, and simplifying the community law with regards to equality by integration into single text provisions of directives related by their subject so as to make community law clear and more effective for the good of all citizens of the respective member states (Prechal, 110). This can only be achieved if a clear legal guideline is given with regards to how a certain result can be achieved. Also of importance is the inherent weakness of the directives with regards to individual rights. The directives attributed to the European Union overlook individual rights placing an emphasis that the same are directed towards member states and not individuals in those member states. This contravenes the European Union’s initial proposal on directives to offer equality to men and women in the respective member states. To achieve this end, it is imperative that clear guidelines be given by the European Union so as to achieve legal certainty that is lacking therein. Works Cited: Amull, Anthony. The European Union and its Court of Justice. Oxford: Oxford University Press, 1999. EU Law News. 2008. 19 Jan. 2011. A bi-monthly review of EU legal developments affecting business in Europe. Falsom, Ralph., Lake, Ralph., and Landa, Ved. European Union law after Maastricht: A Practical Guide for Lawyers outside the Common Market. The Hague: Kluwer Law International Publishers, 1996. Gaarde, Amandine. Obesity Prevention: Role for the European Union. The Hague: Kluwer Law International Publishers, 2010. Hartley, Trevor. European Union law in a Global Context: Text, Cases and Materials. Oxford: Cambridge University Press, 2004. Horspool, Margot. European Union Law. Oxford: Oxford University Press, 2006 Nedeergad, Peter. European Union Administration: Legitimacy and Efficiency. New York: Martinus Nijhoff Publishers, 2007. Prechal. Eclipse of Legality in Europe. The Hague: Kluwer Law International Publishers, 2011. Read More