European Union Constitution and European Union Court of Justice - Essay Example

European Union Constitution Introduction The issue of a directive by the European Union Council to amend the existing laws of working hours can be considered as part of amendment of the constitution of European Union. The bodies which are authorized to make amendments to the constitution include the European Union Parliament, the European Union council and the European Union Commission. When an amendment has been made by the members of the European Union Parliament or any other European Union body entrusted with legislation in the European Union, The member countries must ratify it. In the United Kingdom, the ratification can be made by the United Kingdom foreign affairs minister or by the Parliament of the United Kingdom although the parliament has a very limited role in this. When a treaty has been ratified, the European Union law is more powerful in enforcement than the member countries’ constitution and therefore if there is a conflict, the European Union Law takes the day. Therefore, if the existing laws indicate that the working hours are longer than what has been ratified by the European Union treaties, then any other law which considers working hours more than thirty five hours per week is wrong. The slated rules indicated that an individual should work for a maximum of thirty five hours in one week. This shows that any other countries laws which are in contravention of these are deemed to be inferior to the European Union Directive. This was the case with Costa v Enel [1964] ECR 585 in which the judges of the European Union established the supremacy property of the constitution of European Union. In this case, Costa who was an Italian citizen was against the process of nationalizing a company known as the Italian Oil Company since he was a shareholder in that company. Therefore, he refused to pay his bill of electricity as a way of protesting against the nationalization of the company. He argued that the nationalization was infringing on the European Commission law in which the states distorts the market of a certain company.1 The government of Italy had believed that the issue was not supposed to be complained by an individual who is private and therefore did not rule in his favor. The government argued that the nationalization was a national issue which was concerning the national law and that a person is not supposed to complain about it as it was not a private issue. It was affecting all the citizens. Mr. Costa sought the intervention of the European Court of Justice in which a Milan Judge recognized his request for the court to make a preliminary ruling on the mater. In the ruling, the judge observed that the treaty rule concerning the undistorted market was alone not able to provide sufficient grounds to challenge the government of Italy. The judge held that Costa, as an individual did not have the standing for the challenging of the decision. This is because the available treaty did not have a direct effect on the policy of the Italian government. On the issue of Costa to raise objection at the European Union, the judge held that Mr. Costa had not in any way failed to observe the law2 (Peter & Sheilah, 2010: 208). Therefore he disagreed with the government of Italy on the issue of Mr. Costa seeking the intervention of the European Union in to challenge a court proceeding if it seemed to be in contravention of the European Union Constitution (Craig, & Gráinne, 2007: 78). The judges maintained that it was not possible for the European Union Law to be overridden by the national laws since the law will have no meaning at all if it cannot be used to challenge the member countries court decisions3. To confirm this case, there is the Article 267 of the European Union Treaty which governs the functioning of the European Union. The article states that the court in a mother state has an obligation to refer a matter which has reached its highest of appeal to the European Union Court if the issue in question is part of the laws of European Union. Costa on his part reached the highest level as the amount which was being claimed was less than two Euros4. On the issue of the amendment, the European Union amendments are supposed to be ratified by the member states immediately they are enacted. The member states should therefore ensure that they do all that is within their ability to ratify an amendment if it has been passed by the Council of the European Union5. The parliaments are expected to ratify these amendments either by a referendum or a parliamentary act to approve the treaties or the amendments which have been made in the European Union Council. The United Kingdom government failed in its objectives to enact the appropriate legislation. Therefore, Gina is not able to convince the court that the hours should be reduced. In this regard, she can only sue the Government of the United Kingdom to enact the new legislation and therefore make it possible for the imposition of the new amendment. The United Kingdom laws are not superior to the laws of the European Union and therefore they can be challenged in the European Union Court. Gina can therefore petition the United Kingdom government to enact the relevant laws which will permit the operation of the amendment act (Mahony, 2007: 12). In the European Union constitution, the courts of the member states have transferred their sovereignty to the European Union (Kreppel, 2006: 906). This means that the courts in the member states cannot contravene a decision of the court of Justice of the European Union. As a result, it is possible for an individual who feels that the country’s courts are not giving him a fair treatment to appeal in the European Court of justice and be accorded some hearing (Barnard, 2007: 90). This means that when the member states court procedures are deemed to be inappropriate or ineffective in dealing with a certain case, the person can petition the state in the court of justice in the European Union. In this case Gina has not been accorded hearing since the Employment tribunal has a lot of cases to handle. However, Gina is still working extra hours which she is not supposed to work per week. This means that the countries legal channels are not effective in the dealing with that case (Parker, 2007: 67). Just as in the case of Mr. Costa, Gina can petition the United Kingdome government to handle her case faster. In addition, she can move to the European Union Court of Justice so that it can issue orders which will temporarily issue the Marcus PLC for them to reduce the number of working hours for Gina. This is because the company is in the territory of the European Union and therefore the court of the European Union has the power to issue orders to the company so as to protect the fundamental rights of the employers who are in the company (Gargani, 2007: 32). If Gina moves to the European Union Court of Justice, she can sue two parties. One party will be the government so that she can force it to enact the legislation which will see it adopt the recommendations which have been made by the council of the European Union. The court of justice of European Union is charged with the responsibility of ensuring that the member states do not contradict with the regulations of the European Union. All the member states are supposed to comply with the European Union legislation without delaying (Josephine & Twigg-Flesner, 2006: 134). It is the responsibility of the member state to make sure that the amendments or the legislations which have been made by the European Union legislative bodies are adopted as soon as possible. Therefore, Gina can sue the government of the United Kingdom to adopt the amendment which will see the country recognize the amendment to the total number of working hours per week. As said above, Gina can sue the Marcus PLC in the European Union Court of Justice so that they reduce the hours of working. The European Union Courts uses the laws which are in the constitution of the European Union rather than those laws in the constitutions of the mother countries. As a result, it will be possible to sue the company in the European Union Court since the courts have the ability to rule on any case concerning any law which is part of the constitution of the European Union (Tobler & Beglinger, 2010: 67). The working hours are part of the constitution and treaties of the European Union as the amendments have been made by the council of European Union. This case can therefore be handled by the court of justice of European Union and the court should issue a directive on the issue of the working hours. Any amendments present in the European Union are enforceable by the European Court of Justice and therefore can be applied on any member state of the European union regardless of whether it has ratified the amendment or not (Charter & David, 2007: 24). The most basic condition is that the country must be a member of the European Union (Sarah, 2008). In conclusion, Gina has several options at her disposal. One will be to petition the government of the United Kingdom to enact appropriate legislation which will make the amendment enforceable in the United Kingdom because it is a requirement of the European Union Countries to make appropriate legislations to make the amendments by the council of the European Union enforceable in their member countries. In addition she can directly sue the company in the European Union Court to so that the court can issue an order for the company to reduce working hours. Allan Case Under the article 234 (1) (b), the rulings and acts of the European union have a direct impact on the national proceedings of the member countries (Michelman, 2005: 78). The member country can make references to the laws of the European Union in a case where the two parties are covered by the European Union laws (Beatrice, 2010: 67). In that case, the lawyers of Allan are able to request the General Medical council to refer to the article 267 since both France and German are part of the European Union. This is because as members of the European Union, the European court of justice will be better placed to handle the case and therefore they will be able to handle the case better (Busse, 2001: 76). In the preliminary ruling, the interested parties are allowed to invoke the rules of European Union in the national courts or tribunals and the court has an obligation to uphold the rights of the individual as guaranteed in the constitution of the European Union. This was the case with Haegemann v. Belgian State, Case 181/73. The court in this case held that the Act was not having a necessity that it is effective directly so that it can be interpreted using the Article 234. In this regard, an Act which is not directly applicable could as well be considered in the European Union Court of justice (Hesse, 1999: 678). Therefore Allan lawyers have a legal basis on which they can be able to request the General Medical Council. The constitution of the European Union allows for the reference from any of the tribunals or the courts to the European Court of Justice. Two United Kingdom Companies The United Kingdom companies are able to move to the European Court and challenge the application of the taxes. This is because all of the countries who are members of European Union have the right to operate freely within the territory of the European Union with a common market (White, 2008: 32). There is supposed to be no restrictions on the importation of goods and services. In the treaty, the countries agree to have a common market whereby they will open the borders for the trading and anyone will be able to import or export his or her goods without having to pay for the taxes (Michael & Shai, 2010: 100). This is called the customs union. It is meant to ensure that the member countries are able to trade without trade barriers (Alexander, et al, 2001, 1203). In this case, the two companies need to resolve their dispute in the court because the European Court of Justice is not supposed to be solving the disputes. It will only come in the issue of the customs as it will involve many countries within the European Union Jurisdiction (Grabenwarter, 2006: 213). Concave LTD The concave limited is in a contractual dispute and they want a reference to article 267 TFFU although they are not granted. They want an interpretation of the trade law and the court of appeal refuses to grant them refer (Joyce, 2009: 79). This according to the European Union Constitution is not good since the constitution of the European Union allows the member countries to refer the cases which are concerning the European Union. The cases which have reached the highest point of appeal, the courts of the member countries should refer the case. Therefore, Concave should move to the European Court of justice and present their case for a ruling (Bredan, 2008: 208). Denise The court of the member country can nullify a ruling or a law which is not in accordance with the constitution of the European Union. Therefore, the courts in the member countries can object to the application of a member countries law which is violating the constitution of the European Union. Thus Denise has no many options in this case other than to accept the ruling. If there is an article contravening the European Union Treaties, the article is not impossible on any European Union Court. Bibliographies Alexander, H. Madison, J and John, J. 2001. The common market law, Law review, 38: 1201-1216. Barnard, C. (2007). The Substantive Law of the EU. New York, Oxford: Oxford University Press. Beatrice, 2010, European common Laws. London: Elevated Press Busse, C, 2001. Paris Constitution, Economica, 10: 73-80 Bredan, Donnelly (2008). British referendum on Treaties. Nomos, 8: 207-212 Craig, P. Gráinne, B. 2007. EU Law, Cases, Text and Materials. Oxford, New York: Oxford University Press. Josephine, S. & Twigg-Flesner, L. C. (2006). Eropean Union Law. New York, Oxford: Oxford University Press. Joyce, N. 2009, Trade restrictions and European Union Law. Journ of Trade, 3(6)78-90. Tobler, C. Beglinger, J. (2010), Essential European Union Law in Chart. UK: Leiden University. Charter, D. & David, S. (2007). A new legal environment. E!Sharp. 23–25. Gargani, G. (2007). Intellectual property rights. France: FreePress Grabenwarter, C. 2006. European Union Law. German: Muchen, 205-213. Hesse, K. 1999. Application of the European Law on the Deutschland. Heidelberg: Muller. Kreppel, A. (2006). Understanding the E. U. Parliament from a Federal Perspective: America: University of Florida. Mahony, H. (2007). European Union court delivers blow on sanctions environment. EU Observer Michelman, F. 2005. 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