European Union Laws: Transportation of Goods - Assignment Example

European Union Laws Name Course Instructor Date Outline Question 1: Legal conflict Question2: Health care tourism Question 3: Free movement and sport activities Question 4: Free movement of companies Question 5: Selling arrangements and free movement of goods Question 6: Lawyers and their establishment in Europe Question 7: Non Discrimination approach Legal conflict In the Schmidberger C-112/00 case, Brenner motorway was closed so as to permit a protest against the intensity of contamination to the Alps whose source was the intense traffic on the highway. This closure had been approved by the Austrian government. Schmidberger Transportation Company later claimed that it could not ship goods because they could not access the highway. The conflict in this case was the restraining of the liberated transportation of goods on the Brenner motorway and the freedom of expression and assembly enjoyed by the Australian population. In Laval C-341/05 case, Laval, a Latvian construction company acquired a building tender in Sweden and thus had to enter into a group contract with Swedish unions that were out to protect the Swedish workers in regard to the labour situations. The group contract failed because Laval declined to pay the demanded remuneration but resolved to sign a Latvian contract because they had Latvian workers too. Because of the failed negotiations, the Swedish movements denied access to the building site. In this case, the strike by the trade unions was a fundamental right meant to protect the workers from social usage by foreign states.1 According to EU Case Law (2003), the obstruction of the motorway for the protest to take place was acceptable because basic rights had to be valued and protected. It argued that basic rights had to be protected if contrasted against basic freedoms. According to the Austrian law the protest was legal and thus could not be prohibited. According to Case C-112/00 (2003), the protest had been announced in advance and thus did not cause any serious issues for instance traffic jams and permanent severe blockages.2 According to the charter of human rights as captured in Case C-112/00 (2003), if an individual wishes to organise a meeting that involves the public, that individual must surrender a written notice to the authority twenty-four hours before the meeting. In the written notice, the purpose of the meeting, the venue and time of meeting should be captured. The relevant authority must be in possession of the written notice twenty-four hours before the meeting happens. If the purpose of the meeting transgresses on the law and in the process jeopardizes the security of the public then such meetings are usually banned.3 There are usually no restrictions on individuals’ freedoms of assembly and protests but a criterion for defining the limits of the freedom of assembly or protest is in place to ensure other people’s freedoms are not encroached on. According to Fuchs (2007), there are instances when individuals’ freedoms can be limited. In the instance of public safety, freedoms can be denied because they may breach state security. If it is thought that these freedoms will result in mayhem and transgressions, then it will be curtailed.4 According to Hahn (2008), the recurrent allegations that the Common Market is a neo-liberal project destabilising democratic rights are true. He argues that though neo-liberalism seems bent on attaining a contemporary and developing society, its underlying principles are founded political and supremacy outlines. Their ideas and propaganda are not usually aimed at uplifting the poor societies but are meant to exploit them economically in the name of a common market. The democracy started by such common market is usually a harbinger for western armed interference and the introduction of burdening economic strategies.5 Health care tourism Austria boosts of a developed health care system that offers expert treatment to international patients. Their specialised health care practises are founded on greatly improved technology, well equipped clinics, all-inclusive services and globally recognised hospitals. This health care system is special because despite the first class treatment facilities and the expatriates that they have, these facilities are reasonably priced in order to make health care globally accessible. According to the European Court of Justice, it was held that previous consent for care in a foreign country was not an obligatory requirement settlement in the patient’s member country. It also claimed that the procedure that one had to go through in searching for the consent raised a divergence in the freedoms that were vital to the European Union. In case Kohll C-158/96, a Luxembourg patient was allowed to attain a settlement in Germany for dental treatment without previous consent. This case became a defining moment because it clearly stipulated that overseas treatment was no longer an advantage for those who could comfortably pay for specialised treatment but that it was the right of every citizen. The European Court of Justice pegged its ruling on the notion that there existed free movement of people between the European Union member countries and thus health care services could thus be offered on the same basis.6 Goraet-Smits and Peerbooms C 157/99 is a case that involved Mrs Geraets-Smith and Mr Peerbooms, Dutch citizens, who had received medical care in Germany and Austria correspondingly. This case involved the settlement of the medical costs that the two were supposed to remit after receiving treatment. If the two were covered under the sickness insurance scheme, then they were to have received previous consent from their member state before seeking treatment overseas. In cases whereby the sickness insurance scheme shields the responsibility of settling the medical bill, then the patient has to obtain an authorisation from them in order to pursue the required treatment in the other member state.7 The case Mueller-Faure and van Riet C 385/99 involves two Dutch citizens, Ms Mueller- Faure and Ms Van Riet whose cases involved the settlement of health care expenses sustained while undergoing treatment in Germany and Belgium correspondingly. The two had sickness insurance funds in Netherland, but in order to seek medical attention outside Netherland, they were expected to have approval from the fund. The court held that the state of the patient at the time that the approval was being sort after was to be taken into account. Moreover, it was held that a patient could not be denied due approval to seek medical attention overseas on the grounds of financial nature because if it occurred, it would amount to infringement on the freedoms of issuing medical services for the sole aim of defending public health. It was also thought that a waiting duration of time that could be lengthy in the process of acquiring approval for overseas treatment could lead to the deterioration of the patients’ health because of the constraint to the contact of specialised health care.8 Case Watts C-372/04 involved the rejection of Bedford Primary Care Trust to settle the expenses that had been accrued by Mrs. Watts while she was on health care treatment in France. She decided to settle her bill and then claimed for her refund which was discarded on the basis that she had not tendered her request for approval to undergo treatment overseas. According to the National Health Service in England, because of less government financial support, there is usually a waiting list for the less critical cases. Her claim for refund was denied on the ground that she had undergone no waiting hold-ups like the other patients.9 In case C-211/08 Commission v Spain the court held that an unapproved treatments were not to be accounted for by the patient’s member country but were to be settled by the patient’s themselves. At the time of the ruling, the failed Health care Directive of 2009 [Com (2008) 414] was in place. After being replaced by European Commission regulation No 883/2004 which was initiated in 2010, equal treatment was guaranteed citizens and their dependants in the view of the diverse national social security law.10 Free movement and sport activities According to European Union Law, sporting activities are an issue that can be pegged down on free movement of employees so long as it amounts to a financially viable activity. With reference to the court of Justice of the European Union, it has been held that trained sportspersons are employees by the sole merit of the view that their sporting activities amount to profitable employment. Sport associations are not managed by public law but are usually under the jurisdiction of administering sports. According to the treaty of the functioning of the European Union, any form of segregation is outlawed. Since sportspersons fall under this treaty, they are not supposed to be discriminate against thus they have the right to free movement like the other employees. Since all public laws are under the European Union Laws, therefore sporting activities are under the European Union Law and is regarded as a profitable employment like any other.11Bossmann C-415/93 case involved the regulations that had been initiated by football bodies regarding relocating of players from one team to another. The court held that the soccer club that was linked with a player had to remit an amount to the old club so as to complete the transfer. The Court of Justice also held that sporting regulations that allowed only a specific number of foreign based players in a march were to be put in place.12 In Heylens 222/86 case, the French establishment declined to accept Heylens Belgian sport training skill on the grounds that he had acquired them elsewhere. In France, to be an instructor, one was expected to have a French diploma and thus Heylens was turned away because he had a Belgian diploma. Because he was rejected without any justification, he referred it to the Court of Justice which held that in the nonexistence of common regulations, member states were at will to put in place their own qualification levels. However, structures of examining the qualifications acquired in member countries were to be set up in order to determine the equality that existed in the separate institutions. The Court of Justice held that such a venture would promote the community law that was essential in any further cooperation on the same.13 Lehtonen C-176/96 case involved the relocating of basket ball players from one team to another. The parties interested in the case were Lehtonen and Castors Braine; his team, the Belgian Royal Federation of Basketball Clubs and the Belgian League. To play for Castors Braine, Lehtonen was expected to be approved by FIBA, failure to which Castors Braine would be reprimanded. Castors fielded him in a game against Belgacom Quaregnon without him being approved. Though they won the march, Belgacom Quaregnon was awarded the match. Castors sort legal action to clear the misunderstanding that had arisen. In this case, Lehtonen’s country was a member of the European Union and thus no restrictions were to be placed on his movement from Finland to Belgium.14 Olympique Lyonnais C- 325/08 involved Olympique Lyonnais and Newcastle over Bernard. He turned down a one year contract offered by Olympique Lyonnais but instead signed one with the English side, Newcastle. In accordance with the law applicable in France, Bernard was supposed to sign his contract with the French team because it had trained him. The French side pressed charges against Bernard and Newcastle demanding payment for the one year duration that they would have stayed with him. The Court of Justice held that Olympique Lyonnais demand that Bernard had to stay with them for a year was impinging on the freedom of movement of employees. If a player declined to sign a contract with the club that trained him, the other club was to offer compensation provided that there existed an agreement that foundations for nurturing young endowments existed.15 Free movement of companies According to Ryan (2005), some of the European Union member states have established laws in their country to curb the free movement of companies. In Centros C-212/97, Centros Limited was founded in the United Kingdom but traded in Denmark. The commercial registry in Denmark declined to register Centros branch office since it circumvented legal procedures in Denmark.16 This act was impinging on the free movement of companies within the European Union. In Case C-208/00, Überseering BV v Nordic Construction Company GmbH, Überseering was incorporated in Netherlands and bought property in Germany. The company contracted a German company NCC to renovate the buildings in that property. The work carried out by NCC was not satisfactory and Überseering sued them in a German court. According to German law, the company lacked a legal capacity. Before commencement of the proceedings, the main office was transferred to German. After Überseering appealed to the Federal Court of Justice,17 the court overruled the ‘real seat’ doctrine as a way of establishing the nationality of companies set up according to the laws of member state with a registered office or headquarters located in the European Union.18 Inspire Art Limited was founded by a Dutchman under the laws of England and Wales. The company applied for registration of its Dutch branch in Netherlands. They were informed by the registry that they were to be treated like a foreign company and rules for foreign entities were to be applied. The company was thus expected to meet other additional requirements. The European Court of Justice held that the additional requirements to those of UK were not necessary since the company was a company regulated by UK law. According to Deak (2008), a limited partnership registered in Hungary, Cartesio, strives to relocate its seat to Italy devoid of its dissolution as it intends to be subjected to Hungarian law. The Hungarian court held that a Hungarian registered business wishing to transfer its seat to another member state must dissolve then reincorporate in the other state. From this case law, Article 43 of the EC Treaty forbids a member state from hindering the setting up of foreign businesses in its region or restricting the setting up of national operators in another member state.19 In Centros case, the court expounded on Article 43 EC’s freedom of establishment clause and the registration of a subsidiary of a UK company was unfairly denied.20In relation to the freedom of movement of companies, the European Court of Justice’s decisions has established that a company can exercise its freedom of establishment under the EC Treaty and the member states are forbidden from discriminating against any company formed in another member state and ought to recognise the company’s legal capacity it enjoys under the law of its state of establishment. A member state cannot also discriminate on the basis of creditor protection or avoidance of fraud.21 The freedom of movement of companies can be restricted where a company is established in a different member state in order to evade their national legislation. Any company established in an EU member state challenge any rejection by host member state to acknowledge its legal capacity to enter into contracts and be part of legal proceedings.22 Selling arrangements and free movement of goods Because of the harmonised regulations between member states, trade has tremendously improved due to the facilitated free movement of goods and services. On the same, there exist areas of individual states that are yet to be ironed out in order to enjoy a free movement of goods. The uncoordinated laws lead to trade barriers amongst the member states. The regulations meted on goods that are to be imported or exported, for instance, their quality, usually hinder trade between member states. Such regulations are not usually included in the common law. According to Cinetheque Case 60, 61/ 84 (1985) movies were not to be produced on video for selling for sometime after its release so as to shield the film and production industry. Selling of the videos was not completely stopped but only deferred. This regulation created a barrier in the free movement of goods for some time23. Keck C-267&268/91 (1993) studied the factors that were capable of hindering trade between the member states. Operations that could hamper trade were handled under Keck.24 Punto Casa c-69/93 (1994; Semeraro Casa Cases C-418/93 (1996) involved the opening and closing of businesses controlled by the Italian legislation. On the same, the law stipulated that businesses were to remain closed on public vacations. The law took issue with two supermarket proprietors who were claimed to have violated on the law. The court held that it was unfortunate and prejudiced because the sells that were completed on Sundays could not be accounted for by any other day of the week.25 Leclerc-Siplec C 412/93 (1995) case involved Leclerc-Siplec and the French television advertising companies which had turned down a request by Leclerc to promote his oil stations because the law disqualified the supply division. The court held that pluralism was to be upheld in media houses and that exclusion was against the common law. Com v. Greece C- 391/92 (1995) was a case that involved the free movement of newborn milk and it was only pharmacies that had been allowed to do the selling of the milk. This limited the commercial nature of marketers and thus limited the market available for the sale of this product. The court held that this amounted to a restriction on trade.26 Heimdienst Case C-254/98 (2000) was founded on the notion that there were stipulated areas for the existence of certain businesses. For instance, the sale of essential kitchen provisions was limited to certain localities. This was a barricade to the free movement of goods and restraining other businesses to local settings was prejudiced. DocMorris Case C-322/01 (2003) case involved a restraint that barred the marketing of health care products for human consumption over the internet. This measure curbed the free movement of goods but any sale was subject to recommendation. This meant that products from other member states could not easily get access to the market. 27 Lawyers and their establishment in Europe In the practice of law, and in the absence of a coordinated legal system within the European Union, lawyers find it taxing to ply their trade and thus move freely within the member states. The most affected are usually those who desire to ply their trade on a stable basis in several EU states. To ease their adaptation, the EU Council decided to approve Directive 98/5 which involves lawyers. This directive is sufficient enough to contain lawyers willing to work in more than one EU state because it has taken into account the several inefficiencies that the former directive had. The ability test that lawyers undertook in order to practice in a member state was done away with in the new directive. To practice in EU states, a lawyer was supposed to work in that country for three years after which one is admitted to the Bar. To ensure that incompetent lawyers do not find their way on Bars of EU member states, measures should be put in place to constantly monitor their practice (Podell 1999).28 The European Court of Justice holds that any restriction on the free movement of lawyers within the member states is a constraint on the freedom of individuals.29 In Klopp C-107/83 case, a German lawyer was denied admittance to the bar because it was claimed that he was plying his trade in another member state. The Court of Justice held that a lawyer could not be constrained to operating in a single state because of the freedom of movement of employees within member states. In case Gebhard C-55/94, corrective measures were being carried out on a German Citizen who was practicing in Italy as a lawyer on the Milan Bar because he had not been approved by that Bar. The Court of Justice held that there was to be no discrimination regarding the operations of workers within the member states. Moreover, while laying down state regulations, several other interests were to be acknowledged. 30 In Wilson C-506/04 case, it is stipulated that one was expected to know the court languages used in order to be admitted to the bar. Mr. Graham Wilson turned down an oral aptitude with the Bar and thus was denied approval to work in Luxembourg. The Court of Justice held that a lawyer was to be admitted to the bar based on the documentation provided by proficient establishments in their home states. It was also held that the linguistic test performed in Luxembourg was differing from the community law. Moreover, the court stipulated that lawyers were expected to work according to the conventions available in the member state that they were practising in.31 Non Discrimination approach Discrimination is usually seen as the act of initiating a distinction in support of or in opposition to individuals or groups founded on the classification of things instead of studying individual abilities. According to the European Monitoring Centre on Racism and xenophobia (EUMC) (2002), everyone is equal in the eyes of the law and thus every individual is sheltered from any form of discrimination. EUMC further states that the safeguarding of the marginalised in the society is usually critical for the smooth running of a democratic state. 32According to the European Commission (2009), Maruko C-267/06 case is about sexual orientation and it comprises of an unswerving discrimination that is founded on the sexual orientation of individuals. The distinction on sexual grounds comes into play when wedded couples and catalogued homosexuals are subjected to dissimilar treatment33 The other case, Feryn C-54/07 refers to a discrimination that is founded on the ethnic origin of an individual. According to the European Union (2009), if employers assert that they will conscript individuals from a specific ethnic group then this can be termed as a direct form of distinction on the basis of ethnicity. Discriminating a person due to their racial background also amounts to ethnic segregation. The Coleman C-303/06 case is about disability. The case stipulates that one should not be discriminated on the basis of their disability. Moreover, their caregivers should not be discriminated against because they are playing roles that ensure that the disabled are integrated into the society and thus accepted.34 According to the European commission Legal Service (2008), in the case C-303/06 Coleman v Attridge law held that the principle of identical treatment was meant to protect the individuals who are handicapped and thus their caregivers should not be included in their bracket.35 In the case of Andersen C-499/08, the inequity on the foundation of age is outlawed because it dispossesses an employee of a severance stipend on the basis that they may get an old-age retirement fund.36 The above mentioned cases; Maruko / Feryn/ Coleman and Andersen C-499/08 have one thing in common in that they are all cases that deal with discrimination in the society. They clearly outline the grounds that the disabled are usually discriminated along. In Austria, the segregation of an individual based on disability or cultural background is legally wrong. Segregating people because of one thing or the other usually tramples on their fundamental rights and freedoms. Read More