European Single Market - Report Example

Running head WILDBEAR: EUROPEAN SINGLE MARKET European Single Market Insert Insert Title Insert instructor’s name January 29, 2011 A report from the Head of Legal Department, Unifilm plc Overview Our company, Unifilm plc is a registered public limited company in the United Kingdom. United Kingdom is one of the key members of European Union (EU), a union that draws its members from the independent and sovereign states found in Europe. As such, our operations as a company are under the provisions of the EU laws. The EU has had a number of treaties that outlines its operational policies. The first two treaties are the ‘Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)’ (Moens & Trone, 2010, p.2). Article 54 of the 2010 Official Journal of European Union requires that commercial firms be treated as natural persons who are citizens of the Member States. The challenges faced The need for the states to come together and surrender part of the sovereignty was initiated by that urge to have some strong decision-making body that could collectively empower the member states (Barnard & Scotts, 2002, p.136). The union has bodies charged with enacting certain policies that are common to the member states and ensure that the policies are followed accurately. Some of these policies regulate the trade in the area. It thus serves to protect the member states against any irregularities and this explains why our country had to be a member. The policies enacted by the governing bodies of the union regulate our operation as a company that trades in the region. Zandia is a sovereign state found in Eastern Europe and is a member of the European Union. Our trade operations in the area thus fall under the policies of the European Union. However, the government of Zandia has imposed certain restrictions to our trade in the country, some of which are not conforming to the laid treaties. One challenge that we have experienced is that, there is a charge levied on the importation of film for production purposes. The net earning from such charges is aimed at supporting the actors in the country who are jobless. This is contrary to the provisions of the EU treaty in several ways. Chapter 2 of Title VII of the 2010 Official Journal of European Union clearly explains the terms under which the Member States can impose taxes on both imported and exported goods within their borders. In particular, article 110 of the chapter states that ‘no member state shall impose, directly or indirectly, on the products of other member states any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products’. The article further asserts that no such taxes are supposed to be levied on imported commodities to serve the interest of the domestic producers. This creates a competitive disadvantage on our side. While it is the role of the union to promote the economic development in areas with low standards of leaving and serious underemployments, article requires that such an aid by the State should not distort competition by favoring others. Besides, the unemployment witnessed in Zandia among the actors is not a serious one to obtain the assistance from the state resources. Secondly, there is a charge for inspecting imported DVDs standards for quality under a mandatory EU scheme. This is also not conforming to the provisions in the above Chapter 2 concerning charges levied on goods within the internal market. Article 112 in this chapter requires that any charge that can be imposed on any imported or exported products within the member states shall be approved only by the European Council in conjunction with the Commission. The article 112 states that: “In the case of charges other than turnover taxes, excise duties and other forms of indirect taxation, remissions and repayments in respects to other Member States may not be granted and countervailing charges in respects to imports from Member States may not be imposed, unless the measures contemplated have been previously approved for a limited period by the Council on a proposal from the Commission” (Kohler-Koch & Rittberger, 2006, p.7). Any legislation that is made without the authority of these bodies are contrary to the community method that is adopted in the European Union governance (Kohler-Koch & Rittberger, 2006, p.7). Therefore, it is the duty of the Council, the European Parliament, and the Economic and Social Committee to ensure that legislation is established and followed, that ensure harmonization of all the charges that are levied within the internal market. The Member States are not supposed to levy any new charges and neither are they supposed to raise the charges that are already in place (Barnard, 2007, p.183). Thirdly, the Zandian government has put a restriction on importing cameras unless they comply with Zandian specifications, which are applied only to imports. The restriction follows the fact that market has been over flooded by counterfeit cameras. Now, a deviation from the provisions by the European Union is evident here. Article 26(2) of the EU laws (2010) requires the internal market to be ‘an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured in accordance with the Treaties’. The specifications that are set by the Zandian government only apply to the imported commodities. Thus, dissimilar marketing conditions are created, and which is prohibited as stipulated in article 101. The production of counterfeit goods is denying the original producer what is a right that falls in the collective category referred to as industrial and commercial rights. There are well-stipulated commercial and industrial property rights that protect the reproduction of a particular type of good by unauthorized party. The Court has always maintained that, in as much as a product circulates in the market of a member state under the owner’s consent, then the ownership right will always be tampered with. What would be of concern is the qualitative aspect of the product. However, the excessive use of this right by a state government to the extent that it impedes the movement of the products within the country does not comply with the provisions in the Treaty (Moens & Trone, 2010, p.270). The production of counterfeit cameras is a criminal offence that is collectively dealt with by the union and the individual Member States need not to take an initiative of curbing the vice. Articles 82 to 89 of EU laws (2010) clear outlines the judicial procedures that need to be followed and the roles that each of the governing bodies of the unions plays in ensuring that the criminal offences are eliminated. Finally, the government requires that cameras for filming must automatically ‘cut out’ after some time. The restriction follows a medical report in Zandia that eyesight could be damaged by prolonged use of film cameras. Now, this restriction is not contrary to the provisions of the EU treaties. This is due to certain reasons. Article 168 of the EU Treaty, contained on the 2010 Official Journal of European Union, the union incorporates human health as a major factor to be considered in formulating and implementing the policies to govern operations among the Member States. The articles requires that the union shall strive to improve health by promoting the research towards the causes of the diseases, their modes of transmission and the possible ways of preventing the spread and /or reoccurrence of the disease. Having determined the validity of the statement that prolonged use of the film cameras would cause eyesight problem, then it is within the provisions of the treaty for Zandia to impose such a restriction. Articles 34 and 35 prohibit the quantitative restrictions and other similar measures on the imported and exported goods within the Member States. However, article 36 asserts that the above clauses are valid only to the extent that they ensure the protection of the life and health of humans and other living organisms in the states. The restrictions are not to be used to create a basis for any form of discrimination in trade among the Member States. In deed, we are all aware that all cameras made in Zandia provide for such a ‘cut out’. This shows that the government of Zandia is not imposing a condition on other Member States that is not being used in the country. Instead, it is striving to create that equal platform that allows for competition. Remedies and alternative approach We are privileged to be operating under the policies of the European Union and in whom we can seek assistance for removing the unnecessary restrictions that are imposed on our trade conducted in Zandia. We seriously need the intervention of the Union so that the government of Zandia can remove the first two restrictions concerning the uncalled for charges that are levied on our exported products. However, we also need to acknowledge and accept the fact that the European Union may not be fast in realizing its goals of providing a homogenous common markets stipulated in the Single Act. As a company, we are like individual persons belonging to the EU. We are thus challenged to help in transforming the national legislation to be a legislation encompassing the entire community, as this will enable us to realize the European Community we desire (Twigg-Flesner, 2010, p.3). For instance, it is the requirement of the European Community that there be no discrimination in the rates of taxation among the Member States. However, other factors prevailing within a given state will determine the uniformity and the tax rates might differ from one state to the other. It has been observed that ‘the lack of uniformity and potential distortions of competition between Member States resulting from differential rates of indirect taxation imposed on imported goods still persists’ (Barnard & Scotts,2002, p.360). We thus need not to rely so much on the legislative steps that are to be taken by the Judiciary. Even though we can as well seek assistance from the union concerning the restriction that the cameras we produce comply with the specifications given by the Zandian government, there is little or no harm if we also attempt to produce cameras that meet the specifications. We realize that each Member State of the European Union remains a sovereign state and some policies of the union can only be put to use if the governments of the individual Member States are ready to co-operate with the EU’s governing bodies (Barnard & Scott, 2002, p.29). Even though the European Union laws are to be considered superior to the national laws, the Member States are in deed capable of applying their restrictions more strictly within their territory to suite their economic interest. Edward (1987) observed that certain forces that were initially negligible have emerged that impede the enforcement of the policies by the Court (p.2). Edward (1987) warned that ‘for political as well as legal reasons, the Court cannot by itself advance the process of economic, far less political, integration’ (p.2). Therefore, I am foreseeing a situation where by our product loses fame in the increasingly competitive market of Zandia. Zandia just joined the European Union the other day and has not always demonstrated a commitment to the terms and conditions under which the Union operates. Moreover, the Courts have also appeared to conclude that ‘the international obligations can never affect the internal community rules’ (Holdgaard 2008, p.13). Perhaps, she will withdraw from the Union just so soon that we will be unable to reorganize our marketing strategy in the country. We have to remember that there are no provisions by the European Union for uniformity or non-discrimination in a case where a third party is involved in the circulation of good in the market (Barnard & Scott, 2002, p.359). Even in the cases that they have succeeded in handling a judicial matter, the judicial system has not ensured justice prevails especially due to the increasing number of such cases (Arnull, 1999, p.16). On the other hand, we must give in to the restriction that our cameras automatically ‘cut out’ after some time. If we have to seek the intervention of the union, then we have to be also ready to comply with their terms and conditions especially to social and economic development, including matters related to the human health. We also need not to forget that the concept of national entities still dominates even among the member states of the EU (Buxbaum, 1996, p.94). Reference List Arnull, A., 1999. The European Union and its Court of Justice. Oxford: Oxford University Press. Barnard, C., 2007. The Substantive law of the EU: the four freedoms. 2nd ed. Oxford: Oxford University Press. Barnard, C. and Scott, J., 2002. The law of the Single European Market: unpacking the premises Portland: Hart Publishing. Buxbaum, R., 1996. European economic and business law: legal and economic analysis on integration and harmonization. Berlin: Walter de Gryuter. Edward, D., 1987. The Impact of Single Act on the Institutions. Common Market Law Review, Netherlands. (Online). Available from: http://law.du.edu/documents/judge-david-edward-oral-history/1987-impact-of-single-european-act.pdf [Accessed January 29, 2011]. European Union. 2010. Consolidated Version of the Treaty on the Functioning of the European Union. Official Journal of the European Union, 30.3.2010. (Online). Available from: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0047:0200:EN:PDF [Accessed January 29, 2011]. Holdgaard, R., 2008. External relations law of the European Community: legal reasoning and legal discourses. Alphen aan den Rijn: Kluwer Law International. Kohler-Koch, B. and Rittberger B., 2006. Review Article: The ‘Governance Turn’ in EU Studies. JCMS Annual Review, Vol.44, pp.27-49. (Online). Available from: https://public.univie.ac.at/fileadmin/user_upload/inst_politikwiss/Melchior/ws06/reg/the_governance_turn_in_eu-studies.pdf [Accessed January 29, 2011]. Moens, G. and Trone, J., 2010. Commercial Law of the European Union. Murdoch: Springler. (Online). Available from: http://books.google.co.ke/books?id=MsWKm7ULyA8C&pg=PA36&dq=Berry+and+Hargreaves+European+Union+Law+%282nd+ed%29+Oxford,2007&hl=en&ei=vlpCTa6gBYWdlgeGu8E_&sa=X&oi=book_result&ct=book-preview-link&resnum=1&ved=0CDIQuwUwAA#v=onepage&q=Berry%20and%20Hargreaves%20European%20Union%20Law%20%282nd%20ed%29%20Oxford%2C2007&f=false [Accessed January 29, 2011]. Twigg-Flesner, C., 2010. Time to Do The Job Properly-The Case for a New Approach to EU Consumer Legislation. J Consume Policy (2010), 33:355-375. (Online). Available from: http://proquest.umi.com/pqdweb?index=18&did=2192678181&SrchMode=1&sid=2&Fmt=6&VInst=PROD&VType=PQD&RQT=309&VName=PQD&TS=1296315701&clientId=29440 [Accessed January 29, 2011]. Read More