An Important Directive Regarding Environmental Issues in European Union - Essay Example

of the of the of the European Union Law The European Community introduced an important Directive regarding environmental issues, which made it a criminal offence to allow the escape of some specified chemicals from their land if these chemicals resulted in harm to others. The maximum fine for this crime was fixed at 150,000 or its equivalent for each incident. This Directive was to be implemented by the 25th of March 2006 by all the Member States; nevertheless, the UK government did not implement this Directive. Simon lives in a converted warehouse in Greenwich, which is adjacent to a warehouse belonging to Otis Chemicals Ltd. The latter had been storing several chemical substances, including some of the chemical substances that had been specified in the Directive. In March 2007 Simon was hospitalized for mercury poisoning after eating vegetables from his garden. Mercury had been specified in the Directive. Investigations revealed that this mercury had leaked into Simon's garden from the adjacent Otis Chemicals' warehouse. Directives are the devices through which the European Council implements laws in the Member States of the European Union. Directives harmonise national laws with the European Union laws. The legal systems of the Member States are influenced significantly by the European Community, which governs the interests and rights of the Member States through its own organisations. There exists a unique and sovereign legal system that binds each Member State. This system was developed by means of the several Treaties, which created the EC legislation. One of the main pillars of the EU is the European Court of Justice or the ECJ. The ECJ had interpreted the nature and effect of Treaties, which is known as the doctrine of direct effect. It is a concept which enables aggrieved individuals to seek redressal in national courts if a Member State fails to implement the provision of a directive. The ECJ developed the notion of direct effect. Under this concept, individuals and organisations can use the provisions of the EC Law in a domestic court without having to wait for the Member State to satisfy an obligation which the Member State failed to execute. According to the ECJ, certain requirements have to be fulfilled for the provision of EC Law to gain Direct Effect. According to the notion of direct effect individuals can invoke community law to fulfil the required ratification for enforcement in their national courts. In other words, it empowers individuals to have a control similar to Article 226 EC, which bestows authority on the Commission to initiate proceedings against Member States for breaches. Direct effect permits each and every citizen of the Union to participate in the activities of the Union and it has brought the community into their lives. The legal aspects of direct effect have been established in Van Gend En Loos. The ECJ had held in this case that any individual of the Union can invoke Article 25 EC in order to restrict Member States that imposed additional customs duty on imports and exports and other charges that have equal effects. The Court also held that Article 25 EC was directly effective and individuals could challenge it in their national courts. The Court further held in its decision that individuals may have these rights conferred upon them directly under the provision of the various EU Treaties (Van Gend en Loos v Nederlandse Administratie der Belastingen). In Pubblico Ministerio v Tullio Ratti, criminal proceedings had been initiated, under the national law, against the applicant for the alleged infringement of Italian legislation, which was very stringent in the matter of packing solvents. Ratti resorted to the community directive's direct effect as his defence and the outcome was that a preliminary reference was made to the European Court of Justice. The ECJ placed an estoppel argument with the objective of directly enforcing the directive (Pubblico Ministero v. Tullio Ratti ). The ECJ held that if a directive had not been implemented by the state properly or in a timely manner, then individuals who had taken recourse to the rights granted by that directive could appeal against the state, which would be compelled to recognise its binding effect. With this case it became firmly established that if the prescribed period had come to an end or if the Member State had failed to implement the directive, then individuals could directly rely on the rights under the directive. Further, such a Member State loses any discretion granted to it and the directive becomes directly effective (Pubblico Ministero v. Tullio Ratti ). Most importantly, in this case, the court held that the Italian government was precluded from prosecuting Ratti, in this context, because it had failed to implement the directive within the stipulated time. The UK government had not implemented the Directive regarding environmental issues. Due to the negligent attitude of the Otis Chemicals mercury leaked into Simon's garden and penetrated some vegetables in the garden. These vegetables on being consumed by Simon resulted in his hospitalization. Although, Directives do not have direct application the European Court of Justice, opined that Directives may be directly applicable if the period for transposing it had expired and the Member State had either failed to transpose it or had transposed it inadequately; the Directive contains provisions that are mandatory and exact and finally, if these provisions bestow rights upon individuals (Faccini Dori). Member States have to recompense individuals who have suffered loss due to non - implementation of a Directive, this is as per the provisions of the Community law. In Francovich and Others v. Italy, it was held that three conditions had to be satisfied to make the State liable for the damage caused to an individual, due to the non - implementation of the Directive (Francovich and Others). First, the Directive's aim should be to grant rights to individuals; secondly, the Directive should define the gist of such rights and lastly, a causal relationship should exist between the damage caused and the violation of the State's duty to uphold the Directive (Faccini Dori). A Member State is prohibited from taking advantage of the fact that it had failed to implement Community law. Therefore, the UK government cannot initiate action against Otis Chemicals for violation of the Directive under direct effect. In Duke v. GEC Reliance, Mrs. Duke was unable to rely upon the Equal Treatment Directive, because her employer was a private individual (Duke v. GEC Reliance Ltd). Similarly in Paola Faccini Dori v. Recreb srl, the Italian Government failed to implement a directive in respect of consumer rights to cancel certain contracts negotiated away from the business premises. Dori having concluded a contract at a railway station was unable to rely on the directive to claim a right of cancellation as the court refused to extend the concept of direct effect to the sphere of relations between individuals (Paola Faccini Dori v. Recreb Srl). Clearly, such decisions illustrate the fact that different rights are being accorded to state employees and private employees, but the ECJ firmly held that this situation would never have arisen if the Member State had correctly implemented the directive into national law. This principle was addressed in Marshall v. Southampton and South West Hampshire Health Authority. In this case the appellant was an employee with the Health Authority. The retirement age for female employees was fixed at 62 years whereas the corresponding age for male employees was fixed at 65. This was not construed to be discrimination according to the Sex Discrimination Act ( Marshall v. Southampton and South-West Hampshire Area Health Authority). However, the claimant was successful in her appeal under the Equal Treatment Directive of the EU. This directive had not been implemented in the UK. This directive was adequate to have a direct effect, whereas the courts sought to confirm the status of a directive that would not impose obligations on an individual. Such provision should not impose obligations on a person. As the Health Authority was an organ of the state the directive had vertical direct effect ( Marshall v. Southampton and South-West Hampshire Area Health Authority). As such Simon cannot initiate legal action against Otis Chemicals, for infringement of the Directive, under the principle of direct effect. This is due to the fact that directives are addressed to the Member States and not to individuals. Since Otis Chemicals is not a government body, Simon cannot take action against it under the doctrine of direct effect. This is in accordance to the foregoing case law discussion, which clearly illustrates the fact that individuals cannot sue other private entities under the doctrine of direct effect. The United Kingdom Authorities cannot proceed against the Otis Chemicals on the basis of the principle of direct effect, because the latter is a private entity. Despite the fact that a Member State has failed to implement a directive, its national courts have to interpret national laws in conformity with that directive. This constitutes the principle of indirect effect. In Francovich (Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v. Italian Republic), von Colson (von Colson ) and Marleasing (Marleasing SA v. La Comercial Internacional) the ECJ decided that compensation could be claimed, from the Member States, by individuals who had suffered a loss due to the non - implementation of the EC Directives. The general principle of member state liability in damages for harm resulting from the breach of its obligations under Community law was established by the ECJ in 1991 in the well-known Francovich case (Francovich and Bonifaci v Italy). In this case, the breach involved the non-implementation of a directive. The ECJ referred to the general principles underlying the Treaty and ECJ's own task to ensure that the law was observed in the interpretation and application of Art 220 (1) EC Treaty. The ECJ found the principle of member state liability in damages to be "inherent in the system of the Treaty" and necessary to guarantee the full effect of its provisions. The Court also referred to the general principle of member state loyalty laid down in Art 10 (1) EC Treaty. Thus, the Community law principle on member state liability is judge-made law. The ECJ has clarified the Francovich principle in some later judgments, primarily the Brasserie du Pecheur-case, decided in 1996 (Brasserie du Pecheur SA v Germany). Based on these cases the conditions for liability are: (I) the rule of law infringed must have been intended to confer rights on individuals, (II) a manifest and serious breach has occurred, (III) there has to be a direct and casual link between the breach of the obligation by the member state and the damage suffered by injured parties. An outstanding decision is that of P v S and Cornwall County Council 1996 in which an employee who had undergone a gender change operation had been dismissed. In this case the ECJ held that such a dismissal infringed the Equal Treatment Directive (P v. S and Cornwall County Council). The most prominent example is that of the judgement by the European Court of Human Rights in P v S and Cornwall County Council 1996. In this case the European Court of Justice held that the dismissal of an employee who had undergone a gender change operation constituted a breach of the Equal Treatment Directive (P v. S and Cornwall County Council). Similarly the effectiveness of non-implemented or incorrectly-implemented directives that do not have direct effect through the horizontal limitation has been enhanced through the doctrine of indirect effect, which emerged from Von Colson. In this case the ECJ held that national courts had to interpret their national law in light of the wording and the purpose of the directive in such a manner that the directive is given some effect despite the absence of proper domestic implementation (Von Colson v Land Nordrhein- Westfalen ). This principle may be used under two circumstances; first, where the defendant is a state entity but a directive is not vertically directly effective as its provision are insufficiently precise, conditional and require further state action for their implementation. Second, the provisions of a directive could be indirectly enforced against a non-state entity i.e. it could apply horizontally as between individuals. The court was confronted with a 'horizontal' situation in Marleasing, in which this position was confirmed. Therefore, if national law was in existence that could be read in conformity with a non-implemented directive, then an individual could enforce a legal remedy against another individual through the interpretative route without seeking to enforce the directive directly and encountering the barrier to horizontal effect (Marleasing). A greater controversy was involved with the question of whether Directives could be invoked against private individuals as well as the State or if they had horizontal as well as vertical direct effects. In Defrenne v SABENA it was discussed whether Treaty provisions, in this case the provision of equal pay for equal work in Article 119, could be invoked against private employers. However, while the concept of horizontal direct effect added further protection to individuals' Community law rights, it appeared to breach the principle of legal certainty (Defrenne v. SABENA ). The UK government can proceed under the principle of indirect effect against Otis Chemicals provided it has national laws that are akin to the directive. Since, such law is extant; Simon can also proceed against Otis Chemicals for the physical damage caused to him. Accordingly, Simon can proceed against Otis Chemicals for having endangered his life, under the principle of indirect effect. Moreover, he can sue the UK government for non - implementation of the directive. In other words he can apply the indirect effect against the Otis Chemicals and vertical direct effect against the UK government. Mario is an Italian who produces orange jam. He markets it under the name 'Marmalade Italiana', which was registered by him as a trade-mark in 1986. An EC Regulation adopted in March 2006 requires the term 'marmalade' to be used only by UK and Irish manufacturers, because it describes a quality product manufactured according to a traditional method. The effects of a Community trademarks will be governed solely by the provision of Regulation 40/94 (Council Regulation (EC) No 40/94). Article 14 of this Regulation permits an individual to initiate action in a national court in respect of claims regarding unfair competition and civil liability. As such Mario had been using the trademark for twenty years. Moreover, Article 52(2) of Regulation 422/2004 states that a Community trademark will become invalid if an application is made against its validity or if infringement proceedings had been initiated against that trademark claiming protection of an earlier right, specifically in respect of a right to a name, personal portrayal, copyright, industrial property right if they are protected either under Community law or the National law (Council Regulation (EC) No 422/2004 amending Regulation (EC) No 40/94 on the Community trade mark). Mario had been using the trade mark name Marmalade Italiana for twenty years. Since, this is a very long period of time; this mark had become familiar to consumers. The new Regulation that was implemented in 2006, will infringe Mario's trademark rights. Therefore, he can file a suit claiming that the new community trade mark has the same name as was being used by him for twenty years. Moreover, his trademark name is unique and makes it very clear that the produce originates in Italy. Therefore, he can contend in the ECJ that the restriction to use the name marmalade only by Irish and UK manufacturers constitutes a violation of his trade mark rights. Moreover, this new regulation opposes natural justice, because Mario's business, which had a standing of two decades, would be adversely affected. The court is at liberty to award suitable remedies and some of these are the issue of such orders as would prevent an illegal, irrational or improper action or decision; issue an order to ensure that a statutory duty is carried out and declare an award of damages. Works Cited Brasserie du Pecheur SA v Germany. No. Case C-46/93, ECR I-1029. 1996. "Council Regulation (EC) No 40/94." European Union, 20 December 1993. "Council Regulation (EC) No 422/2004 amending Regulation (EC) No 40/94 on the Community trade mark." 19 February 2004. Defrenne v. SABENA . No. Case 43/75 ECR 455. 1976. Duke v. GEC Reliance Ltd. No. AC 618. 1988. Faccini Dori. No. C - 91/92, ECR I - 3325. 1994. Francovich and Bonifaci v Italy. No. Cases C-6, C-9/90, ECR I-5357. 1991. Francovich and Others. No. Joined Cases C - 6/90 and C - 9/90, ECR - 1 - 5357. 1991. Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v. Italian Republic. No. ECR I-5357. 1991. Marleasing. No. Case C-106/89, ECR I-4135. 1990. Marleasing SA v. La Comercial Internacional. No. C-106/89. 1992. Marshall v. Southampton and South-West Hampshire Area Health Authority. No. Case 152/84, ECR 723. 1986. P v. S and Cornwall County Council. No. C-13/94 ICR 795. 1996. Paola Faccini Dori v. Recreb Srl. No. C-91/92 ECR I-3325. 1994. Pubblico Ministero v. Tullio Ratti . No. Case 148/78, 512. 1979. Van Gend en Loos v Nederlandse Administratie der Belastingen. No. Case 26/62 ECR 1, CMLR 105. 1963. Von Colson v Land Nordrhein- Westfalen . No. Case 14/83 ECR 295. 1984. 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