European Community Law - Case Study Example

Right from its very inception access to justice has been a contentious issue of the European Community or the EC. The European Court of Justice or the ECJ has all along been deciding as to how EC laws are to be effected in the Member States. Since the Community has become a Union of citizens, the ECJ strives to make these laws effective for individuals within the Member States. The effect of Community law is that it produces independent rights, brought to citizens by way of a series of devices, namely, the principles of direct effect, indirect effect and state liability which serve to guarantee that superior Community rights are enforceable in national legal systems. It is essential to ensure that Community rights are enforceable against both the public and private parties to a lawsuit. Section 2(1) of the European Communities Act1 1972, which gave legal effect to EC law in the United Kingdom, states that, "All such rights, powers, liabilities, obligations and restrictionsprovided for by or under the Treaties, are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and be enforced, allowed and followed accordingly"2. It renders effective all directly effective Community law, irrespective of whether they were made prior to or after the passing of the Act. Section 3 of this act makes it mandatory for all the courts to interpret EC law according to the rulings of the ECJ. The UK courts have all along been applying directly effective provisions without any reluctance. However, their unwillingness to apply the Von Colson principle3 is clearly evident. In Duke v Reliance4, Duke was retired at 60, even though her male colleagues' were retired at 65. The Equal Treatment Directive states that: The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions This principle isreferred to as "the principle of equal treatment"5. Nevertheless, Duke's employer being a private company, she could not rely on this Directive as being directly effective. She contended that the English courts should interpret the unamended Sex Discrimination Act6 in accordance to the Equal Treatment Directive, and thereby hold her retirement as unlawful dismissal7. In Von Colson8, the House of Lords were of the opinion that it did not provide a power to interfere with the method or result of the interpretation of national legislation by national courts. They observed that the Equal Treatment Directive was subsequent to the Sex Discrimination Act 1975 and that therefore it would be unfair on Reliance to 'distort' the construction of the Act to accommodate it. The House of Lords applied similar objections in relation to the Northern Ireland legislation9, even though it was ratified after the Directive. "Direct effect means that someone may cite a Directive as law without having to cite any domestic legislation which was meant to implement that Directive"10. Indirect effect was described in Von Colson v Land Nordrhein-Westfalen11, where the ECJ observed that courts can interpret national legislation in the light of the Directive. Its exact status is unclear as it a judicial tool of interpretation rather than a static analytic method12. In respect of EC Law the ECJ's decision is final. Since, Treaty is generally couched in wide-ranging terms; the Court has to provide the necessary detail for the functioning of European law. Further, the decisions of the ECJ are binding on the courts of member states with no right of appeal. In a manner analogous to the House of Lords, the ECJ is not bound by its own previous decisions, although it usually follows them. It falls within the jurisdiction of the ECJ to hear complaints in respect of non fulfillment of treaty obligations by a member state. It is also the competent authority in deciding the legality of actions of the Council of Ministers and the Commission of the European Communities. Whenever, disputes arise between member states in respect of the Treaties, the ECJ intervenes and settles such disputes. In addition to this the ECJ, as per the provisions of article 234 EC, which states that, any court or tribunal of a Member State may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice, is authorized to give preliminary rulings on references made to it by UK courts. The Van Duyn v Home Office13 case was the first reference to the ECJ made by an English court in a case in which Miss Yvonne Van Duyn a Dutch national practicing Scientology. On being offered employment as a secretary by the Church of Scientology in England she attempted to enter the UK but the Home Office did not permit her to enter the United Kingdom, stating that she was an undesirable person because of her practice of scientology. In response to this Van Duyn initiated action against the UK Home Office for violating the provisions of the EC Treaty and regulations relating to the freedom of movement of workers belonging to the member states of the EC. The ECJ upheld her contention and declared that it was immaterial that the organization was not actually unlawful and that nationals of the member state are permitted to work for it. The ECJ's position in respect of the member states involves the inevitable discord that exists between the Community's synchronization objectives and the obvious interests of individual member states. The ECJ instead of adopting a neutral position has favoured the achievement of the aims of the Community. Despite a Directive not having direct effect all the same, under certain circumstances, a member state which has violated the Community law by failing to implement a Directive may be held liable and therefore may have to compensate an individual who has suffered loss as a result of the non-implementation14. The case Francovich and Bonifaci v Italian Republic has been conducive to the development of this principle15. In the Francovich case employees of businesses which became insolvent, with considerable arrears of unpaid salary to be paid to them initiated proceedings in the Italian courts against Italy, for the recovery of compensation provided by an EC Directive16 , which Italy had not implemented. This directive, if implemented, would have guaranteed payment of unpaid remuneration in the case of insolvency by the employer. This Directive's terms were not precise and this prevented the applicants from relying on the concept of direct effect. Their construal was based on Article 10 EC, which makes it mandatory for member states to adopt appropriate measures to ensure the fulfillment of Treaty obligations. The Working Time Directive. In United Kingdom v Council,17 procedures controlling the amount of time an employee can be legally required to work were employed under powers bestowed by the erstwhile Article 118a of the EC Treaty (article 137 EC). This article gives the EU competence to legislate by Qualified Majority Vote or QMV in respect of health and safety at work. The UK voted against this proposal and it contended that this article did not create legislative competence in the area of conditions of employment. Whilst acknowledging EU's competence in that area, it nevertheless argued that the correct treaty provision should be what is at present Article 89 EC or Article 308 EC. The ECJ however, held that a measure to limit working hours were nothing other than a measure to protect the employee's health and safety. In view of this it further decided that the EU did have competence to act by QMV. In the sequel two problems will be considered. It is assumed that an Article 2(2) of an (imaginary) Directive adopted by the Community on 1st April 2003 entitled "Teachers' Employment Rights", exists and that it states that "Teachers employed in schools and in higher education establishments and working in the territory of any of the Member states shall have the right to take a meal break of a minimum duration of one hour after every single teaching session lasting two and a half hours or at the end of any series of consecutive teaching sessions lasting a total of three hours." This imaginary Directive was to have been implemented by the 30th of June 2005; however, the UK government did not comply as it contends that the Education Act 2000, which addresses the issue of teachers' working hours, is already in force. In cases where an infringement seems to have taken place, Article 226 of the ECT clarifies the legal situation on the basis of exchange of information between the Commission and the Member State concerned. A spirit of cooperation governs this procedure and it has in general, lead to an amicable solution resulting in the cessation of the breach of EC law. Article 226 ECT advocates voluntary compliance, whereas Article 233 EC deems that the more stringent protective measures must be compatible with the EC Treaty. Article 232 EC of the Treaty states that, "in case the European Parliament, the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established". This constitutes the Horizontal Direct effect. Article 233 EC states that any institution whose act has been declared void or whose failure to act has been declared contrary to the Treaty will have to take such measures as necessary to comply with the judgment of the Court of Justice. The member state has to take stricter measures and not just different measures. Articles 232 EC and 233 EC do not permit Member States to introduce whatever measures they want and as such the internal market is well protected from measures that unduly restrict trade18. Rachel, who has been working in a state comprehensive school in North London for several years, was told by her headmistress in January of this year that, owing to staff shortages, she would be required to teach economics this academic year to four consecutive classes of one hour each from 9am to 1pm on Tuesdays. Rachel told her headmistress that it was unreasonable to work for four hours continuously without a break, and she in turn said that the school governors will instantly dismiss any teacher who does not work in accordance with the new timetable. Rachel is working as a teacher in a public sector school. The UK had not implemented the imaginary Directive into its national law. Therefore, Rachel can get her rights under EC Law enforced by approaching the UK Government under the Vertical Direct Effect procedure by filing a suit in the UK Courts. If the UK Courts do not respond favourably, she can approach the EC for redressal of her grievance. The UK has not implemented the Directive; hence it is responsible for any damages or inconvenience caused to Rachel in the course of her employment. Therefore, Rachel can proceed legally against the UK Government as well as the school authorities if she is dismissed as this will constitute unfair dismissal. Jos, who is a Spanish citizen, works for the Pan-European University, a privately-owned institution running specialized post-graduate courses in European cultural studies based in London. On his return to work in January, Jos was required by his head of department to deliver a three-hour lecture on Spanish history each Wednesday without a break. He told his employers that he was not prepared to work for so long without a break, and that he would deliver two separate lectures of one and a half hours each instead (as he had done in previous years). Jos has also been threatened with instant dismissal if he refuses to comply. His father, a leading EC lawyer in Barcelona, has told him that the UK should be compelled to implement the Directive and that he is therefore making representations to senior EC and Spanish government officials in order to put pressure on the UK government to do so. The ECJ requires three conditions to be satisfied if an individual claims damages against a member state in respect of non implementation or incorrect implementation of a directive. These are, (a) The intent of the Community legislation should have been the conferring of rights on individuals, (b) there must be a serious breach by the member state19 and (c) the breach and the damage suffered must be causally linked. This was upheld, in Brasserie de Pcheur20 and R v Secretary of State for Transport, ex parte Factortame (No. 4)21. In the joined cases Brasserie de Pcheur and Factortame (No. 4), the Court extended the principle it had developed in Francovich and made it possible to claim damages against a state, in instances where it had passed a law which was in serious breach of EC law. In the first case, French beer manufacturers claimed damages against Germany for passing beer purity laws that excluded the import of their beer. In the second case, the UK Parliament passed the Merchant Shipping Act, 1988, which in effect prohibited foreign fishing vessels, to fish in British coastal waters, by laying down registration conditions of residence, nationality and domicile of vessel owners. The issue raised was whether the aggrieved parties could claim damages against the respective states in the national courts. The ECJ decided that the state had to compensate the damages caused and that the conditions laid down for such claims of damages must not be less favourable than for a domestic claim and further, the member state has to refrain from making this claim process difficult or impossible. In the context of English law, it was impossible for the Spanish fishing vessel owners to claim damages as the UK law had no substantive or procedural law for making a claim for damages against Parliament. In R v H.M. Treasury, ex parte British Telecommunications plc22, the ECJ held that damages could be claimed by individuals who had suffered loss as a consequence of an incorrect enactment of a directive by a state. In this case it was held that the breach of EC law was insufficient to merit damages as the UK Government, while acting in good faith had made a mistake in its enactment of the relevant Directive, whose ambiguous wording had lead to its misinterpretation by several other member states. Where a State has failed to fulfill its obligations in regard to directives, whether by non-implementation or inadequate implementation, an individual will not be able to rely on the horizontal direct effect of a Directive against another individual. The court however, held that according to the decisions inCompagnie des Forges de Chtillon v High Authority, which stated that, "A measure emanating from the competent authority, intended to produce legal effects and constituting the culmination of procedure within that authority, whereby the latter gives its final ruling in a form from which its nature can be identified23." Article 226 of the Treaty empowers the EC to initiate legal action against a member state, which does not respect its treaty obligations. The EC in such cases of infringement of EU law that warrants the opening of an infringement procedure, first, addresses a letter of formal notice or first written warning to the member state concerned, requesting it to submit its observations by a specified date, usually two months. On the basis of this reply or absence thereof, the EC may address a reasoned opinion or second and final written warning to the recalcitrant member state, which clearly and definitively sets out the reasons why it considers there to have been an infringement of EU law and which calls upon the member state to comply within a specified period, usually two months. On the failure of the member state to comply with the reasoned opinion, the EC will bring the case before the ECJ, which will require the offending member state to adopt such measures as are required for compliance. Therefore, Jos can initiate legal action against the school in UK Courts, even though it is in the private sector, for infringing the Work Time Directive. Further, if his grievance is not properly redressed by the UK Courts and as the European Commission itself contributes to the compliance effort by making a much more systematic use of infringement procedures and applies pressure on Member States to discharge their Community obligations; he can approach the EC to make the UK Government implement its Work Time Directive. Bibliography. 1. Duffy, P., "Damages against the State: A New Remedy for Failure to Implement Community Obligations," 17 E.L. Rev. 133 (1992). 2. Caranta, R., "Governmental Liability after Francovich," 52 Camb. L.J. 272 (1993). 3. Caranta, R., "Judicial Protection Against Member States: A New Jus Commune Takes Shape," 32 CML Rev. 703 (1995). 4. Caruso, D., "The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration," 3 E.L.J. 3 (1997). 5. Craig, P.P., "Francovich, Remedies and the Scope of Damages Liability," 109 L.Q.R. 594 (1993). 6. Craig, P. & de Brca, G., "EU Law: Text, Cases, and Materials," (New York: Oxford University Press) (1998). 7. Emiliou, N., "State Liability under Community Law: Shedding More Light on the Francovich Principle" 21 E.L. Rev. 399 (1996). 8. Hanft, J.E., " Francovich and Bonifaci v. Italy: EEC Member State Liability for Failure to Implement Community Directives," 15 Fordham Int. L.J. 1237 (1992). 9. Harlow, C., "Francovich and the Problem of the Disobedient State," 2 E.L.J. 199 (1996). 10. Hartley, T.C., "The Foundations of European Community Law," (Oxford University Press) (1998). Read More