An Imaginary EC Directive - Essay Example

EC work An imaginary EC Directive, adopted in January 2003 under EC health and safety policies, requires member s to provide a minimum of 20 days 'paternity 'leave' for all male employees after the birth of a child. The Directive was to be implemented by the 1st December 2005. The UK has not implemented it, arguing that this is a social matter and that in any event the UK already provides for 15 days paternity leave under the Paternity Leave Act 2000 which, according to the present Government, 'meets the general objectives of the Directive'. It does not therefore implement the directive. Anil works as an electrician for North West Electricity PLC, a privatized utilities company. His wife is expecting a baby in May 2006. In February 2006 he applied for paternity leave and was refused on the grounds that his contract does not provide for it. Brian, who works for Quickfoods Ltd, a take away stall at Aldgate station, hears about the EC directive from John and, as his wife is also expecting soon, decides to apply for paternity leave too. Advise Anil and Brian. ANSWER: Unlike EC regulation which is binding in its entirety and directly applicable to all member-states of the European Union1, a directive is binding only as to the result to be achieved2 and upon the member-state to which it is addressed. It also leaves to the national authorities the choice of form and methods by which to implement the said directive. Relevant to this problem is the question of direct effect of the subject directive without the need for it to be implemented by national law. According to the doctrine, Community law creates rights in favour of individuals, which the national courts are duty bound to protect.3 Stated otherwise, direct effect refers to the principle whereby certain provisions of Community law may confer rights or impose obligations on individuals that national courts are bound to recognize and enforce. It is assumed that the present directive complies with the requisites of sufficient precision and unconditionality4 and creation of individual rights, which is not dependent upon implementing measures, which compliance in conjunction with the principle of supremacy of Community law over national law5 makes it (directive) directly applicable without need of national implementing legislation.6 The period for implementation of the directive has already expired, as stated in the given facts. As counsel for Anil, I would advise him to initiate proceedings against his employer North West Electricity PLC in the proper forum and against the State, if the first action is denied. Re: Brian I would advise Brian to make his application with his employer, Quickfoods Ltd and if denied pursue the same actions as Anil would be taking in his case. Before denial, Brian would have no locus standi to file the necessary action in national courts. Re: Anil (and Brian if his application is denied) Because Anil has already been denied, I will rely on the cases of Becker7, Marshall8 and Ratti9, which allowed the filing of proceedings against member-states relying on individual rights conferred by directives and file the proper action to ask the national court and/or the European court to exercise the duty of consistent interpretation "so far as is reasonably possible" expounded in Marleasing10. In our case, we will endeavour to convince the national and/or the European court(s) that the case involves the issue of vertical direct effect and not horizontal direct effect if seen solely from the point of view of compelling the clients' private employers to grant the paternity rights granted under the directive instead of the existing statutes. My advice will be bolstered by the concept of standing in national law. National courts of first instance would only grant standing where a specific individual right has been identified and violated. The first action will be filed with the Court of First Instance. If the national court of first instance exercises jurisdiction over the case but denies the reliefs prayed for, I would advise my clients to ask the court to refer the case to the European court for judicial review or appeal on points of law under Article 230[173] or preliminary ruling under Article 234 [177] of the European Treaty. If the court of first instance refuses arbitrarily to make the necessary reference, I would advise my clients to ask for a review of the proceedings of the said court with the Supreme Court or national Constitutional Court.11 If the national court does not take any action, I will advise my clients to institute enforcement proceedings against UK under Articles 226[169] and 227[70] for damages12 for breach of Community law and failure to act and retroactive application of the paternity directive. The liability of a member state for harm suffered by individuals as a result of infringement of Community law attributable to that State was established in the joined cases of Brasserie and Factortame.13 The judgement is a necessary corollary of the direct effect of the Community provisions whose breach caused the damage sustained and considerably enhanced the possibilities for an individual to force State institutions to comply with and implement Community law. The judicial mechanism available for individuals is recognised in the case of Francovich and Bonifaci v Italy14, the right to require from the State to make good any loss the violation of its EC law obligations has caused to them. I will be preparing the necessary initiatory pleadings and documents to show that UK against which the actions are brought committed sufficiently serious breach, i.e. UK have exceeded the limits of its discretionary powers to a considerable degree, of an EC law provision intending to confer rights on individuals and that there is a direct causal link between UK's violation and the loss sustained by my clients.15 The pleadings will also show that my clients exercised reasonable diligence in limiting the extent of the loss or damage risk having to bear the damage themselves.16 Among the factors that will be considered by the Court are: the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or not, the fact that the position taken by Community authorities may have contributed to the error committed and the adoption or retention of national measures or practices contrary to Community law. The existing paternity statute which only affords the employees of 15 days leave cannot be said to amount to substantial compliance of Community law. Pursuant to the case of Von Colson and Harz, the domestic courts of member-states are bound to interpret all national laws in the light of directives, even if the law in question was not based on the directive.17 It is irrelevant whether the national statute was enacted before the directive.18 2. The Commission addresses a Directive to the UK requiring it to ensure that paid holiday schemes and sickness schemes are equalized for male and female workers. The United Kingdom Estate Agents Association, a professional body to which 90% of British estate agents belong, has with the approval of the government constituted its own professional arbitration tribunal to settle disputes relating to pay and conditions of work. Decisions of the tribunal are legally binding and there is no appeal. Charles, a trainee estate agent, claims to have received unfair treatment by comparison with female trainees and brings a case before the tribunal. The tribunal dismisses his claim to protection by the EC Directive on the grounds that he is not a worker but a 'trainee', despite the fact that the ECJ has recently held that the term 'worker' included 'trainees'. The tribunal does not want to make a reference under Article 234, whereas Charles insists that it must do so. Consider whether there is a duty, ability or right for the tribunal or Charles to have a question referred to the Court of Justice. ANSWER: Charles has the right and the tribunal the corresponding duty or obligation to make the reference to the European Court of Justice under Article 234. The arbitration procedure of the United Kingdom Estate Agents Association professional tribunal must comply with the principle of effective judicial control developed in Johnston19 and accord the right to a fair trial20 to the parties of the cases within their jurisdiction. The existing procedures are incomplete because of the denial of the right of appeal which, this writer assumes, is part of the rights conferred by the subject directive or as dictated by the European treaty and this evinces a lack of governmental supervision of the tribunal's procedures. "If under the legal system of a Member State, the task of implementing Community law is assigned to a professional body acting under a degree of governmental supervision, and if that body, in conjunction with the public authorities concerned, creates appeal procedures which may affect the exercise of rights granted by Community law, it is imperative, in order to ensure the proper functioning of Community law, that the Court should have an opportunity of ruling on issues of interpretation and validity arising out of such proceedings."21 In the same case, the European Court has identified a criteria of five items to determine whether a given procedure is judicial in nature within the meaning of Article 234 [177] of the European Community Treaty and these are the following: 1. establishment on a statutory basis as a permanent body, 2. mandatory jurisdiction, 3. adversarial procedure, and application of legal rules. The tribunal herein was one for purposes of arbitration, so it lacks adversarial procedure and the application of legal rules, including the lack of appeal. The scope of its jurisdiction is not mandatory because only ninety percent of the estate professionals constitute its members. The arbitration tribunal herein is only a private one and as such lacks judicial capacity.22 Considering the absence of judicial foundations of the subject arbitration tribunal, Charles has not only the right to have his question referred to the European court, he has the following rights: to have the tribunal's acts annulled under Article 230, to file proceedings against the State itself for improper implementation of the directive, damages caused by the breach of Community law and to pray for retroactive implementation of the said directive. 3. Imagine that the Council of the European Union has made four regulations. The Republic of Cyprus objects to the first regulation on the grounds that the subject matter of the legislation falls outside the scope of the EC Treaty and should be an entirely internal matter for the Member States. The European Central Bank (ECB) objects to the second regulation on the grounds that (i) the legislation is retrospective and (ii) its right to be consulted has not been respected. David, a pineapple importer, argues that he cannot challenge the third regulation through an article 234 EC preliminary reference as the UK has done nothing to implement the regulation into domestic law, and indeed does not need to do anything. He argues that for this reason he should be permitted to bring a direct action under Article 230 EC Treaty. Eric manufactures Cox Cognac, an English apple liqueur. He wishes to challenge a provision of the fourth regulation which stipulates that the term 'cognac' can only be used for brandy originating in the Poitou-Charentes region of France. Advise the Cypriot government, the ECB, David and Eric of their chances of obtaining judicial review (locus standi for all AND grounds for (a) and (b)) of the above Community acts under Article 230 EC Treaty. ANSWER: Re: Republic of Cyprus I would advise the government of Cyprus to indirectly challenge the illegal regulation through an action for annulment thereof based on a plea of illegality under Art 241, the act was ultra vires, to protect itself from the application of illegal regulation with the European Court of Justice. Unlike a valid regulation which has direct effect and "binding in its entirety and directly applicable in all Member States"23, the present regulation trespasses into the internal jurisdiction of Cyprus and cannot be said to have immediately become part of domestic law. The proper application for injunction must be filed as soon as possible to show non-acquiescence on the part of the member state before the period for implementation expires and before any right or obligation has inured on the part of the citizens who are bound to rely on the said regulation and will ask for its direct enforcement and who would file actions against Cyprus for inaction and damage if the same is not implemented or diluted or altered in its implementation. Cyprus must prove that the subject of the regulation is beyond those established in the EC Treaty and ECJ decisions on the matter. Re: ECB The ECB should directly challenge the questioned directive with the European Court of Justice and seek the annulment or cancellation thereof under Art 230 due to serious irregularity, which is the violation of the compulsory consultation procedure required for the valid adoption of the Community measure or directive. I will ask the ECB to prepare the necessary documents or certifications to prove the lack of consultation from the records of the European Parliament and the sessions coordination committee. I will also prove that the Economic and Social Committee and the Committee of the Regions were not consulted. There cannot be retrospective application of the subject directive in this case because it does not involve plans that are already prepared and therefore the plans yet have to be prepared before they can be legislated and implemented. The same does not involve a subject that could be directly applicable and be of direct effect. The ECB shall argue that the directive not only encroached upon its area of competence but that the same is outside the cooperation and codecisions procedures. Re: David I would advise David to file the preliminary procedure and put the UK legislative, judicial and executive departments on notice to perform their duties. If denied, we will file an action with the ECJ for failure to act under Art 232 to compel UK to implement the directive, praying for state liability for failure to transpose the subject directive within the given period for the purpose and for damages for the breach of superior Community law or measure under Article 235. I will prepare the necessary pleadings and documents to prove that there was serious violation of Community law and that actual harm was suffered and that there was a causal link between the act of the State and the damage sustained. There is no need to prove intent or negligence. Re: Eric I would advise Eric to indirectly challenge the questioned provision of the subject regulation by an action for annulment for the purpose of amending it by way of striking off from the regulation the specific provision under Article 241 EC Treaty based on a plea of illegality. The aspect of brands and brandnames are dependent on application and it is outside the scope of the Community's jurisdiction to grant the same to be exclusive to any one person or place before any application is made. On the part of Eric, the regulation is discriminatory and constitutes a breach of Community law. Community law cannot pre-empt and prevent my client from making the necessary application and deny him of fairness procedures. It is also possible for Eric to lobby the various members of the European parliament for the amendment purpose desired. The proper administrative request with the Home Department asking for its aid in the European parliament will also help. BIBLIOGRAPHY Human Rights Act 1999 European Convention on Human Rights Treaty Establishing the European Community 8/81 Becker v Finanzam Munster-Innenstadt [1982] ECR-I-53. C-46 & 48/93 Brasserie du Pecheur SA v Germany and R v Secretary of State for Transport ex parte Factortame Ltd and others (Factortame III) [1996] ECCR-I-1029. 246/73 Brekmeulen [1981] ECR 2311. 6/64 Costa v ENEL [1964] ECR-I-585. C-6 & 9/90 Francovich and Bonifaci v Italy [1991] ECR-I-5357. C-79/83 Harz Deutsche Tradex GmbH [1984] ECR 1921. 222/84 Johnston v Chief Constable of the RUC [1986] ECR-I-1651. C-223/01 Kobler v Austria, judgement of 30 September 2003. 106/89 Marleasing SA v La Commercial Internacionale de Alimentacion SA [1990] ECR-I-4125. 152/84 Marshall v Southampton and SouthWest Hampshire Health Authority [1986] ECR-I-723. Joined Cases C-104/89 and C-37/90 Mulder and others v Council and Commission [1992] ECR-I-3061. 102/81 Nordsee [1982] ECR 1095. 148/78 Pubblico Ministero v Tullio Ratti [1979] ECR-I-1629. Re Patented Feedingstuffs [1989] 2 CMLR 902. 4/74 Van Duyn v Home Office [1974] ECR-I-1337 26/62 Van Gend en Loos [1963] ECR 1 [1963] CMLR 105 C-14/83 Von Colson and Kamann v Land nordrhein-Westfalen [1984] ECR 1891 Read More