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EC coursework - Essay Example

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1. An imaginary EC Directive, adopted in January 2003 under EC health and safety policies, requires member states 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…
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Download file to see previous pages 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.
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. ...
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 ...Download file to see next pagesRead More
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