Constitutional Law of the European Union - Essay Example

Constitutional Law of the European Union Question I Directive 2006/2001 Direct effect is the doctrine of EC Law applicable to such characteristics of EC law that can be executable by individuals in their Member State, irrespective of the fact whether the Member State had initiated certain national laws to comply with the provisions of EC Law1. The principle of indirect effect is crucial in the execution of EC rights in respect of private persons. Since directives have only vertical direct effect, in cases of claims against private entities domestic law has to be regarded as the basis for a claim. The national courts have to ensure that the National law complies with the EU Directive. This effect is obtainable only to the extent of divergence between national law and Community law2. A vertical direct effect enables a party to invoke a Directive against a state for non implementation of a Directive. Horizontal direct effect, involves the invocation of a non implemented Directive against a private entity3. The jurisdiction of the ECJ extends over the actions brought by the ECB and the Court of Auditors, if conditions similar to those stipulated above, are in existence. Moreover, a legal or individual entity, placed in a similar situation, can initiate action to oppose a decision that affects that entity directly and individually4. As such, a Member State commits a serious breach by not implementing a Directive. In Dillenkofer v. Germany, the ECJ ruled that a Member State that failed to adopt measures, which would have realized the aims of a Directive, was guilty of deliberate and serious disregard of EC Law. The victim of such non implementation of a Directive was to be recompensed for the damage sustained by him, provided such loss could be directly attributed to the non implementation5. Plaumann v. Commission related to a decision, which disallowed Germany to reduce import duty on clementines. This decision was challenged by Plaumann, who contended that he was put to considerable loss due to this decision. The ECJ interpreted the test of individual concern to connote, whether Plaumann was harmed by the decision, due to his membership of a group that was affected by this decision or in his individual capacity. This Court opined that Plaumann was merely a member of the class of clementine importers, and that any person could acquire that status. Therefore, his contention was not accepted by the ECJ6. The UK government failed to implement the fictitious Directive 2006/2001, which related to chemical ABC. Fattenem took advantage of this situation and produced this chemical to such an extent that the ponds and streams in its vicinity were badly polluted. The local residents were subjected to a malodorous environment, whereas the local gardeners developed abdominal disorders on consuming vegetables grown in that area. According to the decisions in Plaumann and Greenpeace, individual concern should be established for a claim in environmental matters to succeed. Consequently, general residents cannot rely on the Directive, for redressal. However, the gardeners can specifically invoke the provisions of the vertical direct effect of a Directive against the UK government, for its non – implementation of the Directive. Since, Fattenem is a private entity; these gardeners can resort to the indirect effect of Directives, in order to claim compensation, for the injury suffered by them. Directive 2006/2002 Unlike regulations, which are directly applicable; a Directive is binding upon the Member State to which it relates. However, the national government is permitted to adopt its own terms and methods in implementing the Directive. This clearly indicates the intention of the High Contracting Parties to ensure that the national authorities are permitted sufficient leeway in implementing Directives7. A public body that causes loss or damage, due to its non adherence to EC Law, is liable for such loss. The attribution of such liability does not exempt even the Court of First Instance of a Member State. This tenet emerges from the rulings in Francovich and Factortame. It is also in compliance with international law, which regards a country as a single undivided unit8. Moreover, the Commission is empowered by Article 228 EC, to initiate legal action against a Member State that fails to comply with the judgement of the ECJ, regarding its infringement of Treaty provisions. Under this Article, the Commission can impose a heavy financial penalty on the infringing Member State. The Commission must send a Letter of Formal Notice to the infringing Member State 9. An explanation has to be submitted within a period of two months to the Commission. In the absence of such a submission, the Commission refers the case to the ECJ for its judgement. If the ECJ is satisfied that there has been an infringement of the Treaty obligations, it directs the infringing Member State to take remedial measures10. The Francovich decision by the ECJ specified the conditions for a Member State to be made liable for the losses resulting from its failure to implement a Directive. First, some rights should have been provided to individuals by the Directive. Second, the wording of the latter should confirm such rights; and third, the loss suffered by the claimant should have been caused by such non – implementation.This decision, concedes that a Member State could be made liable for violations, other than non – implementation, of EC Law11. The case law of the ECJ has established that the principle of State liability requires the claimant to demonstrate that the loss suffered by him was on account of the State’s violation of EC Law, and that his loss had directly been caused by that breach. This was the ruling in cases like Brasserie du Pêcheur SA v. Germany12 and R v. Secretary of State for Transport ex parte Factortame Ltd13. These conditions were made applicable to all EC law breaches, by the decision in cases like Dillenkofer14. The gravity of the violation depends on the amount of discretion enjoyed by a Member State, with regard to the area, in which the breach was perpetrated. If the Member State has considerable freedom, in the area where the breach occurred, then it will be held liable, if it can be established that the violation had been deliberate. If a Member State violates EC Law, in an area, where it has minimal or no discretion, then such breach is deemed to be serious. In such instances, no additional proof need be adduced15. In the Greenpeace case, the Court of First Instance rejected the application filed by Greenpeace and others against the Commission’s decision. The reason for this was that the claimants could not establish that they been affected in their individual capacity. The damage had affected a much larger number of people, than what was represented by the claimants. Thus the claimants were unable to establish Locus Standi16. With regard to Directive 2006/2002, the UK government implemented it improperly. Fattenem allowed the chemical XYZ to pollute the environment to an alarming extent. In Commission v. UK the Commission brought a case against the UK government, for improper implementation of a Directive. The ECJ ruled that as per the indirect effect of Directives, the national courts had to interpret domestic law, in accordance with the Directive17. Thus, the gardeners can rely on the indirect effect of this Directive, in order to initiate action against the UK government, for having failed to implement the Directive correctly. They can also, claim damages from Fattenem, under the provisions of the indirect effect of Directives. Question II The Council of the EU and the European Parliament adopted a Decision requiring the UK to slaughter animals affected by the foot and mouth disease in the UK. This Decision resulted from a qualified majority vote, in which the UK had been defeated. The SFA or Sheep Farmers’ Association represents a minority of the UK’s sheep farmers. It is their intention to contest this Decision. Article 230 EC requires the ECJ to conduct reviews. The objective of these reviews is to ascertain the legality of the acts adopted by various institutions of the EU. Specifically, the ECJ has to perform such reviews in respect of the acts of the European Council and Parliament; the Council; the Commission; and Parliamentary acts whose purpose is to engender a legal outcome, in respect of third parties18. In this context, the European Court of Justice has jurisdiction, Vis – a – Vis actions brought before it by the Commission, Council, Parliament or a Member State, relating to a deficiency in competence, violation of some mandatory requirement prescribed by procedure, breach of Treaty provisions or abuse of powers19. With the exception of the adverse effects associated with environmental pollution and the testing of nuclear devices, the European Court of Justice and the Court of First Instance have specified that applicants should be directly affected, in order to have Locus Standi20. Access to justice was curtailed to some extent, in order to make certain that the beneficiaries of preventive measures do not contest them. Consequently, exceptions to the law are permitted, despite the eschewal of the breach of essential legislation21. Similarly, in the context of individual rights, compensation is awarded only on the stringent satisfaction of the necessary conditions. Furthermore, a victim is required to prove that his pecuniary possessions had undergone express damage, or in the alternative, he has to establish that he had suffered some emotional or material injury22. Accordingly, it is very difficult to be awarded compensation for damage to environmental goods. Such property belongs to one and all, and not specifically to the victim. The iniquitous entities that pollute the environment should be punished, and this can be achieved by permitting individuals or associations to claim damages for damage caused to the environment. Moreover, a right to environmental protection should be applied in conjunction with the precautionary principle. Such an eventuality will significantly mitigate the burden of proof on individuals to establish serious damage, if a debatable administrative act is to be kept in abeyance23. Article 100a Maastricht Treaty, had given rise to Directives that proscribed the sale of cigarettes with high tar content and oral snuff. To this group of Directives relating to tobacco products, another Directive was added, as a third harmonisation initiative in 1998. The effect of the latter was to enforce stringent restrictions on advertisements relating to tobacco products. Germany opposed this Directive, which was nevertheless adopted by a qualified majority in the Council, in accordance with the co – decision procedure specified in Article 251 EC24. There was considerable opposition to this Directive from Germany, which relied on Article 230 EC to bring an action that contested the former’s legality. The chief contention of the Germans, which succeeded in the Court, was that this Tobacco Advertising Directive was not sufficiently proximate to the market forming process to which the harmonisation provisions of the Treaty were committed. In other words, the German allegation was that the Community had forayed into what was clearly not in its domain of powers25. The above case dealt chiefly with harmonisation. On regarding this Directive as a measure relating to public health, the conclusion is inevitably arrived reached that this measure falls beyond the purview of the legislative competence of the EU. Although, the EC has the necessary competence relating to public health, Article 152(4) EC, unequivocally rendered harmonisation of laws beyond its area of applicability. Consequently, the Treaty provisions administering harmonisation had to be made the foundation of this Directive, if it was to be validated26. The case law discussed above, reveals that a Member State that had been outvoted by Qualified Majority Voting can seek judicial review, against the decision of the Council and Parliament. Hence, the UK can apply for a judicial review, against the Decision. The Sheep Farmers’ Association promotes the interests of its members. It can seek judicial review of the Council Decision to slaughter infected sheep. As per the discussion, an association has the necessary legal standing to seek judicial review if it promotes the interests of its members. Thus, the SFA can seek judicial review. List of References Alia Papageorgiou. 15 September 2008. The Infringement Procedure explained. Retrieved on 5 December 2008 from http://www.neurope.eu/articles/89723.php Amaryllis Verhoeven. The European Union in Search of a Democratic and Constitutional Theory. 2002. P. 313. Kluwer Law International. Article 230. Retrieved on 11 December 2008 from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12002E230:EN:HTML Brasserie du Pêcheur SA v Germany (1996) ECR 1-1029 Case 25/62 Plaumann v Commission (1963) ECR 95 20 October 2008. Direct effect. Retrieved on 11 December 2008 from http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/directeffect.htm Factortame III (1996) ECR I-1029 12 March 2007. Indirect effect. Retrieved on 11 December 2008 from http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/indirecteffect.htm#contentpage Joined cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and others v Italian Republic (1991) ECR I 05357 Joined cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Erich Dillenkofer, Christian Erdmann, Hans-Jürgen Schulte, Anke Heuer, Werner, Ursula and Trosten Knor v. Bundesrepublik Deutschland (1996) ECR I – 04845 Case T-585/93 Stichting Greenpeace Council (Greenpeace International) v Commission (1995) ECR II-2205 Case C-5/94, R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (1996) ECR I-2553 Case C – 300/95 Commission v. United Kingdom (1997) ECR I - 2649 Case C – 376/98 Germany v. European Parliament and Council of the European Union (2000) ECR I – 8419 Margot Horspool, Matthew Humphreys, Siri Harris, Rosalind Malcolm. European Union Law. 2006. P. 213. Oxford University Press Nicolas de Sadeleer. Environmental Principles: From Political Slogans to Legal Rules. 2002. Pp. 287 – 288. Oxford University Press Stephen Weathill. Cases and Materials on EU Law. 2007. P. 41. Oxford University Press 21 February 2008. The direct effect of Community law. Retrieved on 11 December 2008 from http://europa.eu/scadplus/leg/en/lvb/l14547.htm Read More