The EU Law Cases Analysis - Assignment Example

European Union Law Q1 Costa v ENEL, Case 6/44 Facts of the Case: Flaminio Costa is a shareholder of Edison Volta, a power supply company in Italy. The Italian government however, enacted and passed a law, i.e. Law No. 1643, on December 6, 1962 creating the Ente Nazionale Energia Electrica (ENEL) which in effect nationalises the production and distribution of electric energy. Edison Volta was naturally affected by the new law and Costa protested by not paying his electricity bill. In a court action relative to such non-payment, Costa asked the Guidice Conciliatore in Milan to apply Article 177 of the Treaty of Paris 1 which states that: The Court of Justice shall be competent to make a preliminary decision concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community, and; (c) the interpretation of the statutes of any bodies set up by an act of the Council, where such statutes so provide. Where any such question is raised before a court or tribunal of one of the Member States , such court or tribunal may, if it considers that its judgment depends on a preliminary decision on this question, request the Court of Justice to give a preliminary ruling thereon. Where any such question is raised in a case pending before a domestic court or tribunal from whose decisions no appeal lies under municipal law, such court or tribunal shall refer the matter to the Court of Justice.2 The reason why Costa wanted an application of Article 177 is to be able to draw an interpretation of Articles 102, 93, 53 and 37 of the said Treaty, all alleged by Costa to have been infringed by the new law. These provisions deal with proscribed legislative acts of Member States. In February 1964, the Milan Court filed for an application of preliminary ruling before the European Court of Justice (ECJ). 3 Issue/Issues: (1) Whether or not there were grounds for raising the questions referred to the ECJ. (2) Whether or not the application of preliminary ruling was inadmissible.4 Arguments of the Parties: (a) Costa. The position of Costa was that ECJ acquires jurisdiction by the mere application of a preliminary ruling whereby the application clearly shows the need for Court interpretation of any of the provisions of the Treaty. Moreover, it is not within the prerogative of the Court to determine how a court of a Member State has arrived at the fact of the referral. 5 (b) Italian Government. The Italian Government contended that the application for preliminary hearing was in itself inadmissible because it asked the ECJ not only to interpret the Treaty but also rule on the compatibility of the Italian law with the Treaty. A national court, according to the Italian government, does not have recourse to the ECJ on the basis of an application for preliminary ruling when the dispute attendant to the case requires only the application of a domestic law and not one of the provisions of the Treaty. The only way to involve the ECJ, according to the Italian government, is through Articles 160 and 170 which deal with the European Commission’s direct intervention by bringing case to the ECJ after determination of Member State’s non-compliance with its orders and when a Member State brings a matter against another Member State to the ECJ, respectively. 6 Decision: The ECJ held that the preliminary ruling, so far as it calls for the interpretation of certain provisions of the Treaty, is admissible. 7 Rationale for the Decision: Whether or not a case involves the application of domestic law and not the Treaty itself, the ECJ can acquire jurisdiction over it once an application for preliminary ruling is submitted showing a need for the interpretation of any of the Treaty provisions. The precedence of the EU laws over domestic laws stems from the notion that when the European countries entered into a pact to form the EU and agreed to endow it and its agencies with powers, they have in effect agreed to limit their own sovereignty with respect to that body and its agencies. Thus, Treaty law could not be “overridden by domestic legal provisions, however framed, without being deprived of its character as Community law.” 8 In addition, the preliminary ruling applied for by the Italian national court requires an interpretation of Treaty law to which the ECJ is bound to do. However, Art 177 of the Treaty Law does not give power to the ECJ to inquire into the facts and the basis for the national court’s application because of the separation of powers laid down under the Treaty. The ECJ also tackled each of the Treaty provisions in issue. Art 102 binds Member States to make prior consultation with the EC where there is a risk that a potential legislation will create a distortion in the Community but does not empower individuals to initiate a question of failure to comply by Member States or of the Commission. Neither does Art 93, which deals with the creation of aid by a Member State, give individual rights to question Member States or the Commission of duty fulfillment under it. Art 53, which limits restrictions to nationals of a Member States by another Member State, in not breached when the restrictions imposed by a Member State are not more severe than those imposed of them by its own State. Finally, the ECJ remanded to the national court the determination of whether there was violation of this provision which prohibits, among other, the introduction by a Member State of discriminatory monopolies of a commercial nature under Art 37. Q2 Powers of the Commission of the European Union The powers of the Commission can be classified into four: legislative powers, agenda-setting powers, executive powers and supervisory powers. The Commission’s legislative powers are the least of its powers because it is dependent on the Council’s determination whether to delegate legislative power to it. The agenda-setting power of the Commission is more significant than its legislative powers as it grants it the sole responsibility of setting policy process. For example, it is responsible for setting the annual legislative programmes of the Community. Some of the executive powers of the Commission are: the collection of the revenues of the EU; the coordination of EU expenditures like the European Social Fund and the European Regional Development Fund; the administration of European aid to third countries and; the EU representative in some world organizations like the World Trade Organization,9 a power prescribed by Articles 302-304 of the Treaty. In addition, the Commission is also empowered to exercise treaty-making powers under Art 133 and association agreements under Art 310, both with respect to negotiations of commercial nature. The treaty-making power is exclusive to the Commission and therefore not exercisable by Member States. 10 The Commission is empowered to initiate any action before the ECJ against Member States where it believes that a State has violated or in breach of any of the provisions of the Treaty. It is empowered as well to declare any act of the Member State as unlawful and contrary to the law of the EU. 11 Responsibility and Accountability in the European Commission Outline of the article. In her article, Mehde argues that the accountability system applied to the European Commission has no legal basis stemming from the structural deficiencies of the Treaty which created it. In arguing her position, Mehde uses as a reference the doctrine of ministerial responsibility enshrined in the British Constitutional Law. Mehde examines and rationalises the doctrine to find comparative parallelism and application to the accountability measures employed in the EC. Simply put, the doctrine means that a minister represents the government in all his official acts and therefore accountable for any wrongdoing in the department he is heading, underpinning the practise of calling for resignation of the minister once his department is in deep trouble. 12 Mehde posits that the application of the doctrine is warranted only in the event of any personal misconduct of the minister with misconduct referring to personal wrongdoing or the failure to act on a ministerial responsibility. Conversely, the doctrine should have strict limited applicability in cases where the minister is not legally endowed with powers to act on or interfere with a departmental course of action on the logical premise that “responsibility cannot go further than the power possessed.” Mehde justifies this by noting that an outright resignation by a minister where there is no personal misconduct may be detrimental because the public may perceive such resignation as the solution to the problem and once the resignation is had public pressure may wane even before the actual solution of the problem is found. 13 Mehde’s article points out that although the Committee of Independent Experts employed the same doctrine in declaring the Santer Commission liable for misconduct in 1999, it did not provide a legal basis for it exposing an inherent weakness in the structural framework of the Treaty. Unlike the British constitutional model, the Treaty does not specify the individual ministers’ administrative responsibility in his or her portfolio, stressing rather on collective responsibility of the Commission as a body. This paradox, as Mehde calls it, is illustrated by the fact that although the Commissioners are assigned to Directorates General, the administrative units, the DGs themselves are headed by Director-Generals. This is compounded by situations where some Commissioners share the same DGs, some assigned to more than one DG and some have no DGs at all. 14 Analysis of the article. Mehde’s article lucidly traces the inherent weakness of the European Commission’s position within the European Union by making a parallel reference to the British concept of the doctrine of ministerial responsibility and finding a lack of legal basis of the doctrine within the framework of the EC Treaty particularly referring to the powers of the Commissioners. As a consequence, the article exposes indirectly the lack of legal basis of the Committee on Experts’ findings against the Santer Commission in 1999 and explains obliquely as to why the Commissioners at that time were seemingly unaware and indifferent of their responsibility dumbfounding the investigating Committee. The implication of the article is that this lack of a meaningful notion of responsibility owing to the fact that the Commissioners have vague administrative roles and functions within the EU framework will unfortunately persist notwithstanding the amount of effort put up to plug the hole by the incumbent Commissioners and their successors unless a concrete measurement of each of their administrative role is redefined. Whether an amendment or an additional law or some other measure is warranted under the circumstances - one that would strengthen and shape clearly the individual Commissioners’ functions - must be put in place to relieve the confusion and lack of concrete direction that characterise the individual Commissioners’ roles. Works Cited Costa v ENEL, http://www.ena.lu/ Foster, Nigel G. Blackstones EC Legislation 2006-2007, Edition: 17, revised. Oxford University Press, 2006. Hartley, Trevor. The foundations of European Community Law: An Introduction to the Constitutional and Administrative Law of the European Community C. Edition: 6. Oxford University Press, 2007. Mehde, Veith. Responsibility and Accountability in the European Commission. Common Market Law Review, Vol. 40 (2), 2003. Turpin, Colin and Adam Tomkins. British Government and the Constitution: Text and Materials. Cambridge University Press, 2007. Read More