EU Constitutional Law Issues - Essay Example

EU Constitutional Law Question One Although Adil’s claim is against his security guard company, he may take action against the UK for consequential loss. The right of action arises under the doctrine of direct effect as interpreted and applied by the European Courts.1 The doctrine of direct effect functions to ensure that Member States observe and comply with their respective obligations under the Treaty of Rome, 1957. By virtue of this tenet of EU law, parties to “legal proceedings” are at liberty to invoke and rely on EU law in domestic courts.2 In fulfilling its obligations under the Treaty of Rome, the UK enacted the European Communities Act 1972 which fortifies the UK’s obligations to observe EU law.3 By virtue of Section 2 of the 1972 Adil’s is assured of a statutory right to the application of the Directive regarding pensions for employees of insolvent companies. Section 2 provides that: “…all such rights, powers, liabilities, obligations and restrictions…created by or arising under the Treaties…shall be recognized and available in law, and shall be enforced, allowed and followed accordingly.”4 The difficulty for Adil with respect to enforcing the Directive against the company is that the UK has failed to enact it. To this end, the Directive, while it is EU law, it is not law as between private citizens since citizens are not expected to know the law.5 In other words an unimplemented directive does not have horizontal effect6 and Section 2 of the European Communities Act 1972 will have no consequences. Had the Directive been enacted the situation would be quite different and Adil would have been able to enforce his rights to receive the pension under the auspices of Section 2 of the 1972 Act. Adil’s right to pursue the UK commences with Article 249 (formerly Article 189) of the Treaty of Rome, 1957 which provides that directives are binding on “each state to which it is addressed.”7 While the UK may determine for itself how it wishes to implement the Directive, it has no discretion as to whether or not to implement the Directive.8 The fact that the UK has some reservations about the utility of the Directive and seems to want further clarification is not a matter of concern for Adil. The UK’s concerns are between the UK and the EU and may result in infringement proceedings against the UK under Article 226 of the Treaty of Rome.9 In the meantime Adil is entitled to rely on the doctrine of direct effect since the Commission has already instructed that despite the concerns raised all Member States are expected to implement the Directive. It was held in Publico Ministero v Ratti [1979] ECR that by Article 189 of the Treaty of Rome, mandates that regulations will have the force of law in Member States provided the language of the regulation is “unconditional and sufficiently precise.”10 This ruling applies equally to Directives since Directives, Regulations and Decision are all classified as secondary legislation under EU law. The only distinguishing factor is that while Directive and Decisions are only binding on the parties to whom they are addressed, Regulations are binding generally.11 In any event, the European Court has previously ruled that Regulations and Directives are unconditional provided they were not subject to some measure of “judicial control.’12 In this case, Van Duyn v Home Office, the European Court held that a provision which effectively dealt with the freedom of movement in respect of workers was not effective since it was: “subject to limitations justified on grounds of public policy, public security, or public health”.13 The Directive referred to in the case for discussion is entirely straightforward and instructive. It leaves no room for judicial control and in this regard cannot be challenged by the UK on the basis that it is a conditional Directive More precisely the ruling in Francovich and Bonifaci v Italy, makes its entirely possible for Adil to pursue a claim for compensatory damages against the United Kingdom for any loss sustained as a result of the it’s failure to implement the Directive ensuring his receipt of a pension from an employer who becomes solvent.14 In the Francovich case, the plaintiffs’ situation was similar to Adil’s in that the consequential loss accrued as a result of Italy’s failure to properly implement a European Community directive which intended to provide protection for employees in the event their employer company became insolvent. The Italian legislators had failed to establish a committee to make arrangements for compensating employees for their unsatisfied claims up to the time of insolvency. The plaintiffs commenced an action against the Italian government claiming that they had suffered damages as a result of Italy’s failure to properly implement the European Community’s directive. It was ruled by the European Court, that individuals had the right to seek compensation against Member States in circumstances such as the plaintiffs’ case and therefore upheld the plaintiffs’ claim.15 The resulting Francovich principle has a two-tier impact. First it ensures that by virtue of the potential for compensatory damages, Member States will be more inclined to not only implement Directives but to do so properly. Secondly, the Francovich principle, in a more indirect way puts pressure on public officials to abide by their obligations under EC law knowing that failure to do so will likely leave them liable to compensate individuals for any losses accruing to them as a result of noncompliance.16 The European Court has been consistent in its approach to the individual have the protection of and the rights contained in European Community law. For instance it was held in Van Gend en Loos v Nederlandse der Belastingen that the doctrine of direct effect would ensure that individuals will be at liberty to pursue their EC rights and protections against Member States.17 The court emphasized that EU law contains individual rights that national courts are required to protect.18So in this regard, Adil, has the right to take his claim to the courts in the UK who are obliged to apply the Directive and all other relevant EC law and judgments. The ruling in Foster v British Gas [1990] ECR 1-33313 is directly applicable to Adil’s case. In this case it was held that an unimplemented Directive was enforceable against the Member State so that impacted individuals may pursue damages against the government and/or their agents.19 Based on the foregoing discussion Adil may commence an action in the UK for compensatory damages in respect of his lost pension on the grounds that the UK government has failed to implement the relevant directive which has resulted in his loss of the pension and the loss of a right to pursue a claim against his company for the same. Question Two Pursuant to its objectives for harmony of laws within the European Community, Article 234 of the EC Treaty makes provision for litigants to seek and obtain clarification of EC law. Article 234 is also a means by which all EC laws are applied and interpreted equally throughout the European Community. The European Court has been adamant that the EC law is supreme and that it is applied “uniformly…within Member States.”20In a typical case a question is referred to the European Court of. In general Article 234 provides that the European Court of Justice will have the authority to “give preliminary rulings”21 with respect to: “(a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.” 22 Article 234 goes on to provide that when “such a question is raised before any court or tribunal of a Member State,”23that court or tribunal may if it deems it necessary for the purpose of ruling in the matter before it, “request” a ruling from the ECJ.24 Moreover: “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.25 The result of Article 234 is the development and application of Community law. Principly by virtue of Article 234, the ECJ by deciding cases by way of references rules on points of law and does not sit as an appellate court. In Foglia v Novella [1980) ECR 745 the ECJ ruled that it would only determine references arising out of genuine disputes and refused to accept a reference where a clause was inserted into a contract solely for the purpose of creating a legal challenge.26 In the case of Melicke v ADV/ORGA AG [1992] ECR I-4871 the ECJ refused a refence because it lacked specificity in the sense that the court was required to rule on a hypotheical bases. The ECJ ruled that it could not decide on the disputer because it did not have: “before it those elements of fact and national law necessary for it to provide a useful answer to the questions.”27 Barry’s case can be distinguished from the case of Melicke in that his case is not hypothetical. It involves an issue of community law which was previously decided by the ECJ and the ruling in his case appears to be in direct conflict with the ruling in that case. On that basis he has a case for which reference can be made under Article 234 of the EC Treaty. Article 234, paragraph 3 provides that the court or tribunal is only permitted to make a reference if it is necessary for them to make a decision. The case of Cilfit srl v Ministro della Sanita [1982] ECR 3415 provides some useful guidelines for the determination of necessity. It does so by defining what kinds of ruling will not necessarily require an Article 234 reference. For instance, it will not be necessary to invoke the jurisdiction of the ECJ for the construction of Community law if it is not relevant for the uiltimate determination of the case.28 This is not the case for Barry. The Accident Tribunal is not questioning the construction of Community law. It is claiming that the previous ruling by the ECJ was erroneous. It would appear that it is therefore absolutely necessary for Barry’s case to be referred to the ECJ. Barry’s case is one which the UK courts would typically refer to the ECJ. The courts in the UK take the position that only in cases where a material doubt exist should a matter be referred to the ECJ by way of reference.29 Moreover, a reference must be made if presiding court is one: “…against whose decision there is no judicial remedy under national law.”30 The Accident Tribunal’s ruling is final in that there are no appellate remedies, therefore Barry’s case has no judicial remedy under UK law and qualifies for referal as such. Bibliography Barnett, H. (2004) Constitutional & Administrative Law. Routledge Cavendish Caranta, R. (1993) “Governmental Liability after Francovich.” The Cambridge Law Journal, 52(2), 272-297. Chalmers, D. and Tomkins, A. (2007) European Union Public Law. Cambridge University Press Cilfit srl v Ministro della Sanita [1982] ECR 3415 Costa v ENEL [1964] ECR 585 Craig, P. and De Burca, G. (2007) EU Law, Text, Cases, and Materials. Oxford University Press Emmot v Minister for Social Welfare and the AG [1991] ECR 1000 European Communities Act 1972 Fairhurst, J. (2007) Law of the European Union. Longman, 6th Edition Foglia v Novella [1980) ECR 745 Foster v British Gas [1990] ECR 1-33313 Francovich and Bonifaci v Italy, [1991] ECR I-5357 Hartley, T. C. (2007) The Foundations of European Community Law: An Introduction to the Constitutional and Administrative Law of the European Community. Oxford University Press Lampinen, R. and Uusikyla, P. (2007) “Implementation Deficit – Why Member States do not Comply with EU Directives?” Scandinavian Political Studies, 21(3), 231-251 Publico Ministero v Ratti [1979] ECR 1629 R v International Stock Exchange, ex parte Else Ltd [1993] 2 CMLR 677 Treaty of Rome 1957 Van Duyn v Home Office [1974] ECR 1337. Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/82) [1963] ECR 1 Read More