The European Community Act - Essay Example

Jim and Bills right to remedies for personal injuries against the UK government under EC Law are secured by Section 2 of the European Community Act 1972. The European Community Act effectively incorporated EC law into UK law. Section 2 (1) provides that: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression enforceable Community right and similar expressions shall be read as referring to one to which this subsection applies.”1 Essentially, Section 2(1) ensures that in the event there is a conflict between EC law and UK law, the former prevails. In other words EC law confers upon Bill and Jim “directly enforceable laws” within the UK.2 It was also held in Van Gend en Loos v Nederlandse Administratie der Belastingen that the EC represents a “new legal order” which binds all Member States. 3 To this end, there are three systems of law within the EC that determine Bill and Jim’s right to take action against the UK for personal injuries incurred as a result of their failure to implement Directive 2007/15/EC by the due date. The three systems of law are primary legislation which encompasses EC Treaties, secondary legislation which are Directives and regulations and the third source of law is Decisions.4 Bill and Jim’s claim for personal injuries will fall under the application of secondary injuries since the claim is directly related to a Directive issued by the Council of Ministers and the European Parliament. Directives require official enactment by Member States but they are nonetheless binding on all Member States.5 In fact Article 249 of the Treaty of Rome 1957 provides that Directives are binding on all Member States “which it is addressed.”6 Although the UK has a discretion as to how to implement the Directive on the phasing out of chalkboard, the Directive remains applicable under UK law once the date for implementation passes. The fact that the UK’s safety regulations adequately deal with the main objectives of the Directive does not weaken the application of the Directive.7 In Publico Ministero v Ratti [1979] ECR it was held that as a result of Article 189 (now article 249) of the Treaty of Rome, regulations have the force of law in each Member State if the language of the regulation is “unconditional and sufficiently precise.”8 This ruling applies equally to Directives, since both are secondary legislation under EC law. Moreover, the European Court also ruled that both Regulations and Directives are binding if they are unconditional and were not vulnerable to of “judicial control.”9 The European Court went on to explain that a provision which related to 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”.10 Directive 2007/15/EC is straightforward in that it requires mandatory laws that effectively phase out the use of chalk by September 2008. There is nothing open to interpretation, in the sense that either the chalk is discontinued under law by that time. In this regard, the Directive does not contain language that is vulnerable to judicial control. Additionally, the Directive itself is intended to provide for health and safety at work in the educational arena. It will therefore be difficult for the UK to argue that the Directive was not implemented because it was justified on the grounds of public safety, public policy and/or public security. Health and safety at work go hand in hand with public policy and public security. The European Court’s ruling in Francovich and Bonifaci v Italy fortifies the strengths of unimplemented Directives and thereby further ensures that Jim and Bill have locus standi. In Francovich and Bonifaci v Italy it was established that individuals who suffered injury as a result of a Member State’s failure to implement a directive may pursue a claim against that Member State for damages arising out of that failure.11 Moreover the ruling in Van Gend en Loos v Nederlandse der Belastingen established the doctrine of “direct effect” which essentially confers upon Jim and Bill the right to sue the UK for losses arises out of the failure to implement the Directive. In this case the European court reasoned that Directives have direct application in the Member States because they make provision for “individual rights which national courts” are bound to protect.12 Bill may not take action against the private school that employs him, quite simply because the doctrine of direct effect only applies against governments and their agents. In other words, a claim cannot be lodged against a private citizen in the case of an unimplemented directive. The ruling in Francovich and Bonifaci v Italy however, will permit Bill to lodge a claim against the UK government, but not his private employer. Jim’s case is less onerous since he was employed by a government agent in the state run school. It was held in Foster v British Gas [1990] ECR 1-33313 a government agent was defined as an organization that is under state control or direction.13 As previously noted, unimplemented Directives may not be enforced against individuals this is not so in cases of ‘direct effect’ against the actual Member State. The rationale for this mandate was explained in Emmot v Minister for Social Welfare and the AG [1991]. The European Court explained that individuals and private citizens are not typically expected to know the law prior to its implementation as it is not law. Government and government organizatons are a different matter entirely. Generally, the Government is under a residual duty to implement the Directive in the first place and it would be unconscionable and entirely unfair to permit the Member State to benefit from its own failure to abide by an obligation imposed by law.14 It was held in Becker v Finanzamt Münster-Innenstadt (1982) ECR 53 that: “particularly in cases in which the Community authorities have, by means of a directive, placed Member States under-a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law.”15 It is of no consequence that the United Kingdom has its in place what it considers sufficient safety and health regulations to guard against the health hazards associated with the use of chalk. The UK courts will remain under a continuing duty to construct its preexisting health and safety provisions in such a way that it is consistent with the new Directive issued by the European Community. Sir Gordon Slynn explained that: “it is thus plain that where legislation is adopted to implement a directive, or consequent upon a Treaty obligation, national courts should seek so far as possible to construe the former in such a way as to comply with the latter.”16 In this regard, both Bill and Jim may file suit in the national courts of the UK who will in turn be required to give the unimplemented Directive its full effect. Based on the above discussion and the authorities cited, it is clear that the European Courts take the position that Member States, by joining the European Community have submitted to the jurisdiction of the European Courts. It therefore follows that Member States and the courts that sit within those States are bound by the primary and secondary sources of EC law. Not only are Member States bound to follow all of the sources of EC law, they are also required to make domestic provisions for implementation. Failure to do adhere to these mandates will not provide a loophole through which the offending Member State may escape. Moreover, the rights of individuals will be protected by reference to the Community laws. With this in mind, together with the law discussed in the preceding passages, Bill and Jim both have locus standi against the United Kingdom. Bibliography Becker v Finanzamt Münster-Innenstadt (1982) ECR 53 Emmot v Minister for Social Welfare and the AG [1991] ECR 1000 European Community Act 1972 Foster, Nigel. (2006) Blackstone’s EC Legislation. Oxford University Press. Foster v British Gas [1990] ECR 1-33313 Francovich and Bonifaci v Italy, [1991] ECR I-5357 Jowell, J. and Oliver, D. (2007) The Changing Constitution. Oxford University Press. Marshall v Southampton and South West Hampshire Area Health Authority [1986] IRLR 140 Publico Ministero v Ratti [1979] ECR 1629 Tillotson, J. and Foster, N. (2003) Text, Cases and Material on European Union Law. Routledge Cavendish 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 Read More