Law of the European Union - Essay Example

Law of the European Union Part A The common market was founded in the year 1957. Since then, only a few al reforms had occurred. Most of these reforms were aimed at the function and role of the European Parliament. In 1979, direct elections to the European Parliament were introduced. In 1987, the power of the European Parliament and its legislative decision – making processes were enhanced1. The powers of the European Parliament have increased, on account of successive European treaties, since 1979. These instruments have increased the power of the European Parliament in its decision – making procedures. Consequently, the European Parliament has gained sufficient power to be equal in power, with the European Council. The latter consists of representatives from the Member States2. The Amsterdam Treaty of 1993, served to further increase the power of the EP, in respect of its decision – making process. These reforms were initiated, in order to address democratic deficit in the law – making procedures of the European Commission. In 1993, the Maastricht Treaty was adopted, in the meeting of the Intergovernmental Conference. This Treaty is also known as the Treaty on European Union. It introduced the complex co – decision procedure and provided the right of veto to the European Parliament, which it can exercise, under certain circumstances3. In the 1996-1997 round of the Intergovernmental Conference, the issue of democratic deficit was once again taken up for discussion and it was decided to make efforts to address it. This meeting resulted in widespread reforms to various aspects of the European Community, and the role of the European Parliament was also discussed in this meeting. Moreover, these changes supplanted the decisions taken under the cooperation procedure, with the new and simplified system of co-decision procedure4. The European Parliament can now determine the drafting of EU budget and statutes. The EP has enacted the legislation relating to the free movement of persons, goods, services and capital within the EU. It has also acquired the power to enact laws that protect the environment and consumers. Furthermore, the European Parliament is empowered to approve or dismiss the European Commission5. Subsequent to the first direct elections in 1979, the European Parliament took up the onerous task of institutional reform. The purpose behind this initiative was to realise the dream of the founding members of the ECSC and the EEC. These founders had aimed at establishing an international entity that would truly represent the people of the continent in the international arena. It was also their vision to make the Union more democratic6. Direct elections to the European Parliament have resulted in a gradual but consistent enhancement of the power of the former. Parliament was seen to legislate, in a manner that depicted its equal status, in respect of the Council of Ministers of the EU. This trend was strengthened with the adoption of every new major treaty and the co – decision process7. This characteristic of the Parliament was seen to affect EU policy making, in almost every aspect. Consequently, the EU’s citizens have a greater voice, regarding the functioning of the EU. Furthermore, most of the new legislation of the Member States conforms to the provisions of European legislation. Parliament has expanded in size and at the same time, has acquired greater confidence and assertiveness8. For example, the Santer Commission was disbanded in 1999, as the Parliament had compelled the former to do so. A strengthened Parliament, endowed with the necessary power to enforce the required checks and balances, can improve the democratic legitimacy of the EU in general and the Parliament in particular9. The reforms and the treaties that were initiated in the 1980s and 1990s increased the power of the Parliament and enhanced its role in decision – making procedures. However, all these efforts were initiated, within the limits of the founding Treaties of the EC. The Spinelli draft established the basis for the proposed European Constitution, which resulted in the enactment of the Single Act10. It has been contended that the European Parliamentary elections, have a minimal bearing on the allocation of political power, within the EU. From their inception in 1979, these elections were deemed to be secondary national elections, in various studies. As such, these elections were unrelated to the domestic issues that voters were most likely to have concern for, in the context of their national politics11. The principle of separation of powers, the democratic principle and the principle of subsidiarity are fundamental constitutional principles, breached by the EU. The latter depicts an interest group bias, which can be explained by centralisation and democracy deficit12. The solution is to strengthen the Member States’ parliament role. In addition, there should be an inclusion of the domestic parliaments, in the legislative process of the EU. Part B In the context of the Member States of the EU, Community law is to prevail over the domestic legislation of the Member States. This constitutes the concept of supremacy of EC Law. In addition, the domestic law of a Member State is held to be subordinate to EC Law, if there is a conflict between these laws. There are a number of requirements that are imposed upon the Member States by Article 10 EC, and it is incumbent upon the Member States to fulfil these obligations. Furthermore, the ECJ, via its decisions, plays an extremely proactive role, in promoting and maintaining European integration13. In accordance with Article 249(3) EC, national law has to be interpreted, by the domestic courts; as per the wording of the relevant EC Directives. In instances, wherein a Directive specifically refers to domestic law, an exception to this duty is permitted. The objective behind this principle, in the context of interpreting national law, in such a way that it gives effect to the wording of an EC Directive, is to fulfil the purpose of Article 249 (3) EC14. The ECJ stated that Article 10 EC requires a Member State to undertake all measures necessary to implement EC Law, while avoiding initiatives that could hinder the achievement of the Treaty objectives15. The Treaty system of the EU incorporates the doctrine of State liability16 and “is governed by certain substantive EC law conditions.” In the Brasserie du Pêcheur17, case it was clearly shown that it was the plaintiff’s duty to establish that the Member State, in question, had been in serious breach of a provision of the EC law. Moreover such provision had to confer rights on individuals and the violation should have resulted in the loss. Furthermore, in the Dillenkofer18 case, it was clarified that these conditions were applicable to every type of EC law violation, committed by a Member State. The case law of the ECJ demonstrate that the rights of state employees and the rights of private employees are different when it comes to their enforcement. Although such differentiation is unfair, the ECJ states that it can be avoided only if the concerned Member State implements a Directive correctly, and transposes it into its domestic law. Hence,individuals can enforce Directives directly against the concerned Member State, if the latter fails to implement these Directives, correctly and within the prescribed time. The correct and timely implementation of Directives can prevent conflicts between them and domestic law. Moreover, the ECJ clearly stated that Directives lack horizontal direct effect. As such, they cannot impose any obligation on individuals19. Similarly the effectiveness of non-implemented or incorrectly-implemented directives that do not have direct effect through the horizontal limitation has been addressed through the doctrine of indirect effect, which emerged from Von Colson20. In this case the ECJ held that national courts are under an obligation to interpret their domestic law, so that it conforms to the objectives of the Directive, so that it is given some effect, despite the absence of proper domestic implementation. In this problem, the issue to be addressed is whether Emlyn has any remedy, in respect of the rights that he was deprived of due to the non implementation of the Directive by the UK government. He had been employed by E – Power, a utility company. In the Foster case, it was held that companies in the utility sector were to be regarded as belonging to the public sector. Therefore, E – Power is to be considered public. In Foster, the ECJ expanded the meaning of the term public, in order to encompass private companies and organisations in the utilities sector. This decision further extended the applicable area of the EC Directives. The ECJ also held that the duty of the national courts was to interpret and apply their domestic law, in the light of EU Law, and that such application should not be in violation of EU Law21. In the cases of Francovich22, von Colson23, and Marleasing24, the ECJ held that individuals could claim damages against Member States, if the latter failed to implement the EC Directives properly and within the specified time. Individuals, who suffered loss, on account of non – implementation or improper implementation of Directives by Member States, were entitled to claim compensation for the losses they had incurred, from that Member State. In accordance with the Francovich Principle, Emlyn can proceed against the UK government to implement the Directive. Moreover, the UK government is liable for damages to Emlyn. In addition, Emlyn can claim redressal under the principle of vertical direct effect against his employer, E – Power. With the decision in the Van Gend en Loos case, the term Direct effect assumed great significance. In order to establish Direct effect, with regard to primary EU Law, the pertinent provision should be stated in an unambiguous manner; and it should be explicit. Moreover, such provision should provide an incontrovertible right25. The European Court of Justice has enforced the doctrine of direct effect in the case of Commission v Italy. It stated that the Member States should not attempt to modify the requirements of a Regulation issued by the Community26. In Duke v GEC Reliance, the plaintiff, Mrs. Duke could not invoke the Equal Treatment Directive, in her claim against the defendant company. The Court held that she could not rely on this Directive, since the employer was a private entity27. In Paola Faccini Dori v Recreb srl, the contention was regarding the failure of the Italian Government to implement a Directive relating to consumer rights. It was held by the ECJ that the plaintiff, Dori could not rely on the Directive to claim a right of cancelation, in respect of her contract with the defendant .Moreover, the Court refused to extend the application of the doctrine of direct effect to matters that had transpired between individuals28. In the Marshall case, the ECJ held that the Equal Treatment Directive was applicable to both men and women. Therefore, a company could not require its women employees to retire from service, prior to its male employees29. In P v S and Cornwall County Council, the defendant had dismissed the employee after the gender change operation. The European Court of Human Rights stated that the dismissal of an employee on the basis of gender change was in breach of the EC’s Equal Treatment Directive30. The European Construction is unsurpassed as a legal construct. It is a fact that considerable diversity exists, between the Member States of the EU. There is a significant absence of mutual trust between the Member States, and as a consequence, it is indispensable to have in place, unambiguous and comprehensive rules to administer the dealings between them. Emlyn can approach the County court for redressal. The options at his disposal are: first, he can resort to the principle of vertical direct effect for redressal against his employer, which can be deemed to be a public entity, because it is part and parcel of the utilities sector. He can do so, in accordance with the case law developed by the ECJ. Second, he can claim damages from the United Kingdom, on the basis of the principle of State liability, for non- implementation of the Directive. Specifically, he can rely on the decision in Francovich. Finally, he can approach the ECJ to take measures for the proper implementation of the Directive. List of References Case 39/72, Commission v. Italy (1973) ECR 101 C-91/92 Paola Faccini Dori v. Recreb Srl. [1994] ECR I-3325 Case 14/83, Von Colson v Land Nordrhein- Westfalen (1984) ECR 295 Case 152/84 Marshall v Southampton and SW Hants Health (No1) [1986] ECR 723 C-188/89 Foster v British Gas Plc (1991) ICR 84 C 14/83 von Colson (1984) ECR 1891 C-106/89 Marleasing SA v La Comercial Internacional 1992 C-13/94 P v S and Cornwall County Council (1996) ICR 795 Case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] Cases C-6, C-9/90 Francovich and Bonifaci v Italy, [1991] ECR I-5357 Cases C-46 & 48/93, Brasserie du Pêcheur SA v Germany and R. v Secretary of State for Transport ex parte Factortame Ltd. and others (Factortame III), [1996] ECR I-1029 Cases C-178, 179, 188-190/94, Dillenkofer and others v Germany, [1996] ECR I-4845 Duke v. GEC Reliance Ltd., (1988) AC 618 European Elections: Outlook for 2009, 1 August 2008, retrieved 15 January 2009, from http://www.euractiv.com/en/eu-elections/european-elections-outlook-2009/article-174694 Harmonisation, retrieved 16 January 2010 from http://www.euro-know.org/europages/dictionary/h.html Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v Italian Republic (1991) ECR I-5357 Margot Horspool and Matthew Humphreys, 2006, ‘European Union Law’, Oxford University Press, P 167 Olivier Duhamel, Committee on Constitutional Affairs, 12 October 2000, ‘Report on the constitutionalisation of the Treaties (2000/2160(INI))’, retrieved 15 January 2010 from http://www.europarl.europa.eu/igc2000/offdoc/pdf/repa50289_en.pdf Paul P. Craig & Grainne De Burca, 2007, ‘EU law: text, cases, and materials’, Oxford University Press, ISBN: 0199273898, 9780199273898, P. 268. Peter Rott, ‘What is the Role of the ECJ in EC Private Law? - A Comment on the ECJ judgments in Océano Grupo, Freiburger Kommunalbauten, Leitner and Veedfald’ (2005) 1(1) Hanse Law Review 6, 8. Roland Vaubel, The constitutional reform of the European Union, European Economic Review, Volume 41, Issues 3 – 5, April 1997, P 443 The European Parliament, July 2009, Retrieved 15 January 2010, from http://www.europarl.europa.eu/pdf/welcome_brochures/for_you/working_for_you_en.pdf Vaughne Miller, 20 May 1999, ‘Institutional Reform in the European Union’, retrieved 15 January 2010 from http://www.parliament.uk/commons/lib/research/rp99/rp99-054.pdf Wouter van der Brug, Mark Franklin and Gábor Tóka, Electoral Studies, Volume 27, Issue 4, December 2008, P 590. Read More