Individual Stake in the European Community - Assignment Example

Individual stake in the European Community Introduction: The principles establishing the European Treaty have generated ambiguity since there is no clear demarcation of the powers of the Member States vis a vis the European Community. As a result, the European Court of Justice has been forced to play an active role in setting out the rights of individuals belonging to particular member States whose rights under Community laws may have been infringed. Since the aims and objectives of the EU Treaty have been to bring justice to every European citizen, the ECJ has had to play a role in cases where national laws have conflicted with the laws of the European Community. In particular, the judicial activisim of the ECJ may be noted in cases such as Van Gend en loos and Defrenne v Sabrena where the doctrine of vertical and horizontal Direct effect were mooted, as a result of which national laws have been subordinated to EU community law. Subsidiarity and Direct Effect: Subsidiarity is the principle of establishment of the EU Treaty in which the European Community jurisdiction as not to extend into national law, but only into conflicts in certain areas where both community and member states enjoyed equal jurisdiction, in which case precedence for EU law was to be allowed. However, the judicial activism of the ECJ has produced the subordination of the subsidiarity principle upon which the Treaty was initially conceived to placate member States who felt that power was slipping away from national levels to European levels (Estella, 2002). The net result is that there are now no areas that may be designated as off limits to Community law, which has achieved a position of supremacy over national law (Weatherill, 2005). The decision of the European Court of Justice in the case of Van Gend en Loos1 was notable in establishing the direct effect doctrine, wherein the Court ruled that the protection of EU law applied to individuals as well as member states. As per the precedents established in cases such as Van Gend en loos, European regulations that have been framed in accordance with the provisions of the new European treaties have a direct effect upon all citizens of the European Union and on the laws that are made by the member states of the Union. This principle was first laid out by the European Court of Justice in the case of Van Gend en Loos v Nederlanse Administratie der Belastingen1. In this case, the Treaty of Rome was at issue and the ECJ ruled that individuals could take action against a State for breaching EU rules, since the new treaty grants rights and imposes obligations on individuals. According to the ruling laid out in this case, European Community regulations were also valid when tried in the national courts, because the regulations were similar to the national laws in that they had a similar effect upon an individual’s rights and responsibilities. Therefore in effect, the Court has ruled that a new legal order has been created. The Direct Effect creates individual rights which the domestic courts must protect without needing to resort to the States concerned, since EU law takes precedence. This is known as the “vertical direct effect” of Treaty articles. As a result, irrespective of the scope of national laws of member States, individual rights guaranteed under EU laws can be availed of by individuals and Member states will be obliged to subordinate national laws to favor the upholding of individual rights. A “horizontal direct effect” was laid out in the case of Defrenne vs Sabena2, wherein provisions of EU law were directly applicable in a domestic court, in proceedings by an individual against a Company. As a result, EU laws will hold good to support the rights of individuals even in the case of organizations located within the Member State rather than merely the Government. Defrenne v Sabena was a case concerning the issue of sex discrimination, where it was held that national courts have a duty to protect the right to equal pay for men and women enshrined in EU law. Article 39(2) of the EU Treaty specifically addresses discrimination in treatment meted out to workers and mandates the “abolition of any discrimination on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment.” No discrimination in the field of work is to be practiced by any Member State against its individuals, as also spelt out in the Ugliola case.3 Similarly, Regulation 1612/68 of EU law for example, specifically states that there must be parity in the “social and tax advantages”4 available to workers in all Member States, while Article 141 mandates equal pay for equal work, even if workers are part time. Thse provisions of EU law will apply, irrespective of the national laws prevailing in the Member States and individuals can directly approach the European Court of Jusitce when their rights under EU law are violated. Similarly, in the case of Commission v United Kingdom5 the ECJ held to mandatory for the UK to ensure that workers are informed, consulted and empowered through a system of worker representation in accordance with EU laws thereby overriding national law, since no such provision existed in the UK. Another remarkable instance of the overriding of UK national law was that of Marshall v Southampton and South West area Health authority (No: 2)6 which abolished the limits that existed in UK law on compensation in sex discrimination suits. Individual rights: From the above cases, it may be seen that the judicial activism of the ECJ has highlighted individual rights, even in instances where it overrides the rights of the Mmber States. The creation of the European Commonwealth has raised the issue of federalisation of the member states wherein the distribution of powers between the federal and state powers is an issue. The EU has framed a set of laws and regulations and has provided for their enforcement7 wherein a “public enforcement mechanism” is called for. However, this was found to be inadequate to involve EU citizens and their national courts in the need to frame legislation and implement measures that would be compatible with the “new legal order” that would hold good for all member states. (Craig 1992).Therefore it has introduced the “EC Judicial Liability System” (Snyder 1993) in order to ensure that an individual will always have recourse to remedies under EU law. The net objective of the direct effect is one which empowers the individual and permits him/her to sue for enforcement of his rights granted to him through EU law, by superseding national law when necessary. The principle of individual judicial protection may also be noted the case of Johnston v Chief Constable8. This confirms the existence of an autonomous and separate framework for EU law (Ross 1993). Through the Direct Effect of EU Directives, EU law emphasizes the principle that state rights are subordinate to individual rights granted by EU law. Moreover, EU Directives are alwys superior as compared to national laws and will enjoy precedence in the event of any dispute. The case of Francovich and Bonifaci has introduced the principle of State liability9, however the Direct Effect has created a situation where the degree of state liability is associated with the provisions of the European Directive in question. For example in Brasserie du Pêcheur SA v Germany10 and RV exparte11, it was established that the plaintiff has to show that the State’s breach of EU Directives intending to confer certain rights on individuals, was serious enough to merit a breach of EU law and that the degree of losses suffered by him was correspondingly substantial. Therefore, to some degree, these cases serve to establish the fact that the importance accorded to individual rights under EU law is not necessarily unilateral, but will depend upon the circumstances of each individual case. In other cases such as Dillenkofer and Others v Germany12, it was determined that the rule requiring Plaintiff to show due cause will apply to all such breaches of EU law by the State. But these conditions apply only in the case of Directives where the State enjoys a greater latitude of power, or where a greater amount of flexibility has been provided to the States in the implementation of a Directive or EU Regulation or law. On the other hand, in certain cases, where the State enjoys little flexibility in the implementation of a Directive, an individual Plaintiff will be able to easily establish that a serious breach of EU law has occurred, without the necessity to provide extra proof, such as for example in the case of R v Ministry of Agriculture.13 Although the Court declared in the case of Brasserie du Pêcheur SA v Germany that compensation is to be made in “accordance with the domestic rules on liability”14 the principles of equivalence and effectiveness associated with the Direct Effect on EU Directives have often meant that EU law fails to recognize the boundaries of national law. Conflicts posed with national laws: The greatest difficulty that has arisen through the implementation of the Direct Effect lies in the encroachment of EU Law on national laws. This has produced a situation whereby the aims of the Commonwealth - which are an equitable framework of laws applicable to all EU citizens – are often an anathema to the nations that the individuals live in and are a threat to the preservation of equitable levels of national controls. The degree of confusion and congestion to the national law that has been created by the Direct Effect is the most contested and disputed issue The case of Francovich15 established liability that would rest upon a Member State for the infringement of individual rights. Since then, a succession of cases16 have extended the principle of Member State liability to cover other instances of infringement of individual rights that could reasonably have been foreseen by the State. Application of national law where individual rights may be violated, will be limited by the obligation of the Member States to implement the EU Directives.17 Therefore, the doctrine of supremacy of EU law means that state liability may be incurred regardless of which administrative section or body was responsible for the breach, with the overriding factor being whether or not individual rights guaranteed under EU law have been breached. (Craig and deBurca, 2003:262). This was also the position taken by the ECJ in the cases of Factorame II and Brasserie cited before. In the case of Factorame III, the point at issue were the provisions of Part II of the Merchant Shipping Act of 1988, which spelt out conditions relating to the nationality, domicile, etc of fishing vessels registered within the United Kingdom and were deemed to be in violation of Article 52 of the EC Treaty. Therefore, the first condition of the qualification of the national law as breaching the rights of the individuals operating the fishing vessels, as endowed by the Treaty, was established. The UK legislature enjoyed a wide scope of discretionary power in the implementation of its powers in reference to the registration of vessels. The ECJ held that this discretionary power had been seriously disregarded. Preceding case law drawn upon by the ECJ in arriving at its decision was the case of Commission v United Kingdom.18 In both Brasserie and Factorame, the Courts were prevented by their own laws from awarding damages to the individuals in question, however through the supremacy of individual rights under EU law, the national laws preventing such relief were overridden. (Craig 1997). Such overriding of national law has affected the application of internal laws within each of the European member States. By virtue of the Direct Effect, member States are now obligated to comply with Community Law as it has been framed according to European laws within the framework of their own internal laws. In fact, no room has been left for partial measures or partial implementation. In the case of Commission vs UK19, the ECJ stated that EU regulations were binding upon the member States “in their entirety” and they also stated that “a member state cannot choose to implement them piecemeal.” This unequivocally establishes the supremacy of EU law, particularly where the rights of individuals are concerned. Moreover, because of the direct effect, the European Court of Justice can further influence the framework of internal law of a member state by ordering that State to change its laws in the event that a noncomplianace with the European regulations is found20. Procedural rules of member states also apply to cases falling within the purview of EU law, which will be govered by the degree of its equivalence with EU law and the effectiveness of the law21. Although member states have the freedom to interpret and apply their own procedural laws, they must be implemented in accordance with the pricniples of equivalence and effectiveness and will have to accord due importance to individual rights. Conclusions: On the basis of the above, it is therefore clear that EU law has mandated the supremacy of individual rights, which in some cases, has resulted in a conflict of EU law with the laws of Member States. There is also a difference that has been spelt out wherein EU member states and/or their citizens can be sued in European courts for violating the EU regulations. The concept of Direct Effect is therefore mooted in the supremacy of European law22. Directives are said to be policy decisions, regulations or recommendations that are to be followed by the member states. The Directives were framed to address the inadequacies in the ECSC treaty and these Directives are the instruments through which community European law may encroach on domestic law. Therefore through the Direct Effect, if European law has a direct effect on national law, then individuals will have rights and be granted justice according to the terms of European law rather than the national laws. In order for the Direct Effect of EC law to be operational, the law must be a treaty article or directive and it must also confer certain rights upon individuals.23 Thus international law confers applicability of EU law on a community wide basis irrespective of national laws and do not need to be transposed into national law for them to become effective. The direct effect can apply to directives, subject to certain limitations – (a) the text of the Directive must not be vague or ambiguous (b) they are subject to an implementation period. Thus, an individual who claims certain remedies from the Law on the basis of a European directive must rely upon one whose text is not ambiguous and the directives should have been implemented in order to be effective. In the case of Re Flynn24 for example, it was held that the provisions of an EU treaty could not be directly effective because it was limited by the failure to meet the requirements set out above. However, failure to implement cannot per se qualify and therefore, the European Directive supersedes a national law, because the equity argument ensures that the failure of a state to implement a Directive will not negate its effect. In fact, in the case of Francovich and Bonifachi25, the States were asked to make reparation to individuals for the violation of the EC treaties. While this is a laudable effort to maintain and enhace individual rights, it creates a conflict and clash with national laws, which in some cases may render them ineffective. EC law relies upon the provisions of national laws in order to enforce its provisions on a state by state basis, however, through the introduction of the Direct Effect on Directives of the EU, has created a situation where the conduct of national authorities is being subjected to the control of the EU, thereby creating an untenable position. It is forcing national law enforcers and judicial authorities to re-evaluate the prosecution of State authorities under national law, which would normally not be possible but are mandated under the enhanced proviso of the Direct effect on the EU Directives which pertain to domestic policies that are to be adopted by all member states. The supremacy of Community law over national law, especially where the provisions of the EC Treaty according rights to individuals are breached, has been established by all these cases and is contrary to the original intent of subsidiarity to empower member States (Barner 2005), thereby clarifying the guarded response to supremacy by member States. Moreover, the supremacy accorded by the judicial activism of the ECJ to the upholding of individual rights further establishes the supremacy of EU law as compared to the laws of the Member States. Through the concept of Direct Effect, which has been enforced by the ECJ both as the vertical direct effect and the horizontal direct effect, it has become mandatory for member states to give effect to the individual rights that are ensured under EU law, irrespective of whether or not such provisions exist within the framework of their own national laws. Such individual rights cover a wide range of areas, such as the rights of workers to move freely within the European Union, the right to be protected against discrimination, the right to enjoy equal pay for equal work and a variety of other rights and freedoms guaranteed under EU law. The status of an individual as a European citizen eligible for EU rights therefore supersedes any limitations on his/her rights within the framework of national laws. The cases discussed above have also demonstrated the difficulties that some States have experienced in carrying out the activist decisions of the ECJ, within the provisions of their own legal framework. Moreover the EU Treaty was originally set up in such a manner that certain areas were specifically within the jurisdiction of the States. However through the activist role that the ECJ has employed in enforcing the rights of individuals, not only through the Direct Effect but also through the mandatory compliance required by the States to the Directives, the supremacy of EU law now remains unquestioned. Bibliography * Barmer, N.W, 2005 . “The limited modesty of subsidiarity” . European Law Journal, 11(3), pp 308-325 * Craig, P (1992. ) “Once Upon a Time in the West : Direct Effect and the Federalisation of EEC law”. 12 Oxford Journal of Legal Studies 453 * Craig, Paul P, 1997. “Once more unto the breach: the Community, the State and Damages Liability” Law Quarterly Review 113, pp 67-94. * Craig, Paul and de Búrca, Grainne 2003. “EU Law: Text, Cases and Materials” (3rd ed.) Oxford: Oxford University Press, at pp 262. * “Direct Effect: Sorting out the confusions.” [Online] Available at: http://www.learnedcounsel.com/de.htm * Estella, A, 2002. “The EU Principle of Subsidiarity and its Critique.” Oxford University Press, at Chapter 3 * Ross, M (1993) “Beyond Francovich”. 56 Modern Law Review 55. * Snyder, F (1993) “The Effectiveness of European Community Law : Institutions, Processes, Tools and Techniques”. 56 Modern Law Review 19. * Weatherill, Stephen, Better Competence Monitoring, European law review, 30(1), 2005, pp 23-41 * www.learned counsel.com. * Andrea Francovich and Danila Bonifaci and others v Italian Republic, Joined Cases C-6/90 and C-9/90, European Court Reports 1991 page I-05357. * Commission v United Kingdom, Case C-382/92 and Case C-383/92) (1994) * Case 128/78 Commission v UK (1979) ECR 419 * Case C-246/89R Commission v UK (1989) ECR 3125 * Case no: 45/76 Comet v Produktschap (1976) ECR 2043. * Case C-5/94 R v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd, The Times, June 6, 1996 * Cases C-178, 179, 188-190/94, Dillenkofer and others v Germany, [1996] ECR I-4845, para 23 * Case C-5/94, R. v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas, [1996] ECR I-2553, para 28. * Cases C-46 & 48/93, Brasserie du Pêcheur SA v Germany * Defrenne v Sabena [1976] ICR 547, ECJ Case 43/75 (April 8th 1976). * Johnston v Chief Constable of the RUC (1986) ECR 1651, para 18-19 * Marshall v Southampton and South West area Health authority (No: 2) Case C-271/91 (1993) * R v H.M.Treasury, ex parte British telecommunications Case C-392/93 * R. v Secretary of State for Transport ex parte Factortame Ltd. and others (Factortame III), [1996] ECR I-1029, para 51 * Ugliola Case 15/69 (1969) ECR 63 * Van Gend en Loos v Nederlanse Administratie der Belastingen : 1963 ECR Read More