The Case Laws in the European Court - Essay Example

?I. Introduction The case laws in the European court have remain an indispensable source of jurisprudence and application of fundamental community law doctrines, as many of them cannot be found in Treaties as well as in EC legislations. However, several holes remained open especially on the lack of expressed provisions as to the hierarchy of power between community laws and the diverse national laws in each Member States. According to Article 101 of the Treaty of European Union, there is a duty imposed in every Member State to adopt necessary evaluations and regulations in order to make sure that provisions in the Treaty are well imposed along with the incidental duty of avoiding any acts and implementing any laws that will jeopardize the realization of the objectives of the Treaty. To preserve such provision, the European Court of Justice was established. When it comes to the application of competition law amongst the different facets of European healthcare, the view of lawyers are at odds. At one end of the gamut, many are apprehensive of its general applicability in the local laws while on the other hand, some argued that these laws fit perfectly in the health care scene. An area of focus is the difference of health care against the other sectors of the European economy. When the primary goal is protecting the patient and meeting their needs in the workforce, then modifications in their applicability is one way of bridging the gap. For example, hospitals must not attempt to put profit gain before service to the public; hence the imperatives of the free market do not directly affect them. II. Health safeguards in the I.T workforce A. First Scenario Assuming that an EU regulation provides for a 5-minute break of employees working with computers at two hour intervals throughout the working day; however, UK laws lack such provision. The area of interest now would be the rights of an employer against an employee, after she developed migraine attacks resulting from her constant use of computer, as required from her job. The Van Gend en Loos vs. Neatherland2 2established dual vigilance used to enforce the directives of the European law with every Member State. As a brief background, Van Gend en Loos was a shipping company that imports ureaformaldehyde to Holland with duty charged by the customs services. Thinking such as a clear violation of the former Article 12 EC (Article 25 EC) on the common market, the company asked for reimbursements. However, the Dutch court claimed lack of jurisdiction, since the law is not Dutch. Now, with reference to Article 177 EC (Article 234 EC), the company brought the case to the European Court of Justice citing that the Dutch court erred in its non-application of the EC laws33. In its decision, the ECJ said that the nature of the EEC treaty on common market implies that the treaty itself does not only laid down a blanket of mutual obligations between the States involved but at the same time, it functions and acts directly to the concerns of the parties in interest. It even added, in relevance to the effect of the treaty, the specific article (Article 12) is to be construed as having direct effects and thus producing individual state rights that every nation ought to protect4. As a conclusion from the case at bar, from the establishment of the signatory states of the international European laws, then the states have effectively limited their sovereign rights – therefore creating a new legal order in these countries. However, in the thin scope of rights, the subjects are not only the states as well as the citizens and nationals. In short, these laws do not only enforce obligations to member states and it citizens but more importantly, it provides a set of rights that will be part of their legal heritage5. Based from the course of action taken by VGL above, the same can be used in order to secure her rights against UK’s (assuming) lack of implementing rules and guidelines of the established law regulation. However, it is to be taken as a consideration that even of the Van Gend en Loos vs. Neatherland case resulted in a system in international law that has never existed before, the resolution of the case never came into being. Instead, what the ECJ concluded is for the Dutch government to improve on their national laws6. B. Second Scenario Assuming that another EU regulation provides that all employees who work with computers should have annual health checks, the cost of which is to be bourne by their employers, effective on January 2010 and a UK statute was passed on November 28th 2009 that implemented the directive. However, the statute says that only employees who work with computers for more than seven hours every day will be entitled to health checks at the expense of their employers. Resolve the case of Doreen, who is a part-time worker for 5 hours a day at the NHS hospital and who developed a severe condition on her lower back presumably from her hospital work and was never given by health checks by her employer. Would it make any difference if Doreen were employed by a private nursing home? Following the line of the principle in European Union Law known as the direct effect, it cleverly points out provisions in the Union Law creates rights and imposes obligations which the members of the European Union State are bound to implement, such was established in the landmark proceedings of Van Gend en Loos vs. Nederlandse Adminitratie der Belastigen. Criteria have been created before the concept of “direct effect’ can be applied to a provision. First, the national provision must be sufficiently clear and stated; second, it should be unconditional and lastly, it must bestow a specific right to the citizen where the claim of rights can be claimed from. With regards to the action for Doreen, the situation has laid in herself the criteria for “direct effect” which are the regulations supplied by the UK statute that is non-dependent to the EU regulations where the claims of Doreen can be given remedy. However, an EU law determines whether particular measures is satisfied and determined by the EU courts. However, there are considerations that needed to be looked into. In reference to Article 189 of the EEC, it is also a principle in the treaty that the obligations imposed by the treaty cannot be relied on by the parties at interest. As a result, it can be deduced that any member state who did not adopt the implementing rules and regulations during the period stipulated may not plead, to any concerned party, its own failure in the fulfillment of the directive. In order to reconcile this, there are several constructions to the provisions of Article 189 of the EEC. The community directive may in itself, do not impose obligations to an individual such that it may not be relied upon such against a particular person, hence it is vital to identify whether or not Doreen’s company acted as an individual. In the case of Pubblico Minister vs. Ratti (148/78, 19179), when there is a failure of the member state to put into practice in terms of national law the provisions set in the community law in proper time, then there is a likelihood of relying into the sufficiently and specific provisions of a directive against the non-implementing member state. At this level, the principle of can be largely interpreted such that, the failure to act can also be relied by individuals against the member state apart from the competence of the state to act upon, may it be in its capacity as an employer or as a public authority, hence it can also be relied on by interested or aggrieved party to local authorities and parties which are responsible for the non-implementation of the law. However, it must be keep in mind, that these institutions cannot be faulted for the failure of the national government to enact laws, hence, the proper sequence of action must be directed to the national legislation (or state legislation) to have the directives of the community laws in which they are signatories translated and applied in their country7. With regards to the question with the applicability of the retroactivity of the laws if Doreen was working in a private institution can be qualified based on the standards set forth in the Foster test. According to the guidelines that was institutionalizes in the Foster et. al. vs. British Gas, three situations must concur in order to determine liability of the agents of the “state”, namely (a) a public function in behalf of the state; (b) control of the state, which may not be complete; (c) and special powers. The issue of the retroactivity and applicability in this scenario falls greatly under the second doctrine set in the Foster test, however, the Court has set that in the language of the laws, the degree of control and ownership by the government is immaterial for the relationship is not one-way in nature, rather there is a compulsion by the government for every individual to a certain national law through the creation of national laws and at the same time, aggrieved party or anyone with interest can raise the same level of compliance to the government for the implementation of community laws. Therefore, I would conclude the same course of action can be resorted to by Doreen that is, to have the private institution perform its obligations according to the community laws which can only be done if the State is made to compel by her (as a private individual) for the implementing laws and regulations or directives set in the community laws through legislation. C. Third Scenario For the third case, assume that in 2007 a UK statute was passed ensuring that all computers supplied in the UK should have protective glass on monitors to prevent harmful radiation from affecting its users. This was followed by an EC directive stipulating that the protective glass on every computer should be at least 2 centimetres thick. However, the directive was not yet been implemented despite overdue. Resolved the liability of Nerd Limited and the rights of Anne under EU laws, after the former sold to her a computer with a 1 centimetre thick protective glass. When it comes to the third situation involved, expressions in Article 189 is clear. Any aggrieved party, as deduced can go against any independent authority that failed to implement the directives held by the governing community or national laws88. III. Conclusion In the scenarios above, the applicability of the Foster test and the reliance on the criteria on when a public body into the concept of state in order to site liability and damages can be used. First of all, let us look into the concept of “state”. In the following case, the court gave the term ‘state” as a whole new concept that goes outside ‘personal default” based on different circumstances. In several areas of rights, the courts concept of “state’ includes administrative authorities and those whose power and function are also delegated by the central authority. However, we have to understand that these administrative powers are not at all time attuned with legal situation; therefore a court action must be initiated since it is in their discretion to pronounce such. Let us take for example in the health care industry which is related to the scenarios above – Article 5(1) of the Directive 76/207/EEC which directs the local hospitals citing them as agents in the “Ministry of Health”, however the failure of the legislature in a particular state to implement community law will not make these agents of the ‘state” liable and responsible for any affected or aggrieved party. In court construction, the Foster test is satisfied when the “agent of state” is performing the following factors in concurrence: (a) a public function in behalf of the state; (b) control of the state, which may not be wholly; (c) and special powers. The first criteria encompass public corporations, such as the hospital or private owned health care facilities such as in Scenario 1 and 2; the nature of their work covers public concerns. In reference to the criteria as well, there may be questions as to the extent of the control and administration of the State on these private companies and administrations, whether or not, 100% or majority – this was resolved by the commission by stating that delineating the difference between state-owned corporations and nationalized undertaking is irrelevant since in the first place the state can compel an individual through a legislation and at the same time a party with legal standing can compel the state the same. Rather, what should be the center on our construction of the following criteria is how control should be understood as control. Lastly, the economic environment must be taken into great deal with regards to the court’s prudence over the matter. Read More