European Union Laws - Essay Example

EUROPEAN UNION LAWS Question Under the European Union (EU) laws, a directive is an instrument, directing its Member Countries to perform wholly, the instructions mentioned in the said Directive and this shall be binding and mandatory on such Member States. Directives issued by EU need to be enforced by Member countries; there are seemingly no escapes, however, its modalities and modus operandi are subject matters to be decided by its National Courts and law makers. Norms of enforcement: However, what is important is that directives cannot be ignored, brushed aside or partially enforced by Member States, nor any compromises made on its practical implementation. The conditions that govern these directives in these cases are as follows: (1) Both Directives 2006/2001 (Chemical ABC) and Directives 2006/2002 (Chemical XYZ) need to be implemented by July 31st 2008. (2) The said Directives limits the upper confines (maximum) of each chemical constituient in parts per million (PPM) that could be allowed as effluents from plants. (3) These also require that Compulsory Testing management be effected by each Member State to observe compliance within maximum allowable limits of chemical composition in effluents. In this connection, in the Case of Commission of European Communities v. Council of the European Communities implications of Case C-155/91, the legal basis of the Directive on waste disposal was delineated. (Judgment of the Court of 17 March: Commission of the European Communities v Council of the European Communities). Directive 91/156 of the European Economic Community (EEC): Under Directive 91/156 of the European Economic Community (EEC) Treaty, it is necessary that member states need to promote the curtailment or reduction of waste produce without causing detriment to the surrounding environment “without endangering human health and without harming the environment and to prohibit the abandonment, dumping and uncontrolled disposal of waste. “ (Articles 3 and 4). Eurlex: judgement of the Court of 17 March 1993: Commission of the European Community v. Council of the European Communities: Directives on waste – legal basis Again, Article 226 of the EC Treaty lays down that a Member State having been unable to perform a directive as stipulated under this treaty, it shall forward its reasoning after giving the accountable State an opportunity to submit its opinions on such directives. However, “If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.” (Treaty Establishing The European Atomic Energy Community (E.A.E.C-Euratom) Title Three- Provision Governing The Institutions , Chapter 1: The Institutions Of The Community, Section IV, The Court Of Justice , Article 141). Therefore, under EU laws it is possible for party to “lodge a complaint with the Commission against a Member State for any measure (law, regulation or administrative action) or practice attributable to a Member State which they consider incompatible with a provision or a principle of Community law.” (Exercise Your Rights. (2008). Conditions of direct effect of directives: Therefore considering the First part of the question, it could be well within the prerogatives of EU laws for the members of the gardening club (directly affected) and the local residents (indirectly affected) to bring action against UK government for violation of deemed European Commission directives. According to conditions of direct effect of directives: 1. The clauses of the wordings need to be clear and cogent. This has been satisfied by Directives 2006/2001 (Chemical ABC) and Directives 2006/2002(Chemical XYZ) 2. The responsibilities that it imposes should be sans conditions. (The Directives do not have any pre-conditions, except that of implementation and upper limits 3. It need not be dependent on further actions on the part of the State, or community. (The matter of deciding to implement National laws lies with the member state and its parliament 4. The association between claimant and defendant should be direct. (This is evident in this case) The aspect of waste management has been elucidated in the C-387/97 Commission v. Greece (Waste Disposal)(1993). Further, in answer to part 1 of the question it could be said that it is well within the powers of individuals, who have been affected either directly or indirectly to file a suit against the UK government for alleged non-implementation of the Directive 2006/2001 (Chemical ABC) and Directives 2006/2002(Chemical XYZ) Compulsory testing regime: Coming to the second part of the question it is seen that UK has implemented Directive 2006/2002 within the time limit, July 31st 2008, but the new laws do not envisage establishment of compulsory testing regime as required in the directive, but seeks individual users of Chemical XYZ to implement it at their volition. While the EU has determined the directive in principle, it has left the modalities and modus operandi of implementation and execution of the directive on individual states. Thus it is incumbent on individual states to frame laws and regulations that would provide environment settings for enforcement of laws executed in individual cases, and for taking appropriate steps for non compliance. The modus operandi would be for National governments to implement laws seeking the total implementation of EC directives The national laws need also incorporate the mandatory testing regime to be decided whether the government needs to carry out the testing or powers have been vested with individuals or corporate to device their own testing devices. This is left to the discretion of national governments and lawmakers. Van Gend en Loos Test: However, the question of exertion of individual rights under EC laws is a subject matter of jurisprudential discretion. This issue was first called upon in the case of Van Gend en Loos v Nederlandse Administratie der Belastingen ((Case 26/62) [1963] ECR 1). (Law Essay. 2008). In this case the matter arouse whether Article 12, had a direct effect or in other words, could be extended to protect and enforce individual right under EC directives. It was seen that once the situation are satisfied it is possible to do so. However, to create direct effects it was held that the stipulation had to be (i) lucid, (ii) unrestricted and (iii) needing no further legislation by Member State. In other words, if the terms are met, enunciated in Van Gend en Loos, it is seen that individuals could bring action against the government for breach of obligations under EC laws. “This Treaty is more than an agreement creating only mutual obligations between the contracting parties … Community law … not only imposes obligations on individuals but also confers on them legal rights.” (Law Essay. 2008). Amend existing laws or introduce fresh laws to avoid penal action: Therefore, prima facie, it appears that it was obligatory on the part of UK Government to enforce compulsory testing norms, either directly or indirectly. Since this has not been done, necessary amendments need to be made by UK law makers, either to amend waste management laws accommodating testing regime, or to issue fresh laws cancelling the earlier laws and drafting fresh laws taking into account the testing laws. It is seen that the UK Company runs grave risk of action from the EC for alleged non compliance of chemical discharge concerns, and also in terms of violating EC directives for enforcement of a mandated testing regime. While the scope of action could be both in terms of individuals directly and indirectly filing complaints with the EC, it could also be in terms of enforcing a regime of total compliance with directives, or specific waivers if and found necessary by the European Commission. Question 2: UK Government: The remedies that could be availed by the UK Government envisage an application for judicial review (JR) of the actions of the European Community and could be of two types: 1. Direct Action under Art. 230 EC 2. Indirect Action under European Court of Justice(ECJ) I. Art. 241 EC along with Art. 230, 288 EC II. Appeal to National Courts under Art. 234 EC (Lecture 15/12/2005 on Actions and Judicial Review under the EC Treaty). Direct Action under Art. 230 EC: Under Direct Acts 230, The Court of Justice shall reconsider legal grounds of action taken by European Parliament and Council, vis-à-vis action taken by council. ECB or community, exclusive of recommendations and opinions passed by the European Parliament which has a direct legal bearing on Third Parties. The cause of action that could be brought about by UK, in this case could be in either of following: 1. Lack of competence 2. Violation of needed procedural protocol 3. Contravention of the treaty, or, any laws relating to its implementation, Or, 4. Misuse of powers and privileges enjoyed by the institution The JR procedures shall be initiated within a period of 2 months from the proclamation of the measure, or if any such proclamation is not present, within the time it came to be known to the applicant. The acts whose validity could be challenged under Article 230(4) EC could be as follows: 1. Judgment addressed to the applicant 2. Judgment made to any other person 3. Correct or incorrect regulations or 4. Directives brought about by the EC. It is now necessary to consider the impact of certain decided cases. Case # T-177/98, Salamander v. Euro Parliament and Council (2000) ELR II – 2387: In the case of T-177/98, Salamander v. Euro Parliament and Council (2000) ELR II – 2387, this tobacco company sought a cancellation of decree banning tobacco publicity and sponsoring. The case was overruled because the directives of the EC have to be first promulgated into national laws before they could be implemented, and therefore the onus lies with the respective governments and not the directive itself. This individual tobacco company needed to take up the matter with the respective governments first, finding out a “new national remedy” that could allow tobacco publicity to continue, unchallenged. (Tridmas and Nebbia 2004, p.23). Case 4144/70- International Fruit: If one were to go by the ruling passed by Case 4144/70- International Fruit, it is seen that the facts of the case related to regulation on issue of import licenses. The EC determined the quantum of licenses to be procured and distributed and National authors had no discretionary powers in the matter. The ECJ passed an order that since there were no locus standi for national authority to decide whether importer should be provided with import license or not, the regulations pursued by the commission affected the legal position of the applicants. In the Case 4144/70 International Fruit v. Commission, the ECJ opined that “The title of an act is not necessarily conclusive as to its legal classification. The classification of an act depends upon its nature rather than its title.” (Tovey 2006, p.6). Thus it could be said that the EC is the final authority regarding the rules and regulations governing various legal aspects of FMD in Europe and all countries, especially UK need to abide with its directives in matters connected with, or in response to, the control and management of FMD. (Civil Contingencies Act 2004. Foot and Mouth Disease). Sheep Farmers’ Association (SFA): It is now necessary to consider the second part relating to chances of Sheep Farmers’ Association (SFA) of establishing standing to challenge the Decision. In this case, the Courts may apply the Plaumann Test. This Test is a derivative of the case of Plaumann v. Commission in which it was ruled that “persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons.” (Article 230: A Critical Analysis of the General Standing Rules for non Privileged Applicants. 2003). The question of culling the bovine population suffering from, or suspected to suffer, from FMD, is not only a matter of concern for members of SFA, but also a larger population consisting of some 250,000 sheep farmers in UK. Therefore, SFA could not take a stand that the directive is unique to their members only, and not to other sheep farmers. However, the fact remains that they are concerned and, as seen in the case of 789-790/79, Calpak, “The second paragraph of article 173 empowers individuals to contest, inter alia, any decision which, although in the form of a regulation, is of direct and individual concern to them.” (Lecture 15/12/2005 on Actions and Judicial Review Under the EC Treaty: (Regulation Abstract Terminology Test). In this case the SFA, on behalf of its aggrieved members does have the necessary locus standi to contest the decision of the EC. However, as is seen in the case of C-50/00 Union de pequenos Agricultores (UPA) the ECJ, was not keen on providing individual relief but “chose again to place the burden of effective remedies and access onto the national courts. In addition, and critically, it determined that any future change in the system must be conducted politically through Treaty amendment by the Member States themselves.” (Delaney). Again in the case of Case C-263/02 P Jégo-Quéré, a case in which the sizes of fishing nets were regulated, thus aggrieving the applicants occupation, it pleaded that if would be denial of protection of relief under Section 6 and 13 ECHR, if its locus standi was turned down,, However the Courts ruled that it was “not appropriate for an action for annulment before the Community Court to be available to an individual who contests the validity of a measure of general application, such as a regulation, which does not distinguish him individually in the same way as an addressee, … that those rules do not allow the individual to bring proceedings to contest the validity of the Community measure at issue.” (Judgment of the Court of Justice, Commission v Jego, Quere Case. 2008). On the basis of the above, it could be said that although the SFA has valid legal reasons, it has to approach UK national courts before seeking relief from EC. However, the concern is of a direct concern and not an individual concern. This is because there are others who have also been affected by the EC’s decision and SFA’s is not a unique, singular, or individual case. Under the circumstances, the chances of a revocation of order would be bleak. However, Article 288(2) EC stipulates that EC must compensate for damages caused by Community measures, and therefore, it would obligatory on its part to effect suitable compensation. . Bibliography Article 230: A Critical Analysis of the General Standing Rules for non Privileged Applicants. (2003). [online]. Revision-Notes.co.uk. Last accessed 04 December 2008 at: http://www.revision-notes.co.uk/revision/893.html Civil Contingencies Act 2004: Foot and Mouth Disease. [online]. Last accessed 04 December 2008 at: http://books.google.com/books?id=gG2fdkwUGIQC&pg=PT79&dq=EU+legislation+and+directives+to+UK+Govt+regarding+FMD#PPT78,M1 DELANEY, Erin. Right to an Effective Remedy Judicial Protection and European Citizenship: Effective Remedy and Individual Access. [online]. Towards a European Constitution. Last accessed 04 December 2008 at: http://www.fedtrust.co.uk/uploads/constitution/delaney.pdf Exercise Your Rights. (2008). [online]. Application of Community Law. Last accessed 04 December 2008 at: http://ec.europa.eu/community_law/your_rights/your_rights_en.htm Judgment of the Court of Justice, Commission v Jego, Quere Case. (2008). [online]. European Navigator: The First Library on the History of Europe. Last accessed 04 December 2008 at: http://www.ena.lu/judgment-court-justice-commission-jego-quere-case-c-263-02-april-2004-030006923.html Judgment of the Court of 17 March: Commission of the European Communities v Council of the European Communities. [online]. Eurlex. Last accessed 04 December 2008 at: http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=61991J0155&lg=en#SM Lecture 15/12/2005 on Actions and Judicial Review Under the EC Treaty: Regulation Abstract Terminology Test. [online]. Last accessed 04 December 2008 at: http://www.oru.se/oru-upload/Institutioner/BeteendeSocialR%C3%A4ttsvetenskap/Dokument/Rattsvetenskap/Actions%20and%20Judicial%20Review.pdf Lecture 15/12/2005 on Actions and Judicial Review Under the EC Treaty. [online]. Last accessed 04 December 2008 at: http://www.oru.se/oru-upload/Institutioner/BeteendeSocialR%C3%A4ttsvetenskap/Dokument/Rattsvetenskap/Actions%20and%20Judicial%20Review.pdf TOVEY, Gwyn. (2006). An Outline of the Sources of EC Law: Qualifications on Art 249 Acts. [online]. Law of the European Union/European Community Law. Last accessed 04 December 2008 at: http://www.topnotes.org/EC2-2Sources2005.pdf Treaty Establishing The European Atomic Energy Community (E.A.E.C-Euratom) Title Three- Provision Governing The Institutions , Chapter 1: The Institutions Of The Community, Section IV, The Court Of Justice , Article 141. [online]. Eurlex. Last accessed 04 December 2008 at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:11957A141:EN:HTML TRIDIMAS, Takis., and NEBBIA, Paolisa. (2004). Judicial View and European Constitutionalism. [online]. European Union Law for the Twenty-First Century. 23. Last accessed 04 December 2008 at: http://books.google.co.in/books?id=hiX28ioXTmoC&pg=PA23&lpg=PA23&dq=(Case+T-172/98+Salamander)&source=web&ots=cGphONjf-k&sig=T4q1tzVI8AU_JhUFcrHScmmcM0o&hl=en&sa=X&oi=book_result&resnum=1&ct=result#PPA22,M1 Read More