Friday, August 16, 2019

Constitutional Law of the European Union Essay

The European Court of Justice is the driving force behind European integration. The ECJ had elaborately defined the doctrines of supremacy and direct effect of the EC Law and provided remedies for damages caused by breach of EC Law by a Member State . Despite the initiatives of the ECJ, there have been conflicts between Community law and national law. Moreover, the ECJ made it clear that the EC law had supremacy over national law in the event of conflict as evidenced in the case of Costa v ENEL, wherein it held that a preliminary ruling by the Italian courts based on their national law would be of no significance. In Simmenthal, the ECJ clarified that the Community law was to take precedence over national law and that any provision of the national law that contravened the Community Law would be rescinded by it. Moreover, the ECJ prohibited the implementation of any national law that was in conflict with the Community law. The ECJ further ruled that no fundamental provision of any national law could challenge the supremacy of a directly applicable Community rule . This supremacy of Community law is one of the constitutive principles of the integration of the European Community legal order and it has been well embedded in the Treaty that established a Constitution for the European Union. The doctrine of supremacy of Community law, the principles of direct effect and uniform applicability are the primary ingredients of the Community. They are fundamental to the promotion of an effective Community legal order and form the unseen pillars of the European Constitution. Further, the doctrine of supremacy is the actual concrete personification of this constitutional power . The national constitutional courts of Member States found it very difficult to adopt the doctrine of supremacy and in the initial stages the Italian and German constitutional courts almost refused to adopt this doctrine into their respective national legislations, because they felt that they would be surrendering their power of constitutional review of secondary community law. Subsequently, the enlargement of the European Union provided a new paradigm to this doctrine of supremacy. This doctrine of supremacy was enforced by the ECJ in Costa v ENEL . This doctrine is a jurisprudential creation of the ECJ. Further, the Court clarified that the EEC Treaty had adopted a new legal system, which the Member States had integrated into their national legislation. Accordingly, the national courts were required to apply the Community law without any deviation and this generated a number of debates in the Member States. Ultimately, it was accepted by the Member States. However, total supremacy over the national constitutional provisions has not been achieved . In Frontini the Italian Constitutional Court had opined that the 1957 Act, which had accepted the provisions of the EEC Treaty, did not breach the Constitution. Moreover, the Italian court reserved to itself the right to review the continuing compatibility of the Treaty with the Constitution . In another case the Italian Constitutional Court, while accepting the precedence of Community law, maintained that the court had competence over any aspect of the relationship between Community law and municipal law . These decisions clearly established that the national constitutional courts had not completely accepted the supremacy of Community law. The German Constitutional Courts voiced their concern over the protection of fundamental rights in the decisions given in Solange I and II and introduced the concept of Kompetenz – Kompetenze. Even in the Banana case the German constitutional Court declined to give up its power to review secondary community legislation in order to protect fundamental rights . In the United Kingdom this doctrine created several problems, because the UK constitution bestows absolute power on Parliament. Further, the UK ratified a dualist policy concerning the relationship between international treaties and national law. Although such treaties were signed by the UK, they were not incorporated into the domestic law of the UK. In order to incorporate the treaties into national laws, the Parliament had to ratify them and this resulted in a problem in respect of accepting the doctrine of supremacy of Community law over national law. In the famous Factortame case the concept of the supremacy of Community law was subjected to a vast amount of discussion. In that case Spanish fishermen had argued that the norms for registering vessels under the Merchant Shipping Act 1988 were discriminatory and in conflict with the provisions of the EC Treaty. The House of Lords refused to grant any interim injunction against the Crown. The applicants in this case claimed that this would violate the Community law and the result was that a reference was made to the ECJ, which ruled in favour of these applicants. The ECJ further held that any piece of legislation in the national law that prevented a court from issuing interim relief would be tantamount to the violation of the Community law . The EOC case dealt with the suitability of the UK statute regarding unfair dismissal and redundancy pay in the broader context of the EC law . The UK law provided different benefits to employees working in full –time and part – time jobs. The appellant in the case, the Equal Opportunities Commission, opined that the statute was discriminating against female employees, which was in contravention of Article 141 of the EC Treaty and to other Community directives. The House of Lords held that the national legislation had violated the EC law and upheld the contention of the EOC. The approach of the European Court of Justice is at variance with the customary doctrine of precedent that is entrenched in domestic law. The objective of the ECJ is to bring about a European Union that follows the same law throughout its Member States and to this end it constantly endeavours to promote the EC Treaty. This could result in a change in the interpretation of legal principle over a period of time. Moreover, the ECJ bases its decisions on the extant circumstances and not on precedent. National courts of Member States in the European Union can obtain a preliminary ruling regarding the interpretation of European Union Law from the ECJ on the basis of the provisions inherent in Article 234 of the EC Treaty. However, it is not the primary objective of the ECJ to take decisions regarding the compatibility between the domestic and European laws. Further, it is also not the primary aim of the ECJ to apply the European Union Law to some specific facts of a case . The ECJ indicates the principle to be applied in a particular case and the case will have to be decided in the originating court, however, the ECJ ruling will have to be implemented by such a court. In the absence of an appeal from a national court, a reference will have to be made by the originating court, in case it is of the opinion that a clarification in respect of European Union Law is required. Nevertheless, there are instances where an ET, EAT or Appellate Court has to make a reference to the ECJ in order to pronounce judgement that is in accordance with the EU law. The function of the advocates general is to aid the judges in their judicial work. They do this by submitting analyses and recommendations regarding the issues raised in a particular case . In addition to the rights conferred on the nationals of the EU Member States by their respective national constitutions, the EU law comprises of another source that grants rights to them. As such the European Union law constitutes a legal system that in addition to being independent also, perhaps more importantly, takes precedence over the national laws of the Member States of the European Union. This European Union law comprises of treaties, which constitute primary legislation and regulations and directives that constitute secondary legislation. The importance of regulations is that they directly require compliance from the Member States without having to be codified into the national laws. However, in respect of the Directives, which are also legally binding, the onus of implementing them rests squarely with the Member States and these Member States have to do so by resorting to the relevant national law legislation on or before the final date set by the EU for such implementation. Accordingly, Article 189 of the European Economic Treaty states that â€Å"A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. † The European Court of Justice, subsequent to taking cognizance of the fact that Directives have to be implemented by the Member States, declared that individuals were well within their rights to ensure the implementation of Directives even in the event of failure by the Member States to meet the deadline set by the EU. In addition, individuals were permitted to enforce such rights in the national courts. The Van Gend en Loos decision unequivocally established the fact that in addition to creating obligations for the Member States to implement the Directives it also creates rights for the individual citizens of these Member States . The right of the Member States and the European Commission to proceed against other Member States before the European Court of Justice does not prohibit the lodging of complaints by individuals against the Member State to which they belong in their national courts. In this context, the European Court of Justice ruled that Article 12 of the EEC results in direct effect, which in turn result in the creation of rights for individuals and that these rights had to perforce protected by the national courts. Consequently, individuals have been empowered to ensure that rights granted by the Directives are enforced in the national courts . The offshoot of this is that individuals can ensure the implementation of human rights by resorting to legal action. In the Becker case it was clarified that if there is unconditionality and adequate precision in the provisions of a Directive that bestows individual rights, then individuals can resort to such provisions to contest the relevant national law . Furthermore, in the Francovich case the European Court of Justice established a test in three parts, which was to be utilized in order to ascertain whether the provisions that were inherent in a Directive, were sufficiently precise and unconditional in creating a right that was applicable to individuals. The ECJ has to consider the identity of the persons who are supported by the guarantee and the content of the guarantee. The identity of the person in breach and who is liable to pay the guarantee has also to be ascertained. Private persons and institutes cannot be subjected to the provisions of the Directives, because it is only the state that is subject to the Directives. The decision in the case of Francovich served to establish that damages could be claimed by an individual in a national court, in the event of a Member State’s failure to implement a Directive properly. The ECJ clarified that the spirit of the European law and the protection of rights would become ineffective if an individual failed to secure compensation. Moreover, the States are required to implement Directives wholly and properly. The ECJ decided in Brasserie du Pecheur v. Germany that there must be a sufficiently serious breach by the State in order to determine its liability. This dictum applies to situations where national legislation is implemented improperly and inconsistently with a Directive. In order to determine whether Community law was breached with sufficient seriousness, it is sufficient to demonstrate that the Member State or Community institution had seriously and knowingly ignored the limits to its discretionary power. Some of the factors that the court has to consider are the exactitude and clarity of the rule that was breached, the amount of discretion allowed to the national or Community authorities, whether the damage caused was intentional or not and whether there had been any adoption or rejection of measures that were in violation of the Community law . Member States for whom the Directives are specifically issued should be bound by them. Sometimes Directives can be addressed to one Member State or a group of them, but in general Directives are addressed to all the Member States. The exception to this practice is in respect of Directives that pertain to Common Agricultural Policy. The European Commission initiates a binding legal action in situations where a Member State fails to incorporate the provisions of a Directive into their national legislation or if the national legislation fails to properly fulfill the requirements of the Directive. Previously, the Directives were not adequately binding upon the Member States in their implementation. To address this problem, the ECJ promoted the doctrine of direct effect. Thus even if a Member States fails implement the Directives there is legal initiation under the principle of direct effect. This was clearly established in the case of Francovich v Italy. In that case, the ECJ attributed liability to Italy for its failure to implement a Directive. The Easytalk was a private limited company that had been formed with help from the UK government. It was established in order to encourage students in the EU to come to the UK in order to learn English. This company advertised all over the EU universities by means of pamphlets, in which it was stated that the course instructors would be highly qualified scholars in English with a great deal of teaching experience. A Directive was issued by the EU that prohibited the issuance of advertisements that misled and imparted false information. This Directive was to be implemented by January 2007. However, the UK government failed to implement this Directive by this deadline and in effect this Directive had been ignored by the UK government, because the latter was of the opinion that this Directive was unlawful. Subsequently, a French student, Antoine came to the UK and registered for a course that taught English. However, once the classes commenced, Antoine realized that the faculty comprised of students who were not qualified teachers of English as a foreign language. On being approached, the institute where he had enrolled refused to refund the fees paid by him. The direct effect of directives has been restrained by the concepts of vertical and horizontal effect. Van Duyn and Ratti affirmed that directives only have vertical effect so that an individual who is affected by the states’ failure to implement a directive properly or not at all only has rights against the state and not against a non-state entity or other individuals, as the directive imposes the obligation of implementation upon the state. Therefore a horizontal limitation was placed upon the scope of the direct effect of directives. This principle was addressed in Marshall v Southampton and South West Hampshire Health Authority , in which the applicant who was employed by the Health authority, was required to retire at the age of sixty – two years, while men doing the same work did not have to retire until the age of sixty – five years. Although under national law, by virtue of the Sex Discrimination Act, this was not discriminatory, she succeeded in her claim for unfair dismissal by relying on the Equal Treatment directive, which had not been implemented in the UK. This directive was sufficiently clear to have direct effect but the courts took the opportunity to confirm that a directive may not of itself impose obligations on an individual and that a provision may not be relied upon as such against such a person. Therefore since the health authority was an organ of the state, the directive had vertical direct effect. Since the respondent in this problem is a private limited company, the claimant cannot approach the Commission under the vertical direct effect. However, he can seek justice under the EU law by resorting to the procedure of indirect effect. Since, the UK government had not implemented the Directive; the claimant can approach the national courts of the UK to compel the government to apply the Directive. In respect of damages, the ECJ further held in R v H. M. Treasury, ex parte British Telecommunications plc that parties who had sustained loss as a result of incorrect implementation of a directive by a state, could claim damages for the loss sustained on such an account. In contrast to this, if a state has failed to fulfill its obligations regarding Directives, whether by non-implementation or incorrect implementation, an individual cannot request invocation of the horizontal direct effect of a directive against another individual. Similarly the effectiveness of non-implemented or incorrectly-implemented directives that do not have direct effect through the horizontal limitation has been enhanced through the doctrine of indirect effect, which emerged from Von Colson . In this case the ECJ held that national courts are required to interpret their national law in light of the wording and the purpose of the directive so that the directive is given some effect despite the absence of proper domestic implementation. This principle may be used under two circumstances; first, where the defendant is a state entity but a directive is not vertically directly effective as its provisions are insufficiently precise, conditional and require further state action for their implementation. Second, the provisions of a directive could be indirectly enforced against a non-state entity i. e. it could be applied horizontally as between individuals. The court was confronted with a ‘horizontal’ situation in Marleasing , in which this position was confirmed. Therefore, if national law was in existence that could be read in conformity with a non-implemented directive, then an individual could enforce a legal remedy against another individual through the interpretative route without seeking to enforce the directive directly and encountering the barrier to horizontal effect. In respect of the Easytalk institute the claimant can file a case for breach of contract and false representation in the UK courts in order to obtain redressal for the loss, damage and frustration caused to him. The question arises as to whether the aggrieved individuals can claim damages against the state in the national courts. The ECJ clarified that the state had to pay compensation for the damages caused due to non – implementation of a Directive and that the conditions laid down for such claim of damages must not be less reasonable than what was specified for a domestic claim. Furthermore, the Member State should not unduly complicate the claim process.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.