European Union Essays - Free Law Essays

European Union Law Essay

The UK government has recently become increasingly sceptical in its attitude towards the European Union. Its seeks your advice upon the following. A European Community directive, which was due to have been implemented by 30th June 2005, provides that water authorities may not take water from rivers between May and September, in order to protect the aquatic environment. The UK water authorities, of which some are private companies and some are public bodies, have asked the government not to implement the directive and the government is sympathetic to their case.

The government wishes to know:

(a) whether, if it fails to implement the directive, any action may be taken against it by the European Union;
(b) Whether, in the absence of implementation, the directive could nevertheless be enforced against the water authorities in a UK court, and;
(c) whether legislation could be passed by the UK parliament to prevent the directive having any legal effect in the UK. Advise the government.

This discussion is going to focus on the basics of state liability and EU law and then will highlight the problems for the citizen's rights in respect to non-state companies when they have been discriminated against in employment. Yet this discussion is equally applicable to state liability and citizen's rights of action in a breach of any directive. The discussion concerning standing and citizen's rights of actions will illustrate this and finally this legal discussion will be applied to the case of the UK

The two main aspects that EU law deals with are; the possibility that the member state is contravening the regulations that regulate interactions with other member states, such as tariffs; and whether a member state is contravening the laws in relation to individuals, such as free movement of persons and deportation. The court has recognized that there is a direct effect of directives, acts and regulations. Therefore there must be an adherence to these laws in the nation states, to be in contravention of these laws indicates a breach of the key precepts of the EU and the national law is subject to EU law. This has caused much concern whether this means that in fact member states are not sovereign states However the Court of Justice has introduced the proportionality principle that allows the member state some leeway within the interpretation of EU laws as long as it is in respect to the protection of national culture. This is an important principle because it recognises there are different cultures, religions and languages within the EU, which must be respected. However principles of equality and justice cannot be contravened on the grounds of non-compliance

Direct Effect/Indirect Effect & Proportionality:

The Concept of Direct Effect within EU Law:

This discussion will consider the type of law that the ECJ follows. This central system essentially follow a codified type of law; where the ECJ follows a much codified approach to the law where the regulations and directives set out the duties of each member state, where the laws are directly binding on each state. One of the best areas to consider to illustrate the power that the EU has to enforce their directives is environmental law, because throughout many EU states this law was much neglected and treated in a lax manner, until the introduction of EU articles and directives, as the following discussion will illustrate without the EU's 'green law' the environment would be much neglected in the UK. EU law is essential to the law of the environment because it is the source of a lot of 'Green' law within the UK, as with the decision in the Lappel Bank case. EU law has passed down a lot of 'Green' law within the UK; however this law is only directly applicable to the government and domestic laws (Van Gen en Loos) and indirectly applicable to government organisations (Foster v British Gas) However when it comes to individuals and persons not attached to the government there is no recourse to the ECJ, therefore one has to wait for a case which involves an individual and the government. This restriction within EU law therefore reduces the impact of 'Green' European law within the UK. Therefore the main limitation to the power of EU law is that it only directly applies to Member-States or organizations that are monitored by the government of the Member-State.

Direct Effect:

The principle of direct effect has been approved in respect to vertical direct effect whereby a directive can be enforced against a defaulting Member State as set by the Van Duyn Case:

It would be incompatible with the binding effect attributed to a directive by Article 189 (now 249) to exclude in principle the possibility that the obligation which it imposes may be invoked by those concerned.

As already mentioned the cases of Van Gend en Loos and Foster v British Gas have been important in determining the extent that vertical direct effect being applicable. The Foster v British Gas case extended the definition of what a state consists of to the organizations and organs of the state, which includes state regulated monopolies. Yet the case of Marshall stemmed the possibility that there may be the possibility of horizontal direct effect, i.e. the ability for individuals to enforce their EU rights directly:

Where a person involved in legal proceedings is able to rely upon a Directive as against the State, he may do so regardless of the capacity in which the latter is acting, whether employer or public authorityIt follows that a Directive may not of itself impose obligations on an individual and that a provision of a Directive may not be relied upon as such against such a person.

Principle of Proportionality:

One final question must be asked in relation to the Principle of Proportionality, which allows for some national leeway in deciding certain elements of EU Law. This question is whether the UK can apply this principle to this case, therefore making it a domestic not EU matter of law? In response the Principle of Proportionality cannot be applied in relation to basic rights and freedoms and EU Law must be strictly applied. Article 49 is one such freedom and if there is a breach then it is not a matter for Domestic Law. Therefore EU Law and principles must be applied, which has been illustrated in the case R v Pieck (Case 157/79) In short if there is a breach of Articles or Directives; in addition to breaching the Principle of Non-Discrimination; then the UK cannot use the Principle of Proportionality This is also true if there is a breach of any of the articles that have been discussed previously, as they relate to the core structure of the EU. As this is a directive then there is no avenue for the UK to plead leeway by not implementing it, rather there is avenue for judicial and state interpretation but non-compliance is not excusable.

State Liability:

The doctrine of state liability was established under Articles 226 to 228 was defined in the Francovich Case. These articles illustrate the limitations of the citizen accessing justice whereby article 226 allows the commission to bring an action against a member state for not fulfilling its obligations. Article 227 along the same line of argument allows another member state to bring an action against a member state for not fulfilling its obligations. Finally article 228 forces the state to take all steps to comply with the ECJ's decision in respect to the possible breach of obligation. Also article 234 governs the jurisdiction of the court which surrounds the interpretation and validity of the legal question and EU law in the case. It is this article that stresses that the law is and decision is only binding on signatories and not third parties, i.e. corporation completely independent of the government. Also this article points out a very undemocratic principle where member states cannot question why the EU did not act in a situation of possible breach; therefore allowing the EU an out from acting in the case of political influence and/or tenuous situations. It is this approach that it has been argued protects the rights of EU citizens:

It can be argued that it is largely due to problems concerning the enforcement of directives, that state liability rules were developed. Member States were failing to implement directives on time, thus a damages remedy was needed in order to stop them from neglecting their duties. State liability rules did not only ensure and strengthen individuals' rights; they also closed a long-existing gap in the area of efficient sanctioning of breaches of Community law.

Francovich cemented the notion of state liability by enforcing payment by state's that allowed private companies to breach of the EU citizen's rights, which used the rights under Articles 226 to 228 to cement this payment; as well as backing this argument up with Article 10:

Member States are required to take all appropriate measures to ensure fulfilment of their obligation under Community law, [i.a.] to nullify the unlawful consequences of a breach of Community law.

This approach was expanded in the case of Brasserie du Pêcheur which included state liability when there was an act of omission on behalf of the legislature, therefore including not only positive but also negative acts that breached the EU citizen's rights. In the case of Rechberger and Others v Austria this approach was held to include incorrectly implementing a directive. The case of Dillenkofer held that even a mere infringement was a breach and the state was order to pay reparation to the offended individuals:

Failure to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury if the result prescribed by the directive entails the grant to individuals of rights whose contents are identifiable and a causal link exists between the breach of the State's obligation and the loss and damage suffered.

Therefore the EU and other Member States could find the UK in breach and bring an action against it and if any citizen's rights had been breached by the state's actions it may be found liable and has to pay reparation to the citizen. In addition the Courts under the European Communities Act 1972 could uphold the directive because through this act it gave precedent to the EU in certain dealings. The fundamental concept of parliamentary supremacy is that parliament cannot bind its successors has been undermined by the European Community Act 1972, which came into force after the admission of the United Kingdom into the EU. The European Court of Justice argues that EU law takes priority over member states domestic laws; whereby:

"The Member States have limited their sovereign rights, albeit it within limited fields, and have thus created a body of law that binds both their nationals and themselves, articulating a comprehensive principle of EU law supremacy that bites even on domestic constitutional laws.

The rationale for this principle is self-evident: the raison d'être of EU law is to create (within certain fields) a pan-European system of regulation and body of rights, a goal that would be unattainable if member states were able to opt out simply by adopting contrary domestic provisions. The difficulty, though, is that if EU law is supreme, then this appears to conflict with the English law's orthodox position concerning the role of parliament in constitutional law, i.e. parliamentary sovereignty. It is wholly possible for the UK to enforce legislation in opposition to the directive under the principle of parliamentary sovereignty; however the reality is far different as seen in the Factortame Case where legislation in opposition to EU law was changed and brought in line with EU legislation. Therefore the power to legislate against an EU directive is only applicable in theory.

Bibliography:

Angelica M. Bernal, 2004, On the Paradox of Constitutionalism And Democracy in the EU: The Case of the Convention on the Future of Europe, Paper prepared for the Yale University Contemporary Politics Workshop
Paul Craig & Grainne De Burca, The Evolution of EU Law, (Oxford University Press, Oxford, 1999)
Mark Elliott, 2004, United Kingdom: Parliamentary Sovereignty Under Pressure, International Journal Of Constitutional Law, July 2004, ICon 2.3(545)
The European Union at a Glance, EUROPA: Gateway to the European Union, Van Gend en Loos v Nederlandse Administrie der Berlastingen (Case 26/62) [1963] ECR1 ; Costa v ENEL (Case 6/64) [1964] ECR 585