Analysis of European law - Assignment Example

? European Law Task Introduction Citizens of the European Union (EU) are strictly those who are nationals of the Member s of the EU. This status can be achieved by a national of a third country, only by procuring the nationality of a Member State. A clear Community immigration policy has been introduced, which brings this issue to the forefront. It would not be to the detriment of a Member State to accord citizenship status to long term resident migrants. Such an initiative would not weaken the right of a Member State to protect its reserved powers from intrusion by non – national interests (Handoll, 2003, p. 12). Facts Roberto Grenades has dual citizenship, namely Spanish and American. As per the Nationality Act of the UK, a person can have dual citizenship, but nationality will be decided on the basis of his place of habitual residence. Roberto Grenades spent most of his time in New York. However, he and his gay partner Quang Phuc, had shifted to Madrid from the US, four years ago. Their registered civil partnership had been recognized under Spanish law. In 2010, Roberto obtained work in London, as a helper in a Buddhist temple. However, the UK Government suspected that the organisation behind this temple was being funded by a terrorist organisation. Hence, they asked Roberto to leave the UK, as he was not an EU citizen and as he had links with terrorist organisations. In addition, Quang was also asked by the UK Government to leave the nation, as he would not be considered a family member of Roberto. Moreover, he had been convicted previously for the possession of illegal drugs. Issues Whether Roberto can claim the rights of permanent residence under the provisions of EU law. Whether Quang can claim family residential rights against the UK government. Rule of Law Continuous legal residence for five years in the host EU nation is sufficient entitlement for permitting a person to reside in that nation on a permanent basis. This right is derived directly from the EU law (European Commission , 2010). Citizens of the European Union (EU) are strictly those who are nationals of the Member States of the EU. This status can be achieved by a national of a third country, only by procuring the nationality of a Member State (Handoll, 2003, p. 12). Entry or residence could be refused to a family member on grounds of public policy, internal security or public health (Europa, 2011). Analysis Council Directive 2003/86/EC of 22nd September 2003, states that the spouse of the sponsor and the minor children of the couple are eligible for family reunification. Minor children, in this context, refers to children whose age is less than the legal age of majority in the concerned Member State. Moreover, one of the members of the couple is eligible for family reunification, if that person has custody and the children, including adopted children, are dependent on that person (Europa, 2011). Furthermore, a Member State can authorise, under certain circumstances, the family reunification of first degree ascendants in the direct line, unmarried children who are not minors, and unmarried partners. The concerned individual could be required to have accommodation that satisfied the general health and safety norms, sickness insurance, and stable resources that are sufficient to maintain that person and the members of that individual’s family. In addition, that person may be required to comply with the integration measures enjoined by the national law. Moreover, it may be necessary for that person to have been living in that Member State for some specific period of time up to a maximum of 2 years, prior to unification with the family members. Entry or residence could be refused to a family member on grounds of public policy, internal security or public health (Europa, 2011). In our problem, Roberto had been ordered by the UK government to leave the nation due to the suspicion that he had ties with terrorist organisations. He cannot plead for long term residency rights in the EU Member States, because he has moved to EU countries only 4 years previously. He cannot violate the orders of the UK Government, which had been issued on the grounds of public policy. In respect of Quang, he had been separated from Roberto and developed a gay relationship with some other person. Moreover, as per the above discussion, entry can be refused to a family member on the grounds of public policy or public health. Under certain circumstances, the family members could reside in the Member State, even if the individual were to die, depart or terminate the family ties. The last of these is usually understood as annulment of marriage, divorce, or termination of a registered partnership (European Commission , 2010). Conclusion In accordance with the above discussion, it can be concluded that Roberto cannot claim the rights of a worker of the EU, against the UK government, since he had been residing there for a period that was less than five years. Moreover, the deportation orders were issued on grounds of public policy. In respect of Quang, he does not have any family reunification rights, since he had separated from Roberto. Moreover, he cannot reside in the UK against the orders of the government, as he had been convicted for illegal drug possession. Task 2 Introduction The provisions of article 28 become effective, if a national measure requires a product to undergo an authorisation procedure and requires the product to be labelled. The Member State that stipulates such requirement inflicts a dissuasive effect on those who wish to import such products into it. The connotation is that although the measure is not unlawful, the national authorities have to justify the application of such measures to imports (McMahon & Weatherill, 2009, p. 986). National rules should not interfere with the manner in which a product is sold. The decision in Cassis de Dijon, has served to establish a principle that has withstood the test of time. This principle declares that the variation between national technical rules produces the outcome of restricting inter – state trade in goods. Consequently, justification for these rules has to be provided that is recognised by EC law. Otherwise, these rules will breach article 28 EC (McMahon & Weatherill, 2009, p. 987). In this context, it is to be noted that several of the attempts to demonstrate such justification proved to be glaringly inadequate. For instance, in the Cassis de Dijon case, the German authorities failed dismally in their endeavour to convince the ECJ that prohibiting weak rather than strong alcoholic drink constituted a component of a coherent scheme of protecting the health of the public (McMahon & Weatherill, 2009, p. 987). Facts Abdul had been conducting business successfully in Kulfi Ice creams with the name of Eastern Delights for more than 10years. He encountered problems due to restrictions being imposed by the Member States of the EU, on his attempt to expand his trade throughout the EU. Issues The following issues have to be considered for advising Abdul in respect of his problems with the EU national governments. Whether the restrictions imposed by the EU countries comes under the purview of Article 28 of EC affecting the free movement of goods in EU policy. Rule of Law Article 28 EC catches national measures that are discriminatory with regard to the import of goods. It also catches technical standards that serve to divide the market on the basis of nationality, due to the diversity to be found among the Member States (McMahon & Weatherill, 2009, p. 986). Analysis a) There is a strong case for having a uniform procedural tax law in place, throughout the EU. However, practical reasons and the absence of EC tax authorities, makes it very clear that the administration of EU taxation should continue with the tax authorities of the individual Member States. Thus, the collection of EU and domestic taxes should be a conjoined process. Moreover, the responsibility for the same portion of the tax base should be vested with the tax authorities of a specific Member State (Lang & Pistone, 2010, p. 115). In Keck and Mithouard, the ECJ held that the provisions of article 28 EC would not come into play, solely on the grounds that a national measure had impeded commercial freedom. Consequently, the rules of France that had precluded the re – sale of some specific items at a loss, were not caught by article 28. The ECJ has been seized with specifying the additional requirements relating to damage to the internal market, which the contested national measure should incorporate, in order to be caught by article 28 (McMahon & Weatherill, 2009, p. 986). Similarly in our problem Abdul cannot make a claim regarding the imposition of extra taxes by the German custom authorities, with regard to the provision of the preservation facility, as per the ruling in the above case. b) The provisions of article 28 EC would come into force, only if the prevention of the marketing technique would have a greater influence on products that were to be imported from the other Member States than on the domestic products. The determination of such effect on domestic products was deemed to fall under the purview of the national court (McMahon & Weatherill, 2009, p. 986). Specifically, if the prohibition in question does not have an adverse effect on imports, then there is no necessity for the national authorities to provide justification for their regulatory choice. In such cases, the issue falls within the sphere of influence of the local regulatory autonomy, and remains beyond the purview of article 28 EC (McMahon & Weatherill, 2009, p. 986). Similarly in our problem, Abdul cannot raise a claim against the French government for imposing a higher tax on milk based ice creams, as it comes under the nation’s policy of discouraging the most fattening sweets. c) Moreover, in Dynamic Medien, the ECJ conceded that the controls placed over the image storage media by the German authorities was justified. The objective behind this initiative of the Germans was to prevent children from being exposed to harmful content (McMahon & Weatherill, 2009, p. 988). Similarly in our problem, Abdul cannot make a claim against the Italian government for making restrictions over his selling the ice cream made with vegetable fat, as this is contrary to the procedures accepted in that nation. d) In A – Punkt Schmuckhandels GmbH v Claudia Schmidt the ECJ considered the rules of Austria, which prohibited the sale of jewellery at parties that were held at home. The ECJ conceded that this practice prevented a commercial technique that was commercially attractive. However, this was insufficient to attract the provisions of article 28 (McMahon & Weatherill, 2009, p. 986). Similarly in our problem, Abdul cannot make a claim against the Danish government for disallowing him from selling ice cream in cinema halls. e) In the Cassis de Dijon case, the ECJ gave a decision that has proved to be critical for promoting and preserving the free movement of goods in the Community and the European Economic Area (EEA). This decision explicitly states that permission to import and sell a product that has been approved of and recognised in a Member State of the EU has to be granted in all the other Member States (European Free Trade Association, 2007). Such grant of permission should not involve further testing and approval. This constitutes the principle of mutual recognition for products in the non – harmonised areas. Nevertheless, the marketing of products could be prohibited by an authority on the grounds that these products endanger consumer interests, the environment, or the health and life of animals, plants or humans. All the same, these measures have to be proportionate to the risk arising from these products and should be applied in a non – discriminatory manner (European Free Trade Association, 2007). Similarly in our problem, Abdul can make a claim against the Polish authorities for rejecting his ice cream on the basis that it contains added colours. This is not justified, since his product had been recognised by the UK authorities. Conclusion As per the above discussion Abdul can make claims against the Polish government for not accepting his product, although it had been recognised by the UK government. In all the other situations he cannot make any claims under the provisions of EC law. Task 3 Introduction The European Community Directive on Liability for Defective Products 1985 was implemented by the UK, by means of the Part 1 of the Consumer Protection Act 1987. This served to bring in the notion of strict liability for defective products into UK law. Section 2(1) of this Act states that damage is established whenever that has been any damage. In other, any person who undergoes damage can make a claim, and that such entitlement to make a claim is not restricted to the consumer or person who had purchased the product (In Brief, 2013). The Directives of the EU specify certain outcomes that have to be achieved by every Member State. It is the duty of the national authorities to ensure that their laws are suitably modified, in order to achieve these outcomes. Another important feature of Directives is that they have to be implemented by a certain date. This provides an opportunity for the national authorities to negotiate within the deadlines, so as to take into consideration the differing national conditions (European Commission, 2012). Regulations are characterised by having a general scope, being binding with regard to all its provisions and being directly applicable in all the Member States. Similar to the national law of a Member State, regulations generate obligations and rights that are directly applicable to the citizens of the EU. The date of enforcement of regulation is either specified or it becomes effective on the twentieth day after its publication in the Official Journal of the EU (OJ) (Europedia, 2011). Facts The Argons Ltd had imported the television sets from China and thereafter had sold one of these, under its own brand name, to Jose. Consequently, it may be liable for the sale of the defective television set, as it had caused injury and loss to Jose, as per the provisions of the Consumer Protection Act 1987. Issues Whether Argons Ltd Company is liable under the provisions of the Consumer Protection Act 1987. Whether Jose has any alternate remedies against the Government under the Directive. Rule of Law The provisions of Article 19 of Directive 85/374/EEC, which relates to liability for defective products, which becomes effective from the date of its notification to the Member States, will be considered. Section 5(3) (b) of the Consumer Protection Act states that a person is liable for any loss or damage if that person had not purchased the product for his personal use. Analysis Article 288 of the Treaty on the Functioning of the EU specifies that regulations are directly applicable in the Member States. The ECJ has made it very clear in its ruling in Politi s a s v Ministry for Finance of the Italian Republic that such effect is a complete direct effect. On occasion, the ECJ recognises the direct effect of Directives, with the express intention of protecting the rights of individuals. In accordance with the case law of the ECJ, a Directive has direct effect, whenever its provisions are adequately precise and clear, and are unconditional. This was the gist of the ruling in Yvonne van Duyn v Home Office. However, a Directive can have a vertical direct effect, only if the concerned Member State has failed to transpose the Directive by the specified deadline. This was the ruling of the ECJ in Ratti. On applying the provisions of section 2(2)(c) of the Consumer Protection Act 1987, it becomes evident that Argons Ltd is liable for the losses caused to Jose, due to the supply of defective products. An individual is liable for the sale of a defective product, as per the above provisions, if that person puts his mane on the product, uses a trademark or other distinguishing mark with regard to the product, or portrays himself as its producer. Liability is also created if a person has imported the product into a Member State from outside the EU, in order to supply it to another or during the course of business. If this Act had been enacted in 1990, that is two years after Jose had purchased the television set, then Jose can approach the European Court of Justice (ECJ) for redressal. This is because, the related Directive would take effect only on the date of its notification. Moreover, as Directives have a vertical direct effect, Jose can make a claim against the national government for failure to implement the Directive in a timely manner. If Jose had purchased the television set in 1986, this is prior to the Consumer Protection Act had come into force, then he can approach the ECJ with a claim against the national government for failure to implement the Directive within the stipulated time and for the losses suffered by him. He can do so under the vertical direct effect of Directives. Since, Jose was a retailer in 1988 and underwent the loss due to the defective television set, he cannot make a claim under the provisions of the Consumer Protection Act. In accordance with article 10 of the Defective products Directive, the limitation for claiming damages will be 3 years from the date of detecting the defect by the claimant. If the Parliament implementing this Directive had directed that the limitation period for claiming damages was only two years, then Jose can approach the ECJ, with regard to the improper implementation of the Directive by the national government. Conclusion Jose can claim redressal against the Argon company for violation of the provisions of Consumer Protection Act 1987. He can approach the ECJ, with respect to the failure of the UK Government in implementing the Directive in a timely and proper manner. References Case 120/78 Rewe – Zentral AG v Bundesmonopolverwaltung fur Branntwein (1979) ECR I 00649. Case 148 – 78 Tullio Ratti (1979) ECR I 01629. Case 244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG (2007) ECR I 00505. Case 41 – 74 Yvonne van Duyn v Home Office (1974) ECR I 01337. Case 43 – 71 Politi s a s v Ministry for Finance of the Italian Republic (1971) ECR I 01039. Case C-441/04 A-Punkt Schmuckhandels GmbH v Claudia Schmidt (2006) ECR I 02093. Consumer Protection Act 1987. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Council Directive 85/374/EEC – libility for defective products. Europa, 2011. Family reunification. [online] Available at: [Accessed 10 January 2013]. European Commission , 2010. Freedom to move and live in Europe. [online] Available at: [Accessed 10 January 2013]. European Commission, 2012. Application of EU Law. [online] Available at: [Accessed 10 January 2013]. European Free Trade Association, 2007. Free Movement of Goods. [online] Available at: [Accessed 11 January 2013]. Europedia, 2011. The legal system of the European Union. [online] Available at: [Accessed 10 January 2013]. Handoll, J., 2003. Reshaping Existing Rights and Duties: Insufficiencies in the Status Quo. In: T. Venables, ed. Rethinking European Citizenship. Brussels, Belgium: ECAS, pp. 12 – 15. In Brief, 2013. Product Liability & the Consumer Protection Act. [online] Available at: [Accessed 10 January 2013]. Joined cases C-267/91 and C-268/91 Criminal proceedings against Bernard Keck and Daniel Mithouard (1993) ECR I 06097. Lang, M. & Pistone, P., 2010. Procedural Rules Tax Law in Context European Union Domestic Law. s.l.:Kluwer Law International. McMahon, J. & Weatherill, S., 2009. Free Movement of Goods. The International and Comparative Law Quarterly, 58(4), pp. 985 – 993. Read More