European Union Law Issues - Essay Example

Number] [Module and Number] work Question] [Word Count] TABLE OF CONTENT European Union Law 2 Bibliography 15 European Union Law 2 Component A 4 Question One 4 Question Two 9 Question Three 13 Bibliography 17 European Union Law 2 Component A 3 Question One 3 Question Two 6 Question Three 9 Question Four 12 Component B 14 Bibliography 15 European Union Law Article 1 of Directive 2000/78/EC disallows discrimination in occupation and employment. Some of the forms of discrimination are on the basis of age and gender. The Member States of the European Union (EU) are allowed by Article 3(4) of this Directive to abstain from applying the provisions of the latter to the armed forces, when it concerns age. This Directive had to be transposed by the Member States, within 2 December 2003. A grace period of three years was also provided. Ruritania, a fictitious Member State, had failed to transpose the Directive. It informed the Commission, on 1 June 2004 that it would do so by 2 December 2006. Due to natural calamities, Ruritania was unable to do so until 1 January 2014. Subsequently, on 1 March 2014, the Commission adopted Regulation 2014/666/EU (fictitious). This Regulation required every prison guard to be 183 cms or taller. Bellatrix and Albus were armed prison guards. The prison service was privatised in December 2005. Thereafter, Albus, who became 55 years old on 1 November 2006, was informed that he would have to reduce weekly hours of work to 20 from 40. The aim was to recruit and train a younger individual to supplant Albus, in due course. Simultaneously, the prison service decided that females were not to be provided with arms. The outcome was that Bellatrix was posted as a prison administrator. Individuals in this post had never been promoted to operational command of a prison. The prison service contended that prison guards, on account of being armed, were part of the armed forces. Therefore, they were to be treated as exempt from the provisions of the Directive. Moreover, Bellatrix and Albus are 168 cm and 178 cm tall, respectively. Component A Question One Looking at all relevant sources of EU law can Albus and Bellatrix rely on any cause of action in a Ruritanian court under EU law For assessing the possibility of Albus and Bellatrix to rely on a cause of action in a Ruritanian court, under the EU law, the following issues need to be discussed. The ruling in Francovich, 1 witnessed the origin of the principle of liability of a Member State. A claim for breach of duty, under the English law, requires the claimant to prove a cause of action. On the other hand, when the EU law vests individuals with rights, it is essential for a remedy to be provided before the national courts. Moreover, it becomes mandatory for incompatible conditions of national law to be withdrawn. 2 Moreover, the condition of breach that was of sufficient gravity was adopted by the national courts. This was as a definite standard of required demeanour of a Member State under the EU law. Thus, in R v Department of Social Security Ex p Scullion,3 the national court held the State liable for infringement of EU law, as it had failed to implement the Equal Treatment Directive. 4 As such, the national court resolved to adopt a global approach and considered the various elements of sufficiently serious breach. After adopting this line of approach it was determined that the actions of the Member State were of sufficient enormity to generate state liability. 5 In addition, the elements of serious infringement enumerated by the CJEU in Brasserie6 were subjected to a more painstaking analysis in Factortame (No5).7 Specifically, Lord Clyde subjected the aforementioned elements of serious breach to a more thorough scrutiny. Thereafter, he opined that any factor in isolation may or may not be conclusive for determining the presence of a sufficiently serious breach. All the same, the conduct of the State was so grave that even on the basis of a single element, liability had to be attached to it. 8 As such, in Scullion, 9 the national court deemed that a breach can be serious and obvious to render it sufficiently serious, despite not being treated as negligent or deliberate. In English tort law, causation is analysed in two stages. The first of these relates to factual causation or the so called but for cause. This deals with whether the fault of the defendant was essential for the occurrence of the loss. 10 The national law requires factual causation to be established first. If the damage would not have occurred, in the absence of the defendant’s act, then the conduct of the defendant is deemed to be a factual cause. As such, the evidence must establish that the damage was the consequence of the defendant’s conduct.11 In general, the burden of proof is vested with the claimant. However, under certain exceptional circumstances the presiding judge may employ reasons of fairness and policy to hold that the conduct of the defendant had enhanced the risk of damage and was, as a result, to be regarded as evidence of causality.12 It is incumbent upon the EU to provide compensation for the damage for which it is responsible. Such damage may arise from the legislative undertakings of the EU’s institutions or may be produced by its servants during the course of discharging their duties.13 The CJEU considers the EU liable, if the following conditions are satisfied. First, claimant had undergone damage. Second, the actions of the EU institutions or their agents were illegal under the provisions of EU law. Third, there should be a causal link between the illegal act, in question, and the damage suffered by the claimant.14 Any action for damages brought before the CJEU is admissible only if the EU’s liability is involved. In addition to this, individuals are at liberty to render Member States liable for the damage ensuing form the improper application of EU law. All the same, actions against Member States have to be brought before the national courts.15 In our problem, Albus and Bellatrix had undergone losses due to the failure of the Ruritanian government to apply the Directive within the specified time. This is because, they were discriminated against on grounds of age and gender, which is in violation of the Directive. Hence, they can approach the Ruritanian court against the government, for violation of EU law, according to the above discussion and case laws. The Ruritanian government will be held liable for the losses suffered by these individuals, till the date of adopting the Regulation, which specifies the height of prison guards should be at least 183 cms. Question Two Should that Ruritanian court make a preliminary reference to the CJEU over the interpretation of the term “armed forces. In our problem, the Directive 2000/78/EC was adopted by the European council for prohibition of discrimination with respect to sex and age in occupation and employment. An exception was provided with respect to application of the Directive to the armed forces. Albus and Bellatrix who had been working as prison guards were discriminated on the basis of age and gender, respectively, after privatisation of the prison service. The prison authorities claimed exemption under the Directive stating that their services came under the armed forces. For assessing whether the Ruritanian court needs to make a preliminary reference to the CJEU, regarding the interpretation of the term armed forces the following issues need to be taken up for discussion. The importance of the preliminary rulings procedures stems from the fact that it permits the CJEU to engage in a structured dialogue with Member State tribunals and courts. The latter tend to be the first resort of those who desire to have their EU law derived rights considered.16In the event of a pertinent query being raised before a national court or tribunal, regarding the interpretation of EU treaties or the validity and interpretation of EU law, the court or tribunal in question can seek a ruling from the CJEU. If the court is the highest in the land, then it has to perforce seek such ruling. The procedure to be adopted whilst seeking such ruling is that of the preliminary ruling. 17 A national court hearing a dispute relating to the application of EU law can approach the CJEU to provide clarification regarding the dispute. This generates two kinds of reference for a preliminary ruling. First, a reference seeking a ruling on the interpretation of the relevant European instrument. In such references, the judge of the national court seeks the clarification of the CJEU with respect to the interpretation of the EU law, so as to apply the same in a correct manner.18 Second, a reference seeking a preliminary ruling regarding the European instrument’s validity. In this situation, the national court judge beseeches the CJEU to confirm the validity of an act of the EU law. 19 In theory, it has been possible to obtain a judgement against a Member State on account of the failure of its courts to satisfy EU law obligations. However, these decisions do not ensure that an individual can claim damages, with respect to violation of the duty of the national court to refer to the CJEU for a preliminary hearing. 20 It apparently seems that infringement proceedings can be initiated against a Member State, due to the ruling in Köbler and Commission v Italy21 and other cases. The ruling in Köbler emphasises that a Member State is obliged to make a reference for a preliminary ruling. This constitutes a major criterion for evaluating whether a Member State has to pay damages for the loss undergone by an individual. All the same, the infringement by itself is insufficient to render a Member State liable under the provisions of EU law. Moreover, the case law suggests that the domestic tribunals and courts have the discretion to bring a matter before the CJEU, whenever they deem it appropriate.22 In addition, the Court of Justice of the European Union (CJEU) provided an important clarification via its ruling in Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health23 and other prominent cases. This relates to the decisions of a tribunal or court that do not admit of a judicial remedy under national law. In such instances, such courts or tribunals have to present any matter relating to EU law, brought up before them, to the CJEU.24 However, in the event of the relevant EU law having been previously interpreted by the tribunal or court, there is no necessity to bring the matter before the CJEU. This exemption also applies when the correct application of the EU law does not entertain any possibility of reasonable doubt.25 As such, one of the cardinal functionaries of the legal system of the EU is the CJEU. Its primary task is to make certain that the law is complied with, during the interpretation and implementation of EU Treaties. There are several procedures for presenting disputes before the CJEU. 26 The most important of these procedures pertain to the actions introduced by the Commission of Europe with regard to the infringement of EU law by a Member State, as per the provisions of Article 258 of the Treaty on the Functioning of the European Union (TFEU). Furthermore, the requests of Member States’ courts or tribunals to the CJEU to provide preliminary rulings regarding the interpretation of EU law are also of great significance. In addition, the legitimacy of acts embraced by the institutions, as per the provisions of Article 267 of the TFEU tend to be of primary importance. 27 According to the above discussion, the Ruritania court is obliged to make a preliminary reference to the CJEU with respect to the interpretation of the term armed forces. If the court fails to comply with this obligation, it will be liable for infringement of the EU law. Question Three Can Albus and Bellatrix claim damages for Ruritania’s infringement of their EU law rights under Directive 2000/78/EC and general principles? For assessing the rights of Albus and Bellatrix for claiming damages against Ruritania’s infringement of their rights under Directive 2000/78/EC, the following issues have to be considered. The rulings in Francovich28 and Bonifaci emerging from the CJEU in the year 1991, declared that a Member State was liable for damages. This was in the context of losses undergone, due the failure of the Member State to transpose a directive. These cases were brought against Italy, for its failure to transpose the time Directive of the EU. 29This Directive related to the safeguarding of employees, if their employer was to become insolvent. 30 In addition, in Factortame and Brasserie du pêcheur31 the CJEU established that a Member State was liable for the harm suffered by individuals, on account of that Member State’s breach of EU law. This decision was path breaking and comparable to the previous rulings related to the primacy of EU law, recognition of the fundamental rights promoted by the EU, and the direct applicability of EU law. 32 The CJEU referred to its judgement in these joined cases to be a necessary corollary of the EC provisions’ direct effect. The court emphasised that the infringement of these provisions by Italy had resulted in the damage to the parties. With this ruling, there was a substantial increase in the potential of individuals to compel the executive, judiciary and legislature of a Member State to comply with and implement the EU law. 33 With this ruling, Member States were made subject to the principle of general liability, which encompassed any infringement of the EU law. However, liability is attached, only when a national court intentionally overlooks EU law. It is also applicable to a court of last instance ruling that has not sought clarification from the CJEU regarding the relevant EU law. 34 Moreover, the continuing argument regarding the correlation between direct effect and primacy, and the definition of the impacts upon individuals due to the EU law, has been imparted an additional ramification by some rulings of the CJEU. Some of these rulings were in Werner Mangold v Rüdiger Helm35 and Seda Kücükdeveci v Swedex GmbH & Co. KG. 36 In these rulings, the CJEU explored the possibility of private parties taking recourse to the equality principle in litigation with other private parties. Moreover, in Mangold, the CJEU substantially increased the impact of the general principle of equality upon private parties. This ruling, in addition, enhanced the effect upon third parties, of the Directive establishing the pertinent legal framework. 37 The Kücükdeveci ruling provided clarification regarding age discrimination. The limits between the unitary and dual models were tested by the rulings in the above cases. The emphasis of these rulings was upon the principle of non – discrimination on the basis of age.38 This had been incorporated in a general principle and directive of EU law. As such, the judgement in Kücükdeveci establishes that the national legislation that does not comply with the Framework Equality Directive39 has to be rescinded. Ostensibly, this solution can be considered as lending support to a unitary understanding regarding the association betwixt national legal orders and the EU. Instead of discussing direct effect, the CJEU has accorded greater importance to EU law, at the time of resolving conflict between EU law and domestic law. 40 In addition, the rulings in Mangold and Kücükdeveci, from this perspective, entail issues of direct effect and portray the extensive influences of the primacy principle. The substantive tenet pertaining to the dispute, subsequent to the rescinding of the incompatible national law, is not the EU law, but the relevant domestic labour law general rule. Thus, the primacy of EU law ensures that the victim of an unfavourable exception profits from the more beneficial general tenet of domestic law. 41 According to the above case laws and discussion, Albus and Bellatrix can claim damages for infringement of EU law rights under the Directive as well as under the principles of EU primacy, as the Ruritania government failed to implement the Directive. Bibliography — — ‘The action for damages’ (Europa, 26 November 2010) accessed 14 February 2014 — — ‘The legal order of the EU’ (EUR-LEX, 16 December 2010) accessed 14 February 2014 — — ‘The reference for a preliminary ruling’ (Europa, 20 February 2013) accessed 14 February 2014 Case C-224/01, Gerhard Köbler v Austria [2003] ECRI-10239 Case C-555/07, Seda Kücükdeveci v Swedex GmbH & Co KG [2000] ECRI-00365 Case C-283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR I-3415 Case C-144/04, Werner Mangold v Rüdiger Helm [2005] ECRI-09981 Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer [1980] OJ L283/23 Council Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 Joined Cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECRI-05357 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECRI-01029 Muir E, ‘Of ages in – and edges of – EU law’ (2011) 48(1) Common Market Law Review 39 R v Department of Social Security Ex p Scullion [1999] 3 CMLR 798 Regina v The Secretary of State for Transport, ex parte Factortame Limited and Others [2001] 1 WLR 942 Treaty on the Functioning of the European Union Trstenjak V, ‘National Sovereignity and the Principle of Primacy in EU Law and Their Importance for the Member States’ (2013) 4(2) Beijing Law Review 71 Valutytė R, ‘Legal Consequences for the Infringement of the Obligation to make a Reference for a Preliminary Ruling under Constitutional Law’ (2012) 19(3) Jurisprudencija 1171 Vehovec MT, ‘Member State Liability for Breach of EU Law before English Courts’ (2012) 8 Croatian Yearbook of European Law & Policy 369 Read More