Analysis of the ase Kolpinghuis Nijmegen BV - Essay Example

Analysis of the case Kolpinghuis Nijmegen BV 80/86 (European Court of Justice) Question The facts of the particular case can be summarized as following: In Netherlands, the delivery of a beverage called ‘mineral water’ has been considered as breaching the national law (the article 2 of the country’s inspection regulation). The reason is that the above beverage is consisted of tap water and carbon dioxide. For this reason its delivery can be prohibited in accordance with the above mentioned national regulation where it is stated that the relevant authority has the power to prohibit the ‘stocking for sale and delivery of goods intended for trade and human consumption which are of unsound composition’. Question 2 The case commenced in the Politierechter (Magistrate Dealing with Commercial Offences). The action was brought by the officier Van Justitie (Public Prosecutor). The defendant was the company KOLPINGHUIS NIJMEGEN BV (its legal representative). Question 3 This case was referred to the European Court of Justice by the ARRONDISSE-MENTSRECHTBANK (DISTRICT COURT), ARNHEM, Netherlands. The above judicial authority of Netherlands brought this case in the European Court of Justice in accordance with the article 177 of the EEC Treaty asking for a preliminary ruling (in order for this ruling to be used in the criminal proceeding pending before the specific national court regarding the case under examination). The national court (the District Court of Netherlands) brought this case before the ECJ based on the existence of the Council Directive 80/77/EEC of 15 July 1980 ‘on the approximation of the Laws of the Member States relating to the exploitation and marketing of natural mineral waters’ and particularly to the provision included in this Directive that ‘the member states are to take the measures necessary to ensure that only waters extracted from the ground of a member state and recognized by the responsible authority of that member state as natural mineral waters satisfying the provisions of the particular Directive’ (par. 3 of the case). Question 4 In the particular case the following parties intervened in order to submit their observations: The Netherlands Government (which is the state directly related with the case under examination), The Italian Government, the United Kingdom and the Commission of The European Communities. The reference to the appearance and the intervention of these parties is made in the section of case which refers to the distribution of the costs related with the case brought before the ECJ. Question 5 In accordance with the ECJ the Directive 80/777 could not have been enforced against the defendant since it was not appropriately implemented in Netherlands at the specific point of time (when the ‘violation’ of law took place). Moreover, even if it was already implemented in Netherlands, again its application could not be feasible as there is no case of using a Directive before a national court against an individual. The relevant right has been granted only in cases related with ‘each member state to which it is addressed’, i.e. not an individual. The issue under examination here is the ground on which the intervention of the community law can be based regarding the case of a national court (of a member state) against an individual. More specifically, in accordance with the ECJ (par. 8 of the case) ‘it would be incompatible with the binding nature which article 189 confers on the directive to hold as a matter of principle that the obligation imposed thereby cannot be relied on by those concerned’. In other words, a state that hat not yet implemented the community law (as incorporated in a particular Directive) in its national law cannot ‘transfer’ this obligation to the individual. In the particular case, the Directed under examination should have been implemented in the national law within four years after its notification, i.e. by 17/7/1984 however the Netherlands legislation was amended in order to incorporate the above Directive later than the date mentioned above (the above amendment started to have effect on 8/8/1985). On the other hand, the offences under examination in the particular case, took place a year earlier i.e. on 7/8/1984. Under these terms, the argument regarding the applicability of community law at that time should be examined carefully as having a reasonable basis. However, because the ‘validity’ of the community law should not be a priority at the examination of the whole issue – because of the existence of other parameters in the particular case as they are presented above – the Court should examine primarily the general right of the specific national court to use a Directive as a theoretical basis in order to impose criminal punishment against the defendant. Indeed, the Court examined at first place this right of the national court and came finally to the conclusion that ‘a directive cannot, of itself and independently of a law adopted for its implementation, have the effect of determining or aggravating the liability in criminal court of persons who act in contravention of the provisions of that directive’ (par. 2 of ruling section). Question 6 The use of Directives within a particular nation should be indirect. In other words, Directives should be used by national courts only as a theoretical base for the interpretation of the national law which should not be differentiated by the rules providing by the Directives. The relevant issue is mentioned on the 12th paragraph of the text of the relevant case where it is stated that ‘the member states’ obligation (referring to the obligation of member states to ‘take account of a directive as an aid to the interpretation of a rule of national law’, par. 11 of the case) arising from a Directive to achieve the result envisaged by the directive and their duty under article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfillment of that obligation’. In other words, the national courts have to take into account the Directives when interpreting the national law especially when the case under examination refers to an issue which is clearly regulated by a specific Directive. Question 7 However, the requirement described in the previous question may not apply in all circumstances. More specifically, in accordance with ‘the general principles of law which form part of community law and in particular the principles of legal certainty and non retroactivity’ (par. 13 of the case) the above obligation of national courts could not apply. As example the ECJ refers to the case 14/86 of the same court where it has been stated by the court that ‘a Directive cannot, of itself and independently of a national law adopted by a member state for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive’ (par 13). The above issues could be taken into consideration regarding the question 5 above, as for the ‘validity’ of application of the relevant Directive upon the defendant in the case under examination. Question 8 The ECJ did not consider if there was an infringement of article 2 of the Keuringsverordening (Inspection Regulation) in the particular case because it did not have the ‘authorization’ to examine this issue. More specifically, ECJ cannot intervene in the national courts of the member states and evaluate the application of the national rules. Such an intervention would be out of the Court’s power. The Court has the power to decide only on issues that are brought by the interested parties and which refer to the application of the community rules. The application of the national laws is an issue that can be examined only by the national courts of the member states. Question 9 The numbering of articles included in the Treaty of Rome has been changed after the amendments made in the above Treaty by the Treaty of Amsterdam (which is the Treaty containing the community law as it has been amended until today). Treaty of Amsterdam Treaty of Rome 5 10 177 234 189 249 (words: 1331) Read More