European Community Law - Assignment Example

or Registration Number) - SEMINAR GROUP - (Group Number) SEMINAR SCHEME - (eg LG1/LGPE1/KST1) Emergency Assignment for the subject "Business Law" Order#: 159694 Q1. In general, European Union law is composed of three different - but - independent - types of legislation. i) Primary legislation: The Treaties: Primary legislation includes, in particular, the treaties under the agreements having similar status, which is agreed by direct negotiation between the governments of member states. These agreements are laid down in the form of treaties, which are, then subject to ratification by the national parliaments. The same procedure applies for amendments to the treaties. The treaties are in the main building blocks of EU how, and allow for the creation of secondary legislation of EU law. The treaty of Paris 1951 established the European coal and steel community (ECSC). The treaty of Rome 1957 established the European atomic energy community (EURATOM). A second treaty of Rome 1957 established the European Economic Community (EEC), now contained in the treaty of European Union 1992, consolidated into the treaty of Amsterdam. ii). Secondary legislation. These are laws approved by the institutions of the European Union through the procedures defined within the treaties. This is mainly concerned with economic matters such as free trade, agriculture and transport. They represent the bulk of community legislation. This legislation most affects business and consumers. For instance Regulation (EC) No 261/2004 of the European Parliament and of the council of 11 February 2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights. Article 249 (ex 189); empower the council and commission to make:- i) EU regulations: these are of general application in their entirety and directly applicable in all member states without the need for further legislation. They confer individual rights and duties which the national courts of the member states must protest. The object is to obtain uniformity of law throughout the member states. ii) EU directives: they are binding on all member states as to the objectives to be achieved within a certain time limit and member states must adopt measures to meet the stated objectives. National authorities have the choice of form and means to be used. Directives have no legal force in member states until they are transposed into national laws. Decisions by ECJ: Are binding on all national courts in all the member states; but ECJ is not bound by its own previous decisions. In Walts v Bedford Primary care Trust, May 2006, Mrs. Walts travelled to France for hip surgery, due to a 1 year waiting list in the UK for the same operation. She argued that the NHS should reimburse her costs for the trip to France and the surgery. The ECJ agreed that in cases of "undue delay" the NHS should reimburse the costs iii) EU decisions: - These may be addressed either to member states or to an individual or institution. They are a formal method of enunciating policy decisions and they are binding on those to whom they are addressed. iv) EU recommendations and opinions: - are not binding but express the council's or commission's view on policy to the member states or to the individuals to which they are addressed. Whilst recommendations and opinions are not legally binding, they have political and moral significance and can be preliminary requirements to subsequent mandatory rules. 3. Case law - THE DOCTRINE OF PRECEDENT Case law includes judgments of the European court of Justice and of the European court of First instance, for example; in response to referrals from the commission, national courts of the member states or individuals. These types of legislation comprise the acquis communauitaire. Case law involves the following principles: 1. Stare decisis: This refers to stand by the decided, where the lower courts are obligated to follow the principles of the superior courts. For example the high court should follow the principles of court of appeal. 2. Ratio decidendi: (Research for decision) Binding part of earlier decision that should be followed by judges. Precedent provides consistency and predictability in the law. Example: Donoghue v Stevenson (1932): This is a case where the plaintiff bought a bottle of ginger beer. Upon drinking he found a decomposing beer. HOL held that a manufacturer owed the plaintiff a duty of care. In Grant v Australian knitting mills (1936) where the plaintiff bought underwear but the material contained a chemical which caused dermatitis was awarded compensation based on the precedent set by Donoghue v Stevenson Key features of types of legislation (i) Results of lengthy negotiation and consultations: - Before legislation is passed into a law, there are lengthy and complex negotiations and consultations involving several council and commission working parties and other comities provided for by the treaties. (ii) Binding on member states: the other feature of the types of legislation is it binds the parties to it whenever it is unanimously passed. (iii) Harmonization of trade-EU legislation has harmonized trade between its members states. EU citizens are free to trade without trade barriers and complicated formalities (iv) Uniformity of Currency-EU legislation brought about uniformity of currency (Euro) which is used as a medium of exchange between member countries (v) Fast/easy disposal of EU member state cases: wherever a case arises between EU members states arise, the parties do not have to approach the international court of Justice. European Court of Justice (ECJ) can here and determines cases arising out of the parties involved to the suit .In other words there is fast and easy disposal of cases b) How EU types of legislation have been incorporated in the U.K Legal system The UK has incorporated EU legislation into its legal system. This is evident from European Communities Act 1972. S2 (1) Makes law from the EU (including new law) directly applicable within the UK. Without any further enactment the provisions of the treaty give rights and improve obligations on UK citizens. S2 (4): This critical section requires UK courts to give EU law primary over existing and future domestic legislation. This was confirmed in McCarthy v.Smith (1978) that parliament's recognition of European community law but one enactment can be another 1 C) The conflict between parliamentary sovereignty and EU sovereignty The conflict between Parliamentary and EU sovereignty: This problem has been solved through the case of Factor Tame Secretary of State for Transport (1989). In order to protect fish stock, the EU limited the amount of fish each member state could catch. Some Spanish boat owners formed British companies and registered their boats as British to enable them to use some of the British fishing quota. To stop this, the British government passed the Merchant Shipping Act 1988. This stated that fishing companies had to have their main place of business. In the UK and 75% of the shareholders had to be British. The Spaniards objected. This case was referred to European Court of Justice. The European Court Justice said that new UK Law breached EU law. Courts had to ignore any domestic law which conflicted with European Law. Therefore European law is supreme over UK law on matters like this. In this case we can say that EU sovereignty is supreme when it comes to in matters conflict with parliamentary sovereignty Q2: Advice to James According to Section 230 Employment Rights Act 1996, an employee is an "Individual who has entered into or works under a contract of employment." Contract of employment is defined as a contract of employment between an employee and an employer. First and foremost, we should distinguish between an employee and independent contractor. In determining James case we should have to understand various "tests" which have been incorporated into common law that has arisen from particular cases in which the relationships were distinguished. i) The Control Test: Under this test the greater the extent to which a person is under the control and direction of another person, the more likely he is an employee. Walker v Crystal Palace [1910] 1 KB 87 ii) Integration Test (Organization Test): If the person doing the work and the work he does is an integral par of the business, rather than an accessory to it, then the person will be an employee. Harrison v Macdonald& Evans [1952] iii) Multiple Test. Will take into account control and integration as well as other factors:- Remuneration by way of wages, salary, net or tax Control by employer's disciplinary code Work done on employer's premises rather than at home. Lack of personal business risk on the part of the worker. In advising James, particularly having regard to how courts evolved a means of determining who is an employee; he is entitled to his redundancy payment. Going through the various 'tests' explained above, evolved by courts, James is an employee of 'The Meteor Hotel' Firstly, James has been under the control and direction of management of "The Meteor Hotel". He always ensured that whenever he is off for one reason or the other he had to cover from the pool of other instructors working at the club. Failure to do so, his slot would be assigned to someone else. Secondly, the club is an integral part of the Meteor Hotel. It is not an accessory to it. Therefore the person serving in this club should be an employee and not an independent contractor of the hotel. In Whittaker V. MPNI (1976) where an artiste was injured, it was held that although the circus had no control over the artiste during the act, was integrated into other duties and was therefore a contract of service. Thirdly, the multiple test favours or shows that James is an employee of the Meteor Hotel and by all means possible and is entitled to the benefits of an employee. In this test also known as economic reality test, a person is deemed to be an employee if he meets the factors of this test as explained above. Therefore James paying PAYE from his remuneration, working on employer's premise, control by employer's disciplinary code and lack of personal business risk on his part qualifies him to be an employer. In Ready - Mixed Concrete (South East) V.MPNI (1969) each driver of the company was financially assisted to buy his own vehicle. The driver had to wear the company uniform and be available for work when required. They were paid a mileage rate for work done for the company. It was held that the drivers were not employees but independent contractors as they were operating at their own financial risk. Further the duration of 6 years that James worked at the club should automatically proof that he is an employee and entitled to his redundancy payments. In Nether mere (St Neots) V. Taverna & Gardiner (1984) Mrs. T and Mrs. G were employed by N Ltd as 'home workers' manufacturing boys' trousers. They worked whenever needed and let the company know when they were taking holiday. They submitted regular time sheet and were paid same rate of pay as the factory workers. The work was an essential part of the factory's production. The machines used were provided by the company. It was held that there may be a contract of service if, over a continuous period of regular giving and taking work in accordance with the parties expectations, obligations have been established on the part of the home worker to accept it. The employment protection (part- time employees) Regulation 1995 extended the same basic statutory employment rights to part-time employees as exist for full-time employees. Now part - time employees:- May bring a claim for un fair dismissal it employed for one year, and for redundancy if employed for 2 years (6h,61 and 62) Have a right to written particulars of the terms of the employment if employed for one month or more (ch.55). Are entitled to a minimum of notice after one month or more ( ch.61) Therefore from the courts how they have determined who an employee is and as per the employment protection (part- time employees) regulations 1995, James is entitled to his redundancy payment. In all ways possible he should be treated as an employee of the Meteor Hotel and not an independent contractor as the club is run and managed by the management of the Hotel. 1 BIBLIOGRAPHY Books 1. D. Desmond (ed.) Encyclopaedia of the European Union. Boulder: Lynne Reinner Publishers, 1998 2. Jacobs, Francis, et al. The European Parliament. London: Carter mill Publications, 1995. 3 Eastlake, Martin, the Council of the European Union. Rev. Ed. London: John Harper, 1999 4 Terry M. Dworkin and Eric L. Richards, LAW FOR BUSINESS, 8th ed, Boston: McGraw Hill/Irwin, 2003 5 Jane P. Mallor, et al BUSINESS LAW : CONCEPTS AND CASES, 11th ed 6 Thomas Bowers, et al, LAW OF COMMERCIAL TRANSACTIONS AND BUSINESS ASSOCIATIONS 7 Harold F. Lusk, et al, BUSINESS LAW: PRINCIPLES AND CASES, 5th ed 8 A GUIDE TO BUSINESS LAW. Homewood, IL: Learning Systems, 1974 9 K. Abbott, P. Norman, et al, Business Law, 7th edition Articles (Include details of Author/Title/Publisher/Date of Publication for each article) Legislation European Communities Act 1972. Merchant Shipping Section 230 Employment Rights Act 1996 Act 1988 The employment protection (part- time employees) Regulation 1995 Cases Donoghue v Stevenson (1932) Factor Tame Secretary of State for Transport (1989) Grant v Australian knitting mills (1936) Harrison v Macdonald& Evans [1952] McCarthy v.Smith (1978) Nether mere (St Neots) V. Taverna & Gardiner (1984 Ready - Mixed Concrete (South East) V.MPNI (1969 Walker v Crystal Palace [1910] 1 KB 87 Walts v Bedford Primary care Trust, May 2006, Whittaker V. MPNI (1976) Other Written Sources 10. Official Journal of the European Communities. A. L & C series 11. European community law: an introduction. Edinburgh: Butterworth's: Law Society of Scotland, 1991 12. Industrial Law Journal Other Sources 13. www.law.cornell.edu Instructions for completion of coursework using the standard template Complete the front page of this document and attach it to your coursework together with a copy of the question where appropriate. Type your answer to the question using the standard template ensuring you comply with the page limit set in the course handbook for that piece of work. You need to enter your name or anonymity number into the header on the coursework template. If you wish to use footnotes ensure they appear at the bottom of the page. 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