Major Cases of EU Law - Essay Example

Charles and Dilshad [2213 words total] Where a Member fails to implement a Directive by the set in the Directive there is ity that an individual employed by the State can commence an action in the national court or tribunal under the principle of direct effect: In Foster and Others v British Gas plc [1990] the Court of Justice expanded the definition of the ‘State’ to include: “organizations or bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals.”1 Charles clearly falls under this head. The next step would be for him to establish that the Directive is “clear, negative, unconditional, containing no reservation on the part of the Member State and not dependent on any national implementing measure,: Alfons Lütticke GmbH v. Hauptzollamt Saarlouis [1966] relied on in Van Duyn v Home Office [1974]. Whilst we do not know the precise wording of the Directive we can deduce the phrase “prohibit discrimination in the workplace on the grounds of age” meets the criteria for the Directive to be directly applicable. However this is not true for Dilshad who is employed by a private company. As seen in Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] the Court of Justice does not allow the direct horizontal enforcement of Directives. However, in Marleasing SA v La Comercial Internacionale de Alimentacion SA [1990] two private individuals sought a remedy which was not included in the Directive. The Court held that a non implemented Directive could be relied upon in a case between individuals. The House of Lords confirmed this view in Webb v EMO Cargo [1994] in a case dealing with sexual discrimination. Regardless of who the employer is (State or Private) where the State has failed to implement a Directive or has done so inadequately the national court is required to: […] interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article [249]. Von Coulson and Kamann v Land Nordrhein-Westfalen [1984] 2 This is known as indirect effect. Both Charles and Dilshad could seek redress with a view to having the national court declare age discrimination in the workplace unlawful in the UK. The national court would be at liberty to provide an adequate and effective remedy. An advantage of this approach is that unlike direct effect the provisions in question do not have to be clear, precise, unconditional and require no further implementation. Assuming the worst case scenario that both Charles and Dilshad are denied a remedy through either direct or indirect effect it is possible for them to have a remedy in damages against the State if they have suffered loss because a Directive has not been implemented or has been implemented defectively: Francovich and Bonifaci v Italy [1991]. However they would have to establish that the conditions for State liability have been met as described below: […] the result prescribed by the Directive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the Directive. Finally, the third condition is the existence of a causal link between the breach of the State’s obligation and the harm suffered by the injured parties. 3 As we have seen for direct effect Charles would have to establish that the provisions of the Directive were sufficiently precise and clear and that his employer was effectively the State. For indirect effect the requirement for precision is not required, and Charles well may be better able to succeed on this head. Assuming the national court follows Webb then Dilshad may have a remedy through indirect effect also despite the fact the State is not employing Dilshad. Their respective rights to damages will depend on them being able to establish a sufficiently serious breach. One imagines that being refused promotion would have serious impact on earning capacity, final retirement pension and therefore one’s quality of life. Ahmed: Article 234 provides that The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. This applies equally to a Court or a Tribunal but one must first establish the status of the Medical Council. If it is neither a Court nor a Tribunal then Ahmed will not be able to seek a ruling through the Court of Justice. In Broekmeulen [1981] it was held that the Appeals Committee for General Medicine could be considered a court or tribunal within the meaning of Article 234(3) as it […] operates with the consent of the public authorities and with their cooperation, and which after an adversarial procedure, delivers decisions which are recognised as final […] It is therefore suggested that the Medical Council would be considered to have the status of a Court or a Tribunal on the facts. The Medical Council has stated that it will not refer and that the EC regulation is invalid and unenforceable. One must then consider whether the Medical Council has a duty to refer the matter to the ECJ or whether it simply has the discretion to do so. In the event that the decisions of the Medical Council are final they have a duty to refer the matter to the ECJ: Article 234(3), unless the matter is acte claire. If Ahmed can appeal to some other national court or tribunal then the Medical Council is not obliged to refer to the ECJ. It is implied that Ahmed is seeking clarification on a Regulation. Article 234(1)(b) allows preliminary rulings which relate to the validity and interpretation of acts of the institution of the Community. This covers Articles, Regulations, Directives, Decisions, Recommendations and Opinions. One must then beg the question of whether a national court or tribunal can declare a provision of a regulation invalid. Dicta from Firma Foto-Frost would clearly indicate that this is not possible: Since Article [234] gives the Court exclusive jurisdiction to declare void an act of a Community institution, the coherence of the system requires that where the validity of a Community act is challenged before a national court the power to declare the act invalid must also be reserved to the Court of Justice.4 The only exception to this would appear to be those rare cases where there has been an application for interim measures pending a decision by the Court of Justice on the validity of a Community act5. We therefore submit that in this instance it would appear that the Medical Council are acting ultra vires in firstly refusing to refer the matter and secondly in declaring a Community act invalid. Baxter PLC The only time the Court of Appeal must refer a matter to the Court of Justice which falls under Article 234 is when its own decision on the matter would be final: Chiron. This is partly because if there is a point of law to decide the Court of Appeal may grant leave to appeal to the House of Lords. The Court of Justice will only hear matters from courts/tribunals whose decisions are final on that particular point of law: Article 234(3) A golden thread running through English law is that each case turns on its own facts. However the Court of Justice made it clear in both Da Costa and CILFIT that where it had already determined the point of Community law there was no need to refer new matters simply because the facts differed. The judgement in CILFIT provided further clarity on when a ruling would not be necessary: where the question of interpretation of community law is not relevant to the conclusion of the case and where the correct application of community law is obvious (the doctrine of acte Claire). Therefore the Court of Appeal must determine whether the case before it does raise a matter of Community law which requires a referral to the Court of Justice giving due consideration to the decisions in Chiron and CLIFIT The Court of Appeal has no jurisdiction to refer matters simply to resolve disputes. The Court of Justice is not an appellate court - - it interprets Community law, and the national court has the duty to subsume its rulings into national law. Therefore Baxter is unlikely to be successful under its first motion for a referral. With regard to Baxter’s second motion -- interpretation of the Articles clearly falls within Article 234 (1) (a) – (c). It is implied that the Court of Appeal’s decision on the matter will be final (since leave to appeal to the House of Lords has been refused). As previously discussed the Court of Appeal must first ask itself whether a referral is required in order for it to determine the matter before it. If there is sufficient national or Court of Justice precedent then it is submitted that it is not obliged to refer the matter. In the event that there is insufficient national or Court of Justice precedent then it is required to refer the matter to the Court of Justice for a ruling. On the facts before us it would appear that Baxter will fail on the second motion for referral as there appears to be sufficient precedent for the case to be determined by the national court. BABE Chemical and Piggyfeed Regulations have direct effect and are directly applicable within Member States hence becoming part of national law immediately: Article 249. Article 230 ensures that Community institutions cannot exclude an application by an individual against a Decision which concerns him directly and individually simply because it has the form of a Regulation. It must also have the substance. Through Article 230 the Court of Justice can review acts of the Community and if necessary annul them or declare them invalid through lack of competence (rare); infringement of an essential procedural requirement – such as consultation; misuse of power or; infringement of the Treaty or any rule of law relating to its application. This last ground for review is the widest and therefore the most commonly relied upon. In order to rely on Article 230 the applicant must have standing, the act must be challengable, there must be a procedural or substantive illegality as described in the Article and the challenge must be within the time limit described at Article 230(5). Article 230 (4) allows both BABE Chemicals and Piggyfeed to seek a remedy if they can establish firstly that the Regulation did not have general application, and was in substance a Decision, and secondly that the Regulation was of individual concern to them as defined by the Plaumann test. In Calpak it was said that a true Regulation applies to: … objectively determined situations and produces legal effects with regard to categories of persons described in a generalized and abstract manner. The nature of the measure as a regulation is not called in question by the mere fact that it is possible to determine the number or even identity of the producers… In the current case it would be insufficient for BABE Chemicals to argue that the Regulation is actually a Decision simply because those affected by it can be easily identified, since in their case it is symptomatic of the fact that the sector is dominated by oligopolies. The Regulation which BABE Chemicals and Piggyfeed wish to complain against is of general application, even though BABE Chemicals is specifically named. The Regulations prohibits the use of XYZ by anyone within the EU. Even were BABE Chemicals and Piggyfeed successful in proving that the Regulation was in substance a Directive they would still have to pass the Plaumann individual concern test. In Plaumann the German government were denied a Decision to suspend the collection of duties on clementines imported from non Member States. The applicant was an importer of clementines and contested the legality of the Decision. The ECJ said that in order to rely on Article 230(4) the applicant must show that it had been individually concerned with the Decision and adopted the following test: … that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually…. It went on to fail the applicant’s submission for an annulment of the Decision on the ground that as a commercial organisation it was no more likely to be affected than any other commercial organisation importing clementines. The applicant could not show that it was specifically discriminated against. However, in Cordorniu although the Court of Justice held that the Regulation was generally applicable the applicant was successful as it was able to show an infringement of its trade mark rights which the Regulation would have overridden. Therefore it is submitted that in view of the fact that the Regulation is generalised in its application and that neither party can show direct discrimination, their application(s) must fail. Bibliography Craig, P and De Burca G, (2002), EU Law, Text, Cases and Materials, OUP Charles and Dilshad: Case-C188/89 A Foster and Others v British Gas plc [1990] ECR I-3313, [1990] 2 CMLR 833 Case 57/65 Alfons Lütticke GmbH v. Hauptzollamt Saarlouis [1966] ECR 205 Bulmer v Bollinger [1974] 2 All ER 1226 Case C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5337, [1993] 2 CMLR 66 Case C-106/89 Marleasing SA v La Comercial Internacionale de Alimentacion SA [1990] ECR I-4135, [1992] 1 CMLR 305 Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723 [1986] 1 CMLR 688 Case 41/74 Van Duyn v Home Office [1974] ER 1337, [1975] 1 CMLR Case 14/83 Von Coulson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, [1986] 2 CMLR 430 Case C-32/93 Webb v EMO Cargo [1994] ECR I-3567 Ahmed: Case 246/80 C Broekmeulen v Huisarts REgistratie Commissie [1981] ECR 2311, [1982] 1 CMLR 91 Case 314/85 Firma Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199, [1988] 3 CMLR 57 Baxter: Chiron Corporation v Murex Diagnostics Ltd [1995] All ER (EC) 88 Case 28-30/62 Da Costa en Schaake NV Jacob Meijer NV and Hoechst-Holland NV v Nederlandse Belastingadministratie [1963] ECR 31, [1963] CMLR 224 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415, [1983] CMLR 472 BABE Chemicals and Piggyfeed: Cases 789 and 790/9 Calpak SpA and Societa Emiliana Lavorazione Frutta Spa v Commission [1980] ECR 1949, [1981] 1 CMLR 26 Case C-309/89 Codorniu SA v Council [1994] ECR I-1853, [1995] 2 CMLR 561 Case 25/62 Plaumann & Co v Commission [1963] ECR 95, [1964] CMLR 29 Read More