Constitutional Law of the European Union - Essay Example

Two problem questions on constitutional law of European Union Question In 2006 the Council of the EU and European Parliament adopted a (fictitious) Directive concerning employment protections when companies become insolvent. The time limit for implementation was 31st December 2008. Over the autumn of 2008 the UK implemented all of the provisions of the Directive except the section relating to the protection of workers pensions in the case of an employers insolvency. This section required Member States to set up financial guarantee institutions, funded by the State, to protect the pension payments of workers whose companies become insolvent and who cannot then meet their pension commitments to employees. The UK believes the section of the Directive has been drafted in too broad terms and it, along with a number of other member states, has been seeking clarification as to the technicalities of the possible operation of the guarantee scheme. There has never been any legislation in the UK on protecting workers pension payments by establishing financial guarantee institutions. A recent change of government, along with a worldwide recession, also mean that the UK is now opposed to the pension protection scheme in principle and, if it introduces the pension protection scheme, it will legislate to limit protections up to a ceiling of 5,000 pounds and restrict claims to those made within two weeks of an employers insolvency. The Commission has been examining the questions from Member States but has confirmed that it expects Member States to meet their obligations under the whole of the Directive. Adils security guard company becomes insolvent and he is made redundant after 30 years service and pension payments. He is told his pension fund is at risk and that he cannot pursue his employers in court for his pension guarantee as there is no money left in the pot after the company was wound up. A law student has told him that he may be able to enforce his EC law rights by other means. He comes to you for legal advice. [Note: Do NOT discuss EU or UK employment law or tort law. Rely on what you have learned during THIS module!] Answer Adil has been working in the security guard company for about 30 years. The fact that the specific firm had to be dissolved – because of the lack of funds for the continuation of the business activities – cannot justify the loss of pensions of employees – at least such a case would not be fair for employees that have invested all their pension funds on a specific corporate pension scheme. The problem is that existing UK law does not provide a specific legal framework that protects employees in cases of insolvency of their firm. Currently, the pensions of employees in Britain are protected by the Pensions Act 2007 and the Pensions Act 2008 (in which amendments on the Pensions Act 2007) are included. Still, Britain has not fully accepted the European Directive on pensions (as developed in 2006) – at least in all its parts. In this context, the right of Adil to claim his pension could be considered – at a first thought – as too weak – not having the necessary legislative support in order for a relevant claim to be brought before the British courts. However, an alternative approach could be used based on the principles of the European Constitutional Law. The European Union directive on employees’ pension in case of insolvency should be applied by the English courts – a practice common to all European Directives. In this case, Adil’s pension funds would be safe. However, in order for such a claim to be justified it would be necessary that specific requirements are met – the procedure followed should be also carefully examined. Before proceeding to the specific claim, it would be valuable to examine the power of the European Union to impose its rules – the constitutional role of the European Union; the explanation of the rights of Adil in accordance with the relevant European Directive of 2006 would be a further step. Finally, the power of the British courts to enforce the British law and ignore the European law – if there is such a case – would be examined. European Union as a legislative body – power of its rules At a first level, it would be necessary to refer to the power of the European Union legislative bodies to impose legal rules on the member states – especially when the latter have followed different directions when dealing with a series of conflicts brought before the courts. The role of the European Union in setting legal orders is significant. These orders should be accepted by the member states – however the methods used by the member states when implementing a EU directive are decided by the national legislator. In the literature, the power of the European Union to impose its rules on the member states has been extensively analysed. In accordance with Kaeding (2008, 115) ‘factors specific to European directives (level of discretion and transposition deadline) and domestic-level factors (national transposition package and number of veto players) have different effects on the length of delay’. The above study refers to the time required by the member states to align the national law with the law of the European Union – when there is such an order by the Union’s legislative bodies. Kaeding (2008) emphasizes on the differences developed between the member states regarding the adoption of EU directives. The difficulties faced by the member states when having to align their policies with the European Union laws are presented in the study of Steunenberg (2006) where it is noted that ‘most member states of the European Union (EU) have some difficulty in transposing EU directives; despite the obligation to comply with EU law, member states are often slow to adopt national policies implementing directives’ (Steunenberg, 2006, 293). Normally, the above principles are respected by all member states; only in countries that had complex political systems – e.g. countries of the East Europe – in the past, the adaptation of European Union laws could face a few obstacles (Toshkov, 2008) – in these states the relevant procedure is expected to be improved through the years. No particular problem would appear to the implementation of European law in the countries that have been members of the European Union since its establishment – like Britain. In accordance with the above, each member state is obliged to adapt the European Union laws within the time specified in their text – only the methods used for this adaptation can be chosen by the member state without the intervention of the European Union’s bodies. The specific issue is of significant importance in order to understand the Britain’s discretion to apply or not the European Union directive in relation with the employees’ pension in case of their firms’ insolvency. Implementation of European Union’s law in Britain The willingness of each state to adopt the European Union laws would be a significant factor influencing the potential application of these rules by the state’s courts. The above issue has been explained using two different approaches. In this context, it is noted that ‘enforcement theories predict that states policy preferences determine implementation, whereas managerial theories attribute noncompliance to states capability limitations and to institutions’ (Linos, 2007, 547). Britain is a state with an advanced legal system. The country’s legal system is based on the common law’s principles – a fact that could lead to the assumption that the country’s courts are based rather on the case law than on the legislation; however, even if differentiated from the legal system followed by the majority of member states – which is the civil law – Britain is equally obliged to follow the European Union’s rules related with the adaptation of European Union’s directives by the member states. The protection of employees in the case of insolvency of employer is guaranteed by the Council Directive 80/987/EEC as amended through the directive 2002/74/EC and the directive COM(2006) 657 – which focuses on the protection of employees’ pension funds in case of insolvency – the use of the directive 2000/78/EC – which refers to the equality in the workplace – would be also possible. The fact that Britain has not accepted the specific section of the directive does not prohibit the application of this section by the English courts. Since the time limit for the implementation of the directive has passed – the 31st of December 2008, then the directive is considered to be valid automatically – no further action is required by the British government. Through the specific justification, Adil could bring his case before the British courts asking for his pension funds using the specific section of the European Directive 2006/657. In practice, the above effort would have many chances to be successful (see also British Vita UnLtd v British Vita Pension Fund Trustees Ltd & Anor [2007] EWHC 953 (Ch) – where the application of the Directive 2003/41/EC was under discussion). In a similar case, the European Court of Justice ‘has ruled that the UK government has failed to properly implement European law that would have protected thousands of workers who have lost their pensions’ (the Union for Life, 25/1/2007). This was the case related with the rights of employees in Allied Steel and Wire (ASW) – about 1,000 employees of the above firm are members of unions - which brought the case before the justice. The above issue is still in progress - the procedure before the British courts has not completed yet. Question 2 The Council and the European Parliament have issued a Directive on health and safety at work which stipulates that Member States must provide a judicial remedy for breaches of health and safety by employers. In response the UK government has asked the Royal Society for the Prevention of Accidents (RoSPA), a registered charity, to establish a tribunal (the Accidents Tribunal) to adjudicate on such complaints to operate subject to the rules of natural justice under English common law guaranteeing the right to a fair hearing and the rule against bias. There is no appeal from its decisions and complaints cannot be brought before the normal courts. Barry suffered an accident on his way into his workplace. The Accidents Tribunal (AT) makes it clear that it is minded to dismiss his complaint because, in its opinion, this does not constitute an accident at work for the purposes of the Directive. Yet the ECJ has recently held in an Article 234 ruling that an accident which occurs at or near the premises of employment, does indeed constitute an accident at work. Barry wants the Accident Tribunal to refer the question to the ECJ by requesting a preliminary ruling. The head of the Tribunal, a former County Court judge, strongly feels that the provision in the Directive relating to accidents at work is unlawful, and makes a declaration to that effect that will be binding on future Tribunal decisions. Advise Barry on the potential use of Article 234 EC Treaty in this problem scenario. Answer European Union has many different aspects. Apart from its significant role as an area where the movement of persons and the transportation of goods is free, European Union has also important legislative power – in the terms that it can set rules that are binding for all member states. More specifically, the rules set by the European Union legislative bodies are obligatory for the states even if the national law is opposite on the issue under discussion – in this case the national law has to be aligned with the law of the European Union – under the terms of the principle of harmonisation of the national laws of member states with the law of the European Union. In accordance with the European Union’s website – section on Directives – the power of European Union to impose its will on specific issues can be expressed through the Directives which are characterized as orders that ‘down certain end results that must be achieved in every Member State; national authorities have to adapt their laws to meet these goals, but are free to decide how to do so; each directive specifies the date by which the national laws must be adapted’ (Europa, 2009). The member states have to use the ‘national implementing measures’ (Europa, 2009) in order to align the national legal framework with the rules of the European Union. Again, the methods employed by the states as well as the date chosen for the specific action are decided by each state’s authorities – in any case there is a deadline by which the alignment of the national legislation with the European one have to be completed. In accordance with the above, the national courts cannot deny adopting a specific rule of the European Union claiming that it is unlawful. On the other hand, the court established for the resolution of conflicts – the Accidents Tribunal – cannot be characterized as having equal power with the national courts. The specific Tribunal has been established in order to serve specific needs – handling conflicts that refer to accidents at work – but it cannot lead to decisions that are over the European law – even the national courts – the common ones – do not have such a power. Another issue is the fact that no appeal can exist against the decisions of the above Tribunal. This issue also leads to questions regarding the legal framework in which this Tribunal was established and the source of its power. Barry’s rights can be protected through the article 234 EC. In accordance with the specific article the ECJ can intervene at any stage of an existed conflict – but only under the terms that the hearing of the conflict by the national courts have reached a point that the legal context of the particular conflict can be clearly identified and evaluated. Under these terms, in the case of Barry, the Tribunal can bring the case before the European Court of Justice - while the hearing of the case is under development – before the Tribunal. The above procedure is clearly mentioned in the article 234 where it is noted that ‘the Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty… d) where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice’ (article 234, EC). In this way, the case will be examined before the European Court of Justice and the protection of Barry’s rights can be guaranteed- taking into account the relevant rules including in the EC and the Directives setting the legal framework for the protection of rights of employees in case of accident at the workplace. In the case Patrick Kelly v the NATIONAL UNIVERSITY OF IRELAND, DUBLIN and the AKA UNIVERSITY COLLEGE DUBLIN (UCD), High Court Appeal Number 2007 52 CA the judge referred to the case ‘Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health the European Court of Justice’ where the value of the paragraph 3 of the article 234 has been highlighted. For this reason, in this case also, the judge stated that ‘my request for a reference to the ECJ was a request under the “third paragraph” of the Article, which specifically applies only to national courts or tribunals “against whose decisions there is no judicial remedy”; if a “question of interpretation is raised in a case pending” before such a national court or tribunal “that court or tribunal shall [i.e. must] bring the matter before the Court of Justice” [emphasis added]’ (Kelly v the NATIONAL UNIVERSITY OF IRELAND, DUBLIN and the AKA UNIVERSITY COLLEGE DUBLIN (UCD), High Court Appeal Number 2007 52 CA). The above case could be used as an example of the potential application of article 234 in the case of Barry – the British courts would be obliged to seek for the intervention of the European Court of Justice in accordance with the above article’s provisions. The fact that the British government did not take into account the laws of European Union when asking for the establishment of the specific Tribunal cannot influence the development of the above described process. In the literature, it is noted that wherever the government has actively supported the application of European Union’s rules in its territory, then the time required for the adaptation of European Union law by the relevant state is decreased. More specifically, it is stated in the study of Toshkov (2007) that ‘government support for European integration and administrative effectiveness has positive and substantial effects on the number of directives transposed in a given period of time’ (Toshkov, 2007, 335). However, when the government of a member state does not show the appropriate care for the promotion of the European Union laws in its territory, there is no issue of non-application of these laws in the particular states. Normally, the application of European Union rules in member states is enforced by the European Court of Justice – or the European Court of Human Rights after the relevant initiative of an individual – citizen or resident of a member state. References Hardy, S., Adnett, N. (1999) ‘Entrepreneurial Freedom Versus Employee Rights’: the Acquired Rights Directive and EU Social Policy Post-Amsterdam. Journal of European Social Policy, Vol. 9, No. 2, 127-137 Kaeding, M. (2008) Lost in Translation or Full Steam Ahead - The Transposition of EU Transport Directives across Member States. European Union Politics, Vol. 9, No. 1, 115-143 Linos, K. (2007) How Can International Organizations Shape National Welfare States? - Evidence From Compliance With European Union Directives. Comparative Political Studies, Vol. 40, No. 5, 547-570 Steunenberg, B. (2006) Turning Swift Policy-making into Deadlock and Delay - National Policy Coordination and the Transposition of EU Directives. European Union Politics, Vol. 7, No. 3, 293-319 Toshkov, D. (2007) Transposition of EU social policy in the new member states - Journal of European Social Policy, Vol. 17, No. 4, 335-348 Toshkov, D. (2008) Embracing European Law - Compliance with EU Directives in Central and Eastern Europe. European Union Politics, Vol. 9, No. 3, 379-402 Website The Union for Life (2007) Unions win landmark pensions case, available from http://www.unitetheunion.com/news__events/2008_archived_press_releases/unions_win_landmark_pensions_c.aspx Europa (2009) http://europa.eu/scadplus/leg/en/cha/c10810.htm Case law British Vita UnLtd v British Vita Pension Fund Trustees Ltd & Anor [2007] EWHC 953 (Ch) Day v Haine & Anor [2007] EWHC 2691 (Ch) Hynd v. Armstrong & Ors [2007] ScotCS CSIH MBNA Europe Bank Ltd v HM Revenue & Customs [2006] EWHC 2326 (Ch) Legislation - Directives COM(2006) 657 2002/74/EC Council Directive 80/987/EEC 2000/78/EC – on equal treatment on employment Read More