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University Degree: European Union Law
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- Marked by Teachers essays 2
Council Directive 2004/707 on transporting retired people (fictitious), adopted on 1 November 2000, requires all Member States: a. to implement measures by March 2007 giving all retired EU workers beyond the age of 65 years the right to travel within the3 star(s)
Bill, a Spanish national was a teacher for 15 years in Spain before he moved to the UK. After working for 3 years as a secondary teacher in the UK, he decided to take life easier and stopped his job. At 55, he has agreed with friends that he will take care of their gardens as long as they cook for him afterwards. He now wishes to spend the winter of every year in Spain where the warmer climate is better for his health. Bill goes to his Department of Transport to ask for his free flight, but his request is refused.
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Eu Directives Problem Case. Difficulties arise in situations such as the one faced by Gunilla, where Directives are improperly transposed or ignored by the implementing national authority.
Colson v Land Nordrhen-Westfalen (1984)2 also said: "that national courts are bound to interpret national law in light of the wording and purpose of the directive". Difficulties arise in situations such as the one faced by Gunilla, where Directives are improperly transposed or ignored by the implementing national authority. A Directive which has not been properly transposed creates legal anomalies in the domestic legal system in question. Directives are used to harmonise national legislation, regulation and administrative provisions. They require co-operation between the Community and the Member States.
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The democratic legitimacy of the Unions legislative process may have been enhanced by the growing influence of the European Parliament, but it remains deeply flawed by the role of the Commission and the functioning of the Council.
do in order to represent that democratic legitimacy. Democratic legitimacy has been described by Abraham Lincoln as depending upon, ''government by the people, of the people, and for the people'' that is based on political participation, citizen representation and effective government.3 As argued by Daniel Gaus, the nature of legitimacy can be described as the ''worthiness of a political system'' and, shows in successfully operating legitimations or, in other words, in generally accepted justifications of a political order.4 There is a sense in which the EU does enjoy sufficient legitimacy for the tasks it undertakes.
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The Problem With The ECJs Approach To Free Movement Is Not Whether It Has Found The Ideal Analytical Techniques For Determining The Boundaries Of The Treaty Prohibitions, But Rather That Its Application Of The Proportionality Principle Undermines An
This was largely based on the reasoning that indistinctly applicable rules which relate to product composition and packaging create a dual burden for the importer, as the importer will have to comply with 2 sets of regulations. The court mitigated the effects of this widening, by allowing distinctly applicable rules to be justified by the Article 30 derogations, but also creating judicially created derogations known as mandatory requirements (discussed further on). With regards to selling arrangements, i.e. those rules concerning who sells the product, when they sell the product and how they sell the product7, the ECJ in Keck8 carved a solid exclusion for provided they meet the two provisos universality & neutrality.
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Furthermore, it held that rights conferred on individuals by the EC legislation should be enforceable by those individuals in national courts. With growing awareness of fundamental rights, especially throughout the European Community, these rights undoubtedly began to play a crucial role and therefore their protection became inevitable. In the 1970 case of Handelsgesellschaft7, which portrayed the importance of fundamental rights, the German Verwaltungsgericht referred to the ECJ the question of whether the import and export licensing system under the common organisation of the grain market was valid.
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The comitology procedures focus too much on institutional balance, and not enough on deliberation. Discuss.
Over the years, many criticised the Comitology Decision, especially whether the Decision "infringed upon the (Community) institutional balance of powers and Article 145, third indent"10. As a result, new Comitology Decisions were introduced. Before examining whether the comitology procedures focus too much on institutional balance and not enough on deliberation, it is important to outline the different comitology procedures; advisory, management, regulatory and regulatory with scrutiny. The advisory procedure is the one which the Commission has the greatest freedom. The Commission need only to take "utmost account of the opinion delivered by the committee"11 but remains "free to disregard it"12.
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In this case the Court of Justice discussed how community law is a unique system that is able to override any conflicting legislation. By 1964 where there were situations of conflict, the Court of Justice ruled that community law always prevails no matter what the situation was. A state that is in violation of community law may be challenged before its own national courts. The principles of direct effect and supremacy come into play. A complainant may choose to bring proceedings at national level in so far as that may offer legal protection unavailable at EC level: this will
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The first being that the derogation article 17(1) of the directive which was transposed as regulation 20(2) under the national law instrument, the Working Time Regulations 19983, went over what was intended. The directive intended the derogation to only apply to those 'workers whose working time as a 'whole', is not measured or predetermined or can be determined by the workers themselves'4, but regulation 20(2) goes beyond this and allows the derogation to apply to 'parts' of the working time that have the same characteristics mentioned above. The UK decided to repeal regulation 20(2), but it was not within the time period of the reasoned opinion, and thus the European Court of Justice (ECJ)
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Case Critique R. (on the application of Countryside Alliance) v Attorney General. There were two appellants (H and E) and they appealed against a decision ( EWCA Civ 817) that the Hunting Act 2004 was neither incompatible with the European Con
E contended that the Act was inconsistent with Art.28 and Art.49 of the EC Treaty and sought references to the European Court of Justice on the issues of whether a national measure prohibiting the economic activity of hunting within the territory of a member state engaged Art.28 in circumstances where the prohibition had the predictable effect of diminishing the market for a product used wholly or mainly for that activity and thereby eliminated or reduced cross-border trade in that product.
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Investigation of the institutions of EC Law. he main institutions of the European Community were primarily set up by the Treaty Establishing the European Community.
belief that complete citizen freedom cannot be fulfilled if sheer independence of the executive, judiciary and the legislature from each other is not in place. In addition, he underlined the importance of the independence of the judiciary. Therefore the EC should be constructed in accordance with this theory if complete civil liberty is to be achieved. Nowadays though, the Community institutions can affect each other in a way that they breach the ideology of the 'separation of powers.' The European Parliament was created by the Treaty of Rome in 1957 to be the official legislative body of the Community.
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To what extent has the EU become a federal state? Does the Treaty of Lisbon form a constitution for that state?
If ratified, the Treaty of Lisbon would also make the Union's human rights charter, the Charter of Fundamental Rights, legally binding. Does the transformation of the EU's Constitutional Charter into a Constitution like that of a State? Does such a need exist? In order to try and give some elements which might help to answer these questions, one should try to define the essential criteria which would have to be met in order to transform the EU's fundamental texts into a Constitution like that of a State.
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The initial approach was that the Act's of Parliament must reign supreme against Community Law and has "no effect...until it is made an Act of Parliament. Once implemented...these courts must go by the Act of Parliament", therefore resulting in the Westminster Parliament to pass an act in which upholds this theory which gave effect to the EC Treaty of Rome. This treaty is the primary legislation within Community Law and within this treaty lies secondary legislation in three forms; Regulation, Directives and Decisions.
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concerns the selling arrangement of certain goods, inasmuch as it prohibits the sale, other than exclusively by pharmacies... and thus generally determines the points of sale where they may be distributed."4 The court also said that there was no distinction between the way national products and products from other countries would be treated. As the national products were not treated differently to international products in Burgeria, the restrictions of selling Sliming Beauty in authorised pharmacies would not be against community regulations. Another problem that Porquette has to face in Burgeria is she is only allowed to advertise the product directly to medical professionals through specialist journals.
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The doctrine of supremacy of Community law performs the function of protecting Community competence by holding that where there is a conflict between Community and national law EC law must prevail. Such a doctrine is dependent, however, on a
employment and industrial relations, the more the EC law they create will come to replace increasingly wide areas of national labour law, Commission v. United Kingdom, 9 EC law is supreme even over provisions of national constitutions, Internationale Handelsgesellschaft10 and the ECJ emphasised that supremacy of EC law affects both prior and future legislation, Simmenthal SpA v. Commission (no 2).11 The obligation to ignore conflicting national law was demonstrated more pointedly in Factortame12 where the UK accepted it should grant interim relief to suspend an Act of Parliament, thus showing the limitation of sovereignty it had accepted when it joined
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This will be done by investigation into the purpose of a constitution; then, a reference of this purposes against the European Union to determine whether or not it does in fact have a constitution. "In lay terms, a constitution is a set of rules which governs an organisation."2 This is a rather wide definition and can be applied to almost any organisation that has its own governing rules, for example working men's clubs. Tomkins, however, suggests that a constitution performs three main tasks: it provides for the creation of institutions of the State; it regulates the relationship between those institutions
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Where for the first time the ECJ3 rejected the argument of the Italian national court by using the passage4, which has been repeated many times on cases thereafter. This case created the principle that, where there is a conflict between Community law and national law it is Community law that will prevail. In this case, Costa was an Italian citizen who refused to pay the electricity board (ENEL) �1 that he found was contrary to the EC law, when this came to the ECJ the decision was made in his favour.
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Article 1 of Regulation 1612/68 refers the right to take up an activity as an employed person. The definition of Worker European Court of Justice has placed a 'purposive' interpretation of a worker, as in Case 53/81 Levin; the ECJ attempted to lay down a definition but created essential characteristics from the Levin case. This was the occupation must not be ancillary or marginal however must be genuine and effective. The treaty had not defined the definition of a worker but in Case 75/63 Hoekstra1 definitions of worker in member states were not appropriate, nevertheless they must be a national of the European Union.
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It is simply down to a matter of opinion if the European Union is undemocratic or not. I aim to discuss and show the differences between these opinions. The process the EU goes through to make and create decisions is complicated. The EU tries to simplify the procedure and make it more accessible to the citizens themselves. They do this by giving more information and providing more ways for the civil society to intervene in the policies themselves. Since the Maastricht treaty of 1991 my research shows that there has been a conscious effort to strengthen the democracy of the institutions of the European Union.
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Treaty of Rome has great impact on UK's employment and sex equality. However Treaty of Amsterdam added further value and importance to the Treaty of Rome which allows council to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation'. Any employee who would like to submit a claim under the Employment Equality Act 1998 and the relevant regulations pertaining to discrimination they do not have to show 12 months of service and in a constructive dismissal and unfair dismissal case length of service is required which is very sad for the employees that even if they have a genuine case they cannot submit their claim unless one of the Statutory Employment Rights are breached.
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Discussing the cases of Van Gend En Loos (Case 26/62), Von Colson (14/83) and Francovich (Cases 6 & 9/90)
Although Community law is part of our legal system and is therefore directly applicable in the UK, not all Community law is directly effective, that is to say, capable of judicial enforcement. The Court of Justice has ruled in a number of cases that for a Treaty Article, Regulation or Decision to be directly effective, it must be sufficiently clear and unconditional for reliance to be placed on it, and there must be no scope for the exercise of Member State discretion in implementing it.
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COMPOSITION It is the 20 Commissioners (members of Commission) who provide the political leadership and direction for the organization. Today the 20 members include two (2) from the larger EU countries (France, Germany, Italy, Spain and the UK) and one (1) from each of the other Member States (Sweden, Denmark, Finland, the Netherlands, Belgium, Luxembourg, Austria, Ireland, Portugal & Greece). At present five (5) of the members of the Commission are women, which is more than it has ever had. This goes along with the increased gender balance that the European Union as a whole is striving for. To help the 20 Commissioners, around 15.000 people work on as the Commission staff, making this the largest institution within the European Union.
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3 Article 39(1) EC provides that 'freedom of movement for workers shall be secured within the Community' and Article 39(3) EC provides, inter alia, that 'it shall entail the right, subject to limitations justified on grounds of public policy, public security or public health, to accept offers of employment actually made and (sic) to move freely within the territory of Member States for this purpose.'4 I am told that Danielle has recently been offered a position with Scrooge & Co, but has come to the UK even though she will not commence her position for six months.
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In advising Sophie as to what remedies she might have in community law, the areas of direct effect, indirect effect and state liability will be taken into consideration.
If provisions of international law are capable of applicability by national courts, they are also termed 'directly applicable'. This has created ambiguity which gives rise to uncertainty in the context of EC law. Winter suggested that 'directly effective' should be used instead. However, not all provisions of directly applicable international law are capable of direct effects. A few provisions are seen as binding on, enforceable by states alone, whilst others are quite vague to make the basis of rights or obligations for individuals, others are incomplete and require implementation before they are successful in law. Whether a provision is effective is a matter of construction but this depends on the language/purpose and also the terms on which the Treaty has been included into domestic law.
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Justice (ECJ) said that " The member states have limited their sovereign rights, and have thus created a body of law which binds both their nationals and themselves".
The conditions were laid down in Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62)  ECR 1 that the directive must be clear and precise, unconditional and leaving no room for discretion in implementation. However in the current case although the directive is clear, precise and unconditional it gave some discretion as to when it must be implemented. Therefore the directive would be directly effective once the time limit for implementation has expired. If in the current case the time limit has not expired the directive is not directly effective as seen in Pubblico Ministero v.
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Eventually, we will analyse the issues raising from the TWF directive and how they have been tackled. That will lead us to the end of the analysis where I will describe the current state of the directive in the European context and will give my opinion about that concern with pleasure. * The television without frontiers (TWF) as I said above, was created in 1984 but evolved until 1989 and then in the nineties until 1997. It was an assistance from the EU to establish a change in the European media and has been encouraged by the European Council (Richard Rooke, 2002)
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