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University Degree: European Union Law
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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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Analyse the distinguishing characteristics of the freedom of establishment and the freedom of services, taking into account the ECJ case-law. Consider further whether the concept of freedom of services applies only to economic activity and its potential i
These include the freedom of labour, services, goods and capital. However these freedoms are not limited to EU nationals but extend to legal entities or companies as well. Although the free movement of workers covers a major part of the EU's economic activity, rights of the self employed worker are not fully asserted. This essay will focus on the freedom of movement of service and establishment within the EU. The freedom of establishment derives from the EC Articles 43-48.3 However the common definition given for establishment is "the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period."4 Specifically the first part
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Many of so-called "other bodies" are established by the institutions. For instance European inspector on data protection - independent body of control on loyalty and freedom of person in informational sphere. In this coursework I shall consider mostly the three main institutions of the European Union (The Council, Commission and EU Parliament). Specifically, I shall concentrate on the respective roles played by the institutions in the legislative decision -making process, by the powers vested on them. Also the point of reforms in those process to be discussed. It should be noticed that there is no traditional separation of powers within the EU, but rather a form of EU institutions integration.
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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 procedure before the court was adversarial ? It allowed legal representation ? No-one could practice as a doctor in the Nederlandse without registration with the Royal Society; decisions of the Appeals Committee therefore have particular importance in regard to the individual's rights to earn a living ? The particular case concerned the qualification of a doctor trained in another Member State; there were likely to be issues raised in the Appeals Committee relating to the freedom of establishment and freedom to provide services in Community law ?
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Therefore, if is unsuccessful an action of annulment, they citizen regulation will implemented in their legal system without the choice and form of implementation Directives . M being a MS comes under the privileged applicants when reviewing an act under judicial review. Thus, M has an automatic locus standi and do not have to prove a standing as a natural and legal person would. Furthermore, article 230 imposes a two-month time limit in which action should be taken. To comply with this requirement, M must ensure that their application for annulment is within this time limit.
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Article 39 is particularly applicable in which grants under article 39(1) that: 'freedom of movement of workers shall be secured within the Community'1 and also such that it(2) '....shall entail the abolition of any discrimination based on nationality between workers of the member states as regards employment, re-numeration and other conditions of work and employment'.2 The limitations of this article are set out in article 39(3). Furthermore to consider the position of Bella and David it is vital to consider article 17, article 18 and Council Directive 2004/38/ which in German national law is called the Freiz�gigkeitsgesetz.
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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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A common market adds to the above, the free movement of the factors of production (goods, persons and capital) and a competition policy. An economic union would be all of the above plus the creation of a common currency. The ambitions of the union have extended far beyond the original objectives of a common market for goods and services and now include the aim of developing common foreign and security policies. The movement towards the integration of European countries started soon after the 2nd world war. This integration was politically and economically motivated. In 1950, the Schuman plan was devised whereby the raw materials of war (coal and steel)
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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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The EC decision-making process has often been criticised for its lack of democratic legitimacy. This is frequently referred to as the democratic deficit(TM). Discuss
Prime feature of a democratic regime is that voters can elect and are therefore able to change their government. This is not the case with the EC, therefore a democratic deficit appears as citizens can only elect members to the Parliament which itself is only one component of the EC legislative process. A major argument made against the democratic legitimacy of the EC is that European integration has reduced the representational qualities of European democracies by concentrating an increasing amount of decisions in what is an executive dominated political system2.
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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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This is because the UK operates a 'dualist' legal system as opposed to a monist legal system. A dualist system emphasizes the difference between national and international law, and requires the translation of international law into national law whereas a monist legal system International law does not need to be translated into national law. In the UK. Directives can be implemented either by statute or by delegated legislation under the European Communities Act 1972. The decision in the case of Van Gend en Loos 1created the concept of direct effect, namely the creation of rights for individuals under Community Law.
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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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The Commission is unelected yet it is responsible for initiating the majority of legislation. Likewise the Council, is perceived as the key decision maker in the EC legislative process and '...there is no body, at European or national level, to hold the Council itself accountable'.II The EP, is the only directly elected body involved in the legislative process. Previously, the EP had a minimal role to play in legislation. However, following the Single European Act, Treaty of the European Union, Treaty of Amsterdam (ToA) and Treaty of Nice (ToN), Parliament now plays a more substantive role in the legislative process.
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The topic of 'Judicial Activism' is a live one in most countries of the common law. The accusation that judges have gone above their appropriate function is frequently made by politicians, media commentators and even some lawyers. The accusers allege that judges should stick to applying the law, they should not make it. The European Court of Justice in Luxembourg is frequently accused of being extremely activist in its rulings. Convincing scientific evidence for this position has, however, up until now been lacking.
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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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Competition is highly advantageous to the economic community as it encourages companies to be dynamic and innovative, keeps prices down and encourages an efficient economy. Anti competitive behaviour restricts these improvements by effecting the availability or service of goods in a manner that is detrimental to other undertakings or to individuals. This can include price fixing, any control over production or technical development or the domination of the market by larger undertakings co-operating together. These practices are restricted by Article 81(1)
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Finally, I shall comment on how the interpretation of Article 230 of the Treaty of the European Union has been altered in the light of the rulings given in these cases. Argument One of the areas of EC Law which has been most widely debated and subsequently criticised has been the approach that the Court of Justice of the European Communities (ECJ) has taken in regard of the 'standing' of private citizens of the European Union who seek to bring actions for the annulment of specific European Community (EC)
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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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