Eu Law Overview on principles

Regulations

Tachographs: Commission v United Kingdom A regulation was required for mechanical equipment to be installed in Lorries. The UK government of the day decided not to implement the regulations. The ECJ held that Member States had no discretion in the case of regulations and under Article 249 of the Treaty of Rome that regulations were automatically law in all Members State.

Directives

Working Time Directives Opt-out: Under Article 4 EP & Council Directive 2002/EC the average weekly working time may not exceed 48 hours and under the Working Time Regulations 1998 an employee has to sign opt out agreement to work beyond 48 hours per week. If they sign an opt-out, they have a right to cancel this agreement at any time by giving between one week and three months' notice. An employee can agree to this notice period with their contractor when they sign the opt-out. They can cancel an opt-out even if it's part of a contract they've signed. However the employers’ still find themselves in the Employment Tribunal when they commit serious breach under the working time Directives. 

Trade and industry secretary Alistair Darling Secretary represented the UK at a top level EU meeting in Brussels to thrash out the wording of the Working Time Directive. Workers would have to sign opt-out forms every 12 months, and companies would have to keep detail records about their hours worked. Key points of the finish proposal

• The 48-hours ‘soft’ cap will remain, but workers can opt out of this if their government allows.
• A 60-hour ‘hard’ cap to be introduced, with no opt-outs possible.
• Working time to be calculated over 12 months.
• Time ‘on call’ will not count as working time.
• No cap will apply to executives, farmers or emergency workers.

Vertical Direct Effect and Horizontal Direct Effect of the Directive

Marshall v Southampton Miss Marshall was required to retire at the age of 62 whilst men doing the same job did not have to retire at the age of 65, which is not a discrimination under the Sex Discrimination Act 1975.Under Equal Treatment Directive 76/207 her dismissal was unfair.

Duke v GEC Reliance Ltd GEC Reliance Ltd was a private company therefore Mrs Duke cannot rely on the Equal Treatment Directive. This confirms that the Directives do not have horizontal direct effect. 

From the above conclusion it’s clear that if claim is against an ‘arm of the State’ then an individual can rely on the directives or else he cannot rely on directives if the claim is against private company. Legal actions for damages can be taken against a Member State if failed to implement a directive.

Constitution: A functional definition of the ‘Constitution’ focuses on two purposes it must serve. A constitution must have legitimate political rule it’s done by establishing lawful principles for political rule and implementing these values along democratic lines. The constitution needs to place sovereignty in trust of the people and the state. A constitution must legalise political rule it’s done by institutionalising and adapting political rule. The constitution gives effect to the rule of law by its regulation. 13 

The European Union is disputed on the foundation of empirical observation, based on these functional and official criteria; it does not have a constitution. This is reinforced by Giscard d’Estaing’s convention in June 2003, who said there is a great need for a constitution in the European Union. In functional terms, political rule at the union stage is legalised but it is not legitimated, it is a case of ‘democratic deficit’. The treaties and the case law i.e. the living constitution upon which the European Union is based and whose functional capacity is restricted to the legislation of political rule by the union neither originates from the people nor can it be altered by the people. One of the reasons that support Habermas’s view that EU does not have a constitution of its own.13

The European parliament does not duplicate the three basic functions; it is intended to serve, one being the embodiment of law by the people. It does not give the Union decision-making liability. The work of commission is scrutinised by the European Parliament while the work of the 15 government states is not. In addition to this the council has final power for the acceptance of legislative proposals made by the commission. The European parliament is not an effective public meeting for debate. These problems show structural remoteness of the European Union and once again strengthen Habermas’s view of lack of constitution within the EU. 13

13 http://www.anu.edu.au/NEC/Puig_Constitution.pdf

Many other factors show lack of structure in the democratic character. The degree of political significance and level of control of each individual within the functional and political boundaries of the union polity are minimal. This phenomenon is often termed as ‘inverted regionalism’. 13

For the reasons outlined above, it becomes clear that constitutions are concerned with the legitimisation by political rule. Political rule is through law and under law which is carried out at the Union level. It does this in four ways, constitutes the union, sets its objectives, establishes its institutions and allocates their powers and order procedures. This process proposes that there is a legitimate political rule at the union level. 13 Other arguments suggest that the European Union lacks, membership, structure, procedure and policies.

One argument stresses the lack of truly "European elections" and that the European Union has insufficient democratic controls. A particular criticism of the ECJ is that it has been guilty of Judicial Activism, in acquiring powers for itself and EU law not formally given by any treaty, in particular the concepts of 'direct effect' which states that national courts of the member states must implement EU law and of 'supremacy' which states that when EU law and national laws are in opposition to one another, EU law has supremacy. 14

13 http://www.anu.edu.au/NEC/Puig_Constitution.pdf

14) http://en.wikipedia.org/wiki/Democratic_deficit_in_the_European_Union

In a politico-democratic perspective constitutions are defined under formal or functional conditions. From a functional perspective a constitution calls for political rule to be legitimised and legalised. From a formal perspective, a constitution is a body of primary norms coming from the people, commanding supremacy over the legal order and capable of the amendment by the people only. In the light of these definitions and the reasons highlighted through this paper it is empirically observed by lawyers and political scientists alike that the European Union is not founded upon a constitution and that therefore it is in need of one. Functionally political rule by the Union is illegitimate. It is a case of democratic deficit. To conclude the functional and formal insufficiencies of the living constitution upon which the European Union is based at present encourages the call for the introduction of a constitution in the true sense of the term. One believes that a constitution is only a success when it strikes the necessary balance between the people, between states new and old and between institutions.

Age Discrimination

The Employment Equality (Age) Regulations came into force in the UK on 01st October 2006 to apply the EU Framework Directive from 2000. These regulations make the government’s own unemployment scheme illegal. Recently a senior judge ruled the challenge to the government mandatory retirement age, brought by baby-boomers group Heyday, should be referred to the European Court of Justice (ECJ) after the government agreed with Heyday that its transposition of European Law should be scrutinised.15

15 (1964) ECR 585, Court of Justice of the European Communities.

Does EU law takes precedence over UK law?

R v Secretary of State for Transport15 There was a fishing policy in place since 1983 by the UK, which allowed member states to limit fishing within 12 miles. To stop stocks of fish, each state was allocated a quota of fish. UK altered its fishing vessel registration policy after discovering itself a victim of ‘quota hopping’. The vessels had to be British owned or controlled by a British citizen based within the UK under the Merchant Shipping Act 1988. The European Court ruled UK had not acted accordingly with Community law and dismissed its disagreement, based on the Geneva Convention, that a valid connection was needed between a State and vessels presenting its flag.

Under the Act of 1972 it was responsibility of the United Kingdom court, when delivering last judgement, to override any rule of national law found to be in disagreement with any directly enforceable rule of the Community law. Therefore the UK courts are now subjected to the supervisory jurisdiction of the ECJ.

The ECJ established that:

• "By variation with normal international treaties, the EEC Treaty has formed its own legal system which, on the entry into force of the Treaty, became an vital part of the legal systems of the Member States and in which their courts are bound to apply."

15 (1964) ECR 585, Court of Justice of the European Communities.

• "The move by the States from their domestic legal system to the Community legal system of the rights and obligations occurring under the Treaty carries with it an everlasting limitation of their  rights, against which a subsequent  act incompatible with the concept of the Community cannot prevail."

The  had upheld the act forming the ENEL, declaring that since the EEC treaty had been adopted as a , which was subject to . The ECJ ruling overturned the Italian judgment and established that states could not deviate from Community treaties without prior permission: high courts had to consult ECJ before deciding incompatibility between state and EC law. It set a significant  for the supremacy of  within the , and later the .

15 (1964) ECR 585, Court of Justice of the European Communities.

References:

1)http://www.europarl.europa.eu/addresses/institutions/websites.htm

2) Council Directives 97/80/EC

3) MaCarthys Ltd v. Smith [1980] ICR 672

4) (1979) ECJ

5) Drivers’ Hours and Tachograph Rules for Road Passenger Vehicles in the UK and Europe

6) Buttersworth Employment Law Handbook

7)

8) Personnel today dated 7th November 2006

9) Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) [1986] ICR 335, ECJ

10) Duke v GEC Reliance Ltd [1988] AC 618

11) Von & Colson v Land Nordrhein-Westfalen (C-14/83) (1984) ECR 1891

12) Francovich and Others v Italy [1991] ECR I-5357

13) http://www.anu.edu.au/NEC/Puig_Constitution.pdf

14) http://en.wikipedia.org/wiki/Democratic_deficit_in_the_European_Union

15) (1964) ECR 585, Court of Justice of the European Communities.

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