Constitutional Law of the European Union Essay

The European hail of referee is the driving tug behind European integration. The ECJ had elaborately delimitate the philosophical systems of advant while and site printing of the EC up honorableness and provided remedies for restoration caused by wear out of EC equityfulness of nature by a segment deposit . Despite the initiatives of the ECJ, in that location hold been battles amongst society faithfulness and theme natural soundity. More everyplace, the ECJ do it clear that the EC faithfulness had domination over field of study righteousness in the termination of struggle as evidenced in the deterrent example of rib v ENEL, wherein it held that a antecedent ruling by the Italian mashs establish on their bailiwick righteousness would be of no signifi backsidece.In Simmenthal, the ECJ clarified that the union law was to take antecedence over glut law and that all planning of the content law that contravened the fellowship Law would be rescinded by it. Moreover, the ECJ prohibited the per mastermindance of all matter law that was in conflict with the community law. The ECJ hike up command that no fundamental provision of any field law could challenge the achievement of a impartly applicable fellowship rule .This advantage of alliance law is one of the constitutive article of beliefs of the integration of the European Community exploitive run and it has been substantially embedded in the Treaty that established a Constitution for the European wedding. The doctrine of victory of Community law, the principles of direct effect and uniform applicability be the unproblematic ingredients of the Community. They argon fundamental to the promotion of an sound Community legal put up and form the unseen pillars of the European Constitution.Further, the doctrine of supremacy is the actual concrete personification of this original power . The discipline innate woos of constituent resigns found it very diffic ult to take over the doctrine of supremacy and in the sign stages the Italian and German constitutional courts about refused to adopt this doctrine into their single subject laws, because they felt that they would be surrendering their power of constitutional freshen up of petty(a) community law. Subsequently, the explosion of the European Union provided a vernal paradigm to this doctrine of supremacy.This doctrine of supremacy was performd by the ECJ in Costa v ENEL . This doctrine is a jurisprudential creation of the ECJ. Further, the Court clarified that the europium Treaty had adopted a bare-ass legal system, which the division commonwealths had integrated into their field legislation. Accordingly, the issue courts were required to apply the Community law without any deviation and this generated a number of debates in the process States. Ultimately, it was certain by the particle States. However, total supremacy over the national constitutional alimentation has non been achieved .In Frontini the Italian intact Court had opined that the 1957 Act, which had accepted the edible of the europium Treaty, did non let on the Constitution. Moreover, the Italian court reserved to itself the right to review the go on compatibility of the Treaty with the Constitution . In early(a)(prenominal) face the Italian Constitutional Court, speckle accepting the precedence of Community law, well-kept that the court had competence over any aspect of the descent between Community law and municipal law .These takes lowstandably established that the national constitutional courts had not completely accepted the supremacy of Community law. The German Constitutional Courts voiced their anxiety over the protection of fundamental rights in the decisions wedded in Solange I and II and introduced the belief of Kompetenz Kompetenze. Even in the banana pillow slip the German constitutional Court declined to give up its power to review secondary com munity legislation in distinguish to protect fundamental rights .In the United Kingdom this doctrine created several(prenominal) problems, because the UK constitution bestows absolute power on Parliament. Further, the UK ratified a dualist policy concerning the relationship between international treaties and national law. Although much(prenominal) treaties were signed by the UK, they were not integrate into the internal law of the UK. In order to incorporate the treaties into national laws, the Parliament had to prove them and this directed in a problem in respect of accepting the doctrine of supremacy of Community law over national law.In the famous Factortame contingency the concept of the supremacy of Community law was subjected to a vast amount of discussion. In that lineament Spanish fishermen had argued that the norms for registering vessels under the Merchant transferral Act 1988 were discriminatory and in conflict with the provisions of the EC Treaty. The House of Lords refused to dispense any interim injunction against the Crown. The applicants in this case claimed that this would violate the Community law and the result was that a reference was made to the ECJ, which ruled in favour of these applicants.The ECJ further held that any piece of legislation in the national law that pr suited a court from issuing interim relief would be tantamount to the violation of the Community law . The EOC case dealt with the suitability of the UK statute regarding unsporting dismissal and redundancy pay in the broader context of the EC law . The UK law provided different benefits to employees acidifying in salutary time and part time jobs. The appellate in the case, the affect Opportunities commission, opined that the statute was severalize against female employees, which was in contravention of hold 141 of the EC Treaty and to other Community directings.The House of Lords held that the national legislation had break the EC law and upheld the c ontention of the EOC. The onward motion of the European Court of judge is at variance with the customary doctrine of originator that is entrenched in domestic help law. The target of the ECJ is to bring about a European Union that follows the same law end-to-end its appendage States and to this end it constantly endeavours to abet the EC Treaty. This could result in a change in the version of legal principle over a fix of time.Moreover, the ECJ bases its decisions on the extant circumstances and not on precedent. National courts of component States in the European Union can set about a preliminary ruling regarding the interpretation of European Union Law from the ECJ on the basis of the provisions intact in Article 234 of the EC Treaty. However, it is not the prime objective of the ECJ to take decisions regarding the compatibility between the domestic and European laws. Further, it is as well not the special aim of the ECJ to apply the European Union Law to some speci fic facts of a case .The ECJ indicates the principle to be utilize in a special(a) case and the case result induce to be decided in the originating court, however, the ECJ ruling will deliver to be follow uped by much(prenominal) a court. In the absence seizure seizure of an appeal from a national court, a reference will have to be made by the originating court, in case it is of the perspective that a clarification in respect of European Union Law is required. Nevertheless(prenominal), on that point are instances where an ET, EAT or Appellate Court has to make a reference to the ECJ in order to estimate judgement that is in accordance with the EU law.The function of the advocates general is to aid the judge in their judicial work. They do this by submitting analyses and recommendations regarding the issues raised in a particular case . In addition to the rights conferred on the nationals of the EU Member States by their respective national constitutions, the EU law compris es of another source that grants rights to them. As such the European Union law urinates a legal system that in addition to be independent besides, perhaps more importantly, takes precedence over the national laws of the Member States of the European Union.This European Union law comprises of treaties, which constitute primary legislation and regulations and directives that constitute secondary legislation. The importance of regulations is that they directly require abidance from the Member States without having to be codified into the national laws. However, in respect of the leadings, which are also legally binding, the onus of implementing them rests squarely with the Member States and these Member States have to do so by resorting to the relevant national law legislation on or in advance the final date set by the EU for such performance.Accordingly, Article 189 of the European Economic Treaty verbalizes that A directing shall be binding, as to the result to be achieved , upon each Member State to which it is communicate, alone shall leave to the national authorities the superior of form and methods. The European Court of Justice, concomitant to taking cognizance of the fact that guidings have to be utilise by the Member States, declared that exclusives were well within their rights to hear the death penalty of guidings even off in the event of failure by the Member States to bring the deadline set by the EU.In addition, psyches were permitted to enforce such rights in the national courts. The avant-garde Gend en Loos decision unequivocally established the fact that in addition to creating obligations for the Member States to implement the leadings it also creates rights for the exclusive citizens of these Member States . The right of the Member States and the European citizens committee to proceed against other Member States in the first place the European Court of Justice does not prohibit the lodging of complaints by individuals against the Member State to which they belong in their national courts.In this context, the European Court of Justice ruled that Article 12 of the atomic number 63 results in direct effect, which in subprogram result in the creation of rights for individuals and that these rights had to perforce protected by the national courts. Consequently, individuals have been empowered to ensure that rights granted by the Directives are enforced in the national courts . The offshoot of this is that individuals can ensure the implementation of human rights by resorting to legal exercise.In the Becker case it was clarified that if at that place is unconditionality and up to(predicate) precision in the provisions of a Directive that bestows individual rights, then individuals can resort to such provisions to rivalry the relevant national law . Furthermore, in the Francovich case the European Court of Justice established a test in three parts, which was to be utilized in order to ascertain wh ether the provisions that were inherent in a Directive, were fitly small and unconditional in creating a right that was applicable to individuals.The ECJ has to consider the identity of the persons who are supported by the guarantee and the content of the guarantee. The identity of the person in breach and who is liable to pay the guarantee has also to be ascertained. Private persons and forms cannot be subjected to the provisions of the Directives, because it is only the land that is subject to the Directives. The decision in the case of Francovich served to establish that deadenings could be claimed by an individual in a national court, in the event of a Member States failure to implement a Directive properly.The ECJ clarified that the spirit of the European law and the protection of rights would be keep abreast ineffective if an individual failed to secure compensation. Moreover, the States are required to implement Directives wholly and properly. The ECJ decided in Brasseri e du Pecheur v. Germany that in that respect must be a sufficiently serious breach by the State in order to determine its liability. This pronouncement applies to items where national legislation is implemented improperly and inconsistently with a Directive.In order to determine whether Community law was breached with sufficient seriousness, it is sufficient to demonstrate that the Member State or Community institution had severely and knowingly ignored the limits to its mannersary power. nearly of the factors that the court has to consider are the exactness and clarity of the rule that was breached, the amount of discretion allowed to the national or Community authorities, whether the damage caused was intentional or not and whether there had been any adoption or rejection of measures that were in violation of the Community law .Member States for whom the Directives are specifically issued should be bound by them. Sometimes Directives can be approached to one Member State or a group of them, notwithstanding in general Directives are addressed to all the Member States. The exception to this manage is in respect of Directives that pertain to everyday Agricultural Policy. The European Commission initiates a binding legal action in situations where a Member State fails to incorporate the provisions of a Directive into their national legislation or if the national legislation fails to properly fulfill the requirements of the Directive.Previously, the Directives were not adequately binding upon the Member States in their implementation. To address this problem, the ECJ promoted the doctrine of direct effect. Thus even if a Member States fails implement the Directives there is legal initiation under the principle of direct effect. This was clearly established in the case of Francovich v Italy. In that case, the ECJ attributed liability to Italy for its failure to implement a Directive. The Easytalk was a private limited accompany that had been form with help from the UK government.It was established in order to encourage students in the EU to come to the UK in order to learn English. This company advertised all over the EU universities by means of pamphlets, in which it was tell that the course instructors would be highly certified scholars in English with a majuscule deal of teaching experience. A Directive was issued by the EU that prohibited the consequence of advertisements that misled and imparted false information. This Directive was to be implemented by January 2007.However, the UK government failed to implement this Directive by this deadline and in effect this Directive had been ignored by the UK government, because the latter was of the opinion that this Directive was unlawful. Subsequently, a French student, Antoine came to the UK and registered for a course that taught English. However, once the classes commenced, Antoine realized that the aptitude comprised of students who were not qualified teachers of English as a foreign language.On existence approached, the institute where he had enrolled refused to refund the fees stipendiary by him. The direct effect of directives has been quiet by the concepts of straight and swimming effect. cutting edge Duyn and Ratti affirmed that directives only have vertical effect so that an individual who is modify by the give tongue tos failure to implement a directive properly or not at all only has rights against the maintain and not against a non- declare entity or other individuals, as the directive imposes the obligation of implementation upon the state.Therefore a horizontal confinement was placed upon the scope of the direct effect of directives. This principle was addressed in marshall v Southampton and South West Hampshire health Authority , in which the applicant who was utilise by the Health way, was required to fall behind at the age of sixty dickens years, while men doing the same work did not have to retire until the age of sixty five years.Although under national law, by virtue of the Sex disagreement Act, this was not discriminatory, she succeeded in her claim for foul dismissal by relying on the Equal Treatment directive, which had not been implemented in the UK. This directive was sufficiently clear to have direct effect but the courts took the probability to confirm that a directive whitethorn not of itself impose obligations on an individual and that a provision whitethorn not be relied upon as such against such a person.Therefore since the health authority was an organ of the state, the directive had vertical direct effect. Since the respondent in this problem is a private limited company, the claimant cannot approach the Commission under the vertical direct effect. However, he can seek justice under the EU law by resorting to the function of substantiating effect. Since, the UK government had not implemented the Directive the claimant can approach the national courts of the UK to compel the gove rnment to apply the Directive.In respect of amends, the ECJ further held in R v H. M. Treasury, ex parte British Telecommunications plc that parties who had uphold loss as a result of nonsensical implementation of a directive by a state, could claim change for the loss sustained on such an account. In contrast to this, if a state has failed to fulfill its obligations regarding Directives, whether by non-implementation or incorrect implementation, an individual cannot request invocation of the horizontal direct effect of a directive against another individual.Similarly the effectiveness of non-implemented or incorrectly-implemented directives that do not have direct effect through the horizontal restriction has been enhanced through the doctrine of indirect effect, which emerged from Von Colson . In this case the ECJ held that national courts are required to interpret their national law in light of the wording and the purpose of the directive so that the directive is given some effect despite the absence of proper domestic implementation.This principle may be used under both circumstances first, where the defendant is a state entity but a directive is not vertically directly effective as its provisions are insufficiently precise, conditional and require further state action for their implementation. Second, the provisions of a directive could be indirectly enforced against a non-state entity i. e. it could be applied horizontally as between individuals. The court was confronted with a horizontal situation in Marleasing , in which this position was confirmed.Therefore, if national law was in existence that could be read in conformity with a non-implemented directive, then an individual could enforce a legal remedy against another individual through the interpretative route without seek to enforce the directive directly and encountering the restraint to horizontal effect. In respect of the Easytalk institute the claimant can file a case for breach of cont ract and false office in the UK courts in order to baffle redressal for the loss, damage and frustration caused to him.The question arises as to whether the aggrieved individuals can claim damages against the state in the national courts. The ECJ clarified that the state had to pay compensation for the damages caused collectible to non implementation of a Directive and that the conditions set down for such claim of damages must not be less reasonable than what was specified for a domestic claim. Furthermore, the Member State should not unduly complicate the claim process.