1 Running Head: DIRECTIVE (FICTITIOUS) OF EU Your topic: In 2009, the EU enacted a directive (fictitious) which required that Member States statutory provisions for state benefits be applied to all EU citizens, regardless of which EU state they originated from. The deadline for implementation was January 2010. The UK government, as part of its austerity measures, has recently enacted a law which restricts statutory sickness benefits to UK citizens and those with indefinite leave to remain only, in an attempt to cut public spending. Pavol is a Polish citizen, currently residing in the UK. He does not have indefinite leave to remain, as he has only been here for 18 months, but falls ill and is told by his employer, the University of Westchester, that he is unable to claim sickness benefit. He takes the matter to an employment tribunal, but the tribunal dismisses his case on the grounds that UK law does not entitle him to claim.pavol has a right of appeal to the county court. Discuss whether, on appeal to the county court, Pavol can enforce his rights under the directive (referring to the principles of direct effect, indirect effect and state liability). Your topic's description: In answering the question, your focus should be upon answering the question as it is set (in the box at the top of page 1) and in doing so, you will therefore have addressed the learning outcomes. The first part of the assessment will involve your knowledge and critical understanding of the development of the EU, along with your ability to critically analyse the EU as an organisation. The second part of the assessment will involve contextualisation of the law of the EU in the hierarchy of UK law, including the role and jurisdiction of the ECJ with regard to national legislatures, and the effect of EU law on the law of the UK. The assessment as a whole will require you to demonstrate your essay writing, problem solving and legal research skills. In 2009, the EU enacted a directive (fictitious) which required that Member States statutory provisions for state benefits be applied to all EU citizens, regardless of which EU state they originated from. The deadline for implementation was January 2010. The UK government, as part of its austerity measures, has recently enacted a law which restricts statutory sickness benefits to UK citizens and those with indefinite leave to remain only, in an attempt to cut public spending. Pavol is a Polish citizen, currently residing in the UK. He does not have indefinite leave to remain, as he has only been here for 18 months, but falls ill and is told by his employer, the University of Westchester, that he is unable to claim sickness benefit. He takes the matter to an employment tribunal, but the tribunal dismisses his case on the grounds that UK law does not entitle him to claim.pavol has a right of appeal to the county court. Discuss whether, on appeal to the county court, Pavol can enforce his rights under the directive (referring to the principles of direct effect, indirect effect and state liability). ***Vancouver referencing*** Your desired style of citation: Essay Your educational level: Guaranteed First Class Refrencing Style: APA Referencing Number of page: 8
2 Directive (Fictitious) of EU [Writer Name] [Institute Name]
3 Directive (Fictitious) of EU Introduction The European Union is an alliance of European countries, who through joining their financial wealth, have determined to make a combined Europe, a Europe with no obstacles and entire liberty to business with one another [1]. The European Union is an arrangement of different nations. With all these nations making one vast financial group, the European Union will become an extremely powerful financial body in world because of its great financial development. The European Union, which was earlier identified as the European Community is an institutional structure that started in 1951 between six nations with the aim of making a joint Europe. The European Union was made after World War II to financially and politically combine Europe so that another war among the European countries would not happen. Discussion The aim of the European Union is to support financial and social development; declare the European individuality internationally; establish European citizenship; improve a place of security, justice and freedom; and with repeated focus on society that will support to the Union's cohesion, strength and impact in the world. Throughout the formation of the European Union, compulsory treaties were made and approved through the members who steadily combined them progressively. In that time, after the war, the society was observed as a style of keeping peace through bringing jointly these countries to coordinate with each other as similar. The EU creates regulations which should be
4 appreciated through all member countries. Since the goal behind the formation of latest European acts is normally to standardise acts between the various member countries, it is expected that laws of EU are approved which different member countries do not approve. UK combined the EU in 1973 when it was still European Economic Community (EEC). So until 1972 UK had an entire parliamentary independence but as the application of UK to combine the EU was established, Parliament approved the European Communities Act. This Act modified some authority over formation of acts to EU institutions. When talking about where exactly the law comes from, lawyers talk about "sources of law". Two sources are there for European Union law. There is primary and secondary. Primary basis for law of EU are treaties. Agreements and treaties are approved through the Heads of State of all the member countries of the EU. They set out all the main aims and principles of the EU. So far as act is related all treaties approved through head of government become part of English act automatically. This is a result of the European Communities Act 1972[2]. Four important treaties are there for the European Union. The Treaty of Rome 1957 was when the EEC was formed and trade barriers and custom duties were abolished. The Maastricht Treaty 1993 was when the EC became the EU and everybody holding identification from one of the member countries of the EU became a person of the EU. It also meant that that the European Parliament gained more powers. The Amsterdam Treaty 197 which meant there were more powers for the European Parliament and laws of migration were to be general between states, human rights provisions were also made. The Treaty of Nice 2001 meant that modifies in the qualified majority system of voting were agreed, a necessary preparation for a big enhance in
5 different member countries. The idea that groups of countries will develop at different paces within the EU was agreed also [1]. Secondary foundations of EU law are directives, regulations and decisions. What these different types of law have in common is that they are all acts focused at putting the common values set out in the treaties into exercise. Unlike treaties, however, they do not require the signature of Heads of State. They are proposed through the Council of Ministers and the Parliament of Europe. Orders are the important style in which harmonisation of acts within member countries is reached. They are statements outlining the kind of national laws that member countries are required to pass in order to meet the requirements of treaties [3]. Directives are issued under Article 249 of the Treaty of Rome. Directives are more specific than treaties, which contain general principles. They direct member states to pass laws which meet certain criteria, though they lever it to the member states themselves to decide which form the laws will take. An example of a major Act of Parliament, which was passed to comply with a directive, is the Consumer Protection Act 1987. This legislation gave to consumers powerful new rights of action against the manufacturers of defective products. ECJ The European Court of Justice (ECJ) was founded through the Treaty making the European Coal and Steel Community, approved in 1951[4]. The treaty gave the Luxembourg-based ECJ the roll of guaranteeing that in the application and interpretation of this treaty and of acts laid down for the understanding thereof, the act is seen. In 1957,
6 the ratification of the Treaty establishing the European Economic Community, and the Treaty establishing the European Atomic Energy Community expanded the ECJ authority noticeably, important to its emergence as a supranational entity. The Single European Act of 1986, along with amending the three previous Treaties, created the Court of First example to aid the ECJ in face of the steadily increasing flow of cases put before it for consideration. In 1992, the Maastricht Treaty established two new pillars of the European Union, which, due to concerns over judicial activism, were left out of the jurisdiction of the ECJ. The responsibility of the ECJ is to make sure that in the application and interpretation of the Treaty, the act is seen. According to Garret (1995), the ECJ was made as part of the European Coal and Steel Community ((ECSC) to secure member states and companies through guaranteeing that the supranational high influence, namely Commission and the Council of Ministers did not exceed their influence, filling in indistinct features of EC acts through disagreements resolution, and choosing on charges of non-compliance improved through by the Commission or through member states. Though, as Johnston (2001) has discussed, when the European Union was made the command of Court was modified but its main task remained to keep the Council and Commission the in check. The Treaty of Rome Johnston (2001) noted charges the European Court of Justice (ECJ) with interpreting and applying its provisions [5]. Another task of the ECJ is disagreement resolution when laws of EC are indistinct or in the language of Weingast and Garret quoted in Alter (1998: 124), filling partial agreements. The ECJ, the discussion goes, can be detained in the action of a discrepancy between member states or companies on the one hand, and the national governments or
7 Commission on the other about how the agreement or additional provisions of EC law must be interpreted. In addition, people can bring confrontations to Council and Commission acts straight to the ECJ and/ or under the main decision method as presented for through Article 234. The primary ruling procedure, Arnull (1990) wrote, permits people to confront in courts of country law interpretations of EC of the Commission or of national management However, writing in (1995), Garret, defined that these feature for of jurisdiction of the Court were not part of the Treaty of Rome, rather they were made through the ECJ which modified the preliminary system of ruling from a system to permit people to ask EC law into a method to permit people to question country act [6]. The ruling of the ECJ, so runs the argument, is an interlocutory ruling: it is regarded as a stage in the proceedings before the courts of country and while binding on the national court, leaves the latter in its own final disposal of the case. It is in this logic that the ruling of the ECJ is preliminary. The European Court of Justice (ECJ) has participated an important task in the development of EC law. Although it is not a legislative body in itself, the rulings of ECJ confirmed important in supporting obtain the financial and social aims of EU and have deeply influenced the style of the legal order and politics of the EU [7]. Therefore, in understanding the workings of the EU, it is significant to look at some of the most imperative decisions of the ECJ and their effects both on the society and the Member States.
8 The ECJ also played an important part in facilitating and strengthening the open movement of products within the society a crucial aim. Two cases in the 1970 s stand out. In 1974, in the Dassonville decision, the Court clarified the meaning of the expression measures of similar impact within Articles 28 and 29 TEC which presented to obstacles to the open movement of products. The Court held that the term meant: every business act enforced through member states which are able of hindering, straight or indirectly, possibly or actually, intra-society business. This wide understanding of the Treaty provisions gave the Community legal authority to deal with a much broader range of barriers to the open movement of products, thus allowing for ever increasing integration. In the 1979 case of Cassis de Dijon, the Court made the rule of mutual identification which can be efficiently summed up as the principle that where a product was legally marketed in one member state it must be allowed to be traded freely in all of the others unless restrictions could be justified by essential needs, like the security of public protection, animal or public health, the situation and others [6]. These restrictions were later codified within Article 30 EC, showing how the Court s rulings have influenced the legislative process [8]. In 2009, the EU enacted a directive (fictitious) which required that Member States statutory provisions for state benefits be applied to all EU citizens, regardless of which EU state they originated from. The deadline for implementation was January 2010. The UK government, as part of its austerity measures, has recently enacted a law which restricts statutory sickness benefits to UK citizens and those with indefinite leave to remain only, in an attempt to cut public spending. Pavol is a Polish citizen, currently residing in the UK [5]. He does not have indefinite leave to remain, as he has only been
9 here for 18 months, but falls ill and is told by his employer, the University of Westchester, that he is unable to claim sickness benefit. He takes the matter to an employment tribunal, but the tribunal dismisses his case on the grounds that UK law does not entitle him to claim. Pavol has a right of appeal to the county court. I am guessing that I need to apply principles of vertical direct effect or indirect effect. I have problem actually with choosing relevant cases and Acts... and would u say that this directive is clear, precise and unconditional- what is the requirement of direct effect? Conclusion The responsibility of the European Court of Justice (ECJ) has been seen in both positive and negative light by various actors in the society arena with those observing it. It has, of course, attracted both praise and criticism. Rasmussen captures one of the most common criticisms of the ECJ when he writes that the Court has applied in its decisions directions which are fundamentally political in nature and therefore not wisely appropriate. This is the source of trial activism which can be a usurpation of influence Bomberg and Stubb seem to agree when they highlight the claim that the Court has, in effect, become a body of policy-making in its own right. When looking at these assertions together we can appreciate the possible problem the Court exceeding its judicial powers and straying into the realm for making of policy and legislating, thus blurring the division of powers within the EC. However, as a former ECJ judge stated in response to such claims, what is defined through one as activism is observed through another as a compulsory security, most generally for guaranteeing the achievement of the goals of the society. Stubb and Bomberg give a very good example of this necessity by highlighting
10 that a period normally characterized as one of stagnation and Euro-sclerosis, the Court played an important task in pushing the system at the very time when political incorporation appeared paralysed through the implement of the national veto. This clearly highlights the fact that while the role of the ECJ might sometimes come perilously close to that of a legislator, their decisions are crucial to the EC and to furthering integration. References 1. Dinan, D. Ever closer union: An introduction to European Integration Third Edition, Palgrave Macmillan. 2000, 55-57 2. Kovacic, W. Antitrust Policy: A Century of Political and Legal Thinking, Journal of Economic Perspectives, 2000, 14 No 1, 43-60 3. Lavranos, N. The scope of the exclusive jurisdiction of the Court of Justice European Law review, Vol.32. 2007 pp 74-75 4. Maria, Fletcher. EU criminal law and justice. Publisher Edward Elgar Publishing, 2008. 5. Paul, P. EU law: text, cases, and materials. Publisher Oxford University Press, 2008 6. Stoker, M. Equity Returns and Economic Freedom. Cato Journal, 2005, No 3, 583-594. 7. Sturm, J. On the Relationship between Economic Freedom and Economic Growth, 16, No 2, 2000 215-241. 8. Woods, L. EU Law, 9th ed. New York: Oxford University Press. 2006 69-71