Union Law Assignment sample

Union Law Assignment

Introduction Union Law Assignment

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It has been around forty years since the court of law[1] has established the direct effect of directives. The direct effect that relies on European union that has been enabling individuals to invoke for the provisions that are directive before national court. However as suggested by the court, there is limitations in the direct effect of to some vertical situations which mean that any individual, could invoke a directive against[2] the member of state that is vertical situations, but the same directives could not be invoked between two persons or the individuals that is horizontal situations.

The court has been relying upon the different legal reasoning which are required for exclusion of the horizontal direct effect. As the court has adopted a broader definition of the state of the state despite of the rule of no-horizontal[3] direct effect, and also have made the introduction of doctrines of the incidental direct effect and interpretation which is consistent.

Further there has also been the establishment of the concept of the state liability as a remedial form. The purpose of such thesis is all about to make the examination whether there have been exceptions which restrain on the rule of no horizontal⁴ direct effect. And this in fact amount to the horizontal direct effect, and as a result it has been affecting the sovereignty of the state adversely.

CONCEPTS OF DIRECT EFFECT, VERTICAL/HORIZONTAL DIRECT EFFECT

After the court has been established the direct effect of the provisions of the treaty. In the leading case Marshall, the question is that whether there is the provision of a directive that would be having the direct effect.

The direct effect is the one of such complex doctrine[4] which is having an ambiguous history, and moreover there is no such terminology which is uniform that describes the special character of the doctrine.

The authors of this thesis would have examined the doctrines and has presented the most different features of the same.

The first issue is required to be presented is the differentiation between direct applicability and the direct effect as this differentiation is very much crucial for the discussion of the topic on the direct effect of the directives.[5] There has been made an emphasis on the fact that the regulations which are directly applicable and the directives are only binding to the results which are to be achieved as well as required and then implemented. Thus, any norm of European union⁵ is enjoying its feature of direct applicability and thus would not necessarily as well as will be automatically being qualifying to have such direct effect. However, norm of European union if have the feature of direct effect, then will always be having the feature of direct applicability.[6] There are two major arguments which has been used to support the opinion as and whenever required. First the direct effect of the European Union norms⁴ suggested the enforceability of the norm in the given question while the second one is direct applicability which is related to the question of about European union that whether it norms automatically become the part of national legal order or might be not for the same. If there would be any of the consideration to the court, and its approach, then the court would not being⁶ drawing the attention, to the any of the distinction or the differentiation to these approaches and the concepts. The court might have some provisions of the directive might under certain different situations also would have some direct effect.

JUSTIFICATION FOR MARSHALL DECISION

In the give case study, Miss Marshall, has passed out the retirement age for the women who was required as she has attained the age of the retirement. But her dismissal became quite contrary to the directive of the equal treatment, and thus was not implemented by the country of United Kingdom.[7] The major issue was that was her dismissal quite wrongful? And the decision was in her favour, that yes, the dismissal was quite wrongful. There are several reasoning and the justification for the same- A directive must not have any direct effect horizontally which would be prejudicing the individuals for the fault of the members of the state.

The directives are addressed only to members of the states. If the employees would not be considered as the parts of the state and then this claim could be made as against the state. The claim was made against⁶ the state because of its wrongfulness and on not for the implementation of the directive of the equal treatment.

 SHORT COMING ARISING OUT OF THE LACK OF HORIZONTAL DIRECT EFFECT

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In the Marshall case, the court was responsible for relying partly on the criteria which has direct effect but it was not providing the clear guidelines for the same about how a criterion could be applied to, in some coming general circumstances. Here the court was also responsible for making a distinction between the obligation so that they could achieve to the result, and there would be a possibility for members states so that they could choose the most appropriate method for the implementation of the measures⁷. The members of the states usually have been choosing the most appropriate method in the line that is with the legal systems of the members of the states. And, in the Marshall case, the directive provides that are concerned would not leave with any kind of discretion for the members of the states on about that how these could be implemented. And hence, there is a chance of arising of the possibility so that a method could be chosen for the implementation that does not even exist. There is a clarification regarding the same with an example, the judge of a court should be able to understand the provision so that he could apply⁷ or be able to apply the provision in the case as a question before it. The ambiguity of the provisions however made this as incapable of providing of direct effect. There is high possibility of the arising of the lack of clarity which could be solved to give the effect to the ambiguous provision which are concerned to. If such provisions would be too vague and the general⁸ for the courts or the national courts for the interpretation, without the adoption of such measures, and thus they would not be able of applying such provisions, since this would be being beyond the limits of such judicial functions.[8] It is also not very much wrong to state that whether the provision is précised sufficiently, and either might be unconditional, that is directly related with the level of discretion left with for the member's states as well. Here some of the examples⁸ are derogations, reservations exceptions. Derogations are termed as the options or the obligations for member states. For allowing the direct effect of the directives which would be resulting in uncertainty if considered in the legal terms, and thus be the reason for affecting the principle of the special powers, and thus also for the upsetting of the legal system of the European Union, law that was laid down by the treaty since there is the distinction between the directives and regulations that is blurred.[9] And thus, as a consequence, the legal certainty⁹ and the equality before the Law assignment is compromised.

CRITICAL ANALYSIS OF THE LATEST DEVELOPMENT IN THIS AREA OF LAW AND PRINCIPLES

There is a duty of the consistency in the interpretation which is also known as the principle of the harmonious interpretation, or the indirect effect. The directive in the Marshall case, is totally in concerned with the discrimination regarding gender which has taken place for the assessment of the employment. Thus, the court has been ruling the order that while the process of the applying of the national law and also the particular provision of the national law, the outcome is that there is an obligation which has been addressed to all the national authorities.[10] The interpretation that believes in the consistency will ensures that there are such results that are prescribed by the directive which is achieved through the secondary method.

CONCLUSION

As the conclusion the court has created the consistent application in this field of the law, and thus, court has two directions to move further, that is either to accept the direct effect horizontally, and thus has the option to aim for some more co-herent application, of the law of European union, or to make the preservation of the constitutional hierarchy order and thus would be upholding the state sovereignty and the discretion also. If the directive is lacking the direct effect then only the national judge is obliged for the same, which would consistently require the consistent interpretation. The direct effect of the general principles of the European Union law that has been firstly debated and then issued in the doctrine which has also been examined in the further step.

References

1. Alan Dashwood, 'The Principle of Direct Effect in European Community Law' [1978] 16, Journal of Common Market Studies 229, 229-30: A. J. Easson, 'The "Direct Effect" of EEC Directives' [1979] 28(3) International and Comparative Law Quarterly, 319, 319-21: Trevor Hartley, The Foundations of European Community Law (5th edn, OUP 2003) 203-4: Pierre Pescatore, 'L'Effet des directives communautaires: une tentative de démythification', Dalloz [1980] Chronique 171, 155(as cited and translated in Sacha Prechal, Directives in EC Law: Second, completely revised edition (2nd edn, OUP 2005) 221).
2. As also underlined in TFEU Art 291(1), implementation is in principle realized by the MS. While implementing a directive, the MS are free to choose the form and method for the implementation of a directive (TFEU Art 288(3)).
3. TFEU Art 288 and Van Gend en Loos (n 39).
4. Direct effect and direct applicability.
5. Faccini Dori (n 88) (emphasis added). 90 See Ch 1 for de.
6. For vertical direct effect on Treaty provisions see: Judgment of the Court of 5 February 1963, Van Gen Den
7. It should be stated that directives still have legal effects before the implementation period expires. E.g Judgment of the Court of 18 December 1997, Inter-Environnement Wallonie, C-129/96, EU:C:1997:628.
8. A Winter, 'Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law' [1972] CML Rev 436-7.
9. Judgment of the Court (Sixth Chamber) of 8 October 1987, Kolpinghuis, C-80/86, EU:C:1987:431: Judgment of the Court of 26 February 1986, Marshall I, C-152/84, EU:C:1986:84.
10. Judgment of the Court of 14 July 1994, C-91/92, EU:C:1994:292.
11. Judgment of the Court of 19 January 1982, Becker v Finanzamt Münster-Innenstadt C-8/81, EU:C:1982:7.
12. Judgment of the Court of 22 February 1990, Busseni, C-221/88, EU:C:1990:84: Judgment of the Court of 12 July 1990, Foster v. British Gas, C-188/89, EU:C:1990:313.
13. Judgment of the Court of 24 March 1987, C-286/85, EU:C:1987:154 para 12.
14. Judgment of the Court of 4 December 1974, C-41/74, EU:C:1974:133.
15. Loos, C-26/62, EU:C:1963:1. For horizontal direct effect of Treaty provisions see: Judgment of the Court of 15 June 1978, Defrennne, C- 149/77, EU:C:1978:130.
16. Marshall I (n 84).
17. Sacha Prechal, Directives in EC Law: Second, completely revised edition (2nd edn, OUP 2005) 216.

BIBILIOGRAPHY

Bernitz U & Nergelius J (eds) General Principles of EU Law (European Monograph 25, 2nd edn Wolters Kluwer 2000)

Bernitz U, Nergelius J, & Cardner C (eds), General Principles of EC Law in a Process of Development,

Brand M 'Dicretion, Divergence and Unity' in Sacha Prechal & Bert van Roermund (eds) The Coherence of EU Law: The Search for Unity in Divergent Concepts (OUP 2008)

Caranta R 'On Discretion' in Sacha Prechal & Bert van Roermund (eds) The Coherence of EU Law: The Search for Unity in Divergent Concepts (OUP 2008)

Claes M, The National Courts´Mandate in the European Constitution (Hart 2006)

Direct Effect: Rethinking a Classic of EC Legal Doctrine (Europa Law Publishing 2002)

Directives in EC Law: Second, completely revised edition (2nd edt, OUP 2006)

European Monograph 62 (Wolters Kluwer, 2008)

Hartley T, The Foundations of European Community Law (5th edn, OUP 2003)

Hedergren, 'General Principles of EU Law: The Methodological Challenge' in Bernitz, Nergelius, and Cardner (eds), General Principles of EU Law in a Process of Development (Wolters Kluwer 2008) 343-55.

Herringa AW' The Seperation of Powers Argument' in R Bakker, AW Herringa & F Sroink, Judicial Control: Comparative essays on Judicial Review (Antwerp: Maklu 1995)

Judge Edward O.A., 'Direct Effect: Myth, Mess or Mistery?' in Jolande M. Prinssen & Annette Schrauwen (eds)

Leanerts K & Van Nuffel P, European Union Law (Robert Bray & Nathan Cambien ed, 3rd edn, Sweet and Maxwell 2011)

Prechal S, 'Direct Effect Reconsidered, Redefined and Rejected' in Jolande M. Prinssen & Annette Schrauwen (eds) Direct Effect: Rethinking a Classic of EC Legal Doctrine (Europa Law Publishing 2002)

Künnecke M, 'Divergence and the Fancovicg Remedy in German and English Courts' in Sacha Prechal & Bert van Roermund (eds) The Coherence of EU Law: The Seach for Unity in Divergent Concepts (OUP 2008)

Tridimas T, "Enforcing Community Rights in National Courts: Some Recent Developments, in O'Keeffe & Bavasso (eds) Judicial Review in European Union Law, Liber Amiconrum in Honour of Lord Slynn of Hadley, (Wolters Kluwer 2000) — —,The General Principles of EU Law (2nd edn OUP 2006)

Vandamme T, Democracy and Direct Effect:EU and National Perceptions of Discretion, in Sacha Prechal & Bert van Roermund (eds) The Coherence of EU Law: The Seach for Unity in Divergent Concepts (OUP 2008)

Van Gerven W, 'The Emergence of Common European Law in the Area of Tort Law: the EU Contribution' in D Fairgrieve, M Andenas & J Bell, Tort Liability of Public Authorities in Comparative Perspective (London: British Institute of International and Comparative Law 2002)— —, ' Brining (Private) Laws Closer to Each Other at European Level' in Fabrizio Cafaggi (eds) The institutional framework of European Law (OUP 2006)

[1] For vertical direct effect on Treaty provisions see: Judgment of the Court of 5 February 1963, Van Gen Den

[2] Loos, C-26/62, EU:C:1963:1. For horizontal direct effect of Treaty provisions see: Judgment of the Court of 15 June 1978, Defrennne, C- 149/77, EU:C:1978:130.

[3] Sacha Prechal, Directives in EC Law: Second, completely revised edition (2nd edn, OUP 2005) 216.

[4] Judgment of the Court of 4 December 1974, C-41/74, EU:C:1974:133.

[5] As also underlined in TFEU Art 291(1), implementation is in principle realized by the MS. While implementing a directive, the MS are free to choose the form and method for the implementation of a directive (TFEU Art 288(3)

[6] It should be stated that directives still have legal effects before the implementation period expires. E.g Judgment of the Court of 18 December 1997, Inter-Environnement Wallonie, C-129/96, EU:C:1997:628.

[7] Alan Dashwood, 'The Principle of Direct Effect in European Community Law' [1978] 16, Journal of Common Market Studies 229, 229-30: A. J. Easson, 'The "Direct Effect" of EEC Directives' [1979] 28(3) International and Comparative Law Quarterly, 319, 319-21: Trevor Hartley, The Foundations of European Community Law (5th edn, OUP 2003) 203-4: Pierre Pescatore, 'L'Effet des directives communautaires: une tentative de démythification', Dalloz [1980] Chronique 171, 155(as cited and translated in Sacha Prechal, Directives in EC Law: Second, completely revised edition (2nd edn, OUP 2005) 221).

[8] J.A Winter, 'Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law' [1972] CML Rev 436-7.

[9] Judgment of the Court (Sixth Chamber) of 8 October 1987, Kolpinghuis, C-80/86, EU:C:1987:431: Judgment of the Court of 26 February 1986, Marshall I, C-152/84, EU:C:1986:84.

[10] Judgment of the Court of 19 January 1982, Becker v Finanzamt Münster-Innenstadt C-8/81, EU:C:1982:7.