EC Law Essay

Custom Student Mr. Teacher ENG 1001-04 19 April 2017

EC Law

Part A

Sonja is a temporary farm labourer of 16 years old. In the summer of 2005 she was hospitalized with sunburn got from working in the field without adequate UV protection according to the “Ultraviolet Radiation (UV) Protection at Work” Directive adopted by the EC. The Directive provides that the Member States should ensure “Sunblock and Sunglasses” to “workers in outdoor activities” within the meaning of the Directive.

According to the independent arbitration scheme with employers set up with the approval of the Government by the Finnish Farm Labourers Union, Sonja, has brought her claim before the Arbitrator. Her claim requires that the Arbitrator interpret the “Ultraviolet Radiation (UV) Protection at Work” Directive. The Arbitrator considers that Sonja’s claim should be dismissed because she is not a “worker” according to his interpretation of the Directive, but merely an “apprentice” who does not qualify for legal protection.

As provided in the independent arbitration scheme the decisions of the Arbitrator are legally binding and there is no right to appeal.

According to the rules of procedure established by the instituting treaties of the European Communities for the Court of Justice of the European Communities, the Court’s jurisdiction is automatically mandatory in the areas expressly provided by the Treaties. There is no need for the Member States to accept this competence which means that the Court can be authorized by only one party, even against Member States. This also means that in the attributed domains by the treaties its competence is exclusive compared to any other jurisdiction.

Article 234[1] (ex Article 177) from the consolidated Treaty establishing the European Community provides that: „The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

(a)    the interpretation of this Treaty;

(b)    the validity and interpretation of acts of the institutions of the Community and of the ECB;

(c)    the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

In the case of Sonja, because the independent arbitration scheme set up between the Finnish Farm Labourers Union and the employers is conducted with the approval of the Government, to settle disputes regarding pay and conditions of work we can assimilate the Arbitrator with a court of law. The Arbitrator has an exclusive competence in this field. Moreover, he meets the requirements set up in the last provision of the Article 234, as set forth, because his decisions are legally binding and there is no right to appeal. This institutes an obligation upon the Arbitrator that whenever he has to interpret any act of one of the institutions of the Community he should raise a case before the Court of Justice of the European Communities.

Therefore, before interpreting the provisions of the “Ultraviolet Radiation (UV) Protection at Work” Directive on the meaning of “worker” within the said act, the Arbitrator should have brought recourse in interpretation before the Court of Justice of the European Communities. The conditions for such recourse, as provided in the Article 234, are that: there has to be an open case brought before a national form of jurisdiction that has to request the Court, asking for the interpretation of an act of one of the institutions of the Communities.

Because the Arbitrator did not open such recourse before the Court of Justice of the European Communities, Sonja has grounds for dismissal of his decision in front of a higher Finnish court of law through an extraordinary procedure. The dismissal can be decided only on procedural issues and not on the merits of the case because the decisions of the Arbitrator are not subject to appeal.

In general, international jurisdictions are only competent to try states. They can not be used as a legal remedy by natural persons. However, the Court of Justice of the European Communities is accessible not only to the member states of the European Communities, but also, in very strict conditions to individuals, natural and legal persons. This provides Sonja with, yet, another alternative for her case. She can bring an annulment recourse before the Court.

The annulment recourse is the possibility of the states, institutions of the Communities and natural and legal persons to challenge in front of the Court  a mandatory act issued either by the Council or by the Commission, and to be granted in certain conditions the annulment of the act. This is a way to control EU acts and their conformity with the instituting treaties.

The provisions of the Rome Treaties show that there can be subjected to this form of recourse acts that are mandatory like directives and regulations, and in certain situations even decisions.  Article 230[2] (ex Article 173) of the consolidated Treaty establishing the European Community provides that: “The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties.

It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.

The Court of Justice shall have jurisdiction under the same conditions in actions brought by the European Parliament, by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives.

Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. […]”

Usually, individuals are allowed to bring actions before the Court only in reference to regulations which directly apply to them and directly breach their rights. However, proceedings can be brought regarding a directive in situations in which it has the same effects on the individual.  The “Ultraviolet Radiation (UV) Protection at Work” Directive directly infringes Sonja’s right to adequate protection for the type of labour she is doing and for the conditions in which she works by limiting the notion of “worker” to which it applies. With this limitation the Directive breaches the substantial provisions of the Treaty establishing the European Community.

Regarding work, Article 13 of the Treaty provides that: “1.   Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”[3]

Therefore the principle of the prohibition of discrimination on grounds of age is laid down by an instituting treaty. It bears no difference that Sonja is only sixteen. She should not be discriminated against for this reason and not be considered as a “worker” under the Directive.

The term “worker” is also described in many EU acts, including in the jurisprudence of the Court of Justice of the European Communities. The notion is wide and non-discriminatory, especially when considering a persons rights or the breach of these rights. “26. In accordance with the Court’s case-law, the concept of worker, within the meaning of Article 48 of the Treaty and of Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly.

Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a worker. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration[4]

Moreover, the restriction on the term “worker” is in direct violation with the Directive No. 33 of 22 June 1994 on the protection of young people at work which applies to persons under 18 and provides that they should have suitable work conditions, “measures necessary to protect the safety and health of young people[5]”.

In conclusion, the limitation of the notion of “worker” from the “Ultraviolet Radiation (UV) Protection at Work” Directive that prevents Sonja, because of her age and because she is a temporary worker to benefit from the proper work protection, is in direct violation of the instituting treaties, the principles on which the EU is based, the jurisprudence of the Court of Justice of the European Communities and basic human rights. This provides Sonja, although she is a natural person, with the active legal quality to bring recourse in annulment before the Court due to what she has suffered from the effects of this act.

Part B

The joined cases of Bernard Keck and Daniel Mithouard were brought before the Court of Justice of the European Communities as a reference under Article 177 of the EEC Treaty[6] by the Tribunal de Grande Instance (Regional Court) from Strasbourg (France), for a preliminary ruling in the criminal proceedings pending before the tribunal against the two.

The Tribunal de Grande Instance has asked the Court of Justice of the European Communities to give an interpretation of the rules of the EEC Treaty relating to competition and freedom of movement within the Community. The Court has found that “Article 30 of the EEC Treaty is to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss”[7].

In the decisions of Keck and Mithouard the Court institutes certain principles regarding the measures that can be taken by states. Such a principle is the one stating that: “national measures which limit or prohibit ‘certain sales practices’ do not fall within the scope of Article 30[8], so long as they are applied to all those operating within the national territory and that they affect in exactly the same way, both in law and in practice, the marketing of national products and those originating from other Member States”[9].

The Court of Justice of the European Communities has subsequently interpreted the decisions in the cases of Keck and Mithouard on the matter of advertising, especially the vague formulation: “selling arrangements”. The decisions were applied and interpreted in connection to the way producers are able to market their goods and to the marketing strategies used by them. However, the two cases were exceptional interpretations of the Article 28, due to the circumstances and should have been regarded as such. On the contrary, this interpretation was widely extended by the Court.

The extension has brought about the possibility of member states to impose certain restrictions in advertising. These restrictions were thought by the Court to be outside the scope of Article 28. Such measures cover fields like: “TV advertising and sponsorship of programmes aimed at children below the age of 12 being prohibited[10]” in Sweden, the advertising of toys in Greece which is time restricted, banns referring to certain kinds of toys in Germany and Denmark and so on. Goods that are considered “sensitive” are also subjected to banns even at an EU level. As an example there is the ‘Television Without Frontiers’ (TVWF) Directive in which there is stated that children should not have easy access to advertising for goods such as cigarettes and alcohol.

Cases were brought before the Court with regards to such measures. Some decisions given by the Court find basis on its previous Keck and Mithouard decisions: “With respect to the free movement of goods (Article 30) the Court recognised that the ban on advertising could affect the free movement of the products advertised.

It then referred to the Keck-Mithouard jurisprudence and ruled that a Member State could apply such restrictions if they were shown to affect in the same way, ‘in law and in fact’, the marketing of domestic products and of those from other Member States; were necessary for meeting overriding requirements of general public importance or one of the aims laid down in Article 36 of the EC Treaty; were proportionate for that purpose and that those aims could not be met by less restrictive measures”[11].

 In conclusion, bans of advertising are considered to be in accordance with the Article 28 when they affect in the same way the marketing of the domestic products and that of the products from other Member States, they are necessary for requirements of general public importance and when less restrictive measures could not have been applied. Thus, the Court institutes the principle of proportionality that applies even if the ban has more serious effects on goods coming from other states than on national ones.

Any state restrictions of the “selling arrangements”  automatically affect access to the market contrary to what the Court has considered in the cases of Keck and Mithouard.  It is of course true that such restrictions provided in a non-discriminatory way do not infringe of the free movement of goods, but they do affect trade. Measures taken by states have to be “uncertain” and “indirect”, for them to fall outside the scope of the Article 28 and be regarded as breaches of the free movement of goods.

The Keck case institutes a kind of presumption that certain measures taken by states, that fall under a certain category should be regarded as “uncertain” and “indirect” and therefore outside the scope of Article 28. This presumption is damaging in some cases. The measures should be analyzed according to the merits of each individual case and the effects they have in that particular case. Therefore, I believe that the cases of Keck and Mithouard affect the balance between state responsibilities and the free movement of goods.

Bibliography:

Consolidated Version of the Treaty Establishing the European Community (2002), Official Journal C325, Retrieved of the 10th on January 2005, Available at:  http://www.europa.eu.int/eur-lex/lex/en/treaties/dat/12002E/htm/12002E.html

Brian Francis Collins v Secretary of State for Work and Pensions (23 March 2004); Judgment of the Court (Full Court);Case C-138/02; European Court reports 2004 Page I-02703, Retrieved of the 10th on January 2005, Available at: http://www.europa.eu.int/eur-lex/lex/Notice.do?val=287581:cs&lang=en&list=391912:cs,287581:cs,341893:cs,287498:cs,278038:cs,277710:cs,269338:cs,264078:cs,250808:cs,247148:cs,&pos=2&page=1&nbl=18&pgs=10&hwords=work~worker~&checktexte=checkbox&visu=#texte

Criminal proceedings against Bernard Keck and Daniel Mithouard (24 November 1993); Judgment of the Court;  Joined cases C-267/91 and C-268/91, European Court reports 1993 Page I-06097, Retrieved of the 10th on January 2005, Available at:  http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61991J0267:EN:HTML#DI

 

Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work, Official Journal L 216 , 20/08/1994 P. 0012 – 0020,  Retrieved of the 10th on January 2005, Available at: http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:31994L0033:EN:HTML

Lolivier, Marc (January 1998), The De Agostini ruling and advertising regulation, Commercial Comunications Newsletter, Edition 10,  Retrieved of the 10th on January 2005, Available at: http://europa.eu.int/comm/internal_market/comcom/newsletter/edition10/page04_en.htm

Stanbrook, Lionel ( October 1997), Children’s advertising, consumer protection and the country of origin principle, Commercial Comunications Newsletter, Edition 09, Retrieved of the 10th on January 2005, Available at: http://europa.eu.int/comm/internal_market/comcom/newsletter/edition09/page18_en.htm

Statute of the Court of Justice (November 2005), Retrieved of the 10th on January 2005, Available at:  http://curia.eu.int/en/instit/txtdocfr/txtsenvigueur/statut.pdf

Þorvaldsson,  Björn (2002), Keck and Mithouard,  Master Thesis, Master of European Affairs Programe, Law, Retrieved of the 10th on January 2005, Available at: http://www.jur.lu.se/Internet/english/essay/Masterth.nsf/0/585A26471860B6F6C1256BCD00730AAF/$File/xsmall.pdf?OpenElement

Mollers, Thomas M.J. (February 2005), EuGH, Rs. C-405/98 v. 8.3.2001 – Gourmet International Products, Faculty of Law, Augsburg University, Retrieved of the 10th on January 2005, Available at: http://www.jura.uni-augsburg.de/prof/moellers/materialien/materialdateien/050_eugh_entscheidungen/eugh_1998_405_gourmet_international_products_en/

Competitive Federalism and Market Access in the EU, Jean Monet Center, NYU School of Law, Retrieved of the 10th on January 2005, Available at:  http://www.jeanmonnetprogram.org/papers/01/012701-04.html

[1]  Treaty establishing the European Community, Art. 234

[2] idem, Art 230

[3] idem, Art. 13

[4] Brian Francis Collins v Secretary of State for Work and Pensions (23 March 2004)

[5] Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work.

[6] Treaty establishing the European Community, ex Article 177

[7]Criminal proceedings against Bernard Keck and Daniel Mithouard (24 November 1993)

[8] in the consolidated Treaty the number of the article has become 28 and it will be referred to accordingly

[9] Lolivier, Marc (January 1998), op. cit.

[10] Stanbrook, Lionel (October 1997), op. cit.

[11] idem

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