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European Law

Question 1

Issues

The Directive 2018/840 provides a basic increase in 5% of the salary for Angela as she has completed an advanced course on the brick laying. The issue is that her company has denied the EU legislation and provided her with the 2% basic raise. Moreover, German government was also failed to respond to this issue as they have failed to transpose the directive in the country.

Rule

The two framework will be used to advise Angela which are 2018/840 Directive and fundamental rights of EU Charter[1]. Directive 2018/840[2] suggests that on the completion of the advanced course employees are entitled for the 5% basic pay raise. Moreover, the fundamental rights of the EU Charter has set out the criteria for which the individuals can report the breach against the national authority for the violation of rights.

Analysis

As Angela has been denied of her right of a salary raise provided by the European Union (EU) directive 2018/840[3], she has the legal option against the German government and the company as defined by the fundamental rights of EU charter. However, Lenaerts has suggested if the national government failed to comply with the EU directive and failed to respond adequately to the commission report then the individual can take the case to the European Commission[4]. Therefore, Angela has the opportunity to take legal actions against the national government[5]. For this purpose, the EU has laid out the framework in the Article 7 of the TEU[6] in which individuals can report a breach of their right to the EU either by a member state or by any other authority in the member states[7]. The Article 7.1[8] of the EU Charter of fundamental rights suggests that if the right has been violated by any authority in the member states as in the case of Angela, where her company denied her of the EU directive, then she should report to the national court about the violation[9]. However, according to Artcile 7.2[10] if the national court failed to respond to the individual, then the individual can make their claim in Court of Justice of the European Union (CJEU) and to the European Court of Human Rights (ECHR). But, in the case of Angela, it is the German government who has failed to transpose the 2018/840 directive in the country, which allowed companies to take advantages of this situations and denied people of their rights. Therefore, Angela should take legal action against her national government as described by Article 7.2 and 7.3 of TEU[11]. It could also be consider from the case of [Tête v. France][12] where claimant reported the claim against the government for breaching the right to free election. Although the case was dismissed but it has open the doors for the individuals like Angela to make their claims against the national authorities. The EU Charter of fundamental rights has also declared the framework for taking actions against the national authorities. Based on that, it is required for Angela to take legal actions against the national authority in the European Commission and CJEU for the infringement procedure. The CJEU will ensure that the national authority is responsible for the violation of the directive and then will bring the member states to the court. However, as per the guidelines of the EU, Angela cannot take her to complain directly to the CJEU, therefore, she had to rely on the European Commission for the infringement process to work in her favour and provide her with the basic salary raise as mentioned in the directive[13].

As the German government not only failed adequately in the transposition of the EU directive but has also failed adequately to respond to the commission request upon this failure. As a result of this European Commission has the right for the infringement process as described in Articles 7[14] provided in the EU law which is mostly followed by the citizen, stakeholder, and any other business of the country. The formal procedure for this infringement requires the commission to send a formal letter to the country and inquire about this inadequacy in detail[15]. The German government may take as long as two months to give a detailed reply to the situation. However, if the commissions have found enough evidence that the country is breaching the EU law and is unable to fulfil its obligations within the legal framework, then the commission has the responsibility for a formal request against the country to ask them to meet the compliance with the obligations of EU law and show them the measures that they have taken in order to ensure the directive[16]. If the situation goes beyond the control of the commission, then it is up to the court of justice to settle the matters of the country in the court. The court has all the right to ask about the measures taken by the country to implement the legislation in their country or to showcase the reasons for why the country is unable to meet the compliance of the EU obligations. If the country fails to provide adequate reasons for such failures then the court of justice has the right to impose financial penalties on the national authorities and court must take all necessary actions to ensure that all the EU obligations are implemented in the country[17]. The financial penalties imposed by the court are based on several factors which include the type and the importance of rule breached by the country or the period for which the country is unable to fulfil the obligations of EU in their region. The court also considers the financial situation of the country before imposing financial penalties; thereby, ensuring that the penalties should not have any deterrent effect on the country[18]. Thus, the European Commission holds greater power and responsibility against the German government for not meeting the EU obligation of directive 2018/840 to provide the salary raise to the workers who have completed advanced education in their field[19].

Conclusion

To conclude it could be advised to Angela to take her complain to the European Commission and provide them the proof of the violation. While commission should follow the legal steps and ensure the government is taking enough measures for the implementation of the directives.


[1] Treaty of European Union

[2] Directive 2018/840

[3] Ibid 02

[4] Lenaerts, Koen. "The principle of subsidiarity and the environment in the European Union: keeping the balance of federalism." In European environmental law, pp. 129-178. Routledge, 2017.

[5] Jurado, Anna, Marc Walther, and Silvia Díaz-Cruz. "Occurrence, fate and environmental risk assessment of the organic microcontaminants included in the Watch Lists set by EU Decisions 2015/495 and 2018/840 in the groundwater of Spain." Science of the Total Environment (2019).

[6] Treaty of European Union Article 7

[7] European Union. "Commission Implementing Decision (EU) 2018/840 of 5 June 2018 establishing a watch list of substances for Union-wide monitoring in the field of water policy pursuant to Directive 2008/105/EC of the European Parliament and of the Council and repealing Commission Implementing Decision (EU) 2015/495." Off. J. Eur. Union. 141 (2018): 9-12.

[8] Treaty of European Union Article 7.1

[9] Clement, Marc. "Breach of the Right to Good Administration: So What." ELTE LJ (2018): 19.

[10] Treaty of European Union Article 7.2

[11] Diker Vanberg, Aysem, and Mehmet B. Ünver. "The right to data portability in the GDPR and EU competition law: odd couple or dynamic duo?." European Journal of Law and Technology 8, no. 1 (2017).

[12] Application no. 59636/16

[13] Soo, Anneli. "Article 12 of the Directive 2013/48/EU: a starting point for discussion on a common understanding of the criteria for effective remedies of violation of the right to counsel." European Journal of Crime, Criminal Law and Criminal Justice 25, no. 1 (2017): 31-51.

[14] Ibid 9

[15] Svensson, Sahra, Jessika Luth Richter, Eléonore Maitre-Ekern, Taina Pihlajarinne, Aline Maigret, and Carl Dalhammar. "The emerging ‘Right to repair’legislation in the EU and the US." Proceedings from Going Green–Care Innovation, Vienna (2018).

[16] Soo, Anneli. "How are the member states progressing on transposition of Directive 2013/48/EU on the right of access to a lawyer? An inquiry conducted among the member states with the special focus on how Article 12 is transposed." New Journal of European Criminal Law 8, no. 1 (2017): 64-76.

[17] Bueren, Eckart, and Florian Smuda. "Suppliers to a sellers’ cartel and the boundaries of the right to damages in US versus EU competition law." European Journal of Law and Economics 45, no. 3 (2018): 397-437.

[18] Groussot, Xavier, Gunnar Thor Pétursson, and Justin Pierce. "Weak right, strong Court–the freedom to conduct business and the EU Charter of Fundamental Rights." In Research Handbook on EU Law and Human Rights. Edward Elgar Publishing, 2017.

[19] Vale, Alexandre. "A race for maintaining personal data-how to manage consumers´ data under the right to be forgotten and the right to data portability of the new EU GDPR." PhD diss., 2018.

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Question 2

As per the research of Lindeboom, primacy of the EU law showcase the supremacy of the EU law in case of any conflict between the member states and the EU[1]. Fabbrini has suggested that as a result of this principle, the national constitution has to be disposed to review any matter in the lights of EU law if the interpretation from the national constitution disagrees from the EU laws[2]. According to the study of Kochenov, the purpose of this primacy is that it allows forming a new legal order which can benefit all member state within its dictated limit[3]. On the other hand, Murphy has evaluated that due to this principle of primacy, the EU has restricted the freedom and autonomy of the principle of the member states[4]. However, Cuyvers has suggested that this principle of primacy has allowed the EU to enforce the rights of the individuals in the member states to maximise the efficiency and applications of the rights provided by the EU law[5]. The case of [Costa v. ENEL][6] has supported the step taken by CJEU to uphold the principle of primacy of the community law over the national law, suggesting that it has enabled the member states to fulfil the wider objectives of the Treaty which was set out in the Article 5(2). Moreover, this case has also showcased that the community law would not be conditional to its member states like the national law and provides basic rights to all the people set in the EU framework keeping the Article 7 and eliminating discrimination in the legal proceedings.

Cuyvers has claimed that EU law has made dominance over the national provisions which has also raised the conflict among the member states[7]. This fact is established from the case of [Administrazione delle Finanze v. Simmenthal][8] where the claimant was made to pay the fee for the public health inspection while he was importing beef from France to Italy. Although, it was contrary to the Italian law and the Italian regulations were passed after the community regulations were declared. But due to the principle of primacy, the community law for the EU was help and Italian national courts were made to comply with the community regulations giving rise to the conflict between national and community provisions. However, this primacy has become an important factor on the ground of nationality especially in UK, France, and Italy where the state citizens were given preference in most of the matter[9]. Bell has suggested that due to this primacy EU has been able to reduce discrimination based on the nationality to uphold the right of non-discrimination in the EU community[10]. The principle of discrimination was evident from the case of [Factortame v. Secretary of State for Transport][11] where the provision was made by the UK government to register the fishing boats only on the name of the UK citizens. Not only that, but only UK citizens were also able to own and manage the activities of the ship. Thus, the EU law has amended this provision to eliminate discrimination from the UK and to make the national provision is compliant with the community provision. However, Pollack has suggested that the level to which this primacy law has taken effect in the member states is dependent on whether the country has taken monist or dualist approach to this law[12]. While Terziev has defined monist as the approach where international and national law are dealt with within a single framework[13]. On the other hand, Kaczorowska has described the dualist approach as different rule of law for the international and national law. In the dualist approach, domestic procedures are dealt with the national framework and for international law to be taken into effect it requires the law to be enacted by the national parliament[14]. Weatherill has discussed the effectiveness of not utilising primacy in the domestic law as it allows to ratify domestic issues within national framework enacted by the parliaments and use international laws for national issues[15]. It is also viewed in the case of [Blackburn v. Attorney General][16] where it was declared by the EU that the EU will not consider the legislation or any treaty within its legal premises until they are enacted by the national parliament in the state. However, before that, the legislation will have no effect of international law on domestic law. Therefore, Weatherill has suggested that enforcement of primacy law has allowed EU to eliminate discrimination at the international level and impose new legal order to provide assistance to the member states in dealing with various situations in their country[17].


[1] Lindeboom, Justin. "Why EU Law claims supremacy." Oxford Journal of Legal Studies 38, no. 2 (2018): 328-356.

[2] Fabbrini, Federico. "The European Court of Justice, the European Central Bank, and the supremacy of EU law." (2016): 3-16.

[3] Kochenov, Dimitry, and Matthijs van Wolferen. "Dialogical Rule of Law and the Breakdown of Dialogue in the EU." EUI Department of Law Research Paper 2018/01 (2018).

[4] Murphy, Neil. "Article 4 (2) TEU: A Blow to the Supremacy of Union Law." Trinity CL Rev. 20 (2017): 94.

[5] Cuyvers, Armin. "The Scope, Nature and Effect of EU Law." In East African Community Law, pp. 161-181. Brill Nijhoff, 2017.

[6] 1964 E.C.R. 585 (1964).

[7] Cuyvers, Armin. "The Scope, Nature and Effect of EU Law." In East African Community Law, pp. 161-181. Brill Nijhoff, 2017.

[8] 1978 E.C.R. 629 (1978).

[9] Berski, Adrian. "Which Doctrine has had the Bigger Impact on EU law, Direct Effect or Supremacy?." (2016).

[10] Bell, John. "Sources of law." The Cambridge Law Journal 77, no. 1 (2018): 40-71.

[11] UKHL 7, C-213/89

[12] Pollack, Mark A. "Learning from EU law stories: The European court and its interlocutors revisited." Mark A. Pollack," Learning from EU Law Stories: The European Court and Its Interlocutors Revisited," in Bill Davies and Fernanda Nicola, eds., EU law Stories: Contextual and Critical Histories of European Jurisprudence (Cambridge University Press, 2016) Forthcoming (2016).

[13] Terziev, Venelin, Marin Petkov, and Krastev Dragomir. "Sources of European Union law." IN: Proceedings of SOCIOINT (2018): 511-516.

[14]  Kaczorowska-Ireland, A., 2016. European union law. Routledge.

[15]  Weatherill, Stephen. Cases and materials on EU law. Oxford University Press, USA, 2014.

[16]  1971 W.L.R.1 1037 (1971).

[17]  Ibid 25

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Bibliography

Primary Sources

  1. Acts and Legislation
  2. Directive 2018/840
  3. Treaty of European Union

Case Laws

  1. Administrazione delle Finanze v. Simmenthal, 1978 E.C.R. 629 (1978).
  2. Blackburn v. Attorney General, 1971 W.L.R.1 1037 (1971).
  3. Costa v. Enel, 1964 E.C.R. 585 (1964).
  4. Factortame v. Secretary of State for Transport UKHL 7, C-213/89
  5. Tête v. France (application no. 59636/16)

Secondary Sources

  1. Books, Articles and Journals
  2. Bell, John. "Sources of law." The Cambridge Law Journal 77, no. 1 (2018): 40-71.
  3. Berski, Adrian. "Which Doctrine has had the Bigger Impact on EU law, Direct Effect or Supremacy?." (2016).
  4. Bueren, Eckart, and Florian Smuda. "Suppliers to a sellers’ cartel and the boundaries of the right to damages in US versus EU competition law." European Journal of Law and Economics 45, no. 3 (2018): 397-437.
  5. Clement, Marc. "Breach of the Right to Good Administration: So What." ELTE LJ (2018): 19.
  6. Cuyvers, Armin. "The Scope, Nature and Effect of EU Law." In East African Community Law, pp. 161-181. Brill Nijhoff, 2017.
  7. Diker Vanberg, Aysem, and Mehmet B. Ünver. "The right to data portability in the GDPR and EU competition law: odd couple or dynamic duo?." European Journal of Law and Technology 8, no. 1 (2017).
  8. European Union. "Commission Implementing Decision (EU) 2018/840 of 5 June 2018 establishing a watch list of substances for Union-wide monitoring in the field of water policy pursuant to Directive 2008/105/EC of the European Parliament and of the Council and repealing Commission Implementing Decision (EU) 2015/495." Off. J. Eur. Union. 141 (2018): 9-12.
  9. Fabbrini, Federico. "The European Court of Justice, the European Central Bank, and the supremacy of EU law." (2016): 3-16.
  10. Groussot, Xavier, Gunnar Thor Pétursson, and Justin Pierce. "Weak right, strong Court–the freedom to conduct business and the EU Charter of Fundamental Rights." In Research Handbook on EU Law and Human Rights. Edward Elgar Publishing, 2017.
  11. Jurado, Anna, Marc Walther, and Silvia Díaz-Cruz. "Occurrence, fate and environmental risk assessment of the organic microcontaminants included in the Watch Lists set by EU Decisions 2015/495 and 2018/840 in the groundwater of Spain." Science of the Total Environment (2019).
  12. Kaczorowska-Ireland, A., 2016. European union law. Routledge.
  13. Kochenov, Dimitry, and Matthijs van Wolferen. "Dialogical Rule of Law and the Breakdown of Dialogue in the EU." EUI Department of Law Research Paper 2018/01 (2018).
  14. Lenaerts, Koen. "The principle of subsidiarity and the environment in the European Union: keeping the balance of federalism." In European environmental law, pp. 129-178. Routledge, 2017.
  15. Lindeboom, Justin. "Why EU Law claims supremacy." Oxford Journal of Legal Studies 38, no. 2 (2018): 328-356.
  16. Murphy, Neil. "Article 4 (2) TEU: A Blow to the Supremacy of Union Law." Trinity CL Rev. 20 (2017): 94.
  17. Pollack, Mark A. "Learning from EU law stories: The European court and its interlocutors revisited." Mark A. Pollack," Learning from EU Law Stories: The European Court and Its Interlocutors Revisited," in Bill Davies and Fernanda Nicola, eds., EU law Stories: Contextual and Critical Histories of European Jurisprudence (Cambridge University Press, 2016) Forthcoming (2016).
  18. Soo, Anneli. "Article 12 of the Directive 2013/48/EU: a starting point for discussion on a common understanding of the criteria for effective remedies of violation of the right to counsel." European Journal of Crime, Criminal Law and Criminal Justice 25, no. 1 (2017): 31-51.
  19. Soo, Anneli. "How are the member states progressing on transposition of Directive 2013/48/EU on the right of access to a lawyer? An inquiry conducted among the member states with the special focus on how Article 12 is transposed." New Journal of European Criminal Law 8, no. 1 (2017): 64-76.
  20. Svensson, Sahra, Jessika Luth Richter, Eléonore Maitre-Ekern, Taina Pihlajarinne, Aline Maigret, and Carl Dalhammar. "The emerging ‘Right to repair’legislation in the EU and the US." Proceedings from Going Green–Care Innovation, Vienna (2018).
  21. Terziev, Venelin, Marin Petkov, and Krastev Dragomir. "Sources of European Union law." IN: Proceedings of SOCIOINT (2018): 511-516.
  22. Vale, Alexandre. "A race for maintaining personal data-how to manage consumers´ data under the right to be forgotten and the right to data portability of the new EU GDPR." PhD diss., 2018.
  23. Weatherill, Stephen. Cases and materials on EU law. Oxford University Press, USA, 2014.

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