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European Union
Law
"The EEC
Treaty has established its own system of law, integrated in the
legal systems of the Member States and which must be applied by
their courts."
What is called
now the European Union (EU) was established by the European Community
(EC) Treaty signed in Rome in 1957. This is commonly known as the
European Economic Community Treaty (EEC). It has not only created
a new legal order operating in the international or transnational
sphere, but it has also brought a process of integration.
The EU enjoys
a separate legal system and this system has had a profound impact
on all European countries and UK has been affected too. EU law,
oras more commonly and incorrectly used EC law,penetrates the national
law and can and must be enforced by the national courts. Since EU
law has supremacy, in the case of conflict between EU
law and national law, Courts have to give precedence to the legal
order of the EU. Member States have the duty to repeal national
laws when they are contrary to EU law, but this circumstance cannot
always be assured. In reality it is recognised that national, regional
and local authorities infringe the EU law in many instances.
Being a citizen
of the Union means that you have some rights, duties and involvement
in political life. If you are a national of any Member State you
automatically are a citizen of the Union. One of the rights linked
with this concept is the right to move as freely as if in one's
country. After the removal of the physical barriers in the internal
frontiers in 1993 we are now free to seek a job in any country or
live any where in the EU. For example we are allow to work in the
public sector, the health service, education and public corporation,
although there are some restrictions in respect of areas regarded
as intrinsic part of the State such as the police force, the army
and the diplomatic corps.
We have the
right to vote and to be a candidate in election to the European
Parliament and in local elections in the Member State in which were
are resident. We can apply for protection by the diplomatic or consular
authority of any Member State in a Third Country outside the EU.
Our fundamental rights are also protected and the Union recognises
our fundamental right for equal treatment regardless of our sex,
race, religion, disability, age or sexual orientation.
This consideration
of the equality can be shown in the work field where we have the
right for equal pay and equal work or work of equal value regardless
of the above considerations and you are entitled to the same training
opportunities. An example of this is, as an employee you cannot
be discriminated against on the grounds of nationality. You have
to be treated equally as the nationals of the country as regards
employment, remuneration and other conditions of work. You have
the right to accept offers of employment, move freely within the
Union and to remain there after having been employed in that State.
There was a
case in which a British citizen was not recognised as a worker in
the Netherlands due to the fact that she was working part-time.
As a result of this incident it became necessary to clarify that
a part-time worker had the same rights as a full-time worker which
enabled her to stay in that Member State with her family. The Dutch
did not recognize her right considering that her part-time job did
not allow her to stay in the country with her family. When she appealed,
the Court applied EU law and the Court rejected the argument of
the Dutch Government, which was that she could not stay unless she
earned a minimum subsistence wage and unless she did a minimum number
of hours for the purpose of the Dutch legislation. This condition
is not required by the EU legal system. The Court held that the
important factor of this case was that the job was effective and
that she had resources to survive without substantial income from
employment.
As consumers,
we can also reinforce our rights within the Single Market, protect
our economic interest, our consumers' rights to information, education
and the protection of health and safety.
When we conclude
a contract in any Member Sate we are protected against unfair terms
of that contract. A term in a contract can be considered as unfair
if it causes a significant imbalance in the parties' rights and
obligations arising under the contract and they are to the detriment
of us as consumers.
There are many
cases where you could apply this situation, for instance if you
buy any electric household item and the seller declines in the terms
of the contract any liability in the event of late delivery of the
product, or stipulate that he will not be liable for hidden defects.
In these circumstances
you can appeal and protect your rights as a consumer, and those
terms will be ignored. The rights of the consumer always prevail
on the seller, and any time that you consider that there arises
a situation where your rights are broken, it is advisable to seek
legal advice since the protection provided by EU law concerning
unfair terms must be guaranteed by the legislation of each EU Member
State.
The right to
have equal treatment in statutory social security schemes is covered
by legislation within the EU. An example of this could be, a business
trip leaving the host country on a temporary basis, 'is it still
possible to appeal for your community rights while you are working
the EU but under the supervisor of a European firm?' In one case,
a Belgian national was employed by a French company which placed
its workers temporarily at the disposal of other undertakings, he
was sent to work in Nigeria on a temporary basis. The local sickness
insurance fund in Paris refused to regard him as covered by the
French social security scheme while he was in Nigeria. The Court
held that the insurance fund was wrong and because the worker had
established his rights in France the employments still retains a
sufficiently close link with France.
The growth of
the tourism industry has been accompanied by an increase of complaints
of violation of rights within the Union, as their rights were not
observed in another State.
It is interesting
that the proliferation of contracts relating to the purchase of
the right to use unmovable properties on a timeshare. To protect
you against unwelcome surprises which such contracts may conceal,
EU rules give you certain rights concerning information on the constituent
parts of contracts, the arrangements for the communication of that
information and the procedures and arrangements for cancellation
and withdrawal. For example, no matter where the property is situated
in the EU, complete information must be provided by the seller.
You must sign your contract in your mother tongue, even if there
must be a copy in the language of the country. It must be stated
in writing that the contract must be cancelled without penalty and
within a cooling-off period of not less than 10 days from the date
of signature of the contract and the seller must not require down-payments
during the cooling-off period.
As already stated
here, often situations arise where those rights are not observed
or where the obligations imposed are not carried out correctly.
If you consider that any institution or authority have wrongly interpreted
your rights under EU law and that they have discriminated against
you, you are entitled to apply for protection in those situations.
One example
of this situation is the case of two Italian workers who were heavily
out of pocket when their employer became insolvent owing them salary
arrears. The Italian Government had failed in transposing a directive
which provided for the creation of guarantee funds to secure the
salaries of employed persons in the event of the insolvency of their
employer. The Court held that this directive was not sufficiently
precise to be directly effective. As a result of this, as the Member
State failed to incorporate Community law into national law, citizens
rights were not effective in this case and the workers could claim
damages against the Member State. The reason for that is that they
had suffered harm as a direct result of the State's failure to transpose
the directive provided that the directive is for the benefit of
individuals.
This example
demonstrates the supremacy of EU law over national law and how it
is possible to enforce our rights directly in the national courts.
In the UK, provision is made in reference to the principle of direct
effect of the EU law. All Community rights, powers, liabilities,
obligations and restrictions created or arising by this separate
legal system must be recognised and enforced in the UK and followed
accordingly.
All the rights
under EU law are extended to the protection of all family members
of EU nationals residing on a long-term basis in another Member
State, of EU minorities and of third-country nationals who are family
members of EU citizens. The right of free movement would be illusory
if a worker could not take his spouse, his children and perhaps
other members of his family with him. For instance a national of
Senegal, married to a French worker employed in Berlin, and working
in the same city. After she and her husband were separated, she
decided to continue living in Berlin. However, when her residence
permit expired she could not get it renewed, because she no longer
shared a common domicile with her husband. The Court accepted that
as long as they were married, even though they were not living permanently
together, she had a right of residence.
With the elimination
of duties on internal trade the free movements of goods was extended
within the EU. It is recognised a principle of equivalence according
to which, where a product has been lawfully produced and marketed
in one Member State, it must be allowed to be traded freely throughout
the Community.
The law applies
both to goods originating within the Union and to goods originating
in third countries which are in free circulation in the EU, that
means, goods which have satisfied the import requirements, including
the payment of customs duties or equivalent charges, on one of the
Member States. Therefore, the nationality of the owner of the product
is irrelevant once it is circulating within the EU.
EU law is relevant
in the case where one Member State prohibits or restricts the import
of goods from another Member State. That can operate as a barrier
to trade and can affect the free movement of goods. Customs duties
are now prohibited on import and exports between Members. They cannot
impose taxation which discriminates between similar domestic and
imported products, or which affords indirect protection to domestic
products.
Turning our
attention to business law, the EU provides free establishment to
companies and firms formed in accordance with the law of any Member
State within the EU. Even companies from countries outside the EU
can claim to be treated on an equal basis with national companies.
EU company law
should be implemented in domestic law, but it is possible that,
for instance, British legislation does not make provision for the
appropriate interpretation of a measure of the EU. Therefore in
the case of ambiguities in the UK law, the provisions of the directives
of the EU have to be given effect and legal advice should be sought.
It can be very useful in the case of considering dealing in another
Member State, since guidance in the use of the European corporate
structures can be an administrative and legal advantage.
Once those undertakings
are in operation, it should be necessary to adopt rules which would
allow the free market to function. Competition between firms should
be regulated to ensure better opportunities for more than 370 million
of consumers and the EU as a whole and to ensure that the common
market is not distorted. Therefore the single market cannot operate
effectively without competition, and competition can only be generated
when the same rules apply to everyone.
Both British
law and EU law promote free competition. The European rules aim
to remove restrictions such as price fixing and market sharing and
to ensure that dominant market positions do not adversely affect
consumers or other competing firms.
Certain specific
examples of prohibited behaviour are the monopoly practices which
are detrimental to consumers, discriminatory prices between or within
Member States, refusal to sell to a particular customer without
valid reason, attempts to retain customers by granting fidelity
gifts and acquisition of firms which affects the competitive structure
of the EU market.
Concerning this
point, the Court has recognised that those anti-competitive practices
can be extended to acts done to and by companies present outside
the EU if the agreement is operative on the territory of the common
market. Thus, the application of those provisions has effect since
the agreements is operative on the territory of the common market.
In one example, the Court sought to determine how various economic
units formed one unity in order to examine how undertakings from
outside the Union had organised illegal price-fixing within the
EU through subsidiaries under their control.
If a problem
of competition arises in the UK, the first thing that should be
asked is whether we should consider the application of EU law, as
national rules may not displace or prejudice the effectiveness of
EU law and there is behaviour which is prohibited by European law
and is not sanctioned by national law.
A simple complaint
to the Commission has as a result its intervention. The investigation
proceedings will start and fines will be imposed for failure to
comply with competition rules, and interim action will be taken
to bring damaging behaviour to an end.
The EU law is
something that we cannot ignore. The fact is that the European legal
system does not only apply to situations characterised by a cross-border
or international element or limited legal areas. We can say that
it is directly applicable to a vast number of fields. For that reason,
it is necessary to establish whether there is a European aspect
in a particular problem and what the basic principles of the EU
law are for that case. The fundamental characteristics of European
law are linked with the activity of the Court of Justice and its
interpretation of the legal system, therefore legal advice should
be asked to carry out the work and seek guidance and assistance.
Martin
Cray & Co. Solicitors
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