Law Essay写作-衍生工具在国家立法中的作用

1、 Top论文网 专业留学生essay代写网站Law Essay写作-衍生工具在国家立法中的作用Effects of Derivatives in National LegislationIn the case before us the United Kingdom has failed to transpose the directive into national law, resulting in a detrimental effect for both Rachel and Jose. The fact that the UK government voted against the Directive when it was adopted in the council of ministers by QMV1 and believes that existing legislation adequately covers teachers rights is of no consequence if the state of the law doesnt give eff

2、ect to the directive.Initially it was envisaged that the infraction procedure as set out in Article 2262 EC treaty would be the primary means of enforcement of community law against member states3. Article 226 proved itself to be ineffective; at the time lacking provisions4 to impose penalties on member states. Article 226 is also incapable of safeguarding the rights of individuals (a compensation order cannot be made against the defaulting state in favour of the aggrieved individual)5. Due to t

3、he inadequacy of Article 226 in the case of Van Gend en Loos 19626 the principle of direct effect was born. Van Gend en Loos had had a customs duty imposed on his goods by the Dutch contrary to Article 25 breaching rules in relation to the free movement of goods. Van Gend brought proceedings against the Dutch government in the national courts claiming reimbursement of the customs duties. The Dutch court sought a preliminary ruling from the ECJ7 who first of all considered whether treaty provisio

4、ns could confer directly effective rights upon individuals. The ECJ held that “community law not only imposes obligations on individuals but is intended to conferrights which become part of their legal heritage (arising) not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon member states”.Article 249 provides that a directive is binding as to the result to be achieved but not a

5、s to the method employed by the state8. The direct effect of directives was first recognised by Van Duyn v Home Office9. Van Duyn was a scientologist refused entry to the UK as the UK government had imposed a ban on foreign scientologists entering the UK. Van Duyn challenged the ban as falling foul of Directive 64/221/EEC which required that any ban be based on the personal conduct of an individual. The ECJ held that “it would be incompatible with the binding effect attributed to a directive by

6、Article 249 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned (particularly where a directive) has imposed on member states obligations the useful effect (of which) would be weakened if individuals were prevented from relying on it before their national courts. Another justification for direct effect of directives is that of estoppel10; it would be wrong for a member state to be able to rely on and gain advantage through their failur

7、e to implement an obligation under a directive; they are thus estopped from denying the direct effect of directives once the deadline for transposition has passed.The estoppel argument has one very important implication; as direct effect is based on the fault of the member state in failing to implement the directive it follows that parties may invoke and rely on the directive against the state only; (i.e. only vertical not horizontal direct effect). Where a directive is properly implemented indi

8、vidual rights flow from the implementing legislation and not the directive itself.The limit to vertical direct effect can be best illustrated by the case of Marshall11; “a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon against such a person”.An important requirement is that “it is necessary to examine in every case, whether the nature, general scheme and wording of the provision are capable of having direct effect”12; th

9、e provisions must be “unconditional and sufficiently precise”1314.So, Rachel, working for an entity of the state (a state school) may be able to enforce her right to a break with direct effect through the English courts; the “teachers employment rights” directive imposes on member states obligations to ensure that teachers are afforded a 3 hour break. Clearly as the directive has not been transposed Rachel has been deprived of this right and the English judge should rule in favour of her right to a break. The directive also fulfils the Becker test; it is unconditional and sufficiently precise.Jose, ostensibly will not be able to enforce his rights through the English courts, although he is being denied his break he works for a private institution, a problem insofar as direct effect of directives is permitted only vertically (individual v the state15) and not horizontally (individual v i

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