Two issues from the European Union which I am delighted to say will have the effect of rendering Prime Minister Harry Flashman and his Coalition acolytes incandescent with rage.

I post them here since you are likely to be kept in ignorance of them by the UK media.

The first is the judgment of the Grand Chamber of Court of Justice of the European Union has handed down on 24^th January 2012 in the case of Maribel Dominguez v Centre informatique du Centre Ouest Atlantique [2012] C‑282/10 following a reference from the French Court de cassation regarding the interpretation of Article 7 of Council Directive 2003/88/EC – Right to paid annual leave.

The court held that the Directive must be interpreted as precluding member states from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying preconditions for such entitlement which has the effect of preventing certain workers from benefitting from it not are they entitled to make the existence of the right subject to any preconditions whatsoever.

Moreover, the court confirm that the Directive has ‘direct effect’ which means that any court or tribunal at any level must give effect to the Directive at the suit of any UK European Citizen by setting aside, if necessary, any inconsistent national law which conflicts with it.

In other words, the right to four weeks paid annual holiday cannot be the subject of exception, exemption, proviso, qualification or excuse either imposed as a matter of contract or by state fiat.

The second development is the decision of the European Commission to refer the United Kingdom to the Court of Justice of the European Communities for abolishing the "remedy for repayment of taxes paid in mistake of law" without proper transitional rules.

the first one just means the work shy fckrs will be able to start work with employer a work a wek and take full anual leave then resign, and rince repeat for 90% of there "working" life, not a bad option if you want a minimum wage worker to cost a million times more than it should .... i expect that verdict will get overruled after an apeal or ruled defuntc as it provides the oprotunity to fruadulently claim wages .....

the second one is just a taster of things ot come no doubt, france and germany have both been in breach of it for several years but so far nothing has been done officialy, lets hope we loose in the court and then tell them to poke it untill such time as all meber states are forced ot comply...

As to your first point. It is a Grand Chamber judgement and therefore non-appealable.

As to your second point. The principle characteristic of Direct Effect is that the domestic courts, even the most junior in the hierarchy of the court structure have the power to strike down inconsistent legislation and even disapply superior court judgements which are inconsistent with the directive. It follows that the United Kingdom government are in no position to ignore the ruling of its own domestic court. Neither is it open to the UK to ignore the jurisdiction of the ECJ without incurring severe financial penalties under the doctrine of state liability.

This is not to be confused with the jurisprudence of the European Court of Human Rights which an entirely different jurisdiction for which the domestic court has no power to to strike down inconsistent legislation or to act inconsistently with judgements of the superior courts. If the government refuses to apply the jurisprudence of the European Court of Human Rights, as it is currently doing over the Hirst judgement, the consequences of its omission are largely political.

Originally Posted by Iolis

As to your first point. It is a Grand Chamber judgement and therefore non-appealable.

As to your second point. The principle characteristic of Direct Effect is that the domestic courts, even the most junior in the hierarchy of the court structure have the power to strike down inconsistent legislation and even disapply superior court judgements which are inconsistent with the directive. It follows that the United Kingdom government are in no position to ignore the ruling of its own domestic court. Neither is it open to the UK to ignore the jurisdiction of the ECJ without incurring severe financial penalties under the doctrine of state liability.

This is not to be confused with the jurisprudence of the European Court of Human Rights which an entirely different jurisdiction for which the domestic court has no power to to strike down inconsistent legislation or to act inconsistently with judgements of the superior courts. If the government refuses to apply the jurisprudence of the European Court of Human Rights, as it is currently doing over the Hirst judgement, the consequences of its omission are largely political.

indeed but the problem with the judgement is that its inconsistent with any form of buisness being undertaken, its been made by an as yet unapealable chamber but that wont stop some sly tecnocrat from weaving in a method ot have them overturned in order to stop stupidity from prevailing indeed a simple edict from the various powers that be making people have ot take there individual cases before a tribunal in order to get there pay for time off prio to completing any qualifying period would suffice in making the judgement irrleivent and thus allow normal constitutional buisnes practices to continue

i dont know exactly how they would implimnet such things but i'm sure france cant afford to comply with that ruling especially given the contractions in there economy and the same applies ot the rest of the EUand euro member states.

The ruling does not 'implement anything at all'. It does not create new rights other than than to confirm the direct effect of the directive. What is does, is to protect from interference by the state of an existing right, preventing the state by whatever means, from making the right conditional or impossible to obtain. It does not alter the rules relating to eligibility for paid holidays. The government are currently attempting to overhaul and undermine employment protection in the Kingdom as promised by Cameron to his business party donors while in opposition. What the case illustrates is that whatever 'review' they finally arrive at, following their current 'consultation' with the business community, is necessarily limited by the constraints imposed upon them by the over-arching constraints imposed upon the national authorities by the requirements of EU law. While it is quite understandable that the business community want a 'flexible; workforce - however that is defined, what the EU will not allow is the free market to be distorted by the sort of employment conditions that exist in the Far East. The French have 'tried it on' and have been 'slapped down' by the ECJ who have given effect to one of the central tenets of EU law that the most effective 'policing' model for adherence to treaty obligations which the concept of 'direct effect' was designed to accomplish does not lie with the member states themselves who cannot be relied upon to act in a manner they regard as inconsistent with what they perceive to be their 'national interest'. Instead, the treaty is policed by each individual EU Citizen who has been given the power to use 'direct effect' to enforce compliance with EU law through his own domestic courts. Where a provision is not directly effective, the Citizen has the right to raise a complaint directly with the EU Commission without the requirement to bring it to the attention of his own national authority or because the national government has made it too expensive for the poor to access the domestic courts (as it is seeking to accomplish at the moment) The Commission will, if the complaint is well-founded, take enforcement action against the member state itself using the ECJ where the state has failed to co-operate with the Commission. This has been the case in relation to taxation. The UK Government has enacted legislation inconsistent with EU law that is not directly effective. It has failed to co-operate with the Commission, and, as a result it has been taken to the ECJ who will rule on the issue and, if necessary, enforce compliance.

The EU citizen has, therefore a power to enforce compliance which some states regard as dangerously subversive. Little wonder then that you do not hear too much about it from a press who's funding is provided by the business community against whose interests such rights tend to operate or from the political classes of this country whose party funding is largely derived from the same source. It is therefore very much in the business interests of this country acting though the media and the government to keep its subjects in ignorance and completely Euro-sceptic!

Originally Posted by nanotm

the first one just means the work shy fckrs will be able to start work with employer a work a wek and take full anual leave then resign, and rince repeat for 90% of there "working" life...

Yep, because that sort of thing happens every day doesn't it? Get a grip on yourself for fucks sakes.

Informative post (as usual), with an interesting perspective.

One issue I would raise though, is that while the masses who read the media are Euro-sceptic, many businesses, especially ones with an international perspective tend not to be. Also some notable elements of the political class are rather pro-Europe.

From a personal perspective, I was nearly sunk some years ago by EU legislation that simply did not allow for the limitations of SME's, now I manage to avoid the issues by only employing contractors.
No paid leave, no health plan, no pension scheme......but whereas I could theoretically keep somewhere between 5-10 as permanent staff, I manage to employ double that number on average, usually for a duration of at least 1 year, and at extremely good rates of pay.

As 60% or so of European employers are SME's, it would be a mistake to focus legislation on the type of large enterprises that may have political influence, at the expense of the real dynamic growth generators......

Thank you for your reply

You may find the current SME guide of interest.

Originally Posted by Iolis

Thank you for your reply

You may find the current SME guide of interest.

I've seen a German guide that is clearly based on that.

This does not mean that EU law is drafted with SME's in mind any better now than in the past......it is usually (if at all) left to national governments to offer incentives to SME's.
Although I accept I may be biased, I think that legislation to encourage flexibility of operations for SME's rather than loading them up with regulation, is the way to encourage growth in Europe.

'Flexibility of operations' is a term used to describe the space that exists between the legitimate right of the employer to profit from entrepreneurial endeavour and the extent to which he is permitted to to exploit others in pursuit of it. There will always exist a tension pulling in both directions which employment law exists to regulate. An equitable balance is achieved by evidence-based specifics rather than the claim that some elastic and nebulous concept of 'flexibility' is being eroded by regulation. Neither the government nor the business sector is entirely honest or transparent in explaining what precisely it is that they wish to dismantle and why.