EU Law

Discussion in 'Finance, Property, Law' started by Iolis, Jan 27, 2012.

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  1. 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[SUP]th[/SUP] 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.
     
  2. 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...
     
  3. 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.
     
  4. 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.
     
  5. 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!
     
  6. Yep, because that sort of thing happens every day doesn't it? Get a grip on yourself for fucks sakes.
     
  7. Alsacien

    Alsacien LE Moderator

    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......
     
  8. Alsacien

    Alsacien LE Moderator

    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.
     
  9. '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.
     
    • Like Like x 1
  10. seaweed

    seaweed LE Book Reviewer

    If the net effect is a disincentive to hiring and an incentive to outsource either at home or abroad, the EU is shooting itself in its economic foot and needs to review its directives in that light.
     
  11. The myth of the 'disincentive to hire' is nothing more than a baseless assertion used by those who find any form of employment protection an impediment to growth. Such protection is enforced throughout the 27 member states of the Union to ensure the free movement of labour. It is an important part of the 'social chapter' from the Conservative government under John Major negotiated an 'opt out' as the price of ratifying the treaty of Maastricht and which the Labour government 'opted in to' in 1997 which now form virtually the entire basis of our employment law.

    The attempt by the current Conservative-led government to 'repatriate' powers is an attempt to have the social chapter now incorporated within the current Treaty dis-applied to the United Kingdom. Fortunately, they will not succeed in doing so. The powers they seek a 'repatriation' of are far too important to entrust to low-grade British politicians. Indeed, the stark hypocrisy of both parties who, last week gave public speeches railing against 'Capitalist Greed' while at the same time, covertly seeking to dismantle the very protections against its worst excesses is a paradigm of the contempt in which the electorate is held.

    Thus, I am personally pleased that the European Commission and the Court of Justice of the European Union is prepared to take a robust line against any state who seeks to dilute the protection that many people believe would never be conferred upon them by their own Parliament, let alone defended by it. Our system of Parliamentary democracy is too weak and fragile to act in defence of anything other than the government's own interest which corresponds exactly with that of the business community and financial sector it represents.
     
  12. Alsacien

    Alsacien LE Moderator

    Iolis, you argue your case with eloquence and obvious knowledge for which I give you credit for (even while not entirely agreeing), something the anti-Euro brigade seem unable to aspire to.

    Could I logically assume you are ideologically aligned to the whole EU citizenship/rights socialist model, rather than the Federalist agenda? In which case, at what point do you see (if you see at all), such ideals clashing with the reality of a market economy that has to be competitive in a global marketplace?
     
  13. when labour opted in though they also as part of that repealed the very real statutory instruments which the uk had in place to prevent the escalation of wages and the growth in the gap between top and bottom earners, in truth the eu legislation which john major's government opted out of has done far more to promote capitalist greed than staying as we were, never mind it was the snowball effect from implementing that pile of garbage into the uk system which lead ot gordon brown plundering the pensions pots of every single person in the uk under the guise that as it was no longer mandatory it was no longer tax exempt.....


    say what you like about the idiotic methods there now trying ot maintain the greedy capatilst money train with whilst simultanously preventing new commers from following suit and stifeling proper market places competition in the recruitment process its a very clear case of to soft and in the wrong direction, as is the same with at least 70% of EU regulation and legislation.

    also i note with gay abandon that you mention mere country leaders cannot be trusted, yet unelected morons who dance to whatever tune there current bribe payer plays (i'm refering to the tecnocrats not the meps who arre at least elected for the most part even if there perhaps even more corrupt) yet seem to be of the opinion that the revers is true of such pinicles of depravety, who knowing what they were going to be about there first order of buisness was declaring themselves exempt from prosecution, except where charges were brought through there own internal system

    at least mp are impeachable and can be tried for there crimes (even if the last few years make it seem otherwise)

    the problem is that the rules were paid for and promoted as good, then passed into fact by a bunch of champagne swilling self indulgent drunkards more intersted in gettign a refill than what they were passing into fact, most of them didnt even know what the contents of the drivel prepared by the faceless minions, happily enough were able thanks to the idiocy of certain a certain PM to see just how bad for the uk in both personel and buisness sences thease directives are.

    its the same piece of junk that gave us the minimum wage fiasco, where we went from getting a living wage in many occupations to getting offered lower and lower wages rather than the supposed increase in average lower saleries.

    the cost of living rose thanks the the finacial deregulation again provided for under certain EU directives.

    tbh i'm hoping that the eu kicks us out or we leave, i would prefer the former since it wont cost us anywhere near as much and by all counts CMD is doing a pretty good job of making the EU need ot get rid of the UK, lets hope they take the correct action, after all whilst it may affect buisness or how buisness operates it will be less harmful than if we decide ot leave as a country.

    i dont doubt the directives were meant at least on some level to provide some semblance of a good thing to people in countries with extreamly poor legislation but sadley only one country seems to have benefited from the EU at all the rest of us have faltered and ceeded, strange then that same country whilst adopting the laws found ways ot write them into there constitution that didnt contravene or follow the EU directives....