class notes
Notes on class for March 9, 2006
We addressed three separate issues.
A. The Paraquat Case
Paraquat is a dangerous weedkiller, which can cause lung damage if inhaled, and is harmful if it gets into a cut or if it is swallowed. In the United States, Paraquat is classified as “restricted commercial use,” and people must obtain a license to use the product. Use of paraquat has been banned in Sweden since 1983 and in Denmark since 1994. Sweden has challenged the paraquat directive before the ECJ (challenges by the Member States go to the ECJ, challenges by natural and legal persons, where there is standing, go to the CFI) (Case C-102/04) but the case has not yet been decided.
Note: in the case of this directive there was some strong opposition to the directive before it was adopted and enough strong feeling for a Member State initiated challenge to go ahead so it doesn’t matter as much that the environmental groups do not have standing to challenge the measure as it would in other circumstances.
The text of the Paraquat Directive notes that the Standing Committee on Food Chain and Animal Health found that paraquat was a possible hazard to ground breeding birds, and to hares. But the Committee also found that studies in other countries where workers suffered greater exposure to paraquat than in the EU (e.g. Malaysia, Sri Lanka, Philippines) the workers did not suffer from health problems as a result. Under the Directive the Member States have responsibilities to make sure that paraquat is used safely.
In the CFI environmental organisations challenged the paraquat directive using a range of arguments that they were individually concerned by the directive:
1. (Para 39) they claimed they were particularly affected because what they do is defend the environment. The CFI rejected this argument (para 53) because it was clear they were affected in their objective capacity as entities active in the protection of the environment and workers’ rights, which was not sufficient
2. The organisations claimed (para 40) their advisory role in the legislative process should give them standing. The CFI said this would only be the case if they were given specific procedural guarantees under an EU measure (para 57).
3. The organisations claimed (para 41) their position in the national legal systems meant they were individually concerned. The CFI (para 58) said this was irrelevant (para 58). The CFI also said that Community law did not provide for standing to bring class actions (para 59).
4. The claimants argued (para 42) that they should have standing in the interests of effective judicial protection because of the complexity of studying application of the directive in all of the Member States and because of the limits on the role of national courts which could not rule on the validity of EU measures. The CFI rejected this (paras 60-63) on the basis of earlier decisions of the ECJ (cf idea of precedential effect of ECJ judgments).
5. The claimants argued the principle of equality of arms (para 42, 44) : if a producer of a product would have standing to challenge the measure then people affected in opposite ways should have equal opportunities. The CFI said it does not work this way (para 65).
The decision emphasises that the narrow approach to standing persists. But the ECJ will address the Swedish challenge to the directive in due course.
B. The UK Food Supplements (European Communities Act 1972 Disapplication) Bill
If this Bill were enacted it would set up a conflict between European Community law and UK Law. In many cases national courts can avoid conflicts by interpreting domestic statutes in accordance with Community law but a direct facial conflict such as this Bill presents would not allow the courts to resolve the conflict through interpretation.
The European Communities Act 1972 is the statute which provides for European Community law to take effect within the UK. Section 2(1) of the Act provides that rights and obligations under Community law “shall be recognised and available in law, and be enforced, allowed and followed accordingly”. Thus the doctrines of direct effect and indirect effect apply in English law. Section 3 provides that issues of Community law are to be treated as questions of law in courts in the UK and that judges are to take judicial notice of the Treaties, and of EU legislative measures and decisions of the ECJ.
The 1972 Act makes it clear that Community law is meant to take precedence over conflicting national law. However, the fundamental principle of English constitutional law is that Parliament is supreme and, as a corollary, no parliament can bind its successors. In a House of Lords case (about the statutory prohibition of fox hunting with hounds in the Hunting Act 2005) (the decision is not generally relevant for the purposes of our class), Lord Bingham of Cornhill said: “The bedrock of the british constitution is.. the supremacy of the Crown in Parliament. It is… unnecessary for present purposes to touch on the difference, if any, made by our membership of the european union. ..the Crown in Parliament [is] unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as acts of parliament, properly interpreted, enjoyed the highest legal authority….
In another recent decision on the application of the European Convention on Human Rights in the UK (through the Human Rights Act 1998) Lord Scott of Foscote said in the House of Lords: “There are not, under English domestic law, any fundamental constitutional rights that are immune from legislative change.”
Some English court decisions have suggested that there are some statutes (including the ECA 1972) that are to be regarded as “constitutional statutes” and therefore not to be impliedly repealed by subsequent statutes (e.g., Thoburn v Sunderland City Council) (although they could be repealed by “unambiguous words on the face of the later statute” (Laws LJ)). Lord Denning stated in 1979 (in Macarthys v Smith):
Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act-with the intention of repudiating the Treaty or any provision in it-or intentionally of acting inconsistently with it-and says so in express terms-then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.
This sort of conflict between national constitutions and Community law does arise from time to time (we have seen examples relating to the European Arrest Warrant). The UK situation is different from that in other Member States because the UK Constitution is essentially unwritten (apart from “constitutional statutes”) and therefore harder to amend than a written Constitution.
Of course, if the Food Supplements Bill did become law in the UK it would be a breach of Community law which could give rise to enforcement action by the Commission (Art 226) or a Member State (art 227). In addition people could try to enforce their rights under the Directive before the national courts. Whereas an attempt to use direct effect would run up against the constitutional problem an action for damages against the UK might succeed in a case where a person could establish actual damage as a result of the UK’s non-implementation of the directive.
C. National Uniformity for Food Act of 2005
This Bill would pre-empt state and local rules relating to food, including food labelling rules. The Republican Conference states that it “requires the FDA to set uniform, science-based standards for food safety and warning labels. The measure establishes a single national system based on comprehensive science-based standards provides consumers and businesses with clarity regarding what is safe, what is permissible, and what needs to be labeled.” The Bill’s sponsor, Mike Rogers said:
The national uniformity for food act will integrate state food laws into the national system, to protect americans in a market where many of our food products come from other parts of the nation and the world. In today’s worldwide market, it is essential that we have a mechanism for a thorough, orderly food labeling system based on safe, scientific guidelines.
On the other hand, opponents of the Bill point out that it would pre-empt rules such as the Florida shellfish safety laws. Although the Bill would allow a state requirement of notices about the risks of raw shellfish it would pre-empt other warnings such as warnings about mercury in fish and also rules such as those in Florida which restrict the sale of shellfish collected in places contaminated with fecal matter, harmful chemicals etc. California also has more stringent rules than those which currently apply under Federal law. Senator Feinstein said:
Consumers in California and across the country deserve to know if their food contains chemicals that cause cancer or birth defects…This legislation would preempt efforts at the state and local level to provide consumers with confidence that the food they eat is safe. This legislation recklessly endangers the health of Americans and I will do everything in my power to oppose it when it comes before the Senate.
California’s Proposition 65 requires warning labels to disclose when products contain chemicals that cause cancer or birth defects, which has applied to candies containing lead imported from mexico and fish with high levels of mercury. Senator Feinstein said that the FDA chooses to inform consumers of these risks via a press release on its website.
This is one example of a more general phenomenon of trying to exclude state powers to regulate particular activities (and contrasts with the idea that Federal statutes should not impose liability on the states oin the grounds of state sovereignty under the 10th amendment). Other examples are in the fields of securities regulation and banking regulation. National banks have argued that they should not be subject to local rules regulating predatory lending and the OCC (regulator of national banks) has supported this argument.
We considered whether there was more or less justification for centralisation of regulation of food labelling in the US than in the EU:
i. It was suggested that there was likely to be more of an issue with protectionism in the EU than in the US which might mean that it was more necessary to pre-empt local rule-making in the EU than in the US;
ii. There is a suggestion that consumers in the US think that food labelling is regulated under Federal law already: does this mean that the law should reflect these expectations? (And does this mean that if consumers think that they will be protected by local anti-predatory lending rules that the law should reflect this expectation?)
Iii. Does it make a difference that it may be easier in the US for consumers to move around to a place with more (or less) protective rules than is the case in the EU?
Notes on class for March 7, 2006
WORKERS’ RIGHTS IN THE EU
1. The EU Social Model
EC Treaty Article 2
The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
EC Treaty Article 136
The Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
To this end the Community and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Community economy.
They believe that such a development will ensue not only from the functioning of the common market, which will favour the harmonisation of social systems, but also from the procedures provided for in this Treaty and from the approximation of provisions laid down by law, regulation or administrative action.
The EU’s Charter of Fundamental Rights recognises a right to Freedom of Association. This right is also guaranteed by Art. 11 of the European Convention on Human Rights.
Commission Communication on the Social Agenda, Sept 2005:
- Competitiveness of European industry vs reducing unemployment
- Investment in training
-“Against a background of increasing economic integration and intensified global competition, the EU must be capable of anticipating, triggering and managing economic change more effectively. Economic change is accelerating; restructuring, offshoring, outsourcing, even deindustrialisation, are gaining in importance.”
- A new dynamic for industrial relations (proposed Green Paper on Labour Law)
“the Commission intends to adopt a Green Paper on the development of labour law. In this Green Paper, the Commission will analyse current trends in new work patterns and the role of labour law in tackling these developments, by providing a more secure environment encouraging efficient transitions on the labour market. The discussion that this document will produce could lead to proposals for a whole range of measures to modernise and simplify the current rules.
- Corporate social responsibility
- Creating a European labour market: a proposed optional European framework for transnational collective bargaining
- social protection, social inclusion, diversity and non-discrimination
2. Workers as Stakeholders
The European Economic and Social Committee, which acts as an advisory body in the EU’s legislative process, has representatives of three different groups (the “social partners”): employers, workers and others (such as consumer organisations). The workers’ representatives come from trades unions. This has been a structural feature of EU processes from the beginning. More recently the EU institutions have talked about involving “stakeholders” in decision-making.
Within the EU workers have often been regarded as stakeholders within incorporated businesses as well as in the context of law-making. German corporate law is often contrasted with Anglo-American corporate law because of the much greater role workers have in the corporation in Germany.
3. The Open Method of Co-ordination
In recent years, in addition to using legislative measures to promote social goals the EU has begun to use the Open Method of Co-ordination (or OMC) which involves developing benchmarks, guidelines and best practices. The OMC was first used in the employment context. It is a regulatory technique sometimes described as “soft law” relying on peer pressure rather than on formal legal sanctions for non-compliance. The OMC can be used in areas where there are concerns about subsidiarity because it does not involve the establishment of binding legal rules. And some social scientists argue that soft law can be more effective in ensuring compliance than hard law.
4. EU Labour Law:
- the EU requires consultation of unions in the context of collective redundancies
- Community-scale undertakings and Works Councils for consultation and information of employees
- employees’ rights are required to be protected in the event of transfers of undertakings
- employers must inform employees oft heir conditions of employment
- Member States must protect employees rights to receive payments on the insolvency of their employer
- the EU limits workers’ working hours
- Member States must prohibit work by children
- Non-discrimination
cf. Commission Opinion on an Equitable Wage (1993) affirming the right to an equitable wage, meaning that all workers should receive a reward for work done which in the context of the society in which they live and work is fair and sufficient to enable them to have a decent standard of living.
5. National labour law and community law:
Minimum wage laws are national laws. Rules regulating industrial action are national laws.
Does Community law restrict or prohibit what sort of industrial action Trade Unions established in the Member States may take?
EC Treaty Art 43
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital.
EC Treaty Art 48
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
EC Treaty Art 49
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.”
Viking Case
Viking (Finnish Company) operated Rosella (on a route between Finland and Estonia) under a Finnish flag with a collective agreement in Finland and decided to reflag in Estonia after Estonia joined the EU to hire cheaper Estonian workers. Viking began to negotiate the reflagging with the Finnish Seamen’s Union. Eventually Viking went to court in England to stop industrial action by the FSU and the International Transport Workers Union on the grounds that its rights under the Treaty, including its right to freedom of establishment would be infringed by the action. The Court of Appeal made a preliminary reference to the ECJ.