EU Law Blog

The notes for today’s class are here. I will update this url with the notes for classes as we proceed.

As I mentioned in class, rates of worker participation in trades unions vary from country to country. In the US now about 12.5 percent of wage and salary workers are union members (down from 20.1 percent in 1983). In looking into the data yesterday I wasn’t able to find broad and up to date comparative date, but around 1988-1990 (different dates for different states) the US had about 16%, and France about 11% union membership. Germany had 39%, the UK 46%, Italy 65%, Denmark 88% and Sweden 95%. Eironline has a more recent survey which gives “crude figures” as follows:

over 90% in Romania;
80%-89% in Belgium, Denmark, Finland and Sweden;
70%-79% in Italy and Norway;
60%-69% in Cyprus and Malta;
50%-59% in Luxembourg;
40%-49% in Austria and Slovenia;
30%-39% in Hungary, Ireland and Portugal;
20%-29% in Bulgaria, Germany, Greece, the Netherlands, Slovakia and the UK; and
10%-19% in Estonia, Latvia, Poland and Spain.

According to a comparative survey at the european industrial relations observatory online, minimum wages set by statute were around 7 euros per hour in 2004 in France, Ireland and the UK and around 1 euro per hour in Estonia, Lithuania, Slovakia and the Czech Republic. Wages are set through collective agreement in some Member States including Germany, Finland and Austria.

We also looked at how European Community law requiring freedom of establishment and the freedom to provide services across borders may conflict with the EU’s commitment that workers should have a voice. Viking, a Finnish Shipping line is attempting to stop industrial action over its plans to change the flag state of one of its ferries from Finland to Estonia. In arguing that the EC Treaty protects its right to freedom of establishment Viking is arguing that Art. 43 of the Treaty should be regarded as producing horizontal direct effects so that Viking can enforce the right to establishment not just against Member States whose laws might interfere with freedom of establishment but also against non-state actors whose actions might make establishment in other Member States more difficult. The language of Art. 43 does not make it clear whether Art 43 should be treated as producing horizontal direct effects or not.

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Rather than the topic I announced for tomorrow’s class, and in light of the ongoing strike action I am going to use tomorrow’s class for some discussion of the EU’s approach to workers’ rights (no advance preparation required). I will tape the class and post outline notes on the weblog. And I will happily answer questions via email or otherwise.

We will cover the material originally scheduled for tomorrow on Thursday.

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I have posted outline notes for today’s class as a page here. I haven’t figured out yet how to configure things so that this will scale for 2 sets of notes per week but will work on this.

I will also distribute in class today a copy of a Bill currently before Congress: the National Uniformity for Food Act of 2005 (this is the pdf version and more elegant but longer than the version I will hnd out in class). On Tuesday next week we will discuss the paraquat case at the end of the last set of materials together with the UK Food Supplements (European Communities Act 1972 Disapplication) Bill and this US national standards bill.

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:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable Community right” and similar expressions shall be read as referring to one to which this subsection applies.

Section 3 includes the following provisions:

3. - (1) For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).
(2) Judicial notice shall be taken of the Treaties, of the Official Journal of the Communities and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid; and the Official Journal shall be admissible as evidence of any instrument or other act thereby communicated of any of the Communities or of any Community institution.

The 1972 Act makes it clear that Community law is meant to take precedence over conflicting national law but a fundamental principle of English law is that Parliement is supreme and, as a corollary, no Parliament can bind its successors. If the Food Supplements Bill were enacted, should domestic courts in the UK give precedence to the new statute or the 1972 statute?

[update 2.30pm: There are some resources on the US Bill at the New Standard]

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The Jego Quere case illustrates (among other things) the EU’s concern for the conservation of fisheries. France has for a long time (since 1991) not been complying with EU fisheries rules (in particular in relation to ensuring that undersized hake are not sold (cf. Jego Quere, incidentally a firm established in France)) and the Commission just issued a decision imposing a fine on France in respect of its default. The ECJ ruled last year that France should pay a fine and that if it failed to bring its laws into line it would be required to pay an additional fine every 6 months. It is this second six-monthly fine that the Commission has decided must be paid. The Commission explains:

The task of the European Commission was clear: it had to assess whether or not, at the end of the first six-monthly period following the European Court of Justice (ECJ) ruling of July 2005, France had fully complied with all the obligations under this ruling. The Commission carried out a thorough and rigorous evaluation of the situation regarding the two failings and found that they had not been rectified at that stage. The result is that France will have to pay the financial penalty set by the Court

France apparently plans to challenge the decision.

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Advocate General Jacobs refers to these provisions of the European Convention on Human Rights (eg in the Olive Oil case, p 14 at para 39). This is what the provisions say:

Article 6 – Right to a fair trial
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Everyone charged with a criminal offence has the following minimum rights:
to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
to have adequate time and facilities for the preparation of his defence;
to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

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The University’s action in designating one single location for picketing seems to me to crystallise the situation so that all of our classes are affected until the strike action ends. So I will not be taking attendance while the strike persists. I am trying to arrange to be able to tape (audiotape) the classes affected and I will post an outline of what we cover in class on the blog. I will also arrange to post a link to the next set of class materials on the blog. And I’m happy to discuss questions about the material via email or in person (with individuals or groups) off-campus.

Taping classes seems to involve some distribution issues as the normal way of providing access to class tapes is via the Library. So if there is anyone who would be able and willing to produce a recording of the class in digital format that I can post online that would be helpful.

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I did not notice until today that some members of the UK Parliament have proposed a Bill to disapply the food supplements directive and regulations in the UK (the Food Supplements (European Communities Act 1972 Disapplication) Bill. Clause 1 of the Bill provides that the 2002 Directive and any judgment of the ECJ relating to it shall have no effect in the UK. The Bill goes on to state in clause 3(3) (amending the Food Safety Act 1990):

(1) The appropriate authority shall make regulations—
(a) prohibiting the sale of any food supplement in the manufacture of which a vitamin or mineral has been used unless that vitamin or mineral—
(i) is authorised for use in the manufacture of food supplements, and
(ii) is in a form which is so authorised and meets such purity criteria as shall be specified; and
(b) making such other provision relating to food supplements as it considers appropriate.
(2) Before making regulations under subsection (1) the appropriate authority shall consult—
(a) such persons or bodies as appear to it to be representative of the interests of complementary medicine, and
(b) such other persons or bodies as it considers appropriate.

Private Members’ Bills are rarely enacted in the UK. If the Bill were enacted would it be valid? Should it be valid?

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Some members of the class may have read about yesterday’s vote by Unicco employees to strike against their employer which would affect the places where they actually carry out their work, including UM. The article in the Herald and this post at discourse.net make it clear that we have no idea what is going to happen. It seems that there may be roving picket lines at UM affecting different parts of the University at different times. And it also seems to be accepted that the picket lines will only affect their specific locations rather than the University as a whole. I have never heard of such a thing before (although it may have something to do with the strike action being secondary action). It all sounds very confusing.

Anyway, what I propose is this:

1. I will teach classes affected by pickets for the benefit of those students who choose to cross the lines.

2. I will not take attendance at such classes.

3. I will arrange classes in another location for those students who choose not to cross the line (although obviously at a different time which will cause inconvenience for which I apologise in advance).

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Edith Cresson’s actions as a Commissioner are being considered before the ECJ because the Commission is claiming that she should be deprived of her pension rights for breaches of duty under Art. 213 of the Treaty. Advocate General Geelhoed (whose food supplements opinion we just read) has concluded that she did breach her duties:

the Advocate General stresses that the various facts are symptomatic of a basic attitude indicating that she was willing, whilst in office as a Member of the Commission, to use that office to extend benefits to personal friends at the expense of the Community budget. He therefore concludes that Mrs Cresson is correctly accused of favouritism by the Commission, in breach of her obligations as a Commissioner.
As a result of this breach of obligations Advocate General Geelhoed states that a pecuniary sanction is appropriate. In his opinion, whilst the severity of the charges against Mrs Cresson warrant a full deprivation of pension rights a number of factors, including the lapse of time between her leaving office and proceedings being brought, the damage which has already occurred to her reputation and the general administrative culture in the Commission at the time mitigate against such a severe sanction. As a consequence of this he suggests that the Court deprive Mrs Cresson of 50% of her pension rights as of the date of the Court judgment.

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I have previously noted that Spain has argued that the Spanish language should be given greater prominence within the EU. And we have seen that the EU celebrates its linguistic diversity. Spain and the Council have now concluded an administrative arrangement to facilitate Spanish citizens communicating with EU institutions in their own language even if this is not Castilian (Spanish) provided that the language is recognised by the Spanish Constitution (Euskara, Catalan and Galician). In relation to written communications the Spanish citizens will send them to the Spanish Government for translation and forwarding to the EU institutions. Under certain circumstances Spanish representatives will be able to address the Council in a Spanish language other than Castilian (request made in advance, cost of translation borne by Spain). Spain will also provide certified translations of measures adopted by co-decision into the other languages and these will be linked to from the Council’s website with disclaimers stating that “those translations do not engage the responsibility of the Institutions of the Union and have no legal value”.

Meanwhile, more data suggesting that English is the dominant language in the EU.

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