European Review of Contract Law

Question: Evaluate the means of law enforcement including the role of the Court of Justice? Answer: Introduction Every land has its own law and moreover a body which regulates the laws and rules which are made so that all the citizens may get an equal right and an equal say in the matters which are related to them all. The body which makes certain important rules and regulations and is being considered in the given case is the European Union (EU) which is both a political and economic union and its territorial union exists all over Europe, 28 member states being a part of it. All the member states make necessary decisions, whatever is required in an institutional form which is supranational in nature. The main important institutions of this Union are- European Parliament European Court of Auditors European Central Bank Court of Justice of the European Union European Council Council of the European Union European Commission These are the commissions who put their heads together to make the best kind of rules which will be beneficial to the mass majority of the population, no matter which class they belong. The given case is also of the various decisions that have been taken by EU and the laws that have been made so as to make the continent a better place for all the people to stay in. On the basis of the given case, the given matter has been discussed with a political point of view. The case that has been given is the one in which EU has made laws regarding compensations that the employee should (like Directive 97/9/EC of the European Parliament and of the Council) get and laws at different stances when the employee and the employer relationship is considered. Before the matter can be discussed, one needs to see what the scene is in brief. There has been a directive which has been passed by EU, dated 2013/08, which directed the member states to enact a compensation scheme where in the industrial sector they should pay a compensation to the workers who have been injured, irrespective of the fault of the employer and it was finally implemented on 1st October 2014. This directive by EU law also states that if there has been an injury which they employer has faced, he should get about 6 weeks off and about 250% of the employers salary should be offered during the period of recovery and also as an convalescence. But this is where the UK law thinks differently. It believes that through the Common Law and the statutes that are already being provided by them to their employers and employees via the schemes and for the compensation are more than enough and that they do not need to incorporate such schemes which are being laid down by EU. They feel that the ordinary law of negligence and the compensation provided thereto is some thing which is sufficient, for any kind of workplace injuries. Here the compensation which is provided to the employee who has been injured, by here it is meant UK is based on a lot more things than the only things which EU mentioned. They consider the degree or gravity of loss, damage, and hurt and that how much would be the cost of recovery or how much is the income of the person who is injured. Like it has been mentioned above the people of the land, UK feel that the Common Law as well as the Statutory Laws have shed enough light on this matter and that any new directive will not need to be incorporated. They feel that the laws which are being followed or that which have already been laid down has enough substance for the given matter and thus the Directives laid down by EU is not something that at that point of time needed to be given importance too. Cases The first person that one takes into consideration in the light of EU laws for discussing the above mentioned case is John who has been working for Westminster City Corporation since the year 1982 as a painter and a decorator and off late has suffered injuries where he has broken an arm and a leg, has fractured his ribs and also has a concussion and for the given damage the corporation takes the liability and has decided to pay 100% of his wages, which is not the same which had been mentioned by the EU and also the recovery charges whatever would be required in order for John to get well. He also gets an additional jump-off pay which would have been more if the retirement years left were not small. The employers here follow the Public Liability Act 1980 according to which certain amount of payments would be assigned to John taking into account the kind of injuries he has faced. The next person and the incident to be discussed is Penelope. She has been working in XCBBiological Science s Ltd which happens to be a private firm and at the place because of the poor maintenance she has faced injuries in the form of burns, which has burnt her skin badly. Her recovery would mean two months off from work and the compensation that she is receiving from her employer is a months pay in addition to what she already gets, also the costs of her treatment is included in this. But the case remains that both the people whose cases have been mentioned above are not happy with the compensation that they are receiving and therefore would like to refer to the directives which are laid down by the EU so as to whether their employers can be sued or not. For shedding light on the given matter, further discussion has been provided which sheds light on all the given facts and issues mentioned in the discussion above. Extent of EUs authority and the effects of the principles lay down by it EU like it has been mentioned above is a political and economic Union and not any obligatory body which can enforce its laws and Directives on the member states unless sit has been decided unanimously. It work or its action is presented in three respective forms which are regulatory functions, directives are passed by them and also decisions are taken by them in certain important matters. The regulations or the Directives passed by them becomes the Law automatically and thus when this is something which comes into force after all the member states has agreed upon it, it overrides all the domestic or the territorial provisions which exist related to the same matter. Thus it can be said that the regulations which are laid down by the EU would hold importance in the member states. EU law is something that the state cannot override whether one considers is horizontally or vertically. A domestic law is going to hold importance in the land as long as there is no similar Law made by EU to o verride it. In case that happens the EU Law stands true in all cases. The regulations become laws if passed by the EU Court of Justice and thus the only thing which is left to the state is the method of their implementation when the regulations have already been made into laws. Though the National Courts have the territorial jurisdiction, and they have the authority to pass the required laws and regulations for the country but what needs to be understood is that above the national laws all the states have come together to become the members of the EU which needs to be regarded when they pass any regulations or when decisions have been given by its court. Thus apart from the regulations which has been passed by it, the common law and the statutory law on negligence has also been discussed below so as to shed more light and that a clear connection is established between the national law and the laws which are made by EU for the betterment of the people. Common Law on Negligence The Common Law which is usually followed in the land which also used for reference in many other cases outside the country lays down following essentials which have to be fulfilled when so that the whole injury could be stated to be a result of negligence on the part of one party. The elements are- Duty of care: one party which is being held for negligence should have owed a duty of care towards the injured party. There should have been a breach in the given duty of care. Vaughan v Menlove (1837) 3 Bing. N.C. 467 The cause of the injury of the plaintiff should be the negligence or the breach of duty of the other party and also the remoteness of the injury also depends on the given breach of duty. Barnett v Kensington Chelsea NHS Trust Bolitho v City and Hackney Health Authority Gregg v Scott And in case the damage was something that was foreseeable the following cases have been taken into consideration- Hughes v Lord Advocate [1963] AC 837 Wagon Mound (No.1) [1961] AC 388 Scott v Shepherd (1773) 96 ER 525 There are certain defenses too which are available for the given case which is that in case there was contributory negligence, or that there was an illegality involved in the given case, or maybe that the injury was caused because of the fault of the plaintiff, in these cases the damages would be likely not given or would be very less because the element of negligence are not being fulfilled exactly. Statutory law on negligence There is no specific statutory law which is followed in UK regarding negligence except what has already been discussed above. The Common Law plays the most important role when it comes to the laws on negligence. Donoghue v Stevenson [1932] AC 562 Thus it can be said that the Common Law or the Statutory Law is something that is in collaboration with the Directives which have been laid down by EU. Here the only difference lies is that the Common Law states many more clauses as to how the negligence has to be proved followed by the damages which are to be rewarded based on the given remoteness of the injury. The basics which is followed by EU is the same, and the only like of difference is the way damages are to be awarded to each person who claims to be a victim of negligence and to whom the employer shall be responsible. Limitation of the directive What has already been discussed is that the Directive and the rule which is usually passed by the EU is something that ultimately becomes the rule in all the member states. It is very important to note that the regulations would only be applicable in the states that are member to this union and at the same time will not be available to the countries or the states that are not a part of the same. The limitations of the directive lie in the fact that not all clauses of a certain tort are considered by them when rewarding the injured the compensation or the damages of his injuries. Here the damages which were decided on the part of the employer of John was more or less sufficient for his sustenance keeping in mind the kind of work he had and the years that he had served the company. But at the same time keeping in mind the kind of injuries that he has faced makes us realize that the EU has had thoughts about the past regulations in mind and that is the reason why it has passed the laws and the regulations. But at the same time the implementation of the given directive or the law lies completely in the hands of the states and the EU can do nothing about how a particular directive is adopted and implemented in any given states. Thus it can be said that there are no direct limitations to the directives which are passed by EU and at the same time a line of limitations does intervene. Penelopes case When the second case is considered a landmark case of EU can be referred too which is known as the Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62 where it was observed that if there is a provision which has been established by the EU, or any of its important commission, whether it is Treaty Establishing the European Economic Community or other, had the authority of creating legalprovision in the given member states. This simply means that if a directive has been passed by EU, in one way or the other the member state would be bound by it and thus if certain rules and regulations have been given by the EU regarding the compensation which should be received by a person in case there has been an injury which has been caused to him while working for the given employer, the employer has to provide for the compensation and the cost of recovery whether or not he has been directly at fault. The given case also establishes the criteria of direct effect which can be used in Penelopes case. Interpretation of National Law and Statute Law and other cases The National Law and the Statute Law has least ambiguity like the EU laws have. These national laws can be directly interpreted like they have been written down and therefore can be directly used in the given case as well. The only area of discrepancy lies is where the damage and the remoteness of the injury have to be decided. Since even this remains a very subjective matter, EU therefore had passed directives and regulations which had awarded more or less a fixed amount of compensation that should have been included in some way in the national law as well. When matters like these are concerned there are famous cases which should be referred too and therefore some of them have been mentioned below- Brasserie du pcheur and Factortame, Joined Cases C-46/93 and C-48/93 (5 March 1996) tells more about the breach of the community law and how that has to be taken very seriously because it holds the community at large. Mangold v Helm (2005) C-144/04 was a case that dealt with Employment Equality Framework Directive and said that if a time arises when the national law or conflicts the EU directive, it is the directive passed by EU that has to be given more important and not vice versa. Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] C- 106/89 mentions the indirect law which says that even the national courts of the member states have an obligatory duty to reason and pass orders in the light of the directives passed or unparsed by the EU. Thus it can be said that if the given Directive by EU are not passed, the given member thence commits a breach of rule, and in turn has to follow what has been laid by EU. State liability EU has laid it down very clearly that the breach of rule, or community law or as a matter of fact any rule and the judgment that has to be passed are to be passed by keeping the directives of the EU in mind and not the national law. The principle states that that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible and hence damage has to be provided. Article 258 EU Law This is an important article, because it serves more like a remedy, and states that in case any of the member states have failed to follow what has been provided by the EU it shall provide sufficient reason for it and also has to give the chance to the State to give in its observation. If both do not comply, the matter would be then taken to Court of Justice of the European Union. Thus it can be said that in both the cases that have been given, both John and Penelope can ask EU for the kind of justice that they deserve. References Afferni G, 'Case: ECJ Manfredi V Lloyd Adriatico' (2007) 3 European Review of Contract Law Allison L, EU (Palgrave Macmillan 2015) Andersen S, The Enforcement Of EU Law (Oxford University Press 2012) Beever A, Rediscovering The Law Of Negligence (Hart 2007) Bovens M, Curtin D and Hart P, The Real World Of EU Accountability (Oxford University Press 2010) Brennan S, Halsbury H and Mackay of Clashfern J, 2008 Consolidated Table Of Cases: M - Z, ECJ Cases (LexisNexis Butterworth 2008) Ceccorulli M, EU (Routledge 2014) Delaney H and Zande R, A Guide To The EU Machinery Directive (US Dept of Commerce, Technology Administration, National Institute of Standards and Technology 2001) Harlow C, State Liability (Oxford University Press 2004) HIGASHINO A, 'The Dynamism Of EU Enlargement' (2004) 2004 EU Studies in Japan Knop K, Diversity And Self-Determination In International Law (Cambridge University Press 2002) Leden L and Himanen V, EU (Technical research centre of Finland 1996) O'Neill A, Decisions Of The ECJ And Their Constitutional Implications (Butterworths 1994) Reich N, Understanding EU Law (Intersentia 2003) Riesenhuber K, 'Case: ECJ Mangold' (2007) 3 European Review of Contract Law Scholten M, The Political Accountability Of EU And US Independent Regulatory Agencies Steiner J and others, EU Law (Oxford University Press 2006) Taschner H, 'Environmental Liability And Product Liability In The EU: A Comparison' (2000) 9 Rev EC Int Env Law Vajda C, Liability For Breach Of Community Law Winiger B and Andersson H, E M. A. P Bovens, Deirdre Curtin and Paul 't Hart, The Real World Of EU Accountability (Oxford University Press 2010). Miroslava Scholten, The Political Accountability Of EU And US Independent Regulatory Agencies. Stine Andersen, The Enforcement Of EU Law (Oxford University Press 2012). Laura Allison, EU (Palgrave Macmillan 2015). Michela Ceccorulli, EU (Routledge 2014). Lars Leden and Veli Himanen, EU (Technical research centre of Finland 1996). Sian R Brennan, Hardinge Stanley Giffard of Halsbury and James Peter Hymers Mackay of Clashfern, 2008 Consolidated Table Of Cases: M - Z, ECJ Cases (LexisNexis Butterworth 2008). Christopher Vajda, Liability For Breach Of Community Law. BeÃÅ' neÃÅ' dict Winiger and HaÃÅ'Ã…  kan Andersson, Essential Cases On Damage (De Gruyter 2011). Allan Beever, Rediscovering The Law Of Negligence (Hart 2007). Josephine Steiner and others, EU Law (Oxford University Press 2006). Atsuko HIGASHINO, 'The Dynamism Of EU Enlargement' (2004) 2004 EU Studies in Japan. Norbert Reich, Understanding EU Law (Intersentia 2003). Karen Knop, Diversity And Self-Determination In International Law (Cambridge University Press 2002). Helen Delaney and Rene van de Zande, A Guide To The EU Machinery Directive (US Dept of Commerce, Technology Administration, National Institute of Standards and Technology 2001). Hans Claudius Taschner, 'Environmental Liability And Product Liability In The EU: A Comparison' (2000) 9 Rev EC Int Env Law. Karl Riesenhuber, 'Case: ECJ Mangold' (2007) 3 European Review of Contract Law. Aidan O'Neill, Decisions Of The ECJ And Their Constitutional Implications (Butterworths 1994). Giorgio Afferni, 'Case: ECJ Manfredi V Lloyd Adriatico' (2007) 3 European Review of Contract Law. Carol Harlow, State Liability (Oxford University Press 2004).