A Coherent EU Legal System - Free Essay Example

Sample details Pages: 7 Words: 1989 Downloads: 2 Date added: 2017/06/26 Category Law Essay Type Narrative essay Tags: Justice Essay Did you like this example? Why the system of preliminary rulings in Article 267 TFEU is, and continues to be, important for the development of a coherent EU legal system and the liberalization of the procedure. The system of preliminary rulings provides the European Court of Justice (ECJ) an opportunity to assume an advisory role for other member states. The functioning of the ECJ is described under Article 19 of the Treaty of European Union (TEU) which states that the court must ensure correct interpretation and application of treaty law among member states as well as provide remedies for cases where there is no remedy available under national law, to ensure effective legal protection is provided by European Union (EU) to all its citizens. Don’t waste time! Our writers will create an original "A Coherent EU Legal System" essay for you Create order Treaties and acts are binding agreements created between EU member countries to describe the objectives, rules and relationship aspired to be formed between the members of the union having the ultimate intention of protecting the dignity, freedom, equality and respect for human rights for all citizens of the union as stated in Article 2 of the TEU. Coherent application of EU law throughout the union is a joint responsibility shared between the ECJ and the national courts. To ensure that member states apply EU law in a uniform manner Article 267 of the European Union Functioning Treaty (TFEU) plays an important role by developing community law which is applied by national courts based on its consultation with ECJ. This procedure is important because it creates a two way system allowing individuals subjected to European Union law to challenge the application of union law upon them in national courts. It also makes it possible for constant review of the validity and correct app lication of EU laws by ECJ. At the crux of the reference procedure lies the important principle that it is the national court which finally decides whether to refer to ECJ. However when there is no further judicial remedy for the individual to avail at national level and the dispute arises from incoherent application of EU law, it is a must for the case to be referred to ECJ for direction as stated in Article 267(3) of TFEU. This creates a vertical relationship between national courts and ECJ. At the same time the rulings provided to one member state is applied coherently to other members in a horizontal and multilateral manner. However there has been laxity in the application of Article 267 due to the increasing number of cases that has been referred to ECJ and the increasing number of countries that have become members of the EU. This has created delay in the functioning of the European court which is feared will create a miscarriage of justice. It follows from the judgem ent in the C-246/80 Broekmeulen v Huisarts Registratie Commissie (1981) ECR 2311 case that the obligation to refer under Article 234 (3) is not an absolute one. It was decided that a decision to refer was the prerogative of the national court. Only cases which had exhausted all available remedies under the national judicial system had to be referred to ECJ for a preliminary ruling. This was again emphasized in C-28/62 Da Costa (1963) ECR 31 case, where the question of necessity to refer if the case had already been answered in a previous ruling was raised. The reply was to exempt the case from referral to the Court of Justice in such matters because the national court was expected to apply the available decision. This introduced the concept of precedents into community legal system. In C-66/80 International Chemical Corporation (1981) ECR 1191 case ECJ further ruled that the precedent effect must apply to not only individual states but to all states where similar cases arise. This was based on its multilateral effect upon all member states. Finally to address cases in which decisions were so obvious that no reference was required ECJ came up with the doctrine of acte clair. This doctrine was applicable when the national court feels it can avoid referring to ECJ to reduce the burden on ECJ. It was applied in C 283/81 CILFIT (1982) ECR 3415 case. The decision in the case of CILFIT reinforced the delegation of duties to national courts and the use of precedents as a way of reducing the number of cases that are referred to ECJ under the preliminary reference procedure are however considered to have liberalized the position of ECJ in ensuring a coherent community law. The disadvantages of the above procedures were the possibility of errors in interpretation of judgements made, taking into consideration the various languages that are used by member countries and the abuse of power vested in member states to decide cases that need reference. Delegation of duties to national courts could result in failure to refer the matter because of the fine line that separated a case that was clear in it facts and one that required reference due to doubts in community law. To address these possibilities in C-173/03 Traghetti del Mediterraneo SpA (2006) ECR 1209 a principle was applied to establish liability for damages arising from failure to correctly interpret EU law and to refer cases to ECJ for preliminary rulings where no remedy is available. In conclusion although Article 267 advocates reference to ECJ it has liberalized the use of this procedure to reduce its workload. Measures such as the introduction of acte clair doctrine and application of precedents and reference of cases with no judicial remedies at the national level make this possible. Words : 997 Bibliography: Paul Craig, 2007. EU Law: Text, Cases and Materials. 4th Edition. Oxford University Press. Tony Storey, 2011.Unlocking EU Law (Unlocking the Law). 3rd Edition. Routledge. Nigel Foster, 2012. Blackstones EU Treaties Legislation 2012-2013. 23rd Edition. Oxford University Press. Damian Chalmers, 2014. European Union Law: Text and Materials. 3rd Edition. Cambridge University Press. Francesco, Francesco Duina, 1997. Explaining Legal Implementation in the European Union. International Journal of the Sociology of Law, 25, 155-179. EUR-Lex. 2015. [ONLINE] https://eur-lex.europa.eu/homepage.html. [Accessed 08 April 2015]. b) State liability in Francovich case, cases after Francovich and why a member state might not be required to pay for damages even if they are in breach of state liability. ________________________________________________________________ European Union directives have a vertical and direct effect on individual member states as well as a horizontal and indirect effect on other member states. Citizens benefit from the directives through its indirect effect. State legislative mechanisms have to interpret these directives coherently with the intentions of the EU, to ensure protection of the rights of their citizens. It is also necessary that the member state laws must be re modelled to correspond to these directives. Failure to comply with requirements of community law by a member state denies citizens their rights to protection under community law and this is translated as failure of the member state to protect the rights of its citizens. Because of this, the state is held liable for damages suffered by citizens affected by the absence of such protection in their national laws. This forms the basis for the doctrine of state liability. According to the doctrine a member state found to have played a role in the damage suffered by its citizen caused needs to compensate the individual for loss incurred. This doctrine was first applied in C-479/93 Francovich and Bonifaci v Italy (1991) ECR 5357 case to determine the Italian governments liability for breach of EU Directive No. 80/987/EC which allowed workers to be compensated for salary that was owed to them by the company in the event that it went into bankruptcy. Failure to incorporate this into the Italian national law created a disadvantage for Italian employees. They could not claim their salary from the company because under Italian national law there was no protection provided for workers affected by such incidence. Although this was provided by community law the national government had failed to legislate in accordance to this provision. The workers were therefore allowed to claim from their government losses they suffered. It was considered that the member state had failed to adhere to the requirements of Article 288 TFEU requiring it to take necessary measures to ensure national law complied with a directive of community law. The decision in Francovich set the stage for better enforcement of EU law and empowerment of its citizens. This case established state liability as a general principle of Community law. However it still left many issues related to criteria that would qualify a claim for reparation unanswered. In C-46 Brasserie/ C-48/93 Factortame (1996) ECR 1029 judgment a common principle that applied to all constitutional authorities of the state for a breach of community law based on three important conditions was developed to qualify a claim for reparation. The first condition was to ascertain that the directive meant to grant rights to individual s. Second, was to identify the extent of breach that had occurred for those rights and finally, to establish that there was a link between the stateà ¢Ã¢â€š ¬Ã¢â€ž ¢s failure to legislate in accordance with community law and the damage suffered by the person affected. Although the first and second conditions could be easily ascertained difficulty was seen when determination of the extent of breach that had taken place which would entitle a claimant to claim for damages. The answer to this was established in C-352/98 P Bergaderm (2000) ECR 5291 where it was determined that the extent of breach had to be sufficiently serious to allow claims from a member state. Further to identify what was considered as à ¢Ã¢â€š ¬Ã…“sufficiently seriousà ¢Ã¢â€š ¬Ã‚  the court looked at how clear and precise the provision in EU law was and how these provisions had been breached by the member state, it also considered the discretion enjoyed by that Member State, if the infringement was inten ded to cause the damage suffered and the steps taken by EU institutions contributing towards implementation of practice contrary to EU law. These criteria were later applied in C-392/93 R v H.M. Treasury, ex parte British Telecommunications 1996 ECR 1631 to determine the seriousness of the breach. The court decided that the breach of community law was not sufficiently serious to warrant reparation by the member state. In C 178 179 Dillenkofer v Republic of Germany (1996) ECR 4845, the outcome in Francovich and Factortame was combined to arrive at the judgment which concluded that breach of state obligations to align national law with union law and the resulting damage that fulfilled the three conditions outlined above would establish state liability and the state will have to provide requiring reparation. Based on the findings of the case it was concluded that both the above cases arrived at the same conclusion. In the C-66/95 The Queen v The Secretary of State for Social Security, ex parte Eunice Sutton case however the ECJ emphasised that it was up to the national courts to assess the amount of damage. The national court was expected to apply the principle of equivalence and effectiveness when deciding on the extent of reparation provided. Based on this a member state found to have breached community law could still avoid compensating the affected individual because of the exclusion or restrictive approach to state liability for judicial breaches in account of the legal certainty and res judicata principle. Legal certainty principle emphasized on the need to bring disputes to a final conclusion and once a dispute has been resolved, the decision can no longer be challenged based on the res judicata principle. This was applied in the C-224/01 Kobler case to decide if the state was liable for the damage suffered because it failed to legislate in accordance to Article 48 of free movement of workers. Words: 948 Bibliography: Paul Craig, 2007. EU Law: Text, Cases and Materials. 4th Edition. Oxford University Press. Tony Storey, 2011.Unlocking EU Law (Unlocking the Law). 3rd Edition. Routledge. Nigel Foster, 2012. Blackstones EU Treaties Legislation 2012-2013. 23rd Edition. Oxford University Press. Damian Chalmers, 2014. European Union Law: Text and Materials. 3rd Edition. Cambridge University Press. Francesco, Francesco Duina, 1997. Explaining Legal Implementation in the European Union. International Journal of the Sociology of Law, 25, 155-179. EUR-Lex. 2015. [ONLINE] https://eur-lex.europa.eu/homepage.html. [Accessed 08 April 2015].

The War I Was The United States Become A Super Power

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The State of Homelessness in the United States Essay

Homelessness became a huge problem in everywhere especially in the USA. Most people heard homeless people, and they saw homeless people in the streets, markets, or bridges. Most people never try to understand why there is much homelessness. Most people do not know any facts about them seem the truth of homelessness, the state of homelessness in the United States, and the effect on people from homelessness. Many causes become the answers to homeless people. The most easy understanding of homelessness is they don not have houses. Homeless people live in the streets because they do not have a house, but every homeless person does not have a house since he was born is impossible. First, shortage of substance use is the major part for†¦show more content†¦First, government provides housing assistance to low-income families. Low-income families just need pay 30% of their total income for rent. Second, mainstream programs provide a safety net for homelessness. This net makes mainstream programs like housing assistance, welfare, and substance support could provide what homelessness need quickly. Third, Communities created a data system to record information about homelessness. These information could be analyzed to help people know the cause of people become homeless, how long people become homeless, what exactly homeless people need, and the effect of mainstream’s support. Gov ernment already saw some positive influence of these programs. The number of family homelessness decreased 43 percent in Hennepin Country. New York creased 11 percent of homeless families was placed by a permanent housing. (National Alliance to End Homelessness, 2010) Although government may try their best to help homelessness, but there is still have a lot of homelessness do not have some supports, and they got effects from homeless. First, homelessness cannot have real health care, and that make homelessness easy to have illness. 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Business Laws Working Regulations

Question: Discuss about the Business Laws for Working Regulations. Answer: Establishment of agency relationship: By agreement: When two parties mutually agree to create an agency, it is termed as the agency created by agreement. Since the agency relation is a contractually based relation, hence the relationship must be legal (Forde and Slater 2016). The expression of authority raised in an agency is some of the expressed instructions given by the principal to the agent. Turpin v Bilton (1843) is the matter where the agent was supposed to carry out the instructions of the principal to take out an insurance policy of the principals ship but ultimately forgot and the ship sank. It is necessary for the agent to do everything that has an effective execution portraying his duties. By ratification: The agency is said to be created by ratification when the agent purported to act on behalf of the principal and gets the authorization for the act. The ratification of the principle validates the agency relationship and thus relieves the agent from any personal liability. The formation of an agency through ratification means that the relation of the agency is authorized with legal obligations (Forde and Slater 2016). When the agency through ratification arises, the agent must have professed to work or act under the instructions of the principal. The agent is supposed to have a competent principal to provide such instructions to the agents to carry out any act, liable under the contract and must protect the entirety of the agreement. The transaction of the activity imposed or ratified over the agent must not be illegal or void but should be capable of authorization. Boston Deep Sea Fishing Ice Co Ltd v Ansell is a matter explaining the act of agent which must have le gal ratification with an absence of illegal content. By estoppel: When the party interested in the agency represents any third party as their agent and deals with the same then the agency is known to be formed with the doctrine of estoppel. Such kinds of agency arise when the parties do not hold any relation with the agency directly but one party represents the other as an agent, and the third party agency depends on upon the representation made by either of the parties in an agency. The estoppel agency gives the agent more authority than the acting principal in the agency. By necessity: The agency is created out of necessity when the circumstances demand the party to create such with the participation of another interested party, and one party acted as the agent of the other party (Forde and Slater 2016). The necessity agency arises from two circumstances namely commercial and domestic. Since the necessity agency has one party acting as the agent, hence it necessary for the party to act in good faith, Armstrong v Jackson (1917). When the agency arises there is a necessity of the presence of positive aspect to the party as in the necessity agency, it is not possible for the party to seek advice from any acting principle. The need of the agency only arises for those situations when one party is a dependent on the other party, and thus both the parties act under common benefit, Boston Deep Sea Fishing Ice Co Ltd v Ansell. Establishing negligence by the claimant: The duty of care owned by a defendant upon the complainant: to explain the duty of care owned by the respondent upon the claimant, it is important to take an illustration here, which is a court case law. Donoghue v Stevenson [1932], the claimant Donoghue went to a cafe with her friend who brought a bottle of ginger beer. While the claimant proceeded with the drink, she noticed the decomposed snail float in her glass which made her suffer shock, and she started vomiting after that. The matter is a highlight due to establishment of two reasons: Manufacturer owned a duty of care for the customers. The matter introduced the clause of a general principle of negligence liability. Another matter Home Office v Dorset Yacht Co (1970) explained that the application of the neighbour principle must be applied to the situation where the claimant suffered some harms. After the decision of the matter, the court came to the conclusion that the negligence must have these three components which are: Foreseeability Proximity Reasonableness The presence of breach of duty by the defendant: in Nettleship v Weston (1971), the claimant agreed to teach driving to the defendant. But, when the third lesson reason reached, the defendant hit a post and caused some injury to the plaintiff. In this matter, the court some of the facts to determine the presence of the breach of duty: Surety to reach harm: Bolton v Stone (1951), where the batsman hit the cricket ball over 100 yards also hit the claimant, which shows that the defendant should be more careful. The risk for serious injury: Paris v Stepney B Council (1951), here the claimant had only one eye and even there a piece of metal went inside from the bus, which shows that more the injury greater caution should be taken. The cost for avoiding harm: When the defendant avoids the cost of the harm, then it is better to take necessary precautions (Iacobucci and Trebilcock 2016). Latimer v AEC (1953) is a matter, where the factory was flooded, and the defendant put sawdust to cover the flood, but the defendant had a slip in one of the uncovered areas that reached his injury. The social value of the act of defendant when the defendant does some act for the social value and that is likely to reach him some harm then the risk taken is justified. Watt v Herts CC (1954), in this matter it is observed that the fire brigade carried a heavy jack to the place of the road accident where the lorry overthrew it, and that caused injury to the firefighter. It is observed that the lorry as not capable enough to carry the jack, but the breach of duty shall be observed here because the risk was taken for the social value by the lorry to reach the accident zone as soon as possible. Claimant received harm due to the breach of duty: The claimant must justify the causation even if there is a breach of duty towards the claimant (Nakar et al. 2015). The claimant must highlight the situation that caused the breach of duty and caused the injury and harm. Barnett v Chelsea Hospital (1969), in this matter the incident is about the three-night watchman who started vomiting after drinking tea after which they are taken to the Chelsea Hospital. But upon reaching there, they were told to go back and see their doctor. The negligence caused death to one of the watchmen after few hours. Common law duty for both employers and employees: Duties of the employee towards the employer: The common law explains that the employee must be reasonable to the act they do, and they must act by the situation where any faithful employee will act in the same manner. The employees are expected to stay loyal under the faith of the company and should not disrupt the business by taking part in any industrial action. It is the basic duty of the employee to disclose the wrongdoing of the other member to the concerned authority even that will result to incriminate the wrongdoers. The employee must never disclose the confidentiality of the employer to any outsider that may result in the misuse of the information. The employee must look after the property of the employer; this means that the office or outlet or any other place if they are using then that should be in proper position to be used afterward. The employees must not take any bribe gfrom outsiders in return for some favor which results in affecting adversely to the business. The employees must work for the employer and not compete with them. The employees must always stay prepared to accept the changes when brought into the office for efficient working in the business process. For example, when the employer introduces any technical update for the work, then the employee must cooperate to take the new adoption instead of opposing it. Duties of the employer towards the employee: The employers are liable to carry out their duties with ultimate good faith. The basic duty of the employer is to pay the employee the proper remuneration for the work they deliver to the company. The employer must not do such work that will spoil the reputation of the employee. The employer should assign only those works for which the employee is appointed in the organization. The employer must also take care of the health and safety measures of the employee. The employer and the employee must owe them the contract of duty of mutual trust and confidence. The employer must give reasonable chances to the employee so that complaints get heard. The employer must never harass the employee in front of other employees or any senior or junior ranked employee and that leads to lack of confidence and stress (Player 2013). The employees are liable to provide proper information about the rights and duties under the contract of employment (Freedland et al. 2016). No rights must be hidden, and that should not lead them to provide misguidance to the employees. The employer must take the employees as their assets who play an important part in the development and continuous growing of business. Case study 1: Adrian put an advertisement in Free-ads by the advertising law supervised and controlled by Advertising Standards Authority (ASA). The ASA recommends that every advertisement requires having legitimacy, decency, honesty and truthfulness. Hence, Adrian followed the norms of the advertisement rules and posted his interest to sell his laptop in Free-ads. Posting of the advertisement is an invitation or an intention to create a legal relation which is known as the contract. The contract may be social or domestic. The form of Adrians ad is social since it is a general invitation to anyone interested in buying his laptop, Balfour v Balfour (1919) (CA). Brian sees the ad and is interested in entering into a business agreement to buy the laptop since he considered the advertising stuff, Jones v Vernons Pools Ltd (1938). Brian wanted to buy the laptop at a price decided after negotiations which are accepted by Adrian, and he decided to sell the same to Adrian. He sends a notice to Brian, whic h was under the pile of paper unnoticed by Brian until Thursday, so he bought another laptop. Adrian claims that there was a breach of contract which is not applicable in this matter as the intention was not known to Brian regarding the buying of the laptop since Adrian did not mention anything in the first place. On the other end, Adrian can be told that he did not wish to enter into the contract with Brian, Rose Frank v Crompton Ltd (1925) (HL). There was no acceptance of the offer after the negotiations (McKendrick 2014). It is a matter of showing interest to the sell, but no consideration of the terms was observed in the first place (Furmston et al. 2012). There was not even any assurance from Adrian to Brian that he will sell the laptop to him only. Hence, in this matter, there was an invitation of an offer but no acceptance, Entores v Miles Far East Corporation (1955) (CA). Brian was silence about the acceptance like Adrian was silent about the acceptance of Brians negotiatio n in the first place. So silence is not acceptance and does not form a contract, Felthouse v Bindley (1862). Case study 2: Arnold can form a company by following the direction as discussed below: To form and register different company procedures are followed and the primary factor of the registration is that the business registered is identified as an artificial person existing separately from other acting members (Tant et al. 2012). The fact is observed in the famous matter Salomon v Salomon Co Ltd (1897). The formation of the company requires certain formality that includes: Formation: the formation requires certain documents that have to be sent to the Registrar of the Companies at the Companies House in Cardiff. The formation o the company required to pay the fees of 15. If the interested party pays 100, then the formation of the company will be complete within one day. After payment of fees, the Registrar of the company will issue the certificate of incorporation. A trading certificate is required in case of public company. Arnold will not need the document as he is interested in forming a private company, the documents are issued electronically. Memorandum: Till 2006, which means before the Companies Act 2006 came in; the memorandum was an imperative document for the starting of business. The memorandum of the association is combined with the articles of the association to create the constitution of the company. The memorandum still exists, and now it defines about the initial shareholders. Articles of Association: The articles are defined as the internal rules of the company. The company owns the right to form their internal rule. Otherwise, the company act offers the Table A to make the rules in such specified manner. The company even owns the right to change the rights necessarily. The articles are used to make the constitution and required to make the contract between the shareholders and company. The company name registration: The company must be registered with a unique that must not be similar to any existing names in the business. The name shall be recorded under the business names act 1985. Any existing company who finds that the new corporation uses the same name, and then they can sue against on the ground of tort law. Ewing v Buttercup Margarine Co Ltd (1917) is a matter that explains how similar name can mislead consumers which can lead to the spoiling of the good name. The company is liable to act within the clauses of the constitution and acting beyond that may conclude the Act as ultra vires, Ashbury Railway Carriage v Riche (1875). After the registration procedures get over, the company act explained about the necessity of the directors, auditors, company secretary, shareholders and resolutions (Mallin and Ow-Yong 2012). Since Arnold will make a private company, he will have the only director and need not have directors like the public company. He is liable to carry out the duties of good faith, Piercey v Mills (1920). It is even mandatory to keep a secretary so as to see that the rules and regulation are properly carried out. The accountants are required after the turnover reaches above 90,000 - 350,000 to send a report to the register of the companies (Hope et al. 2013). The company requires shareholders holding some of the shares of the company. The company often makes proposals in the form of resolutions to introduce something new in the provisions and that is done in three ways: Special resolution. Written resolutions. Ordinary resolutions. The various clauses mentioned here are some of the things that Arnold should consider while making the private company. References: Forde, C. and Slater, G., 2016. Labour market regulation and the competition state: an analysis of the implementation of the Agency Working Regulations in the UK.Work, Employment Society, p.0950017015622917. Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A.C.L., Deakin, S. and Prassl, J. eds., 2016.The Contract of Employment. Oxford University Press. Furmston, M.P., Cheshire, G.C. and Fifoot, C.H.S., 2012.Cheshire, Fifoot and Furmston's law of contract. Oxford University Press. Hope, O.K., Thomas, W.B. and Vyas, D., 2013. Financial reporting quality of US private and public firms.The Accounting Review,88(5), pp.1715-1742. Iacobucci, E.M. and Trebilcock, M.J., 2016. An economic analysis of waiver of tort in negligence actions.University of Toronto Law Journal,66(2), pp.173-196. Mallin, C. and Ow-Yong, K., 2012. Factors influencing corporate governance disclosures: Evidence from Alternative Investment Market (AIM) companies in the UK.The European Journal of Finance,18(6), pp.515-533. McKendrick, E., 2014.Contract law: text, cases, and materials. Oxford University Press (UK). Nakar, S., Weinberger, S. and Greenbaum, D., 2015. Legal and Social Implications of Predictive Brain Machine Interfaces: Duty of Care, Negligence, and Criminal Responsibility.AJOB Neuroscience,6(4), pp.40-42. Player, M., 2013.Federal Law of Employment Discrimination in a Nutshell, 7th. West Academic. Tant, M.R., Mauritz, K.A. and Wilkes, G.L. eds., 2012.Ionomers: synthesis, structure, properties and applications. Springer Science Business Media.