1. Looking at all relevant sources of EU law can Katniss and Peeta rely on any cause of action in a Ruritanian court under EU law for their separate actions?
2. Should that Ruritanian court make a preliminary reference to the CJEU over the interpretation of the term “armed forces”?
3. Can Katniss and Peeta claim damages for Ruritania’s infringement of their EU law rights under Directive 2000/78/EC and general principles?
4. Can Peeta challenge the adoption of Regulation 2015/666/EU, which will prohibit him from carrying out his current job, in the CJEU, and/or challenge its validity before the domestic courts?
5. How and when could the Commission bring an action against Ruritania to enforce the age and disability discrimination provisions of Directive 2000/78/EC and its full transposition? What could happen following any CJEU judgment on the issue to ensure Ruritania complies?
In the European Union, transposition is an obligation on the member states in which, they choose to pass a legislation which is either primary or secondary applying within the territorial limits in order to give force to a directive passed by the Union. In case if the respective states fail to pass the transposition within their respective territorial limits, even after the period of extension allowed to them, and subsequently, a conflict arises regarding the said directive, then the law as passed by the centre shall prevail in solving the dispute.
In the given context, let us first analyse whether the said directive 2000/78/EC applies within the territory of Ruritania. The directive in question was adopted on 27 November 2000. The member states had to transpose the directive by 2 December 2003. But Ruritania did not transpose the directive within the time set. In fact the directive remained not transposed till 1 January 2015.
To analyse the situation, we need to take into account the case of Andrea Francovich and Danila Bonifaci and others v. Italian Republic. In the said judgment, the Court expressedly ruled that if a Member State does not transpose a Directive within the time prescribed, or if it fails to transpose it in totality, then the Directive takes ‘direct effect, which means that the individuals residing within the State should be able to derive all the rights and the obligations imposed in the Directive shall equally apply to all the individuals despite the directive not being transposed into domestic law.
Thus, it can be clearly stated from the above reading that the directive 2000/78/EC applies to Ruritania fully.
1. If Katniss and Peeta can rely on any cause of action in a Ruritanian Court under EU law for their separate actions or not, it can be said that preliminarily, they can rely on the cause of action pronounced. But as far as the law of estoppels is concerned, if Katniss and Peeta feel that they are suffering damage because of such action, then they can always, invoke estoppels against the decision. The estoppels principle as established in the Ratti case lays down that the member states should not reap any unfair advantages from its wrongdoings. Thus, here, if Kattnis and Petta feel that the application of the alleged Directive has gone against them or if they feel that they have been wrongfully swept off from the benefits they are supposed to achieve, they can definitely challenge the constitutional validity of the Directive in the Ruritanian Court and seek for redressal of their grievances. The guidelines and the recommendations to the 2000/78/EC Directive clearly underline that all the rulings that are given as per it, should be rational and have a minimum standard of effectiveness, proportionality and foremost af all must be dissuasive. Considering the situation of Katniss and Petta, and the discriminations that have been done against them, if they can persuade the court that they have wrongfully prohibited in their workplace and as a result of that prohibition, they have gone through a substantial damage, they can definitely approach the Ruritanian Court under proper EU laws to set aside their work orders and restore their position to them in their respective work places.
Nothing present in the EU laws shall bar any private individual from approaching the court. They are free to bring about separate actions against the Directive.
The scope of the said Directive clearly indicates that the provisions of the directive, apply as much to the public sector as to the private sector including public bodies as well as for paid and unpaid work. Thus, it can be said that Katniss and Petta’s argument that the Directive does not extend to private sector stands liable to be rejected though this does not state that they cannot approach the court.
2. We need to consider the meaning of a preliminary reference. It is usually a request from a national court of any member state to the CJEU where the national court seeks to ask for an authoritative interpretation on an act. In the given problem the dispute that arises is that whether the security services provided by the External Front be genuinely called to fall within the definition of ‘armed forces’ or not? The facts in the problem indicate that External Front as a private company guards the external borders of Ruritania on behalf of the Government. So, it can be said that they were acting under the relationship of principal and agent. Moreover, External Front served armed ships onboard. They were also allowed to carry guns and make arrests.
The Treaty on Conventional Armed Forces in Europe makes it clear that all personnel or agencies that are directly working with or under or under terms of contractual agreement with the state government to protect the external borders of any member state shall fall within the purview of the ‘armed forces’. Here, External Front was working directly under the government of Ruritania to protect the integrity of the state. They also had similar powers as were possessed by the civil employees of the state. In this situation, it can be said that External Forces are in no way not falling within the purview of the definition of the ‘armed forces’.
But still, if any ambiguity arises in the proceedings in the Ruritanian Court regarding the definition of ‘armed forces’, preliminary reference can be sought by the court from the CJEU. Upon seeking such a reference, the CJEU normally gives the response in the form of a judgment that remains addressed only to the referring court. It also needs to be understood that the reference given by the court is not a fact or statement to be accepted universally. The CJEU is also not a body supposed to find facts. It is a national court and it should not refer a question to the ECJ about the rightful interpretation of the facts going on or prevalent in the matter in any national court. If the Ruritanian court feels that certain more specific guidelines are required by it to understand the clear meaning of the term ‘armed forces’, it can definitely invoke or request for getting a preliminary reference from the CJEU.
3. Whether Peeta and Katniss can claim damages or not, we need to analyze the two situations differently. We shall take into account the case of Peeta first. Peeta at the appraisal of his last work, was noted and considered to be obese. On 1 April, 2015, he happened to receive a letter from External Front which said that due to his obesity, he was being dismissed from employment with immediate effect under the Directive 2015/666/EU. This directive prohibited clinically obese people from carrying guns in employment on the basis of safety. Nowhere did this directive lay down that clinically obese people should be terminated from their jobs.
Now, it must be noted that since External Front constituted a part of the ‘armed forces’ of the country, so, it was necessary for the employees of External Force to possess guns during the course of their employment. Directive 2000/78/EC also laid down that non discrimination on the basis of age and disability shall not apply to armed forces. What needs to be considered here is if being obese falls under being disabled on not.
The European Court of Justice in a recent judgment ruled that being obese can constitute disability for meeting the purposes of European Union equality at work legislation. The judgment indicated that obese people will be called disabled because the employers would have to provide them with larger seats, special parking spaces and such other facilities. Since, special facilities are only provided to disabled people, hence it was ruled that ‘Obesity’ can constitute a kind of disability within the meaning of Employment Equality Directive. The court further said that as such, there is no general principle of EU law which prohibits in itself, a discrimination which is totally made on the grounds of being obese, yet, such condition of being obese falls within the definition of ‘disability’ where, under certain specific conditions, it becomes a barrier to the full and effective participation of the person concerned in professional life on an equal basis with other workers.
In the given condition, since Petta under the second directive could never possess a gun during his employment, he was likely to become less efficient in the tenure of his employment. Non possession of a gun would also make him unable in the dissipation of his duties. While the 2000/78 directive makes it clear that based on the grounds of disability, no discrimination among employees shall be made, at the same time it also makes it clear that this rule shall not apply to defence services. Thus, under the given circumstances, if Petta has been sacked with immediate effect, that has been rightly done under the existing laws of the land and he cannot claim damages in this regard.
Analysing the situation of Katniss, she has been denied a promotion in her employment to the rank of a lieutenant. She has also cleared the requisite formalities of appearing in a written examination for the said purpose but is being denied the promotion owing to the fact that she has not attained the minimum age criteria of 30 years that is required by the post. In order to understand whether she is liable to be compensated for the said cause, we need to look into the implementation guidelines of the Directive. It must be noted that the directive aimed to provide protection to employees in case if they are not allowed proper work opportunities owing to age. But if this regulation is applied in the present scenario, the whole purpose behind the enactment goes in vain. It can be well argued that since External Front has been taken as a unit of defence, so the directive shall not apply here. But this argument cannot be taken as a valid ground because nowhere does the defence regulations of the nation mention that the minimum age requirement for the post of becoming a Lieutenant is 30 years.
Hence, this decision of the External Front can not be justified from any angle and hence, Katniss is supposed to get protection under the existing European laws.
Therefore, as an answer to the third issue raised in the question, it can be concluded saying that Petta is not eligible to get any kind of compensation though, the same can be rightly sought by Katniss. Katniss is also eligible to file a suit for restoration of her position in the workplace. She is entitled to due compensation but Petta cannot claim any benefits under the Directive.
4. The fourth question seeks a query that whether Peeta can intiate proceedings in either the CJEA or in any other domestic court restraining his dismissal from employment and whether the Directive 2015/666/EU is constitutionally valid or not. The law that is under the dispute says that clinically obese people should be allowed to carry guns in the course of their employment. Nowhere does this law state that such people need to be terminated from their work.
In the present case, the employer External Front has decided to terminate Petta because he has been found to be clinically obese. The job under the employer required the employee to carry a gun in the course of the employment and the employee was also eligible to make arrests. Petta served the employer company on board.
So, there was absolutely no necessity to terminate him on grounds of being obese. He could have been easily moved to some other department or he could also have been shifted from the working area. The law states that when an employee is having the necessary qualification to do a job but has a disability, then it is prohibited that the employer can discriminate against that employee just because of the reason that he has a physical or mental impairment that might substantially limit a major life activity like the ability to hear or the ability to see or speak or breathe or walk and also prohibits from independently performing manual tasks or take care of his own self or even work in any other form.
As far as the present situation is concerned, the employer has terminated totally Petta that too with immediate effect. Such drastic decision is totally violative of the human rights norms and is likely to hamper the smooth functioning of the employment opportunities.
5. Let us take a look at the effects of non transposition by member states in EC. There are enough legislations present in the nation that clearly lay down that beyond a reasonable time frame, if a Member State fails to implement or transpose a Directive issued by the commission, it can bring an action against the Member State. Under the provisions of Article 260 (3)TEFU, when referring a late transposition infringement to the Court of Justice according to the provisions laid down under Article 258 TEFU, the Commission may propose financial penalties without having to wait for a first judgment. All the member states under the European Union are necessarily bound with their obligations under Community law.
The commission initiated infringement proceedings against one state under this Directive which led to a decision given by the CJEU. It found the member state in breach of its obligation to properly implement the Directive 2000/78/EC in relation to reasonable accommodation for disabled persons in employment. The action of the commission is also illustrated by more of recent infringement proceedings against other member states as well. One of the leading instance is that of the infringement action initiated against Hungary on Directive 2000/78/EC in 2012. The case concerned in the given instance is related to the lowering of the retirement age of judges, prosecutors and notaries. It was found by the CJEU that Hungary had failed to comply with Directive 2000/78/EC due to the significant lowering of mandatory retirement age for judges, prosecutors and public notaries. Following the judgment of the CJEU, Hungary adopted law T-9598 on 11.3.2013 to ensure compliance with the directive and this case was closed on 20.11.2013.
Further, three complain-based cases under directive 2000/78/EC are pending in infringement proceedings. Two of these three cases concern Greece and discriminatory age limits in public service. The other one is concerned with the Czech Republic and insufficient protection from discrimination for disabled persons seeking employment.
Looking at the survey done by the governmental organisations, it can be seen that all the Member States have taken the necessary measures to transpose the directive 2000/78/EC into their respective domestic legal orders. They have also set up procedures and bodies that are indispensable for the implementation and functioning of this directive. The administrative and judicial authorities of the Member States as well as the equality bodies of the said authorities, are now standing in the front line for symmetrically providing full protection to every individual on the ground and prohibit any kind of class discrimination or such other thing. It seems that except Ruritania, all other States have ratified and transposed the Directive. Since Ruritania has consistently failed in showing any kind of positive attitude towards the Directive, the commission can initiate a proceeding against the state for immediate transposition as and when it considers appropriate. The time frame given by the Commission has passed away long back. Considering this to be an extension of Fundamental Rights, the commission can bring the transposition suit in immediate future. Legislation alone is not sufficient to ensure full equality. It needs to be properly combined with appropriate policy actions. This can be possible only when the Member States transpose the Directive.
The effect of CJEU judgment on the issue to ensure compliance by Rurtania shall stand to be from immediate effect, Ruritania shall remain bound by the judgment irrespective of the condition of the king or the after effects of the massive tsunami or with the destruction of all political papers. The law of the CJEU shall remain binding on Ruritania.
Thus to conclude, it can be said that the Equality Regulation 2000/78/EC as adopted by the council of ministers, appears to be a genuine legislation that aimed at only providing better opportunities in workplaces. Though the state of Ruritania has not accepted the regulation formally by transposing a law in its local jurisdiction, yet the state stands under an obligation to be bound by the rules of the Directive. Further, all other states within the European Union have formally accepted the Regulation by transposing relevant laws. So, there exists no chance of the non application of the provisions of the Directive within the state of Ruritania. As far as the External Front is concerned, it cannot prohibit Katniss from getting the promotion due as this is against the existing laws of the land. Petta also seems to have suffered a damage. Thus both Katniss and Petta can initaiate proceedings either in the CJEU or in any other domestic court against the actions taken by External Front against them in the course of their employment. Finally, the CJEU can also penalise the State of Ruritania or can claim penalty for non transposition of the Regulation and pass an order stating a cause of action that the law has to be implemented with immediate effect within the territory of Ruritania.
References
Aphramor, Lucy, ‘Disability And The Antiâ€ÂObesity Offensive’ (2009) 24 Disability & Society
AUBRUN, GUILLAUME, ‘PARTIAL TRANSPOSITION OF RANDOM STATES AND NON-CENTERED SEMICIRCULAR DISTRIBUTIONS’ (2012) 01 Random Matrices: Theory Appl.
Barnard, Catherine and Okeoghene Odudu, Cambridge Yearbook Of European Legal Studies, Vol 14 2011-2012 (Hart Publishing Limited, 2012)
Dandeker, C., ‘What’s In A Name? Defining And Caring For “Veterans”: The United Kingdom In International Perspective’ (2006) 32 Armed Forces & Society
Dobrosavljevic-Grujic, Ljiljana, ‘Discrimination Of Women On Work Place – Relation To Maternity, Disability And Women’S Health’ (2006) 9 Temida
Gearty, C.A, In Praise Of Awkwardness: “Kadi” In The CJEU (2014)
Gerdes, Louise I, The Armed Forces (Greenhaven Press, 2010)
Hu, A., ‘Public Sector Employment, Relative Deprivation And Happiness In Adult Urban Chinese Employees’ (2012) 28 Health Promotion International
‘Index To Armed Forces And Society Volume 6’ (1980) 6 Armed Forces & Society
Italia, Bob and Rosemary Wallner, Armed Forces (Abdo & Daughters, 1990)
Jong-Hee Park, ‘Trends And Issues On Anti-Discrimination Laws Against The Contingent Employees’ (2010) 34 hufslawreview
Konig, T. and L. Mader, ‘Non-Conformable, Partial And Conformable Transposition: A Competing Risk Analysis Of The Transposition Process Of Directives In The EU15’ (2012) 14 European Union Politics
Kunoy, Bjørn, ‘The Jurisdiction Of The ECJ To Review The Legality Of The Transposition Of An International Act In The EC Legal Order’ (2007) 76 Nordic Journal of International Law
Lilleholt, Kåre, ‘Case: CJEU – Quelle’ (2010) 6 European Review of Contract Law
Lilleholt, Kåre, ‘Case: CJEU – Sturgeon And Others’ (2010) 6 European Review of Contract Law
Muttarak, R. et al, ‘Does Affirmative Action Work? Evidence From The Operation Of Fair Employment Legislation In Northern Ireland’ (2012) 47 Sociology
Schulte-Nölke, Hans, Christian Twigg-Flesner and Martin Ebers, EC Consumer Law Compendium(Sellier. European Law Publishers, 2008)
Stelkens, Ulrich, Wolfgang Weiß and Michael Mirschberger, The Implementation Of The EU Services Directive (T.M.C. Asser Press, 2012)
Wetlesen, Tone Schou, ‘Work Values In The Second Generation Of Gender Equality Pioneers: A Case Study From Norway’ (2012) 20 Gender, Work & Organization
Wilcox, Mark R., ‘Russia And The Treaty On Conventional Armed Forces In Europe (CFE Treaty)—A Paradigm Change?’ (2011) 24 The Journal of Slavic Military Studies
ì‹ ë²”ì² , and Eui Young Lee, ‘Employment Effect Of Export Promotion For Smes’ (2011) 25Productivity Review
Eur-lex.europa.eu, EUR-Lex – 32000L0078 – EN (2015)
Google.co.in, (2015)
Wikipedia, Employment Equality Framework Directive (2015)
Konig, T. and L. Mader, ‘Non-Conformable, Partial And Conformable Transposition: A Competing Risk Analysis Of The Transposition Process Of Directives In The EU15’ (2012) 14 European Union Politics
Kunoy, Bjørn, ‘The Jurisdiction Of The ECJ To Review The Legality Of The Transposition Of An International Act In The EC Legal Order’ (2007) 76 Nordic Journal of International Law
Google.co.in, (2015)
Schulte-Nölke, Hans, Christian Twigg-Flesner and Martin Ebers, EC Consumer Law Compendium (Sellier. European Law Publishers, 2008)
Hu, A., ‘Public Sector Employment, Relative Deprivation And Happiness In Adult Urban Chinese Employees’ (2012) 28 Health Promotion International
Gerdes, Louise I, The Armed Forces (Greenhaven Press, 2010)
‘Index To Armed Forces And Society Volume 6’ (1980) 6 Armed Forces & Society
Wilcox, Mark R., ‘Russia And The Treaty On Conventional Armed Forces In Europe (CFE Treaty)—A Paradigm Change?’ (2011) 24 The Journal of Slavic Military Studies
Aphramor, Lucy, ‘Disability And The Antiâ€ÂObesity Offensive’ (2009) 24 Disability & Society
Italia, Bob and Rosemary Wallner, Armed Forces (Abdo & Daughters, 1990)
Dandeker, C., ‘What’s In A Name? Defining And Caring For “Veterans”: The United Kingdom In International Perspective’ (2006) 32 Armed Forces & Society
ì‹ ë²”ì² , and Eui Young Lee, ‘Employment Effect Of Export Promotion For Smes’ (2011) 25 Productivity Review
Dobrosavljevic-Grujic, Ljiljana, ‘Discrimination Of Women On Work Place – Relation To Maternity, Disability And Women’S Health’ (2006) 9 Temida
Jong-Hee Park, ‘Trends And Issues On Anti-Discrimination Laws Against The Contingent Employees’ (2010) 34 hufslawreview
Wikipedia, Employment Equality Framework Directive (2015)
Wetlesen, Tone Schou, ‘Work Values In The Second Generation Of Gender Equality Pioneers: A Case Study From Norway’ (2012) 20 Gender, Work & Organization
Muttarak, R. et al, ‘Does Affirmative Action Work? Evidence From The Operation Of Fair Employment Legislation In Northern Ireland’ (2012) 47 Sociology
AUBRUN, GUILLAUME, ‘PARTIAL TRANSPOSITION OF RANDOM STATES AND NON-CENTERED SEMICIRCULAR DISTRIBUTIONS’ (2012) 01 Random Matrices: Theory Appl.
Eur-lex.europa.eu, EUR-Lex – 32000L0078 – EN (2015)
Stelkens, Ulrich, Wolfgang Weiß and Michael Mirschberger, The Implementation Of The EU Services Directive (T.M.C. Asser Press, 2012)
Lilleholt, Kåre, ‘Case: CJEU – Quelle’ (2010) 6 European Review of Contract Law
Gearty, C.A, In Praise Of Awkwardness: “Kadi” In The CJEU (2014)
Lilleholt, Kåre, ‘Case: CJEU – Sturgeon And Others’ (2010) 6 European Review of Contract Law
Barnard, Catherine and Okeoghene Odudu, Cambridge Yearbook Of European Legal Studies, Vol 14 2011-2012 (Hart Publishing Limited, 2012)
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Contact Essay is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.
Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Essay Writing Service Works
First, you will need to complete an order form. It's not difficult but, in case there is anything you find not to be clear, you may always call us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order form
Once we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignment
As soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download