The EU Constitution.
In the year 2004, the European Union put forward a proposal for member states to have a constitution that would govern the region as a whole as opposed or in addition to individual nation constitutions.
Since then, there have have been a lot of controversial issues concerning the implementation of the eu constitution directives in various member states. Theses controversies relate mainly to the refusal of some member states to ratify the eu Constitution as solely supreme in their nations. In others still , problems result from the disagreement of individual country populations with certain directives of the European constitution .This has resulted in a number of court complications , with courts giving rulings in favor of the eu constitutions but countries being reluctant to effect those rulings.
A controversial case between Angela, an employee at on of Brighton’s stores in the UK arises . The employee claims from her employer a 6 month paid leave which is in accordance with the eu directives on maternity leave. However the employers refuse to do so , claiming that the UK labor laws provide for only 3 months paid maternity leave. Under a UK law of the year 1990, employed pregnant women are entitled to only 3 months paid leave. Angela would seek to know how to progress on this issue.
On the one hand, the court of justice in an article 258action finds the UK in breach of its eu obligations by denying employees in the UK the right to a 6 months paid leave and for generally having failed to implement the directive. By 20120, the directive was not yet implemented.
Angela being a UK national has the rights to receive all that the UK law stipulate that she should. This includes those laws that are originally formed in the UK and those that have since been adopted. On th other hand the Brighton store also functions under UK laws, and only subscribes to directives tat the country had implemented. So with the absence of implementation of the eu directives concerning pregnancy in the UK, then the store is only obligated to implement directives from original laws made in the UK. In January 2005, the eu parliament voted in a legally non-binding resolution in support of the the eu constitution .However before an eu treaty can enter into force, it must be ratified by all member states. In the case of the eu constitution however, this was not the case.
The adoption and ratification of the eu constitution was a fact that would be determined by individual countries and is influenced by those countries’ traditions, cultures and political processes . This is effected by either by voting by individual country parliament sor through subjecting the decision to referenda as in the case of Ireland and Denmark. Incidentally, France and Denmark rejected the operation of the eu constitution in the two countries .This then meant that the adoption of the eu constitution would not be adopted for the region as for that to happen, all member states would have to consent. In june 2007, European Summit meeting member states agreed to abandon the constitution and to amend the existing treaties.
In this light then, workers like Anglea, and other UK nationals would have no chance of
getting their employers to implement eu directives. As a general rule of the eu , all eu competences are conferred upon it voluntarily by member sates and may not be imposed on them. This means that until a country voluntarily accepts to adopt its regulation and directives for implementation the country, it cannot happen. The law of that country and the supremacy of that country’s original constitution remains in effect. This means that Angela would have no recourse in law in the UK to try and make Brighton stores give her 6 months paid leave. As such she would need to abandon such as a case. As much as a court might ind her claim justifiable because uk is a member of the European union, the law for the UK maintains supremacy over the eu constitution.
There are those who say that the primary eu law in areas where member states have made legally binding agreements at eu level , they may not then pass national laws that are incompatible with those of the eu. This however remains very ambiguous as not all member states subscribe to this view.
However, most countries instead choose to maintain that the eu has no competencies by right and thus any areas of policy not explicitly specified in the constitution have to remain the domain of the sovereign member sates.
It is a main principle that Europe limits national sovereignty in favour of eu directives on matters. However most critics observe that this is a principle to which lip service only is paid, but in practice, the role of the eu has been increasingly ambiguous and its presence in terms of law is not always in member states. In many cases the member state’s sovereign law is always followed instead of eu directives.
The court of justice in a one of the main precedents in cases such as Angela’s delivered a land mark ruling.
‘landmark decisions the European Court of Justice had recourse to the “unity argument,” such as in Costa vs. E.N.E.L., where it rightly states that “the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty.” Other expressions of the “unity dogma” include the legal principle of non-discrimination enshrined in the fundamental freedoms, which lie at the heart of the single market, or the political concept of acquis communautaire obliging new Member States to subscribe to all existing Community laws. Indeed, the establishment of a supranational legal order requires a continued focus on its uniform application in the Member States without which the effectiveness of European law is at stake. My intention is not to call into question the underlying rationale of this quest for unity. The aim of this contribution is rather to show that the asymmetric non-participation of individual Member States in selected areas of Union activity can be embedded into the existing European legal order and does not contradict its constitutional aspirations, thereby giving substance to the Union’s motto “United in Diversity.” (Schmid 2008)
However there is a need for member states to draw clear lined in terms of which law holds supremes in times of controversies. The eu directive on 6month paid maternity leave for example should heve either been ratified or outrightly rejected by the uk. The vague treatment of the issues almost always leads to a lot of confusion when individuals are faced with situations such as AngelA’s.
It is worth noting though, that unless a country individuals ratifies a law, ten those who live in that country do not have reasons to expect that the law would be implementable ( Schmid 2008 , 7).The fact that the uk did not ratify that specific directive in the country , despite the passing of the directive at the eu level, means that people like Angela cannot fully depend on such an eu decision to persuade their employers to pay them for 6 months maternity leave. Such scenarios end up creating battles between the eu and individual states’ parliaments.
Euractiv observes that the main problem with the implementation of such directives is in their implicationS for the country’s economy.
In a report about maternity leave battle in the uk parliament , it is noted that ;’even if a majority of MEPs endorse the report, it seems likely that further political battles are inevitable in the uk.
The UK, for example, is worried about the costs involved in this latest plan, and would likely block it when it reaches ministerial level .The British Chambers of Commerce (BCC) warned that the proposed changes would be costly during an economic downturn.
The online article reported that the BCC Director of Policy Adam Marshall told the Associated Press that “the Pregnant Workers Directive should be about setting minimum EU standards for the health and safety of pregnant workers – not adding new payroll costs for overburdened companies and national social security systems”
some member countries’ problem with the directive is informed by the complexities it introduces to an already well- established sector in they country. The Bcc director observes that “This vote introduces complexity and uncertainty, which are totally unnecessary, as the UK and other EU countries already have well-developed national maternity pay systems,” he said, urging the European Parliament and EU national ministers to “overturn these costly amendments” ( Guerrina 2005).
Companies in the areas also come into play when such controversies emerge. Employers feel the need to be given space to deliver growth and jobs without being ‘hamstrung by new and costly maternity .
There is a general feeling among member states, and many individual, many of whom are women , that a 6month paid leave is somewhat unrealistic and cannot be effected without resultant effects on economies.
Marine Yannakoudakis, a new a new mother and a uk national observes that ‘am a mother and a small-business woman and I know that 20 weeks of fully-paid compulsory maternity leave and two weeks fully-paid paternity – and breastfeeding breaks of three hours a day – are totally unrealistic. What the European economy really needs is to be more flexible and more competitive. By refusing to make compromises and concessions on the directive, the parliament has let down the very women we are trying to support ( 2011).
In another case, Juliette is an Italian national who works for a Brighton and Hove District Council and is also pregnant. Her request for any paid maternity leave is turned down on the ground that the UK law only applies to UK nationals. She considers that this refusal is contrary to Article 45 TFEU, which provides that the free movement of workers “shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.”
in Juliette’s case however, the refusal ofher employers to hear any paid leave at all infringes on her fundamental rights as entrenched in any constitution.
Pregnant women have a right accorded by laws all over the world, whether eu or otherwise to be accorded a leave of rest due to their delicate condition. The denial o f such rights by her employers would be a direct infringement of those rights and amount to a form of cruelty on the part of the employer.
Juliette would have recourse in a court of law on the basis that denial of pregnancy leave would amount to a denial of her fundamental rights as a female worker. If sued Brighton would be compelled b a court of law acting on the basis of that to award her the leave. The fact that she works in a different country does not relieve her of her humanity and therefore of her fundamental rights as a female pregnant worker to maternity leave.
Eu directives concerning free movement of member states and the subsequent according of rights that apply in all member sates should apply to Juliette.
Even in the absence of a an eu directive on the same case. Uk law would be applicable to any one working in uk altough with little amendments, but such amendments would not go so far as to completely deny Juliette maternity leave.
Roberto In a different case, Roberto, a chartered surveyor seeking to work in the UK. He has a surveyor qualification from an Italian university and has lawfully practiced in Italy for a number of years. The UK professional body for surveyors, the Royal Society of Chartered Surveyors, allow him to register to work as such, but attach restrictive conditions to his registration which will affect his ability to attract clients. The Society asserts that these conditions are a result of their interpretation of a Regulation relating to EU cross-border professional qualifications and practices.
Roberto appeals the Society’s decision to their arbitration panel. Its decisions are not subject to appeal. Surveyors can only work lawfully in the UK according to the Society’s or its arbitration panel’s decisions. In presenting his case to the panel Roberto requests that it is necessary in his case to have a ruling made on the issue of the validity of the Regulation. In such a case Roberto should move to court to pet ion that the society hear his appeal. He should also challenge the validity of the regulation. As the society itself considers the regulationto be unlawful. He may seek a solution in court concerning the same. Qualification that includes charter may be acceptable in any of the member states in the uk so long as those chater are recognized by the European union ( Curtin 2011) . His possession of these qualification automatically entitle him to work on the same level with other chartered professionals in an country in the uk. The only disadvantage that Roberto should possibly face include the payment of work permit fees. Any other regulation that impose unfair disadvantages for him in his practice is an abuse of his rights to do free business. The attachment of restrictive conditions that interfere with his ability to get clients directly impact his business negatively and are counter productive both for himself and for the uk , which he would remit taxes to . In such a case , such a directive should be re-assessed.
The refusal of the society to seek a ruling on the matter is in itself suspicious because it has nothing to gain from denying Roberto a right o a hearing.
A petition to a court of law would allow him to be heard and for such a regulation which does not seem beneficial to any one to be repealed.
In a scenario where the Commission adopts a decision, based on the same part of the above Regulation, and addresses to the Royal Society of Chartered Surveyors, deciding to judicially review the decision within the time limit provided under A.263 TFEU. The commission might attack this decision by claiming infringement on personal rights and demonstrating individual concern and that the decision affects the applicant ‘by reason of chain of causation between the imposition of the aforementioned restrictions and their implications for his business (Schmid 2008 46).
The commission might argue that such restrictions would compromise his business and therefore his livelihood and lower the quality of his livelihood as an individual.
The commission might also attack the decision by arguing for fair treatment of Roberto in terms of the right to an appeal and to be heard. In the same regard, the commission might argue for the provision of a level playing field for all equally qualified confessionals in a certain field.
Duff (2008 23)observes that it is prudent not o interfere with market forces. The placing of restrictions on certain individuals despite equal qualification with other amounts to a form of manipulation of market forces . This has the potential to interfere with the forces of supply and demand. Ultimately the placing of restrictions on foreign processionals in member states against nationals of fellow member states could result in far reaching effects, notably diplomatically.
The restrictions placed could also significantly affect the sharing of human resource in the region and affect trade relations.
Refrences
Marina Yannakoudakis, ‘EU Maternity Leave Directive not Right for Women’ < http://www.publicserviceeurope.com/article/1040/eu-maternity-leave-directive-not-right-for-women#ixzz1tQ5rOef9>26 October 2011.
Treaty Esatblishing a Constitution for Europe(Journal of the Europen Union ,16 December 2004) <http://www.journal of the europen union.com/article>
Dierdre Curtin, Alfred Kellermans, Steven Blockmnss, The EU Constitution: The Best Way Forward? (First Published,TMCAsser Perss 2005) 25.
Katharina Schmid, The EU Constitutionn( First Published, VDM Verlag, 2008) 24.
Andrew Duff, The Struggle for Europe’s Constitution ( first published,The Federal Trust for Education & Research, 2008).
Roberta Guerrinna, Mothering the Union:Gender Polictics in the Eu, ( First Published , Manchester University Press ,2005) 154.
