Introduction to European Union Directives
Discuss about the Directive of European Union And Law.
The directive of 2010/52 of the European Union mandates that employees are entitled to four weeks of unpaid leave per year. The clause attached to the directive of giving unpaid leave is that the employee must have been employed for at least one year to benefit from the directive. Ruritania, a member state of the European Union has implemented the directive with a few modifications. The modifications of the directive as implemented by Ruritania states that the benefit of the directive can only be enjoyed by companies which have a minimum of 20 employees and the employer has the right to reject or cancel the unpaid leave on grounds of benefit of the business of the company. The issues related to the present fact are whether Ruritania is justified in making exceptions to the already existing directive and whether the unpaid leaves of John and Emma cancelled by Ruritania are justified or not.
Every directive of the European Union which has been directed at the member state is done with the goal of implementing certain rules and regulations that the Parliament wishes the Member States to follow[1]. These directives come with deadlines, that is, a directive has to be implemented by the national state within a stipulated time and then inform the Commission regarding the same[2]. The deadline is made mandatory because if strict adherence is not maintained with regards to the implementation of the directive within a strict time frame, the European Union Commissioner can take actions[3]. In the present case, the deadline for implementation was set at 1st January, 2016. Compliance with European Law is done to ensure that the laws mandated by the EU are effectively implemented across the state and no member states are treated unfairly and they cannot cry discrimination later[4]. These directives are different from regulations because directives are not binding per se but are discretionary. Article 288 of the Treaty on the Functioning of the European Union provides that a directive shall be binding in view of the result that should be achieved and it shall be binding on the national states but the member states have the discretionary power to amend the directive as per the national rules of its country[5]. The directives are incorporated into the national law by way of transposition. The member states get a lot of leeway in adopting these directives, that is, they can modify certain aspects of the law in accordance with the needs of their own country[6]. The benefit of directives is that, member states can take into consideration the needs of their country-with specific regard to their social political and economic needs. As was held in the case of Van Gend en Loos V Nederlandse Administratie der Belastigen, it was held that in cases of failure on the part of the member states to comply with the European Union directives, strict penalties will be attached to them and they will be liable.
Compliance and Importance of EU Laws
In the present case, there is a minimum period of employment which is a precondition to get an unpaid leave. The right to get unpaid leave is a cornerstone of human rights in the light of labour law. The Treaty on the Functioning of the European Union is the legal document that takes into account the health of the workers and employees under the European Union laws. The right to unpaid leave is guaranteed to the citizens of the European Union and the member states are obligated to follow the directives[7]. The only way a citizen is restricted to be benefitted from the directive is if he is precluded from the benefit by any provision in the national law which is contradicting with the EU law. Whenever there is a conflict between the member state and the EU, and the employer is a governmental body, the national judge is the authority in setting aside the conflicting provision of that national law. The national judge in solving a problem situation between the two bodies, the weight shall be given to the wordings of the directive and then the duty of the judge shall be to interpret the wordings and meanings of the national law in the light of the directive. In the present case, Ruritania has made a few modifications while applying the directive in principle. The modifications have been made by Ruritania keeping in mind the national requirements of their economy. The modification made to the directives should be logical and should be done keeping in mind the rights of the citizens. In understanding the responsibility of the state in implementing the EU law, it is essential to factor in state liability that says that the state has a direct responsibility in implementing the law and in cases on non compliance; the state shall be liable under the state liability[8]. There are various directives mandating that the EU laws should be in consonance with labour law provisions and should not in any way diminish or do away with the rights of the citizens[9]. For an individual to succeed in a case of non enforcement of the EU law, the individual whose rights have been jeopardized has to prove that he has faced irreparable damage and has suffered loss. The individual has to prove that the state has failed in ensuring the rights of the citizen. In cases of any conflict between the European Law and the national law the European Law prevails and the national law follows the directives of the European Union law. This principle is called the ‘supremacy of law’, that is, the national laws cannot function independently and without paying any regard to the customs and policies envisaged by the European Union law. The states are duty bound to follow the rules and regulations as set by the government
Unpaid Leave as a Human Right
Applying the rules of directives, it is essential for the member state to show that the modifications it has applied to the directive should be in the interest of the citizens and should not in any way interfere with their rights. The European Directive was effectuated keeping in mind the rights of the citizens under EU law and ensuring human rights. The labour law principles mandatory keep in mind that every citizen has a legal right to take unpaid leaves. This was kept in mind keeping the labour law directives as precedence. The directive states that each citizen of the EU shall be given four weeks of unpaid leave every year. This directive was enabled keeping in mind the rights of the citizens under the EU law. The directives are not like regulations which are binding in nature.
The role of the CJEU is to ensure that the EU laws are observed throughout the state and there is no breach and there is legality in the modifications made by the national laws in implementing the laws. The CJEU, as a body corporate, confirms that every state has abided by the directives and also interprets the EU law keeping in mind the national laws. Direct effect is a recent doctrine that came into existence after the Van Gend en Loos v. Nederlandse Administratie der Belastingen (Case 26/62); [1963] ECR 1[10] wherein unimplemented doctrines or doctrines which are badly implemented can be brought to book by the individuals. Initially, it was held that directives are not binding but in the above mentioned case, the application and binding of directives have undergone change. The case laid down certain situations when the directives have to be implemented by the states and in cases of inapplicability, the citizen will have a valid case against the state[11]. The direct effect doctrine is again divided into vertical and horizontal direct effect. The vertical effect is concerned with the relationship of EU and national laws and their consensus and how a state is obligated to ensure that the national laws adopt the EU laws and that the state laws are compatible with EU laws. In the case of Foster v British Gas plc C-188/89,[1991] 2 AC 306[12], the court held that an entity will fall under the definition of public body and will be subject to the laws that apply to vertical effect. The court defined the ambit of “public body” stating that a body which has been providing a public service and which is under the control of the state shall be deemed to be a public body and hence the rules of vertical direct effect will apply to him[13]. This term is now defined as emanation of the state. As has been held in the case of Van Duyn v Home Office (C-41/74) [1975] Ch. 358)[14], it was held that directives are vertically directly effective. In the case of Von Colson & Kamann v Land Nordrhein-Westfalen Case 14/83[1984] ECR 189[15]1, it was held that the principle of reading in will be applied that is, there shall be a reading in of a directive.
Role of CJEU in Observing EU Laws
In the present case, the national laws can be proved to be inconsistent with the directive because the aim of the directive is to ensure that people get unpaid leave. John works for WorkTotal and Emma works for University of Dreams, which are government funded and therefore the vertical direct effect doctrine will apply. The State of Ruritania has implemented the directive with a few changes but John and Emma can claim that the directives are against the EU laws and therefore there unpaid leaves cannot be rejected. The application of the directive takes place after a year of its inception and therefore it can be said that John and Emma are within their rights to claim the unpaid leaves and therefore the conditions laid down by the government in modifying the directive is against the EU law and therefore they can claim that the government has badly modified the directive and therefore cannot be implemented. The crux of the implementation of the directives is that the national legislation has to be modified in accordance with the needs of the European Union laws. The national legislation modification has to be done to ensure that the principles that were enforced by the EU laws are preserved and the rights of the citizens are not encroached upon. The member states have autonomy in implementing these directives and have the leeway for modify in cases where the national laws are not competent[16]. Both the parties can claim that the national law is contradictory to the principles of the EU directive and hence they have a legitimate claim of unpaid leave.
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Van Duyn v Home Office (C-41/74) [1975] Ch. 358)
Van Gend en Loos v. Nederlandse Administratie der Belastingen (Case 26/62); [1963] ECR 1
Von Colson & Kamann v Land Nordrhein-Westfalen Case 14/83[1984] ECR 1891