European community law - Free Essay Example

Sample details Pages: 7 Words: 2134 Downloads: 3 Date added: 2017/06/26 Category Law Essay Type Analytical essay Tags: Community Essay Did you like this example? To what extent can it be said that the European Court of Justice has à ¢Ã¢â€š ¬Ã…“run wildà ¢Ã¢â€š ¬Ã‚  in its creation of the fundamental principles of European Community Law? Introduction The Court of Justice of the European Communities sits in Luxembourg. Arnull et al[1] accord this body a seminal role: à ¢Ã¢â€š ¬Ã…“Some of the concepts which are fundamental to the way in which the Community functions are to be found, not in the Treaties themselves, but in the case law of the Court.à ¢Ã¢â€š ¬Ã‚  The composition of the Court is idiosyncratic and currently consists of 25 judges assisted by 8 Advocates General. The role of the latter has no equivalent in the UK legal system. Don’t waste time! Our writers will create an original "European community law" essay for you Create order The Advocate General is to present an independent and impartial opinion to the Court after the parties have concluded their submissions. This opinion shares the character of a reserved judgment in the English courts but it would be incorrect to suppose that the Advocate is effectively sitting as a judge of first instance. His role is to make a recommendation. In practice, however, the views of the Advocate are usually adopted and currently the Court will frequently refer to the Advocateà ¢Ã¢â€š ¬Ã¢â€ž ¢s reasoning and conclusions in its own judgment. The role of the Advocate General in the development of the case law of the Union is therefore unique and highly influential. Criticism of the Court There has been frequent criticism of the Court on the basis that it is influenced by political and ideological considerations and that the role of the judges is therefore somehow à ¢Ã¢â€š ¬Ã…“less pureà ¢Ã¢â€š ¬Ã‚  than that of the domestic judiciary. This criticism was acknowledg ed by the House of Lords Select Committee on the European Communities[2]: à ¢Ã¢â€š ¬Ã…“A strong and independent Court of Justice is an essential part of the structure of the European Unionà ¢Ã¢â€š ¬Ã‚ ¦We note the criticisms of à ¢Ã¢â€š ¬Ã…“judicial activismà ¢Ã¢â€š ¬Ã‚  which have been levelled against the Court but these appear to be based mainly on cases where the Court has made Community Law effective against defaulting Member States at the instance of individuals seeking to enforce their rights.à ¢Ã¢â€š ¬Ã‚  Therefore, is it correct to conclude that the developing jurisprudence of the European Court has exceeded appropriate bounds or might it be the case as the Select Committee suggests that such criticisms are more a matter of à ¢Ã¢â€š ¬Ã…“sour grapesà ¢Ã¢â€š ¬Ã‚ ? Interpretation v. Precedent There are some grounds upon which it might be argued that the Court is liberal in its interpretation of the instruments which are placed before it. For example , in CILFIT v Ministry of Health[3], the Court stated that it should interpret Community provisions by reference to à ¢Ã¢â€š ¬Ã…“the characteristic features of Community law and the particular difficulties to which its interpretation gives riseà ¢Ã¢â€š ¬Ã‚ . This might be taken to be the Court allowing itself an inappropriate degree of latitude. However, there is one immediate practical consideration that should be borne in mind. Community law is published in a number of different languages with no one language being regarded as more authentic than any other this is bound, of itself, to give rise to contextual difficulties. This was specifically acknowledged in Bouchereau[4] when the Court stated: à ¢Ã¢â€š ¬Ã…“The different language versions of a Community text must be given a uniform interpretation and hence in the case of divergence between interpretations the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part [emphasis supplied].à ¢Ã¢â€š ¬Ã‚  It would, however, be erroneous to suppose that the Court will only take account of these more general factors in instances of linguistic difficulty. Indeed in CILFIT (supra) there was express reference to the need to place every provision of Community law in its context and to interpret it in the light of Community law as a whole having regard to the objectives of Community law and its present state of development. In addition, there are instances in which the Court will look to the domestic laws of Member States where a particular Community provision is silent on the issue. An example of this was A M S Europe Ltd v Commission[5] in which the law of Members States was used to justify a finding of legal professional privilege in EC competition cases. Possibly the greatest concern in terms of the consistent operation of the ECJ is the approach to precedent. The Court of Justice is not bound by its own previous decisions. Thi s has an unfortunate practical consequence in that under Article 234 EC national courts may request preliminary rulings from the Court. In the absence of a binding doctrine of precedent, this has the result that national courts may request such a ruling notwithstanding the fact that the point in issue may already have been considered. However, it may be argued that an effective equivalent to a binding doctrine of precedent is emerging. Where in Article 234 proceedings the Court is asked to rule on an issue that has already come before it, it will simply repeat its earlier ruling: thus in Sheptonhurst Ltd v Newham Borough Council[6] the court repeated its ruling in Quietlynn Ltd v Southend Borough Council[7]. In an oblique fashion, the binding nature of precedent upon national courts was recognised in CILFIT (supra at para.21): à ¢Ã¢â€š ¬Ã…“à ¢Ã¢â€š ¬Ã‚ ¦a court or tribunal against whose decisions there is no judicial remedy under national law is requiredà ¢Ã¢â€š ¬Ã‚ ¦to brin g the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt.à ¢Ã¢â€š ¬Ã‚  It is submitted that this raises an alarming prospect. While an form of precedent by which previous decisions of the European Court are effectively binding upon national courts is established. The Court of Justice remains free to depart from its own rulings. Perhaps, however, this is not so alarming as might appear at first sight: it creates a situation which is reminiscent of the much-loved debate among English constitutional lawyers as to whether the House of Lords can bind itself. It does however leave the way open for a considerable degree of judicial activism. Arnull et al[8] observe somewhat wryly: à ¢Ã¢â€š ¬Ã…“The reader of the Courtà ¢Ã¢â€š ¬Ã¢â€ž ¢s ju dgments will be struck by the fact that previous decisions are often only cited by the Court where they support its argument. Authorities which point the other way are sometimes not mentioned at all, and sometimes even resented as if they support the line the Court has chosen to take.à ¢Ã¢â€š ¬Ã‚  Critics The leading critic of the judicial activism of the Court is, of course, Rasmussen[9] whose work although now somewhat antiquated still contains the valid criticism that the Court seeks à ¢Ã¢â€š ¬Ã…“inspiration of guidelines which are essentially political of nature and hence, not judicially applicable. This is the root of judicial activism which may be an usurpation of powerà ¢Ã¢â€š ¬Ã‚ . By contrast, Cappelletti[10] argued that the Court had a higher function as a constitutional court and should therefore look to a à ¢Ã¢â€š ¬Ã…“higher lawà ¢Ã¢â€š ¬Ã‚  and that the approach of the ECJ was fully legitimate since it was founded upon the wording and spirit of the EC Treaty itself. A robust defence has also been supplied by Advocate General Jacobs[11]: à ¢Ã¢â€š ¬Ã…“If the, the Court sometimes performs the task of a Constitutional Court, and if it has developed constitutional principles in its case law, we can understand why, in some quarters, the Courtà ¢Ã¢â€š ¬Ã¢â€ž ¢s activities have been misunderstood. The Court has sometimes been criticised as a à ¢Ã¢â€š ¬Ã‹Å"political courtà ¢Ã¢â€š ¬Ã¢â€ž ¢.à ¢Ã¢â€š ¬Ã‚  He then proceeds to argue that principles of constitutional jurisprudence will not be familiar in all Member States and it is this which may give rise to the misunderstanding and concludes: à ¢Ã¢â€š ¬Ã…“Yet, in the Community system, which is based on the notion of a division of powers, some form of constitutional adjudication is inescapable, if indeed the Community is to be based, as its founders intended, on the rule of law.à ¢Ã¢â€š ¬Ã‚  Another Advocate General[12] is defensive: à ¢Ã¢â€š ¬Ã…“It is right to r emark on the extent to which the existing jurisdictions of the Court have withstood the determined assaults upon its positionà ¢Ã¢â€š ¬Ã‚ ¦The fact that, over a number of years, even following what were at the time considered to be extremely far-reaching decisions, the Member States have again, and again unanimously both explicitly and implicitly given retrospective approbation to the Courtà ¢Ã¢â€š ¬Ã¢â€ž ¢s case law cannot fail to be a matter for satisfaction.à ¢Ã¢â€š ¬Ã‚  A more reasoned response to this somewhat smug conclusion is expressed by Craig and de Burca[13]: à ¢Ã¢â€š ¬Ã…“It is of course true that all constitutional courts must engage with political issues, but, given the unaccountability of courts, the nature and origin of the à ¢Ã¢â€š ¬Ã‹Å"unwrittenà ¢Ã¢â€š ¬Ã¢â€ž ¢ values which they promote should undoubtedly be critically scrutinised, as should the extent to which their decisions seem to depart from what their express powers would appear to allow. Perha ps more importantly, such judicial decision-making requires full and thorough justification, whereas the reasoning of the ECJ tends to be rather thin.à ¢Ã¢â€š ¬Ã‚  Conclusion Thus it will be observed that the European Court of Justice continues to excite controversy. The criticism that it has à ¢Ã¢â€š ¬Ã…“run wildà ¢Ã¢â€š ¬Ã‚  in its creation of the fundamental principles of European Community law is therefore superficially attractive. Arguments can easily be marshalled in support of such a view. Of particular concern are the distinctions which will inevitably be drawn between this Court and the domestic courts of the Member States. Perhaps this is nowhere more so than in the UK. This countryà ¢Ã¢â€š ¬Ã¢â€ž ¢s long-established common law system with its strict adherence to precedent and rigid rules in relation to statutory interpretation as well as its insistence upon Parliamentary sovereignty is bound to conflict with the somewhat freewheeling approach of the ECJ. The re is also the deep-rooted suspicion (fuelled by the Euro-sceptic/Euro-phobe) that the European Court is an essentially political animal designed to achieve the implementation of the social engineering for which the Community is perceived to be responsible. In this regard it is true that the Court has done itself few favours; most notably by seeking to impose the following of precedent upon the national courts while continuing to regard itself as free of such constraints. While acknowledging the legitimacy of such concerns, a criticism as severe as that which forms the title hereof is probably not justified. In particular, two factors should be emphasised. First, as has been seen above in the case of preliminary rulings, the Court does impose upon itself a degree of discipline. It cannot therefore be said that its rulings are entirely capricious or based to too great a degree upon political considerations. Second, the role of the ECJ as a constitutional court should be taken serious ly. While such an entity familiar to those such as the Germans but somewhat alien to the English legal system may be regarded with suspicion, this does not diminish its status or the need for a body to fulfil such a function within the European Community. Finally, it should be borne in mind that the EC is still a relatively young institution. Certainly, it would be unfair to judge its legal institutions and jurisprudence by comparison with those of countries which enjoy many centuries of legal heritage. If the infant or adolescent ECJ has à ¢Ã¢â€š ¬Ã…“run wildà ¢Ã¢â€š ¬Ã‚ , greater maturity might be anticipated. Bibliography Arnull, A., Judicial architecture or judicial folly? The challenge facing the European Union (1999) 24 EL Rev 516 Arnull, A., Dashwood, A., Dougan, M., Ross, M., Spaventa, E. Wyatt, D., European Union Law, (5th Ed., 2006) Craig, P. de Burca, G., EU Law, Text, Cases and Materials, (3rd Ed., 2003) Fennelly, N., Preserving the Legal Coherenc e within the New Treaty: The ECJ after the Treaty of Amsterdam, (1998), 5 MJ 185 House of Lords Select Committee on the European Communities, 1996 Intergovernmental Conference (Session 1994-5, 21st Report, HL Paper 105) Jacobs, F., Is the Court of Justice of the European Communities a Constitutional Court? in Curtin, D. Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Keefe (Eds.), Constitutional Adjudication in European Community and National Law (1992) 25 Rasmussen, H., On Law and Policy in the European Court of Justice, (1986) Footnotes [1] Arnull, A., Dashwood, A., Dougan, M., Ross, M., Spaventa, E. Wyatt, D., European Union Law, (5th Ed., 2006), p.388 [2] 1996 Intergovernmental Conference (Session 1994-5, 21st Report, HL Paper 105) [3] Case 283/81 [1982] ECR 3415 [4] Case 30/77 [1977] ECT 1999 [5] Case 155/79 [1982] ECR 1575 [6] [1991] ECR I-2387 [7] [1990] ECR I-3059 [8] Op. Cit., p.409 [9] Rasmussen, H., On Law and Policy in the European Court of Justice, (1986) [10] Cappelletti, M., The Judicial Process in Comparative Perspective, (1989) [11] Jacobs, F., Is the Court of Justice of the European Communities a Constitutional Court? in Curtin, D. Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Keefe (Eds.), Constitutional Adjudication in European Community and National Law (1992) 25 at 32 [12] Fennelly, N., Preserving the Legal Coherence within the New Treaty: The ECJ after the Treaty of Amsterdam, (1998), 5 MJ 185 at 198 [13] Craig, P. de Burca, G., EU Law, Text, Cases and Materials, (3rd Ed., 2003), p p.99-100

Hidden Truths in The Possibility of Evil” by Shirley...

Underneath a good moral, there could be a hidden truth. In, â€Å"The Possibility of Evil†, Shirley Jackson shows how the protagonist, Miss Strangeworth presumes she is protecting her neighborhood by eliminating the evil that exists within her community, but ironically, she is the most evil neighbor of all. In the beginning, the community considers Miss Strangeworth an old, caring and respected woman. Throughout the story, a handful of community members realize Miss Strangeworth is a bitter, insensitive woman, who is creating more evil in the neighborhood. In other words, Miss Strangeworth’s intentions to rid her neighborhood of evil, ultimately has the opposite effect and ironically creates more dilemma. To start with, as the story begins†¦show more content†¦Thus, Miss Strangeworth is considered a respected and caring old woman, which the community can look up to. Throughout the story, some community members realize Miss Strangeworth is a bitter and insensitive old woman, whose intentions to rid of evil backfire and end up creating more trouble for her. Firstly, Miss Strangeworth writes insensitive and harsh letters to community members, writing letters to her neighbors with her unwanted opinions. Miss Strangeworth writes a letter to the same young couple that asks for her guidance, â€Å"DIDN’T YOU EVER SEE AN IDIOT CHILD BEFORE? SOME PEOPLE JUST SHOULDN’T HAVE CHILDREN, SHOULD THEY?†(3). Here, Miss Strangeworth expresses her harsh words to the young couple about their child. She feels like she is giving them the right advice to raise a child and rid evil from her community, but her harsh words are hurting her neighbors and creating more trouble for them. Secondly, Miss Strangeworth feels like she is ridding her town of evil and is the only saviour for the community. Miss Strangeworth thinks it’s her â€Å"duty to keep her town alert†¦there were so many wicked people in the world† (3). Miss Strangeworth thinks of herself as the only one attempting to prevent evil as there is too much evil in the world now days. She feels as if she is doing her job and there is nothing wrong with what she is doing. Lastly, as Miss Strangeworth thinks very highly of herShow MoreRelatedEssay about Allegory and Satire in The Lottery, by Shirley Jackson2337 Words   |  10 PagesOriginally printed in the June 26, 1948 issue of The New Yorker, Shirley Jackson’s â€Å"The Lottery† brought about controversy from the beginning. Magazine subscriptions were immediately canceled due to the outrage at the brutal underlying message. Mrs. Jackson tore down virtually every institution that American Citizens hold dear to their hearts. Jackson believes we should not just blindly follow authority or blindly partake in any traditions that we may not understand to the full extent. â€Å"Any humanRead M oreLogical Reasoning189930 Words   |  760 PagesLas Vegas Far too many authors of contemporary texts in informal logic – keeping an eye on the sorts of arguments found in books on formal logic – forget, or underplay, how much of our daily reasoning is concerned not with arguments leading to truth-valued conclusions but with making choices, assessing reasons, seeking advice, etc. Dowden gets the balance and the emphasis right. Norman Swartz, Simon Fraser University v Acknowledgments For the 1993 edition: The following friends andRead MoreMarketing Mistakes and Successes175322 Words   |  702 Pagesand interesting. The joy of the chase has made this an intriguing endeavor through the decades. Still, it is always difficult to abandon interesting cases that have stimulated student discussions and provoked useful insights, but newer case possibilities are ever contesting for inclusion. Examples of good and bad handling of problems and opportunities are forever emerging. But sometimes we bring back an oldie, and with updating, gain a new perspective. For new users, I hope the book will meet

Busn Law free essay sample

The contract provided for an annual salary, insurance benefits, and other employment benefits. Another doctor, Dr. Quan, also practiced with Dr. Vranich. About nine months later, when Dr. Quan left the practice, Vranich and Winkel entered into an oral modification of their written contract whereby Winkel was to receive a higher salary and a profit-sharing bonus. During the next year, Winkel received the increased salary. However, a disagreement arose, and Winkel sued to recover the profit-sharing bonus. Under Montana law, a written contract can be altered only in writing or by an executed oral agreement. Dr. Vranich argued that the contract could not be enforced because it was not in writing. Does Winkel receive the profit-sharing bonus? Did Dr. Vranich act ethically in raising the defense that the contract was not in writing? Winkel v. Family Health Care, P. C. , 205 Mont. 40, 668 P. 2d 208, Web 1983 Mont. Lexis 785 (Supreme Court of Montana) In the matter of Winkel v. We will write a custom essay sample on Busn Law or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Family Health Care P. C. , the initial agreement and contract is not in questioned as there was no disagreement and Dr. Winkel proceeded to be employed for a period of at least 9 months. The Offeror of this initial contract was Loren Vranich aka Family Health Care P. C. and the Offeree was Dr. Winkel. A legally enforceable contract was entered into on that date. Yes! Because in the State that this contract is performed under, Winkel is entitled to the profit share bonus. The original written contract states nothing about the raise or profit-share. Unfortunately because FHC went into an oral modification of the written contract which is permitted in the State, FHC must hold to its oral obligation. At a later date after a fellow doctor had left an offer was made to increase Dr. Winkle’s salary and he would be offered a profit sharing bonus. This supplemental oral contract bared the form of a unilateral contract in that the Offeror’s offer could only be accepted by the performance of an act by the Offeree. (Cheeseman p 157) No! Dr. Vranich did act ethically by owning up to one part of the oral modification in paying Winkel the higher salary. By executing one portion of the oral modification she maybe felt she did not have to execute the other portion. Dr. Vranich did not act ethically in raising this defense because an oral modification was made and partially executed which in the State that this occurred allows an executed oral agreement. 10. 7 Acceptance Peter Andrus owned an apartment building that he had insured under a fire insurance policy sold by J. C. Durick Insurance (Durick). Two months prior to the expiration of the policy, Durick notified Andrus that the building should be insured for $48,000 (or 80 percent of the building’s value), as required by the insurance company. Andrus replied that (1) he wanted insurance to match the amount of the outstanding mortgage on the building (i. e. , $24,000) and (2) if Durick could not sell this insurance, he would go elsewhere. Durick sent a new insurance policy in the face amount of $48,000, with the notation that the policy was automatically accepted unless Andrus notified him to the contrary. Andrus did not reply. However, he did not pay the premiums on the policy. Durick sued Andrus to recover these premiums. Who wins? J. C. Durick Insurance v. Andrus, 139 Vt. 150, 424 A. 2d 249, Web 1980 Vt. Lexis 1490 (Supreme Court of Vermont) 11. 4 Preexisting Duty Robert Chuckrow Construction Company (Chuckrow) was employed as the general contractor to build a Kinney Shoe Store. Chuckrow employed Ralph Gough to perform the carpentry work on the store. The contract with Gough stipulated that he was to provide all labor, materials, tools, equipment, scaffolding, and other items necessary to complete the carpentry work. Gough’s employees erected 38 trusses at the job site. The next day, 32 of the trusses fell off the building. The reason for the trusses having fallen was unexplained, and evidence showed that it was not due to Chuckrow’s fault or a deficiency in the building plans. Chuckrow told Gough that he would pay him to reerect the trusses and continue work. When the job was complete, Chuckrow paid Gough the original contract price but refused to pay him for the additional cost of reerecting the trusses. Gough sued Chuckrow for this expense. Can Gough recover? Robert Chuckrow Construction Company v. Gough, 117 Ga. App. 140, 159 S. E. 2d 469, Web 1968 Ga. App. Lexis 1007 (Court of Appeals of Georgia) 13. 1 Unilateral Mistake Mrs. Chaney died, leaving a house in Annapolis, Maryland. The representative of her estate listed the property for sale with a real estate broker, stating that the property was approximately 15,650 square feet. Drs. Steele and Faust made an offer of $300,000 for the property, which was accepted by the estate. A contract for the sale of the property was signed by all the parties. When a subsequent survey (done before the deed was transferred) showed that the property had an area of 22,047 square feet, the estate requested the buyers to pay more money for the property. When the estate refused to transfer the property to the buyers, they sued for specific performance. Can the estate rescind the contract?

Personal Perspective on Ethics Essay Example

Personal Perspective on Ethics Paper Ethics Is a very complex web of what is right and wrong as a route to living life In our own Justifiable terms. When I think about what ethics means to me, I do not really consider government regulations, religious beliefs, or social norms. I dont consider government regulations in the sense that I have grown up to be shaped by them but now as a cognizant being I can realize that I do not agree with a significant proportion of them and do not hold complete faith in the system. I am not religious and although I have attended church services and taken some theology courses I do to feel the need for its teachings to guide me at this point. Social norms, well, I feel that this is obviously self-explanatory, but if you dont know me all that well, then lets just say that I see a lot of negative Influences on our society. I cannot say that the systems stated earner have not shaped my beliefs but knowledge has guided me to pick and choose what I believe is sensible and just. How do I make decisions about what is right or wrong? Well, I take previous experiences and judge from that point. We will write a custom essay sample on Personal Perspective on Ethics specifically for you for only $16.38 $13.9/page Order now We will write a custom essay sample on Personal Perspective on Ethics specifically for you FOR ONLY $16.38 $13.9/page Hire Writer We will write a custom essay sample on Personal Perspective on Ethics specifically for you FOR ONLY $16.38 $13.9/page Hire Writer I make moral and ethical decisions based on knowledge I gained in an ethics course of unman nature: sentient beings are not means to an end but an end In and of themselves, to treat them as anything else is to treat them as something other than what they are. I think many things can be Judged ethically by the outcomes they (would) produce. These are the basis of how our social systems were founded. It Is the outcomes, or possible outcomes, that allow us to understand what Is ethical. That is how we decide whether to act. Putting ourselves in the situation we are encountering can allow us to understand our feelings about the matter. At which mint our feelings can guide us on the path of right and wrong. I Judge right and wrong by what I believe Is good and bad from previous life experiences; and all of It Is completely subjective. Dictionary. Com states that ethics Is that branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions. This is the way I think of ethics, as right and wrong, good and bad, as a personal system of beliefs. I feel that it Is simply being a DOD person, a humanitarian. I think, unless psychologically unstable, that people know what is right and wrong from the outcomes produced. I believe ethics is a moral code, which is to say that I feel everyone should help each other, to not harm one another. And to help ourselves by helping those around us. Although. I do make opinions about people based on my personal morals and ethics, I can also understand that I take my personal beliefs to a certain extreme and cannot expect people to adhere to them all. It is a pyramid of guidance, in which not being at the pop doesnt mean that a person Is not ethical. Therefore unless they are doing something unjust, I do not look down on people for not doing all the things that meet the type of person I strive to be. This is a hard question because I doubt I can every fully explain my perspective on ethics. So I will keep it simple, while unfortunately leaving too many gaps, My personal view of ethics Is to understand what Is moral, fair, and Just and to strive to be that person everyday even though It will unlikely ever be obtained. I feel like I should delete this and start over but I know.