Examining Sunil and Rosin's Legal Actions Against Their Employer

Ans. A

In order to conclude and discuss the case of Sunil and Rosin in respect of their scope of taking actions against their employer herein, it is extremely important to understand the context of the European Union Law and what are the effects of European Union law herein.

The European Commission Law consists of two sources of law – Primary and secondary. The primary source of EC Law consists of the treaties, different general agreements, and different conventions such as ECHR (European Convention on Human Rights). On the other hand, the secondary sources of EU law consist of regulations, directives and directions given by the European Union herein. The main difference between the primary and the secondary source of EU law is that the primary sources of law are bound on all the member states of European Union and the any law and order is specifically presented in order to be applied in their national law. If you are seeking law dissertation help, understanding these sources and their implications is vital for your research. However, for the purpose of the secondary sources, the directives and directions are softer versions of EU Law which do not supersede the laws of a country. In the case of directives by EC, the member states are needed to apply the given or said directives into their national law within a certain period of time but it provides them with certain leeway to adapt to such directive and the national law should be adjusted to the directive in such a way as not to defy its essence as well. As per article 288 of Treaty on the Functioning of the European Union (TFEU), it has been expressly mentioned that “a directive should be implied and imposed by the Member States within a given period of time as long as the essence of the directive has been achieved but it shall leave the national authority to their choice of form and method of applying the directive herein.” (a) As it has been already discussed that the directives provided by EC or European Commission might not have ‘direct applicability’ on the Member states but a ‘direct effect’ only. According to the Appleton, the direct effect of EU Law might also be termed as the Indirect-direct effect as well. However, the grounds of direct effect has been clearly mentioned and clarified by the European Court of Justice in the case of Van Gend En Loos, where the court provided

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1. C-44/79, Liselotte Hauer v. Land Rheinland-Pfalz. [1979] ECR 3727
2. C-197/94 & C-252/94 Bautiaa y Société Française Maritime [1996] ECR 505
3. Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian (2006). “EU Law.” 9th edn, Oxford: Oxford University Press. pp. 56-60
4. Appleton, J. “The Indirect-Direct Effect Of European Community Directives.” Ucla Journal Of International Law And Foreign Affairs (2000), 5(1), 59-100
5. C-26/62, Van Gend en Loos v. Netherlands Inland Revenue Administration [1963] ECR 1, para. 12

groundbreaking decisions on the applicability of direct effect of directives on the member states and the Court also directed how the members states is obliged to limit their sovereignty and apply the essence of the directives passed by the EC. After this groundbreaking decision, several decisions were passed by the Court of Justice by keeping the supremacy of EC directives on mind. Also, another groundbreaking decision in favor of the direct effect of the directives was applied by the help of the Grad case where the ECJ stated that a third party i.e. a citizen could sue the national authority for the purpose of implementation of the EC directive.

The same decisions were again backed by the ECJ in several other cases such as The Ratti and the Becker case. However, later with the case of Marshall, the ECJ had to limit the applicability of the direct effect of the directives and had to consider the national court’s decisions of France and Germany in the case of Nicolo and the ‘Solange’ case. Thus, given the context and the case of the ECJ, it can be deduced that Sunil and Roisin can sue their employer under the direct effect of the EC law but according to several restrictions identified by the EC in the Marshall case, ‘Horizontal Direct Effect’ shall be applied.

(b) In the second context, in the case of Von Colson, the Court of justice faced with a complicated situation of a vertical relationship. In this case, an individual relied on the direct effect of the directive and sued the other party before the court, where the other party is also a private party. In the case of Harz, the court again observed that even though the member states are free to impose directives on their way under article 189 of the TFEU, they are not given ample scope to skip the obligations herein. While from these two decisions, it was evident that the court did not want to encourage the establishment of indirect effect of the directive but in the case of Marleasing, it was essentially held that all the national courts are bound by the indirect

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6. C-106/77, Amministrazione delle Finanze dello Stato v. Simmenthal, [1978] ECR 629
7. C-148/78, Pubblico Ministero v. Ratti, [1979] ECR 1629
8. C-8/81, Becker v. Finanzamt Münster-Innenstadt, [1982] ECR 53
9. C-152/84, Marshall v. Southampton and South-West Hampshire Area Health Authority, [1986] ECR 723
10. Nicolo, decision of 20 October 1989, Recueil Dalloz Sirey 1990:135
11. Unmittelbare Anwendungen der EG-Richtlinie 85/577 in Spanien, OLGCelle, Urteil von 28. 8. 1990 - 20 U 85/89. See also EuZW, 1990, p. 550-552.
12. Cuyvers, Armin. “The Scope, Nature and Effect of EU Law.” East African Community Law: Institutional, Substantive and Comparative EU Aspects, edited by Armin Cuyvers et al., Brill, LEIDEN; BOSTON, 2017, pp. 161–181
13. C-14/83, Von Colson v. Land Nordrhein-Westfalen, [1984] ECR 1891
14. C-79/83, Harz v. Deutsche Tradax GmbH, [1984] ECR 1921
15. C-106/89, Marleasing v. La Comercial Internacional de Alimentacion SA, [1990] ECR 4135

effect of the EC directives of whatsoever nature and form herein. Thus, Sunil and Roisin could sue their employer under indirect effect of the EC directive before the Irish courts herein.

(c) In the context of the detailed discussion that we have held earlier, it can be stated in the given case of Sunil and Roisin that in the case the national courts of Ireland ignores the indirect effect of the EC directive regarding battery operated power tools, the Irish Government shall be responsible by the Horizontal direct effect of the directives as it has been applied in several cases such as the case of Ruiz Bernadez and CIA Security International, it can be concluded that if Sunil and Roisin failed at the national court in applying the indirect effect of the EC directive herein, they can either sue their employer under the direct effect of the EC directive or they can also proceed and sue the Irish Government under the case of failing to applying the EC directive properly where it has been decided in the case of Sunil and Roisin that if they were properly supervised, the accident would not have taken place herein.

Ans. B

(a) In the given case study, Suzette being a Dutch national who arrived at Belgium recently herein, she must be governed by the Treaty on the Functioning of the European Union herein and thus article 45(2) shall be applied to her. In simple words, yes, Suzette shall be considered as an EU worker and she shall be classified as being on herein as well. According article 45(1) of the TFEU, it has been stated that any EU worker shall have the absolute right to move from one member state to another in search of an employment and it has been also mentioned under article 45(2) of the TFEU that every EU worker has the absolute right not to be discriminated by any member state under which she has been employed on the basis of nationality herein. However, the same articles shall not be applicable in case of public employment. Also, under article 145 of the TFEU, in order to implement article 3 of the TFEU, every member state is under an obligation to construct better workforce to welcome and coordinate ‘strategy for employment’.

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16. C-129/94, Ruiz Bernádez, [1996] ECR 1829
17. C-194/94, CIA Security International v. Signalson SA and Securitel SPRL, [1996] ECR 2201
18. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2012] OJ C326/66
19. Cuyvers, Armin. “Free Movement of Persons in the EU.” East African Community Law: Institutional, Substantive and Comparative EU Aspects, edited by Armin Cuyvers et al., Brill, LEIDEN; BOSTON, 2017, pp. 354–364

As in the given case study, Suzette is an employee of a private speech therapy school in Belgium; she shall be classified as an EU worker under the EC Law herein.

(b) According to article 45 of TFEU, every EU worker has several specific rights to ensure their employment in other member states herein. Article 45(1) of TFEU essentially speaks of Suzette’s right of free movement between member states for the purpose of any employment and under article 145 of the TFEU, the member states under an obligation to enforce better EU worker friendly laws for the purpose of better employment herein. Again, under article 45(2) of TFEU herein, Suzette has the right not to be discriminated regarding ‘employment, conditions of work and employment and remuneration’. In the case of Josette Pecastaing, it was held that any remedy should not be less favorable for the member state’s nationals in whatsoever mean. Also, in the case of Jean Reyners v. Belgian State, it was held that equal treatment as it has been safeguarded under the TFEU is the fundamental right of any member state EU worker and the same shall be entailed and safeguarded by the employer of any member state. Further in case of Württembergische Milchverwertung-Südmilch AG v Salvatore Ugliola, it was held by the ECJ that every EU worker has the absolute right to be employed in a member state with the full extent of abolition of all sorts of discrimination mentioned under article 45(2) of the TFEU herein. Again, through the case of John O’Flynn, the ECJ ensured that migrant EU workers must have all the benefits that a national worker has in any member state herein. Thus, on the basis of the abovementioned case laws and legal provisions under the TFEU herein, it can be held that Suzette has the absolute right to stay in the member state of Belgium, take up a job and challenge the grounds of MST (i.e. her employer) under the discrimination based on nationality under article 45(2) of TFEU herein.

(c) In this particular given case study, Jakob, being a South African National, is the husband of Suzette, who is remunerated EU worker in the member state Belgium. Suzette being an EU worker or a migrant worker from Netherlands, residing in Belgium for the purpose of her salaried job herein, Jakob shall be governed by the ‘International Convention on the Protection

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20. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2012] OJ C326/66, p.20
21. Josette Pecastaing v. Belgian State, C-98/79, 1980
22. Jean Reyners v. Belgian State, C-2/74, 1974
23. Württembergische Milchverwertung-Südmilch AG v Salvatore Ugliola, C-15/69, 15 October 1969
24. John O’Flynn v Adjudication Officer, C-237/94, 23 May 1996

of the Rights of All Migrant Workers and Members of Their Families’ of 1990 and under article 39(1) of the same convention, Jakob is given to choose his right of residence in Belgium as Suzette being an EU worker, she shall be considered to be a documented migrant worker with a salaried job in the member state of Belgium herein. Also, under article 4 of the same convention, Jakob, being the husband of Suzette, fulfills the criteria of being the family member of a migrant worker i.e. Suzette herein. Thus, on the basis of given explanation, it can be stated that Jakob has a right of residence in Belgium herein.

(d) As it has been held under the case of A.M. v. Franceand in the case of Saadi v. Italy before the European Court of Human Rights that article 3 of ICRMW (International Convention on the Protection of Rights of all Migrant workers), is not absolute in nature and the ECJ have made several decisions on the basis of national security that article 3 would of ICRMW would not be granted if it poses a national security towards the said country. In the given case study, Jakob assaulted a group of men shortly after he moved to Belgium with his family and he was charged $500 as a fine. Thus according to the judgment given in the case of X v. Sweden, if a country has enough question of national security, that person can be deported under the country immigration law herein.

However, Jakob might challenge the deportation on the ground of family ties. As under article 4 of ICRMW, Jakob, being the husband of Suzette, shall be considered as a family member and as it has been stated in the case of Wayne Smith, Hugo Armendariz, et al. v. United States, the immigration authority of a country must take clear notification of the family ties of that person to be deported beforehand and the family ties should be considered seriously under article 4 of the ICRMW herein. As Jakob has not lived on Belgium for a long period of time, he might have the right of residence but might not have all the necessary documentation to be done to prove that and thus he has a limited ground to challenge his deportation herein.



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25. UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158, available at: < https://www.refworld.org/docid/3ae6b3980.html > [accessed 24 July 2021]
26. Wong, Tom K. Rights, Deportation, and Detention in the Age of Immigration Control. 1st ed., Stanford University Press, 2015
27. A.M. v. France, no. 12148/18, 29, ECHR 2019
28. Saadi v. Italy [GC], no. 37201/06, ECHR 2008
29. X v. Sweden, no. 36417/16, 9, ECHR 2018
30. Wayne Smith, Hugo Armendariz, et al. v. United States, Report N. 81/10 - Case 12.562, Inter-American Commission on Human Rights (IACHR), 12 July 2010

BIBLIOGRAPHY

Book

Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian (2006). “EU Law.” 9th edn, Oxford: Oxford University Press. pp. 56-60

Cuyvers, Armin. “The Scope, Nature and Effect of EU Law.” East African Community Law: Institutional, Substantive and Comparative EU Aspects, edited by Armin Cuyvers et al., Brill, LEIDEN; BOSTON, 2017, pp. 161–181

Wong, Tom K. Rights, Deportation, and Detention in the Age of Immigration Control. 1st ed., Stanford University Press, 2015

Journal

Appleton, J. “The Indirect-Direct Effect Of European Community Directives.” Ucla Journal Of International Law And Foreign Affairs (2000), 5(1), 59-100

Cases

A.M. v. France, no. 12148/18, 29, ECHR 2019

C-106/77, Amministrazione delle Finanze dello Stato v. Simmenthal, [1978] ECR 629

C-8/81, Becker v. Finanzamt Münster-Innenstadt, [1982] ECR 53

C-197/94 & C-252/94 Bautiaa y Société Française Maritime [1996] ECR 505

C-194/94, CIA Security International v. Signalson SA and Securitel SPRL, [1996] ECR 2201

C-79/83, Harz v. Deutsche Tradax GmbH, [1984] ECR 1921

C-44/79, Liselotte Hauer v. Land Rheinland-Pfalz. [1979] ECR 3727

C-106/89, Marleasing v. La Comercial Internacional de Alimentacion SA, [1990] ECR 4135

C-152/84, Marshall v. Southampton and South-West Hampshire Area Health Authority, [1986] ECR 723

C-148/78, Pubblico Ministero v. Ratti, [1979] ECR 1629

C-26/62, Van Gend en Loos v. Netherlands Inland Revenue Administration [1963] ECR 1

C-14/83, Von Colson v. Land Nordrhein-Westfalen, [1984] ECR 1891

Josette Pecastaing v. Belgian State, C-98/79, 1980

Jean Reyners v. Belgian State, C-2/74, 1974

John O’Flynn v Adjudication Officer, C-237/94, 23 May 1996

Nicolo, decision of 20 October 1989, Recueil Dalloz Sirey 1990:135

Saadi v. Italy [GC], no. 37201/06, ECHR 2008

Unmittelbare Anwendungen der EG-Richtlinie 85/577 in Spanien, OLGCelle, Urteil von 28. 8. 1990 - 20 U 85/89. See also EuZW, 1990, p. 550-552

Württembergische Milchverwertung-Südmilch AG v Salvatore Ugliola, C-15/69, 15 October 1969

X v. Sweden, no. 36417/16, 9, ECHR 2018

Wayne Smith, Hugo Armendariz, et al. v. United States, Report N. 81/10 - Case 12.562, Inter-American Commission on Human Rights (IACHR), 12 July 2010

Treaties/Others

Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2012] OJ C326/66

UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158, available at: < https://www.refworld.org/docid/3ae6b3980.html > [accessed 24 July 2021]

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