.gif){kind=small}
BACK TO HOME
PAGE BACK TO HOME
PAGE EUROPEAN REVIEW
THE European Court of Justice is becoming more and more important in clarifying law in the United Kingdom and in directly applying European Union law, particularly in the field of Employment Rights. The European Review takes a look at this institution and its workings.
The great innovation of the European Communities in comparison with previous attempts at European unification lies in the fact that the Community uses only the rule of law to achieve that end. The six founding Member States, aware that unification, if it was to have any chance of lasting success, must be achieved and maintained through legal means, determined that the European Communities should be conceived in a legal instrument - the Treaties of Paris and Rome.
Not only is the European Union a creature of the law, but it pursues its aims exclusively through a new body of law, Community law, which is independent, uniform in all the Member States of the EU, separate from, yet superior to national law, and many of whose provisions are directly applicable in all the Member States. Like any true legal system the Community legal system needs an effective system of judicial safeguards when Community law is challenged or must be applied.
The Court of Justice, as the judicial institution of the European Union, is the backbone of that system of safeguards. Its judges must ensure that Community law is not interpreted and applied differently in each Member State, that as a shared legal system it remains a Community system and that it is always identical for all in all circumstances.
In order to fulfil that role, the Court of Justice has jurisdiction to hear disputes to which the Member States, the EU institutions, companies and individuals may be parties. Since it was set up in 1952, more than 8,600 cases have been brought before the Court. There were already 200 new cases a year by 1978, and 1985 saw more than 400 cases brought.
The Court of Justice comprises 15 judges and 9 advocates general. They are appointed by common accord of the governments of the Member States and hold office for a renewable term of six years. They are chosen from jurists whose independence is beyond doubt and who are of recognised competence. The judges select one of their number to be President of the Court for a renewable term of three years. The President directs the work of the Court and presides at hearings and deliberations. The advocates general assist the Court in its task. They deliver, in open court and with complete impartiality and independence, opinions on the cases brought before the Court. Their duties should not be confused with those of a prosecutor or similar official - that is the role of the Commission, as guardian of the Community's interests.
Various forms of action may be heard before the court. They include remedies for the failure by a Member State to put an EU law into operation, attempts to annul Community law which an EU institution or member state thinks is illegal or penalties imposed on EU bodies for failing to act, actions for damages against the EU or its servants and preliminary rulings. It is these preliminary rulings which often bring individuals from the U.K. before the court. Many provisions of the Treaties and of secondary legislation - regulations, directives and decisions - directly confer individual rights on nationals of Member States which national courts must uphold. In cases involving Community law, national courts, if in doubt as to the interpretation or validity of that law, may, and in some cases must, seek a preliminary ruling from the Court of Justice on the relevant questions. Although such a ruling may be sought only by a national court which alone has the power to decide that it is appropriate do so, all the parties involved may take part in the proceedings before the Court of Justice. Thus, in some of the cases in the next column, Employment Tribunals have asked for a ruling from the Court before passing judgement on the claims of the individuals involved.
The Advocate General, one of nine who help the judges at the European Court of Justice, has delivered his opinion on the Seymour-Smith case . At issue in this case is the two year qualifying period for unfair dismissal claims in the U.K. The question to be answered is whether the period discriminates against women. His short answer is 'no'; however he says it should be possible to use the 'Employment Rights Act, 1996' in cases where the dismissal itself discriminates on the grounds of gender, even if the employee concerned had not been in the job for two years.
Advocate General J. Mischo has similarly ruled on the case of Belinda Jane Coote and Granada Hospitality Ltd. Ms. Coote claimed that Granada had refused to provide her with references when she left their employment because she had previously brought a case against them alleging that she had been dismissed because of pregnancy. This refusal had injured her prospects of finding employment. The court ruled that under the EU Equal Treatment Directive of 1976 Member States must provide judicial protection for workers whose employer retaliates against court action by withholding references.
The Employment Appeal Tribunal has upheld a decision to allow a late claim under the Sex Discrimination Act, 1975. The reason for the delay was that the applicant, Ms. Marshall was unaware of her right to bring a claim, until the law was clarified by a European Court of Justice decision. In the case of P v S in 1996, the court ruled that the Equal Treatment Directive covered discrimination against a transsexual for reasons relating to gender reassignment. Ms. Marshall had been offered a post with the Crown Prosecution Service as a man which was withdrawn when she told them that she intended to do the job as a woman.
|
Back to |
Forward to |
Up to |
Back to |
