EC Law Essay Example for Free

EC Law Essay Part A Sonja is a temporary farm labourer of 16 years old. In the summer of 2005 she was hospitalized with sunburn got from working in the field without adequate UV protection according to the â€Å"Ultraviolet Radiation (UV) Protection at Work† Directive adopted by the EC. The Directive provides that the Member States should ensure â€Å"Sunblock and Sunglasses† to â€Å"workers in outdoor activities† within the meaning of the Directive. According to the independent arbitration scheme with employers set up with the approval of the Government by the Finnish Farm Labourers Union, Sonja, has brought her claim before the Arbitrator. Her claim requires that the Arbitrator interpret the â€Å"Ultraviolet Radiation (UV) Protection at Work† Directive. The Arbitrator considers that Sonja’s claim should be dismissed because she is not a â€Å"worker† according to his interpretation of the Directive, but merely an â€Å"apprentice† who does not qualify for legal protection. As provided in the independent arbitration scheme the decisions of the Arbitrator are legally binding and there is no right to appeal. According to the rules of procedure established by the instituting treaties of the European Communities for the Court of Justice of the European Communities, the Court’s jurisdiction is automatically mandatory in the areas expressly provided by the Treaties. There is no need for the Member States to accept this competence which means that the Court can be authorized by only one party, even against Member States. This also means that in the attributed domains by the treaties its competence is exclusive compared to any other jurisdiction. Article 234[1] (ex Article 177) from the consolidated Treaty establishing the European Community provides that: „The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a)  Ã‚  Ã‚  Ã‚  the interpretation of this Treaty; (b)  Ã‚  Ã‚  Ã‚  the validity and interpretation of acts of the institutions of the Community and of the ECB; (c)  Ã‚  Ã‚  Ã‚  the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.† In the case of Sonja, because the independent arbitration scheme set up between the Finnish Farm Labourers Union and the employers is conducted with the approval of the Government, to settle disputes regarding pay and conditions of work we can assimilate the Arbitrator with a court of law. The Arbitrator has an exclusive competence in this field. Moreover, he meets the requirements set up in the last provision of the Article 234, as set forth, because his decisions are legally binding and there is no right to appeal. This institutes an obligation upon the Arbitrator that whenever he has to interpret any act of one of the institutions of the Community he should raise a case before the Court of Justice of the European Communities. Therefore, before interpreting the provisions of the â€Å"Ultraviolet Radiation (UV) Protection at Work† Directive on the meaning of â€Å"worker† within the said act, the Arbitrator should have brought recourse in interpretation before the Court of Justice of the European Communities. The conditions for such recourse, as provided in the Article 234, are that: there has to be an open case brought before a national form of jurisdiction that has to request the Court, asking for the interpretation of an act of one of the institutions of the Communities. Because the Arbitrator did not open such recourse before the Court of Justice of the European Communities, Sonja has grounds for dismissal of his decision in front of a higher Finnish court of law through an extraordinary procedure. The dismissal can be decided only on procedural issues and not on the merits of the case because the decisions of the Arbitrator are not subject to appeal. In general, international jurisdictions are only competent to try states. They can not be used as a legal remedy by natural persons. However, the Court of Justice of the European Communities is accessible not only to the member states of the European Communities, but also, in very strict conditions to individuals, natural and legal persons. This provides Sonja with, yet, another alternative for her case. She can bring an annulment recourse before the Court. The annulment recourse is the possibility of the states, institutions of the Communities and natural and legal persons to challenge in front of the Court   a mandatory act issued either by the Council or by the Commission, and to be granted in certain conditions the annulment of the act. This is a way to control EU acts and their conformity with the instituting treaties. The provisions of the Rome Treaties show that there can be subjected to this form of recourse acts that are mandatory like directives and regulations, and in certain situations even decisions.   Article 230[2] (ex Article 173) of the consolidated Treaty establishing the European Community provides that: â€Å"The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à  -vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The Court of Justice shall have jurisdiction under the same conditions in actions brought by the European Parliament, by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives. Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. []† Usually, individuals are allowed to bring actions before the Court only in reference to regulations which directly apply to them and directly breach their rights. However, proceedings can be brought regarding a directive in situations in which it has the same effects on the individual.   The â€Å"Ultraviolet Radiation (UV) Protection at Work† Directive directly infringes Sonja’s right to adequate protection for the type of labour she is doing and for the conditions in which she works by limiting the notion of â€Å"worker† to which it applies. With this limitation the Directive breaches the substantial provisions of the Treaty establishing the European Community. Regarding work, Article 13 of the Treaty provides that: â€Å"1.     Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.†[3] Therefore the principle of the prohibition of discrimination on grounds of age is laid down by an instituting treaty. It bears no difference that Sonja is only sixteen. She should not be discriminated against for this reason and not be considered as a â€Å"worker† under the Directive. The term â€Å"worker† is also described in many EU acts, including in the jurisprudence of the Court of Justice of the European Communities. The notion is wide and non-discriminatory, especially when considering a persons rights or the breach of these rights. â€Å"26. In accordance with the Courts case-law, the concept of worker, within the meaning of Article 48 of the Treaty and of Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a worker. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration[4]† Moreover, the restriction on the term â€Å"worker† is in direct violation with the Directive No. 33 of 22 June 1994 on the protection of young people at work which applies to persons under 18 and provides that they should have suitable work conditions, â€Å"measures necessary to protect the safety and health of young people[5]†. In conclusion, the limitation of the notion of â€Å"worker† from the â€Å"Ultraviolet Radiation (UV) Protection at Work† Directive that prevents Sonja, because of her age and because she is a temporary worker to benefit from the proper work protection, is in direct violation of the instituting treaties, the principles on which the EU is based, the jurisprudence of the Court of Justice of the European Communities and basic human rights. This provides Sonja, although she is a natural person, with the active legal quality to bring recourse in annulment before the Court due to what she has suffered from the effects of this act. Part B The joined cases of Bernard Keck and Daniel Mithouard were brought before the Court of Justice of the European Communities as a reference under Article 177 of the EEC Treaty[6] by the Tribunal de Grande Instance (Regional Court) from Strasbourg (France), for a preliminary ruling in the criminal proceedings pending before the tribunal against the two. The Tribunal de Grande Instance has asked the Court of Justice of the European Communities to give an interpretation of the rules of the EEC Treaty relating to competition and freedom of movement within the Community. The Court has found that â€Å"Article 30 of the EEC Treaty is to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss†[7]. In the decisions of Keck and Mithouard the Court institutes certain principles regarding the measures that can be taken by states. Such a principle is the one stating that: â€Å"national measures which limit or prohibit ‘certain sales practices’ do not fall within the scope of Article 30[8], so long as they are applied to all those operating within the national territory and that they affect in exactly the same way, both in law and in practice, the marketing of national products and those originating from other Member States†[9]. The Court of Justice of the European Communities has subsequently interpreted the decisions in the cases of Keck and Mithouard on the matter of advertising, especially the vague formulation: â€Å"selling arrangements†. The decisions were applied and interpreted in connection to the way producers are able to market their goods and to the marketing strategies used by them. However, the two cases were exceptional interpretations of the Article 28, due to the circumstances and should have been regarded as such. On the contrary, this interpretation was widely extended by the Court. The extension has brought about the possibility of member states to impose certain restrictions in advertising. These restrictions were thought by the Court to be outside the scope of Article 28. Such measures cover fields like: â€Å"TV advertising and sponsorship of programmes aimed at children below the age of 12 being prohibited[10]† in Sweden, the advertising of toys in Greece which is time restricted, banns referring to certain kinds of toys in Germany and Denmark and so on. Goods that are considered â€Å"sensitive† are also subjected to banns even at an EU level. As an example there is the ‘Television Without Frontiers’ (TVWF) Directive in which there is stated that children should not have easy access to advertising for goods such as cigarettes and alcohol. Cases were brought before the Court with regards to such measures. Some decisions given by the Court find basis on its previous Keck and Mithouard decisions: â€Å"With respect to the free movement of goods (Article 30) the Court recognised that the ban on advertising could affect the free movement of the products advertised. It then referred to the Keck-Mithouard jurisprudence and ruled that a Member State could apply such restrictions if they were shown to affect in the same way, ‘in law and in fact’, the marketing of domestic products and of those from other Member States; were necessary for meeting overriding requirements of general public importance or one of the aims laid down in Article 36 of the EC Treaty; were proportionate for that purpose and that those aims could not be met by less restrictive measures†[11].   In conclusion, bans of advertising are considered to be in accordance with the Article 28 when they affect in the same way the marketing of the domestic products and that of the products from other Member States, they are necessary for requirements of general public importance and when less restrictive measures could not have been applied. Thus, the Court institutes the principle of proportionality that applies even if the ban has more serious effects on goods coming from other states than on national ones. Any state restrictions of the â€Å"selling arrangements†Ã‚   automatically affect access to the market contrary to what the Court has considered in the cases of Keck and Mithouard.   It is of course true that such restrictions provided in a non-discriminatory way do not infringe of the free movement of goods, but they do affect trade. Measures taken by states have to be â€Å"uncertain† and â€Å"indirect†, for them to fall outside the scope of the Article 28 and be regarded as breaches of the free movement of goods. The Keck case institutes a kind of presumption that certain measures taken by states, that fall under a certain category should be regarded as â€Å"uncertain† and â€Å"indirect† and therefore outside the scope of Article 28. This presumption is damaging in some cases. The measures should be analyzed according to the merits of each individual case and the effects they have in that particular case. Therefore, I believe that the cases of Keck and Mithouard affect the balance between state responsibilities and the free movement of goods. Bibliography: Consolidated Version of the Treaty Establishing the European Community (2002), Official Journal C325, Retrieved of the 10th on January 2005, Available at:   http://www.europa.eu.int/eur-lex/lex/en/treaties/dat/12002E/htm/12002E.html Brian Francis Collins v Secretary of State for Work and Pensions (23 March 2004); Judgment of the Court (Full Court);Case C-138/02; European Court reports 2004 Page I-02703, Retrieved of the 10th on January 2005, Available at: http://www.europa.eu.int/eur-lex/lex/Notice.do?val=287581:cslang=enlist=391912:cs,287581:cs,341893:cs,287498:cs,278038:cs,277710:cs,269338:cs,264078:cs,250808:cs,247148:cs,pos=2page=1nbl=18pgs=10hwords=work~worker~checktexte=checkboxvisu=#texte Criminal proceedings against Bernard Keck and Daniel Mithouard (24 November 1993); Judgment of the Court;   Joined cases C-267/91 and C-268/91, European Court reports 1993 Page I-06097, Retrieved of the 10th on January 2005, Available at:   http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61991J0267:EN:HTML#DI    Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work, Official Journal L 216 , 20/08/1994 P. 0012 – 0020,   Retrieved of the 10th on January 2005, Available at: http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:31994L0033:EN:HTML Lolivier, Marc (January 1998), The De Agostini ruling and advertising regulation, Commercial Comunications Newsletter, Edition 10,   Retrieved of the 10th on January 2005, Available at: http://europa.eu.int/comm/internal_market/comcom/newsletter/edition10/page04_en.htm Stanbrook, Lionel ( October 1997), Childrens advertising, consumer protection and the country of origin principle, Commercial Comunications Newsletter, Edition 09, Retrieved of the 10th on January 2005, Available at: http://europa.eu.int/comm/internal_market/comcom/newsletter/edition09/page18_en.htm Statute of the Court of Justice (November 2005), Retrieved of the 10th on January 2005, Available at:   http://curia.eu.int/en/instit/txtdocfr/txtsenvigueur/statut.pdf Þorvaldsson,   Bjà ¶rn (2002), Keck and Mithouard,   Master Thesis, Master of European Affairs Programe, Law, Retrieved of the 10th on January 2005, Available at: http://www.jur.lu.se/Internet/english/essay/Masterth.nsf/0/585A26471860B6F6C1256BCD00730AAF/$File/xsmall.pdf?OpenElement Mollers, Thomas M.J. (February 2005), EuGH, Rs. C-405/98 v. 8.3.2001 Gourmet International Products, Faculty of Law, Augsburg University, Retrieved of the 10th on January 2005, Available at: http://www.jura.uni-augsburg.de/prof/moellers/materialien/materialdateien/050_eugh_entscheidungen/eugh_1998_405_gourmet_international_products_en/ Competitive Federalism and Market Access in the EU, Jean Monet Center, NYU School of Law, Retrieved of the 10th on January 2005, Available at:   http://www.jeanmonnetprogram.org/papers/01/012701-04.html [1]   Treaty establishing the European Community, Art. 234 [2] idem, Art 230 [3] idem, Art. 13 [4] Brian Francis Collins v Secretary of State for Work and Pensions (23 March 2004) [5] Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work. [6] Treaty establishing the European Community, ex Article 177 [7]Criminal proceedings against Bernard Keck and Daniel Mithouard (24 November 1993) [8] in the consolidated Treaty the number of the article has become 28 and it will be referred to accordingly [9] Lolivier, Marc (January 1998), op. cit. [10] Stanbrook, Lionel (October 1997), op. cit. [11] idem

The Fantasy of Out of Africa vs. the Reality of Ngugis A Grain of Whea

The Fantasy of Out of Africa vs. the Reality of Ngugi's A Grain of Wheat Both the film and the book versions of Out of Africa portray life in Africa as being a haven for European colonists. In these works, Africa was a beautiful land to move to where the Europeans could live like â€Å"royalty† in a sense. Their money went a lot further, and they could have African servants do all the work and chores for them. These African peoples adored the white settlers, and would peacefully work for them for very low wages. However, this view of Africa during colonial times is not accurate. The Africans did not always adore the Europeans; they were not happy to have their lands taken from them; and they did not usually accept the exploitation peacefully. This point is illustrated, for example, in Ngugi's A Grain of Wheat which reflects on the Mau Mau rebellion which led to the Kenyan independence in 1963. The film Out of Africa creates an Africa where a white person, such as Karen Dinesen, could move to and live happily, for a while anyway. Granted this is a movie, but it is based on the autobiography of Karen Dinesen. The film shows Karen moving to Kenya in about 1913 where she was happily greeted by her many African servants who were awaiting her. With her she has all of her lovely, expensive possessions that go well in her beautiful farmhouse. Karen and the rest of the white colonists are shown to have lives that are all play and no work. They sit about while the servants wait on them hand and foot, or they go out on safaris to see the countryside and wild animals. The image that the audience receives creates a dream world for them. It does not have any indication of violence between the colonists and the Africans. The book Out of ... ...r, it is not entirely realistic in its portrayal of colonialism. Karen Dinesen wrote her story how she wanted to see it. I am sure her life was as she wrote it to be, but I do not think that she took in to account the treatment of the Africans. I do not think that she intended to write of those aspects of colonialism. In my opinion, she want to share with the world the greatness of Africa as she saw it. A Grain of Wheat was written to share with people the violence of the colonialism. The hardships endured by those colonized was meant to be brought out to the audience. These two pieces of literature were written for different reasons: one to show a wealthy white woman’s life in Africa as she saw it, and the other to show the violence brought about by the colonization of Africa. Works Cited Fanon, Frantz. The Wretched of the Earth. (New York: Grove Press)1963.

Ethical Issues in Health Care Finance Essay

The topic of ethical issues in every industry is usually interesting because it attracts a significant number of scholars and professionals to argue. This topic becomes even more interesting when it comes to health care financing. Ethical issues in health care financing begin, when defining human health. Human health is a basic need (Maharaj and Paul, 2011). It does not matter what type of health challenges a person has and whether a person is in a developed country or not. The issue with human health is that, all humans require health appropriate treatment when they need it. However, the health care system seems insatiable when it comes to financing. Health care financing source from an individual occurs at the at the point of delivery otherwise known as fees for services does not seem to have a significant impact in the required health care financing (Hurley, 2001). It is important to leave individuals as entities that pay for healthcare out of financing the health care industry an d concentrate on the government, private agencies such as insurances and donors. The ethical issues in health care financing questions whether the major health care financiers: the government and insurance companies can justify paying for treatment for all human in the country. The argument with health care financing is that governments can pay for high medical technology development in terms of complicated medical equipments and new treatment technologies. It is important to understand that although advanced medical development are in place, there is an issue as to whether individual patients will the able to afford treatment using this advanced technology (Maharaj and Paul, 2011). If individual patients will not afford to use new treatment technologies, then it will be likely that the new advancement in medical technologies are a direct preserves of those with an upper economic advantage. This is contrary to the equity required in the health care system because health is basic need and therefore should be available for all. High cost of medical technological  treatment and a few populations who cannot individually afford for this treatment are not the only issues that raise medical treatment. The insurance industry is the greatest player in the health c are industry. The insurance industry provides medical policies for every eligible citizen. While the insurance arrangement for healthcare financing is justified through the assumption that country men and women are participating in sharing cost in paying up hospital bills. However, there is a crisis with the health insurance, which has raised significant ethical issues. This issues range from existence of different types of policies for different people and the issues that, the insurance company rather than the doctor determines the type of treatment the patient will get because of different categorized policies. Another incidence of inequality sets in even in with the insurance. Just like individual patient might not afford to pay high tech medical treatment at the point of delivery, the same is happening in the insurance industry because insurances now require different policies for different individual (Maharaj and Paul, 2011). These different policies characterize people according to their risk such that, people of high risk pay more premiums that people of low risk. If this policy categorization is justified then there will be a new inequality that will set in. This inequality will arise from those who pay for high premiums and might never have to go to hospital unless an accident occurs. Health care financing will seem to be a long term debate bombarded with ethical issues that take long to solve. These ethical dilemma although exist to offer ready solutions in healthcare financing, the whole issue boils down to whether the current happening in the health care industry offers beneficence, non-maleficence, autonomy and justice. Reference Maharaj, S.R. and Paul, TJ. (2011). Ethical Issues in Healthcare Financing. West Indian Medical Journal. 60. (4): 31-44 Hurley, J. (2001). Ethics, economics, and public financing of health care. Journal of Medical Ethics. 27. (4): 234-239.

Wages, Productivity and Employment - Free Essay Example

Sample details Pages: 3 Words: 933 Downloads: 1 Date added: 2019/07/01 Category Finance Essay Level High school Tags: Income Inequality Essay Did you like this example? In the fall of 1976, the group ABBA released their hit Money, Money, Money. This song reflects on the working class individual working hard every day for what, to make money and pay the bills, fantasying what it would be like to be the rich man. Money is the driving force of our society and without money what would our world be like. Everyone wants money, everyone works for money, but are we being paid a fair dollar for what we do or is income inequality playing a role in our paycheck? What is the definition of income inequality? Merriam Webster defines income: as a gain or recurrent benefit usually measured in money that derives from capital or labor. Merriam Webster also defines inequality: as the quality of being unequal or uneven, disparity of distribution or opportunity, or the condition of being variable. Combining these two definitions, income inequality may also be defined as the gap between what the CEO earns and the average worker earns working for the same company, the wage difference between a woman employee or a male employee, or the variance in wages of that of a white individual or a black individual. Don’t waste time! Our writers will create an original "Wages, Productivity and Employment" essay for you Create order So how does income inequality affect our society? Income inequality affects our society by stereotyping an individual based on their race or sexuality not based on their ability to perform the job. The pressure has always been on corporations to make the most money for the lowest amount of cost. The easiest method for a corporation to cut cost is to adjust the wages of their employees or outsource the jobs to countries that pay a lower wage to their employees. Katalin Botos notes in her article, Effects of Income Inequalities: Society and Economy, Over the past two decades, wages and salaries have stagnated, or actually declined in the US (384). This decline in wages or salaries has caused individuals to fall into a lower class and possibly into a poverty level. Data has shown that Income inequalities have increased extremely in the US in the last quarter of a century (Botos 385). Anne Lowery writes in her article, The Rich Get Richer Through the Recovery, The top 10 percent of earners took more than half of the countrys total income in 2012(Lowery). From 2000 through 2006, the number of Americans living in poverty increased 15 percent.(Income Inequality in America). So is the United States really the land of opportunity or as the saying goes, the rich keep getting richer and the poor keep getting poorer? Katalin Botos writes The American dream that anyone can make it to the top, will remain as it is: a dream (386). Is this how we want our society to be or do we want to improve the gap in the income inequalities? The theory to solving income inequality is that society should pay each individual equally. Society would take the highest wages and the lowest wages coming up with a median wage for each individual. Individuals would be happy because there would be no division between upper class and lower class, each individual would be equal. The downfall of this theory would be the loss of the desire to succeed. Individuals would not strive to achieve a higher goal due to the fact why should they, we all make the same money no matter the job. If everyone makes the same wage there will always be that one employee who puts in 110% effort into a job and another individual who only puts in 50% effort, should they be paid equally? We are then back to inequality between workers because why it is fair for one to be working at 110% and another to be working at a 50% level. Looking into this theory as a society are we able to change this process or is it going to continue to spiral out of control. A policy that could be placed into effect would be that of individuals are paid on their productivity, performance, and knowledge of the job they are doing. Cobb and Flannery state that Firms play a central role in how workers are matched to jobs and how they are rewarded for their labor (331). Productivity would be based on a standardize number or expectation of the job. Performance would include showing up to work, working your assigned schedule, and attitude while at work. An individual would need to know their job, by knowing the job the individual would be able to perform the job correctly and be productive at it. Katalin Botos writes This democratic structure would be the foundation where each individual could get an opportunity to make best use of their capabilities (386). In conclusion, placing this policy of wages based on productivity, performance, and knowledge of the job will assist in rewarding those individuals who want to work and want to get ahead in life allowing those individuals that do not want to work the option not to get ahead. The policy would not be excluding anyone, everyone would be given the opportunity, but it is up to the individual what they choose to do with it. Society still has a difficult task ahead of them attempting to solve the income inequality of the nation. There will be individuals in our world that still believe they are not being paid a fair wage for the work they do and there will be those individuals who are content with what they are making along with doing. As ABBA put it in the last verse of their song All the things I could do, If I had a little money, Its a rich mans world (ABBA).