Direct effect of European Community regulations - Free Essay Example

Sample details Pages: 9 Words: 2571 Downloads: 6 Date added: 2017/06/26 Category Law Essay Type Argumentative essay Topics: Community Essay Did you like this example? 1) The matter at issue include: (a) direct effect of European Community (EC) regulations; (b) direct effect of EC directives; and (b) the principle of state liability. (a) Direct Effect of Regulations Article 249 of the Treaty Establishing the European Community (TEC) state: à ¢Ã¢â€š ¬Ã‹Å"à ¢Ã¢â€š ¬Ã‚ ¦a regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member Statesà ¢Ã¢â€š ¬Ã¢â€ž ¢. Don’t waste time! Our writers will create an original "Direct effect of European Community regulations" essay for you Create order Thus, a regulation does not have to be implemented by Member States through national legislation for it to be applicable in those states. However, citizens of Member States would be able to directly enforce a regulation in national courts if it satisfies certain conditions, namely, it must be sufficiently precise and unconditional, leaving no room for discretion in implementation[1]. It has been established that citizens of Member States may bring an action against a state or an emanation of a state[2] in national court if that public authority is in breach of such a regulation[3]. This is known as vertical direct effect. Additionally, citizens could bring an action against private individuals in national courts for breach of a regulation[4]. This is known a horizontal direct effect. Considering the facts of the case it seems that the (imaginary) Regulation is directly applicable in the UK courts because it is a Community regulation. Furthermore, it is directly effective in the UK courts because the implementation of the amount of damages recoverable by occupiers of commercial premises who have been physically injured due to mercury contamination of their land does not depend on any conditions; and the rules for determining the amount of damages are sufficiently precise because it would be based on the rules that govern other personal injury claims in the UK. Thus, Martin could bring an action against his local authority. However, such an action is unlikely to succeed because there does not seem to be any breach of the Regulation by any local authority. But Martin could bring an action against Acme Chemicals. Since Martin suffered physically injury from mercury poisoning as a result of mercury leaking from the land of Acme Chemical, there seems to be a breach of the Regulation and thus he would be quite likely to succeed if he brought the action. Thus, it is submitted that Martin would not be likely to succeed if he brings an action against his local a uthority but he would be likely to succeed if he brings an action against Acme Chemicals Ltd. (b) Vertical Direct Effect of Directives Article 249 of the TEC state that directives are à ¢Ã¢â€š ¬Ã…“bindingà ¢Ã¢â€š ¬Ã‚ ¦upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods.à ¢Ã¢â€š ¬Ã‚  The fact that directives are not described as directly applicable does not mean that are incapable of such effects and it has been held that directives could be capable of direct effect[5]. A directive would be directly applicable if it satisfies the criteria for direct effect: it must be sufficiently precise and unconditional, leaving no room for discretion in implementation[6]. As long as a directive limits the discretionary powers conferred on member states, it would be deemed to be sufficiently clear[7]. And the obligations imposed by that directive would become unconditional, i.e., absolute, once the time limit for i ts implementation has expired[8]. Thus, if a directive is directly effective then a citizen could bring an action against a public authority for breach of its Community obligations[9]. Moreover, it has been established that an individual cannot enforce a directive against an individual (corporate or otherwise) in the national courts because directive do not have horizontal direct effect.[10] Considering the facts of the case it seems that Martin would be able to enforce the imaginary Directive in the UK courts because it limits the power of the UK by postulating a stipulated amount of damages and by providing strict liability against those who cause injuries due to mercury leaking from their land; and because the Directive had not been implemented by 25 March 2006. Thus, it is submitted that Martin is could bring an action against a public authority for breach of its obligations under the imaginary Directive. However, Martin would be unlikely to succeed because there does not seem to be a breach of any obligation under the Directive by any public authority. Moreover, Martin would not be able to bring an action against Acme Chemicals Ltd because it is a private entity. (b) State Liability The ECJ has established that where a state failed to implement an EC directive it would be obliged to compensate individuals for damages suffered as a result of its failure to implement the directive if: (i) the directive involved conferred rights on individuals; (ii) there was a sufficiently serious breach; and (iii) there was a casual link between the Stateà ¢Ã¢â€š ¬Ã¢â€ž ¢s failure to implement the directive and the damage suffered by the persons affected[11]. The à ¢Ã¢â€š ¬Ã‹Å"decisive testà ¢Ã¢â€š ¬Ã¢â€ž ¢ or whether a breach is sufficiently serious is whether the institution has à ¢Ã¢â€š ¬Ã‹Å"manifestly and gravely exceeded the limits of its discretionà ¢Ã¢â€š ¬Ã¢â€ž ¢[12]. The factors a courts should take into account in assessing this include: the clar ity and the precision of the rules breached, the measure of discretion left by the rule to the national or Community authorities, whether the infringement and the damage caused was intentional or voluntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community lawà ¢Ã¢â€š ¬Ã¢â€ž ¢[13]. The critical element in this list seems to be the clarity and the precision of the rule breached[14]. Furthermore, it seems that in the context of the transposition of directives, à ¢Ã¢â€š ¬Ã‹Å"a restrictive approach to State liability is justified to ensure that the exercise of legislative function is not hindered by the prospect of actions for damages whenever the general interest requires the institutions or Member States to adopt measures which may adversely affect individual interestsà ¢Ã¢â€š ¬Ã¢â€ž ¢[15]. However, it should be noted that the ECJà ¢Ã¢â€š ¬Ã¢â€ž ¢s approach is not consistent and in some cases a clear breach of community law would be sufficiently serious to establish state liability[16]. Considering the facts of the case it seems that Martin could bring an action against the UK for failing to implement the imaginary directive because: The directive conferred upon individuals who suffered injuries from mercury poisoning the right to bring an action in tort on strict liability theory against those persons from whose land the mercury escaped. There seems to be a sufficient serious breach because the failure of the UK government to implement the directive manifestly exceeds the limits of its discretion. The directive clearly imposes strict liability on individuals if mercury leaks from their land and injuries someone, and states a minimum level of compensation (150,000 Euro). Even though the UK law is identical to the rule in the directive, the courts may find that there was a serious breach because the UK law does not provide a minimum level of compensation. The restrictive approach of state liability may not be applicable here because the UK has not adopted any measure that could provide a minimum level of compensation for injured parties. Additionally, the courts may find the UK responsible on the ground that they had failed to implement Community legislation. However, there does not seem to be any direct causal link between Martinà ¢Ã¢â€š ¬Ã¢â€ž ¢s physical injuries and the UK Governmentà ¢Ã¢â€š ¬Ã¢â€ž ¢s failure to implement the Directive because the Directive could not have prevented Martinà ¢Ã¢â€š ¬Ã¢â€ž ¢s injuries. Nevertheless, Martin could argue that if the directive had been implemented Acme Chemicals would have been more careful about mercury leakages which could have prevented his injury. However, it is submitted that the courts would be unlikely to accept this line of reasoning. In conclusion it is submitted that it is quite unlikely that Martin would be able to succeed if he brings an action for damages against the state for failing to implement the Directive because there does not seem to be a causal link between the breach and the injury suffered by Martin. However, Martin would still be able to bring an action against Acme Chemicals under English tort law. 2) The matter at issue includes grounds for direct action for annulment. Action for Annulment The framework for direct action for annulment is set out in Article 230 of the TEC. This Article grants jurisdiction to the ECJ to review the legality of all measures taken by the institutions designed to have legal effect, whatever their form or nature[17]. Thus, a decision made by the Commission is capable of annulment under to Article 230. Furthermore, Article 230 states that a natural or legal person would only have locus standi to challenge a decision addressed to himself or herself. However, t he decision has to be challenged within two months of its publication or notification to the plaintiff. If the two month time-limit expires a claimant cannot seek to challenge a measure by the back door, either by invoking Article 241[18] or by alleging a failure to act when the institution concerned refuses to take requested action. Once the courts have decided that the claim is admissible, the case will be decided on he merits. The grounds for annulment are delineated in Article 230. These are: (i) lack of competence; (ii) infringement of an essential procedural requirement; (iii) infringement of the Treaty or any rule of law relating to its applications; and (iii) misuse of powers. A claim based on lack of competence may be brought before the ECJ if the institution responsible for adopting the measure in question did not have the legal authority to do so. A claim based on infringement of procedural requirement would arise if the binding measure was not enacted accordi ng to the correct procedure. The correct procedures may be stated in the TEC or secondary legislation. For example, Article 253 of the TEC requires that all secondary legislation must state the reasons on which it is based; and must refer to proposals and opinions which were required to be obtained. It has been established that these reasons must not be too vague or inconsistent; they must be coherent; they must mention the figures and essential facts on which they rely. These reasons must be adequate to indicate the conscientiousness of the decision; and detailed enough to be scrutinised by the court[19]. The purpose of this requirement is to enable the affected parties to defend their rights and to enable the Court to exercise its supervisory jurisdiction. An action for annulment could also arise if the measure is in breach of general principles of law approved by the ECJ (e.g. equality, proportionality), any principle common to the constitution of Member States[20], and princi ples of international treaties in the field of human rights on which Member States have collaborated[21]. Finally, a measure could be annulled for misuse of power, i.e., use of a power for purposes other those for which it was granted. But a measure will not be annulled for misuse of power if the improper use had no effect on its substance; or it the authorities acted from mixed motives, proper and improper, as long the proper purpose is dominant[22]. Considering the facts of the case, and assuming that the two month time-limit has not expired, it seems that Mediflair would be able to make a direct action for annulment because it was specifically mentioned in the decision. Thus, a claim for an action for annulment would be admissible to the Court. It seems that the Commission may not have exceeded its legal competence because the Commission has the legal authority to make decisions which affect the European market. Since working hours and employment law issues are important aspects of any economy the Decision to reduce doctorà ¢Ã¢â€š ¬Ã¢â€ž ¢s working hours would be within its legal competence. Additionally, the decision does not seem to be in breach of any rule of law because it seems to be consistent with general principles of law, and international human rights law. Finally, it does not seem to be a misuse of power because there does not seem to be any evidence of improper motives. However, the decision could be challenged on the grounds of procedural impropriety because the Commission did not provide a detailed and thorough reasoning for the decision to reduce the working hours for doctors in private companies from fifty hours to forty hours. Since the Commission did not submit any facts or figures in support of its decision, it would be considered vague; and thus make it impossible for Mediflair to defend its rights. Therefore, it is submitted that Mediflair would be able to challenge the decision and bring proceedings for annulment on the gr ounds of infringement of essential procedural requirements. In conclusion, it is submitted that Mediflair would most likely be able to bring an action for annulment of the decision to decrease the working hours of doctors in the private sector and would be very likely to succeed. Bibliography Conventions Treaty of the European Community Cases Brasserie du PÃÆ' ªcheur SA v Germany (Cases C-46 48/93) [1996] I-1029 Commission v Belgium (Case 156/77) Commission v Council (Re Europe Raod Transport Agreement) (Case 22/70) Courage Ltd v Crehan (C453/99) [2001] E.C.R. I-6297 (Westlaw) Foster and Others v. British Gas Plc (Cases 188-89). Francovich and Bonifaci v Italy (Cases C-6 9/90) [1991] ECR I-5357 Germany v Commission (Re Tariff Quotas on Wine) (Case 24/62) Internationale Handelsgesellschaft mbH (Case 11/70) J Nold KG v Commission (Case 4/73) Marshall v Southampton and South West Hampshire AHA (C271/91) [1993] ECR I-4367 (Westlaw). P ublico Ministero v Tullio Ratti (Case 148/78) ECR 1269 R v Her Majestyà ¢Ã¢â€š ¬Ã¢â€ž ¢s Treasury, ex parte British Telecommunications plc (Cases C-392/93) R v Minister of Agriculture, Fisheries and Food, ex parte Hendley Lomas (Ireland) Ltd (Case C-5/94) Van Duyn v Home Office (Case 41/74) [1974] ECR 1337 1 Footnotes [1] See Publico Ministero v Tullio Ratti (Case 148/78) ECR 1269 para 23. [2] Emanation of a State includes a body which is under the control of the Stateà ¢Ã¢â€š ¬Ã¢â€ž ¢: reports to a minister who may give it directions as to its management and activities, has general control over its finances and may require it to pay over to him any of the bodys revenue which appears to him to be surplus to its requirements. See Foster and Others v. British Gas Plc (Cases 188-89). [3] See Marshall v Southampton and South West Hampshire AHA (C271/91) [1993] ECR I-4367 (Westlaw). [4] See Courage Ltd v Crehan (C453/99) [2001] E.C.R. I-6297 (Westlaw). [5] See Van Duyn v Home Office (Case 41/74) [1974] ECR 1337, para 12. [6] See Publico Ministero v Tullio Ratti, supra note1, para 23. [7] See Van Duyn v Home Office, supra note 5. [8] See Publico Ministero v Tullio Ratti, supra note 1 at para 43. [9] See Foster v British Gas, supra note 2. [10] See Marshall v. Southampton an d South West Hampshire AHA supra note 3. [11] See Brasserie du PÃÆ' ªcheur SA v Germany (Cases C-46 48/93) [1996] I-1029 para 50 and 51, see also Francovich and Bonifaci v Italy (Cases C-6 9/90) [1991] ECR I-5357 para 40. [12] Ibid. at para 55. [13] Ibid. at para 56. [14] See for example, R v Her Majestyà ¢Ã¢â€š ¬Ã¢â€ž ¢s Treasury, ex parte British Telecommunications plc (Cases C-392/93). [15] Ibid. at para 40. [16] See R v Minister of Agriculture, Fisheries and Food, ex parte Hendley Lomas (Ireland) Ltd (Case C-5/94). [17] Commission v Council (Re Europe Raod Transport Agreement) (Case 22/70). [18] See Commission v Belgium (Case 156/77). [19] See Germany v Commission (Re Tariff Quotas on Wine) (Case 24/62). [20] See Internationale Handelsgesellschaft mbH (Case 11/70). [21] See J Nold KG v Commission (Case 4/73). [22] See Federation CharbonniÃÆ' ¨re de Belgique v High Authority (Case 8/55).

Aldebaran, the Fiery Orange-Red Eye of a Starry Bull

Behind every star in the sky is a fascinating origin tale. Just as the Sun does, they shine by burning fuel in their cores and giving off light. And, like the Sun, many have their planets. All were born in a cloud of gas and dust millions or billions of years ago. And, eventually, all stars grow old and evolve. Thats whats happening to Aldebaran, a star that is practically a neighbor to our own star, the Sun, at 65 light-years distance. Youve probably seen Aldebaran in the constellation Taurus (which is visible to us at night from about October through March each year). Its the reddish-orange star at the top of the V-shaped face of the Bull. Observers in ancient times saw it as many things. The name Aldebaran is from the Arabic word for follower, and it does seem to follow along as the Pleiades star cluster rises higher in the sky late in the year. For the Greeks and Romans it was the eye or the heart of the bull. In India, it represented an astronomical house, and portrayed it a deitys daughter. Others around the world have associated it with the season to come, or even as an aid to the Pleiades (who, in some cultures, were seven women in the sky).   Observing Aldebaran The star itself is fairly easy to spot, particularly beginning in the evening skies of October each year. It also presents a remarkable  experience for skygazers patient enough to wait for it: an occultation. Aldebaran lies close to the ecliptic, which is the imaginary line along which the planets and Moon appear to move as seen from Earth. Occasionally, the Moon will slide between Earth and Aldebaran, essentially occulting it. The event is visible from northern hemisphere locations in the early autumn. Observers with a keen interest in watching it happen  through a telescope can see a detailed  view of the lunar surface  as the star slips slowly behind the Moon and then reappear a short time later. Why Is it in a Vee of Stars? Aldebaran looks like its part of a cluster of stars called the Hyades. This is a V-shaped moving association of stars that lies much farther away from us than Aldebaran does, at a distance of about 153 light-years. Aldebaran happens to lie in the line of sight between Earth and the cluster, so it appears to be part of the cluster. The Hyades themselves are fairly young stars, about 600 million years old. Theyre moving together through the galaxy and in a billion years or so, the stars will have evolved and grown older and scattered apart from each other. Aldebaran will have moved from its position, too, so future observers will no longer see an angry red eye at the top of a vee-shaped swarm of stars. What is Aldebarans Status? Technically speaking Aldebaran is a star that has stopped fusing hydrogen in its core (all stars do this at some point in their lives)  and is now fusing it in a shell of plasma surrounding the core. The core itself is made of helium and collapsed in on itself, sending the temperature and pressure soaring. That heats up the outer layers, causing them to swell. Aldebaran has puffed out so much that its now nearly 45 times the size of the Sun, and is now a red giant. It varies slightly in its brightness, and is slowly blowing its mass out to space. Aldebarans Future In the very distant future, Aldebaran may experience something called a helium flash in its future. This will happen if the core (which is made of helium atoms) gets so densely packed that helium starts trying to fuse to make carbon. The temperature of the core has to be at least 100,000,000 degrees before this will happen, and when it gets that hot, almost all the helium will fuse at once, in a flash. After that, Aldebaran will start to cool and shrink, losing its red giant status. The outer layers of the atmosphere will puff away, forming a glowing cloud of gas that astronomers refer to as a planetary nebula. This wont happen any time soon, but when it does, Aldebaran will, for a short time, glow even more brightly than it does now. Then, it will dim down, and fade slowly away.

Bunker Gear Fabric Free Essays

Bunker gear or turnout gear is the protective clothing used by a firefighter in fighting fires and during rescue operations. This gear is called turnouts because when not being used, they are kept standing by to be put on swiftly by ‘turning out’ the pants over the boots. It is a requirement for firefighters to be able to put on all of the gear in no time, and in this set up, all they have to do is to step into the boots and pull the pants up. We will write a custom essay sample on Bunker Gear Fabric or any similar topic only for you Order Now This solidly insulated gear is worn to shield the firefighter’s body from the extreme heat of a fire. Approximately, structural turnouts will break down at 650 °C (1200 °F). A full turnout gear may weigh more or less 30kg aside from other extra tools to be carried. It is consisted of â€Å"a coat, pants and suspenders, leather or rubber waterproof boots, a hood, a strong helmet with eye protection, gloves, a belt, and SCBA (Self Contained Breathing Apparatus)† (www. sccfd. org). Turnout pants protects the lower part of the firefighter’s body. It is made of fire-resistant materials and they are easy to put on with Velcro and snaps. Turnout pants have side pockets for tools, gloves, and other necessary equipment. In order for the firefighters to be seen at nigh, these pants also have reflective stripes on the bottom. Turnout coat’s outside liner is made of exclusive fire resistant fabrics. The coat has various liners for extra protection. One of these liners acts as a moisture barrier, it prevents outside moisture to reach the firefighter. Another part of the liner protects firefighters from the exposure to thermal heat. Pockets are also available for extra equipment such as gloves, radio, wrenches and other tools. Around its neck is a Nomex hood. Except for the face, it covers practically the entire head of the firefighter. The turnout boots are made of rubber. Aside from steel to covering, these have a steel shank in sole to protect firefighters from sharp or pointed objects. In order to be put on quickly, these boots have handles at the top. Wearing of this protective gear is a requirement for all firefighters approaching a seat of the fire or entering a hazardous area as stated in the NFPA 1971 Code or the Protective Clothing for Structural Fire Fighting. Looking back in history, firefighters’ garment was consisted of a cotton or wool shirt, heavy wool trousers, and a heavy wool tunic, which was sometimes worn over with rubber slickers. Wool was used because of its ability to protect a firefighter from heat and cold, and also because of its resistance to mild flame and water. Their gloves were the traditional leather gloves for laborers. It was only after the World War II when the standards for firefighter protective gears were issued by a number of organizations like the National Fire Protection Association or the NFPA. According to the NFPA 1971 Standard on Protective Clothing for Structural Firefighting, turnout gears must be composed of three layers: the outer layer must be made from flame-resistant fabric â€Å"that would not be destroyed through charring, separating, or melting when exposed to 500 °F for a five-minute period;† the second layer must â€Å"prevent moisture from penetrating through to the wearer;† and the third layer must â€Å"provide thermal insulation from radiant, conducted, and convective heat† (http://www. pbs. org). Firefighters’ gloves should also be resistant to heat, flame, liquids, vapor, and sharp objects. The boots should also withstand flame, puncture, heat, electrical current, and abrasion. Further advancements in firefighters’ turnout materials came up during the 80s. The 500 °F temperature resistance limit of the outer shell was raised to around 1,200 °F. The other layer also allowed the firefighters to â€Å"release moisture from inside the gear,† and the material used was a fire-resistant fabric. Being self-extinguishing, this material will not continue to burn once it is out of contact with a fire. Bunker gears are made out of synthetic fibers such as Aramid and Polybenzimidazoles (PBI). These synthetic fibers are polymers. A polymer is a substance with high molecular weight made up of a large number of smaller molecules. These molecules, called monomers, react together in hundreds, or even millions of times. The properties of the polymers are determined by the molecular shape variations that resulted from the reactions. These could be in the form of long, straight chains or branched. It is through their average molecular weight that their sizes are expressed. Polymers with higher molecular weights have the higher strength. They also usually have high melting or boiling points. Filaments made of synthetic polymer fibers have excellent strength because these fibers can be prepared with regular structures that allow the chains to pack together tightly. Another advantage of synthetic polymers is that they are stronger and much lighter than steel, making them the choice for bunker gears and bullet proof vests. Aramids are synthetic polyamides, a class of polymer for textile fibers. It has a carbon-based backbone which contains aromatic rings. Fabrics made of aramids are strong and flame resistant even at extreme temperatures because of the stability of the fiber’s aromatic structures and their conjugated amide linkages. Polyamides are manufactured through step-growth polymerization. In this process, â€Å"monomers with two reactive ends join to form dimers (two â€Å"parts† joined together), then â€Å"trimers† (three â€Å"parts†), and so on. However, since each of the newly formed oligomers (short chains containing only a few parts) also has two reactive ends, they can join together; so a dimer and a trimer would form a pentamer (five repeating â€Å"parts†)† (www. fibersource. com). The aramid fibers, on the other hand, are produced through Wet Spinning process. The fiber-forming materials are dissolved in a solvent, which is usually hydrogen sulfate (H2SO4), and spun using a spinneret. Aside from firefighting gears, aramid fabrics are also useful for friction products such as brake pads, clutch pads or seals and gaskets, because synthetic materials made from this fabric does not ignite or melt. Aramid fibers are also flexible, lightweight, resistant to organic solvents and fuels, and good insulators of electricity. Aramids are more popularly known with the names Kevlar and Nomex. The blend of these two aramids is used in manufacturing turnout gears. How to cite Bunker Gear Fabric, Papers

Pierre

Pierre-Auguste Renoir Biography Pierre Auguste  Renoir   (1841–1919) French painter, born in Limoges. One of the most important of the Impressionists, as a boy he was employed as a painter on porcelain. At Gleyre’s studio in Paris (1861) he met and became friends with *Monet and Sisley. With them he worked in the open air concentrating on the problems of sunlight and its reflection, for example, on water or human flesh. It was with the latter that Renoir showed his special skill and the exuberant delight that his painting gave him and which he always wished to impart. There is no exotic frailty about his nudes: their flesh is rosy and their limbs are muscular. For Renoir, love of painting and a love of life were inseparable. A more sophisticated gaiety is seen in La Loge, Les Parapluies and Au Thà ©atre: la Premià ¨re Sortie. He experimented briefly with pointillism but in general he was a more scholarly painter and more concerned with composition, e.g. his large paintings of Bathers in the 1880s, than many of his contemporary Impressionists. He spent most of his life between Paris and the French countryside and, though his hands were crippled with arthritis, continued to paint in his garden near Cagnes to the time of his death. He achieved a total of 6000 paintings. He was happily married.