In January 2004, the Council and European Parliament Essays

In January 2004, the Council and European Parliament Essays In January 2004, the Council and European Parliament Essay In January 2004, the Council and European Parliament Essay In January 2004, the Council and European Parliament adopted, based on Article 13 EC, ( fabricated ) Directive 2004/1/EC on non-discrimination in theprovision of lodging ( the Housing Directive ) . The Housing Directive provides, in Article 1, that the intent of Directive 2004/1/EC is to put down a general model for protecting cardinal rights and battling favoritism on evidences of sex, racial or cultural beginning, faith or belief, disablement, age or sexual orientation, with a position to seting into consequence in the Member States the rule of equal intervention . The range of the Housing Directive extends to all individuals, in both public and private sectors, and concerns conditions for entree to lodging, and footings and conditions on which lodging contracts are based. The Housing Directive provides that Member States must guarantee that, in proviso of lodging within each Member State, the rule of non-discrimination and regard for the right to househol d life are secured. The Housing Directive must be implemented by 1 January 2006. In September 2004, in the ( fabricated ) instance of Lemona, the European Court of Justice held that the Housing Directive protects the right to household life of households with both heterosexual and homosexual parents. In May 2005, the UK adopts the Housing ( Fundamental Rights ) Act 2005. This Act provides that lodging contracts must be consistent with the rule of non-discrimination and must esteem human rights, as recognised in the Human Rights Act. However, ( fabricated ) law of the UK House of Lords has interpreted the right to household life in the context of lodging as widening merely to traditional households, with heterosexual parents. In June 2005, N and M, a sapphic twosome, with two kids, use to Northshire Housing Authority for exigency populace sector lodging, following an onslaught on M by her old spouse, O. The Northshire Housing Authority s internal regulations provide that exigency populace sector lodging must be provided within 24 hours for families at hazard , which includes those where the physical security of members of the household is threatened. However, the internal regulations define family as heterosexual twosomes, or individual parents, and their kids. The Northshire H ousing Authority hence refuses to supply exigency populace sector lodging for N and M. N and M seek judicial reappraisal of this determination. The national tribunal refers the instance to the European Court of Justice. [ 1 ] What inquiriesshouldthe national tribunal refer in N A ; M s instance? It should be noted at the beginning that the Housing ( Fundamental Rights ) Act 2005 does non specifically purport to implement EC Directive 2004/1/EC, and besides that in visible radiation of the fact that by June 2005, the day of the month when the determination was made by Northshire Housing Authority non to supply N and M with exigency populace sector lodging on the evidences that they are homosexual and as such non within the range of the term ‘family’ , the concluding day of the month for execution of Directive 2004/1/EC had non yet passed. The UK therefore can non be held in breach of their responsibility to implement, and the Housing Authority can non be held to be under any responsibility other than that created by national statute law ; viz. , the Housing Act 2005 and its relevant law. I would therefore argue, in reply to oppugn [ 1 ] of this paper, that the national tribunalshouldnon mention any inquiries to the tribunal in N and M’s instance. If nevertheless the national tribunal considers that the Housing Act 2005, whilst non doing mention to Directive 2004/1/EC, was intended to be implementing statute law, so the national Court may wish to use to the ECJ for a preliminary mention opinion, under the process as set out by Article 234 EC, sing ( a ) whether this national statute law gives sufficient attending to the aims of the EC Housing Directive, and ( B ) whether failure to make so is actionable even where the day of the month for execution has non yet passed? In February 2006, the UK issued auxiliary counsel on the Housing Act 2005. The auxiliary counsel provides that although the right to household life protects all types of households, and landlords must hence do certain that all households can be protected, the Housing Act does non necessitate single landlords to do certain all households are protected . S and T, aged 60 and58, with two immature kids, rent a house from U, a private landlord. The contract originally provides that S and T must go forth a security sedimentation of ?400. However, U alters his to ?1200, on the footing that older parents will non be able to command their immature kids . S and T seek to implement the original contract in a national tribunal. The national tribunal refers the instance to the European Court of Justice. 2. What inquiries should the national tribunal refer in S and T s instance? Whilst it is clear that the intended range of EC Directive 2004/1/EC included lodging contracts between private sector landlords and renters, in S and T’s instance, the national Court may wish to use to the ECJ for a preliminary mention opinion, under the process as set out by Article 234 EC, sing the inquiry of ( a ) whether the scope-restriction of the Housing Act 2005, viz. that single landlords are non obliged to do certain thatallhouseholds are protected from favoritism, is in dispute of the EC Housing Directive, and ; ( B ) whether in this instance, U’s determination to increase the security sedimentation required by S and T, on the exclusive footing that ‘older parents will be unable to command their immature children’ , should be considered age-discriminatory in the context of the proviso of lodging, as per the meaning/scope of the EC Housing Directive. 3. The European Court of Justice joins the two mentions. Imagine you are the Advocate General reding the Court on the united instance. What are the issues that you must cover in your Opinion? Which legal governments are relevant, and which can be distinguished? Opinion of the Advocate General in: N A ; M v Northside Housing Authority and S A ; T v U It seems to me that the pertinent issues for deliberation in these two joined instances are as follows: [ 1 ] Should the Housing ( Fundamental Rights ) Act 2005 be considered the implementing statute law in regard of the EC Housing Directive 2004/01/EC [ ‘the Directive’ ] ? [ 2 ] ( a ) If the reply to oppugn [ 1 ] above is no, i.e. the Housing ( Fundamental Rights ) Act 2005 should non be considered the implementing statute law in regard of the EC Housing Directive 2004/01/EC, so at what day of the month could a claim arise sing the alleged failure of this statute law to implement the aims of this Directive? ( B ) If the reply to oppugn [ 1 ] is yes i.e. the Housing ( Fundamental Rights ) Act 2005 should be considered the implementing statute law in regard of the EC Housing Directive 2004/01/EC, so at what day of the month could a claim arise sing the alleged failure of this statute law to implement the aims of this Directive? [ 3 ] In visible radiation of the replies in [ 2 ] above, in regard of N and M’s claim against Northside Housing Authority, was the State action giving rise to their claim brought before or after the day of the month as established in [ 2 ] , above? [ 4 ] ( a ) If the reply to [ 1 ] was yes, and the reply to [ 3 ] does in fact give N and M right to an actionable claim against the Northside Housing Authority, upon reading of the Housing Act ( Fundamental Rights ) Act 2005, is this national statute law in dispute of the aims of the EC Directive? ( B ) If the reply to [ 1 ] is no, but the reply to [ 3 ] does in fact give N and M right to an actionable claim against the Northside Housing Authority, so should the determination of that Authority be deemed to be in dispute of the aims of EC Housing Directive 2004/01/EC? [ 5 ] ( a ) If the reply to [ 4 ] ( a ) is yes, i.e. the implementing statute law of the Housing Act is in dispute of the aims of the EC Housing Directive, so does such failure torightimplement give S and T a right to trust on this failure to hold the contract between them and U set aside for illegality? ( B ) If the reply to [ 1 ] is no, so can S and T rely on the UK’s failure to implement to convey a successful action against U for his failure to follow with EC Directive 2004/01/EC? I.e. can S and T rely on the UK’s complete failure to implement the EC Housing Directive as against an single landlord who, to all purposes and intents, is simply following his statutory responsibilities under the Housing Act 2005? Both of these inquiries will affect a deliberation refering whether or non U’s determination to increase the security sedimentation required by S and T, on the exclusive footing that ‘older parents will be unable to command their immature children’ , should be considered age-discriminatory in the context of the proviso of lodging, as per the meaning/scope of the EC Housing Directive, and whether or non S and T would be able to trust upon the UK’s failure to implement correctly/ entire failure to implement, as against an single private sector landlord. Let us now address each of these concerns in bend, measuring which legal governments are relevant and which are distinguishable in regard of each issue for deliberation: [ 1 ] â€Å"Since November 2001 it has been a demand that all statute law laid before the UK Parliament that transposes any European directive must be accompanied by a Transposition Note ( TN ) , † ( Cabinet Office Guidance Notes on European Implementing Legislation, last updated 7/7/2006 ) . It would therefore seem rather clear to me that the Housing ( Fundamental Rights ) Act 2005 was non intended by the UK legislative to move as ‘implementing legislation’ of EC Housing Directive 2004/01/EC. [ 2 ] ( a ) The UK was under a responsibility to set up implementing statute law of EC Housing Directive 2004/01/EC by the 1stJanuary 2006, at the latest. Such a responsibility can non hence be deemed to be prior to this day of the month, and as such, no parties may take action against the UK for failure to implement this Directive in regard of differences originating prior to this day of the month. This is along established rule and one which was articulately expressed by the honerable Lord Nicholls of Birkenhead in the instance of Regina v. Secretary of State For Health and Others, Ex Parte Imperial Tobacco Limited and Others [ 7 December 2000 ] . In paragraph 1 of his pronouncement in this instance, Lord Nicholls stated: â€Å"During the prescribed execution period member provinces are non in breach by neglecting to permute an EC directive into national law.† ( B ) If nevertheless, the reply to oppugn [ 1 ] was yes, and the Housing ( Fundamental Rights ) Act 2005 should be considered the implementing statute law in regard of the EC Housing Directive 2004/01/EC, so the fact that this implementing statute law was given royal acquiescence prior to the concluding execution day of the month does non prevent any claims for wrong execution. As Lord Slynn of Hadley held in the instance of Regina v. Secretary of State For Health and Others, Ex Parte Imperial Tobacco Limited and Others [ 7 December 2000 ] : â€Å"†¦if a Directive is implemented in national jurisprudence before the prescribed concluding day of the month, any application for interim alleviation to suspend the operation of the Directive would be a affair for Community jurisprudence, and that the place should be the same on an application for interim alleviation to forestall the Directive being adopted.† It would hence be a affair for the ECJ to make up ones mind whether or non the operation of the Directive should be suspended until the concluding execution day of the month, as per the instance of Foto-Frost Hauptzollamt Lubeck Ost ( Case C-314/85 ) [ 1987 ] E.C.R. 4199 which held that it is merely the European Court of Justice which can declare an EC Directive shut-in. [ 3 ] The determination made by the Northside Housing Authority which has formed the capable affair of this claim by M and N, viz. the determination by this Authority to decline to supply N and M with exigency lodging because their sexual orientation precluded them from coming under the range of the term ‘family’ under the internal policy guidelines and relevant national Housing statute law, was made prior to the 1stJanuary 2006 ( the concluding execution day of the month for EC Housing Directive 2004/01/EC ) . In visible radiation of my findings in [ 2 ] ( a ) above, so it must be considered that no implementing statute law was established by June 2005, i.e. the day of the month of this Authority’s determination, and as such, I am compelled to make the decision that whether or non this determination was valid remainders entirely upon national jurisprudence considerations, i.e. whether this determination was in fact in accordence with the applicablenationalpolicy and statute law. [ 4 ] ( a ) and ( B ) In visible radiation of my findings in [ 1 ] [ 2 ] and [ 3 ] , the deliberation into whether or non the commissariats of the Housing Act and/or the determination by the Northside Housing Authority were/was in dispute to the aims of the EC Housing Directive is no longer required. The success of N and M’s instance against the Northside Housing Authority rests wholly upon considerations of national jurisprudence. [ 5 ] ( a ) In visible radiation of my findings in regard of issue [ 1 ] , this deliberation is irrelevant. ( B ) In visible radiation of the fact my reply to [ 1 ] was no, the UK can be deemed in entire breach of their responsibility to implement EC Housing Directive 2004/01/EC by 1stJanuary 2006. We must therefore ask whether or non S and T can trust on this entire failure to set up a successful claim against U, an single private sector landlord, for his failure to follow with the Directive that would, but for the UK’s failure to implement, have been incorporated into national jurisprudence by virtuousness of implementing statute law? This question can be divided into two distinguishable substantial inquiries: First, if the Directive had been right implemented by 1stJanuary 2006, would U’s determination to increase S and T’s required security sedimentation be deemed in dispute of the aims of the implementing statute law, and as such, improper? Second, does the unimplemented Directive confer direct consequence upon S and T, and if so, can S and T rely upon this as against U, a private sector person? Let us turn to each of these inquiries in bend: If the Directive had been right implemented by 1stJanuary 2006, would U’s determination to increase S and T’s required security sedimentation be deemed in dispute of the aims of the implementing statute law, and as such, improper? The aims of EC Housing Directive 2004/01/EC, and their range, are made rather clear: the intent of Directive 2004/1/EC is to put down a general model for protecting cardinal rights and battling favoritism on evidences of sex, racial or cultural beginning, faith or belief, disablement, age or sexual orientation, with a position to seting into consequence in the Member States the rule of equal intervention . We besides are told that â€Å"the range of the Housing Directive extends to all individuals, in both public and private sectors, and concerns conditions for entree to lodging, and footings and conditions on which lodging contracts are based.† The difference between S A ; T and U concerns an statement over the ‘terms and conditions of their lodging contract’ , and the determination by U to raise the security sedimentation must be considered to concern ‘access to housing’ ; after all, the security sedimentation is frequently the lone measure between being able to lease a belongings and non being able to. In this instance, S and T clearly can non afford the increased security sedimentation demand of ?1200, and as such are seeking to hold the sum reduced back to ?400 as per the initial, albeit verbal, understanding. Besides, an single landlord such as U must, under a actual reading of the diction [ ‘all persons†¦public and private’ ] of the Housing Directive, come under its range. I would therefore argue that had the Housing Directive 2004/01/EC been right implemented by 1stJanuary 2006, U’s determination to increase S and T’s required security sedimentation would hold been deemed in dispute of the aims of the implementing statute law, and as such, improper. In visible radiation of the failure of the UK to really implement this Directive into national jurisprudence, U might reason, in his defense mechanism, that he has non acted in a manner which contravenes relevant national jurisprudence ; viz. , Housing ( Fundamental Rights ) Act 2005, which states, in its auxiliary counsel publications, that although the right to household life protects all types of households, and landlords must hence do certain that all households can be protected, the Housing Act does non necessitatesingle landlordsto do certain all households are protected . This exclusion should non be if the UK had successfully implemented the statute law, for as argued above, the range of the Directive clearly extends to all individuals private and public, which implies persons as good! On the other manus, one can non fault U for his failure to follow with the Directive ; his direct responsibilities lie under national statute law, statute law with which he has to the full complied! In order to happen where the ECJ should stand on the inquiry of where this balance should be struck, allow us turn now to our concluding inquiry: Does the unimplemented Directive confer direct consequence upon S and T, and if so, can S and T rely upon this as against U, a private sector person? It has been established that in instances where a Member State has failed to implement a Directive into national jurisprudence by the concluding day of the month for execution, so that Directive may be capable of being vertically Directly Effective, i.e. that an person may trust upon the Directive against a State in the national tribunals. The trial for when such Direct Effect of unimplemented Directives will use was set out in Case 148/78 Pubblico Ministero V Ratti [ 1979 ] ECR 1629. This instance held that Direct Effect of Directives comes into being after the day of the month for execution has passed, after which point, every bit long as the duties imposed by the Directive are sufficiently focussed, so the freedom/discretion of Member States to implement will be deemed evaporated. This is known as the estoppel justification, and will merely use where the Van Gend [ Case 26/62 ; [ 1963 ] CMLR 105 ] demands for Direct Effect are besides satisfied. In our instance, the Directive was negative, clear and did non specifically permit any discretion in execution, discretion which would anyway be deemed dissolved by the UK’s failure to implement the Directive on clip. The fact is nevertheless that even if we can set up Direct Effect of the EC Housing Directive, it is a long-standing rule of EC Law that such Direct Effect shall non widen to cover horizontal differences as between persons [ Marshall v Southampton and South West Hampshire AHA ( 1986 ) ] . In this instance nevertheless, in visible radiation of the significant procedural defect in implementing the Housing Directive 2004/01/EC, I would propose that it might be possible to invalidate the contrary commissariats of the Housing ( Fundamental Rights ) Act, in visible radiation of the fact that this difference operates within the context of a contract. I would trust on the authorization of Case C-443/98 Unilever Italia SpA v. Central Food SpA, [ 2000 ] ECR I-7535 in order to warrant this proposition. The national tribunal in this instance should therefore construe the legal job in visible radiation of the Directive instead than the Housing Act 2005, and should keep that U’s actions against S and T are invalid ; S and T should be permitted to pay the ?400 as originally stipulated. I would trust on the authorization of Case C-159/00 Sapod Audic v. Eco-Emballages SA, June 6, 2002 to warrant this decision. This incidental consequence can besides be justified by mention to Article 10 EC which staes that â€Å"Member States shall take all appropriate steps, whether general or peculiar, to guarantee the fulfillment of the duties originating out of this Treaty or ensuing from action taken by the establishments of the Community†¦Ã¢â‚¬  In the instance of Von Colson [ Sabine von Colson and Elisabeth Kamann V Land Nordrhein-Westfalen Case 14/83 ] , this Article was interpreted as giving rise to incidental consequence of Directives, saying, at paragraph 28, â€Å"It is for the national tribunals to construe and use the statute law adopted for the execution of the Directive in conformance with the demands of Community Law, in so far as it is given discretion to make so under national law.† Bibliography of secondary beginnings used in the building of this reply: Tridimas, T. ( 1994 ) ‘Horizontal Effect of Directives: A Lost Opportunity? ’ Environmental Law Review, Vol. 19, pp. 621-636. Lenz, M. , Sif Tynes, D. , and Young, L. ( 2000 ) ‘Horizontal What? Back to Basics’ European Law Review, Vol. 25, pp. 509-522. Craig, P. P. ( 1997 ) ‘Directives: Direct Effect, Indirect Effect and the Construction of National Legislation’ European Law Review, December, pp. 519-538. Craig, P. A ; De Burca, G. EU jurisprudence: text, instances and stuffs 3rd erectile dysfunction. 2002 Paul Craig and G. de Burca: EU Law 2003