Categories for Court

Pharos Restaurant Essay

Pharos Restaurant Essay

At Pharos Restaurant, the appellants worked as waitresses. The facts are set out in the fall of 1982. Platy Enterprises Ltd. is the owner of Pharos Restaurant and also manages the same. The manager of the Pharos Restaurant was the President of Platy Enterprises Ltd.

During the course of her employment, J witnessed sexual advances and undesirable encounters by another employee. Her efforts of trying to stop the same were in vain. The offender was, in fact, a cook and had no direct authority over the waitress.

However, it was made to appear by the manager and the offending employee, that the latter could give instructions to the waitress J. Such conduct of alleged sexual harassment persisted for more than 30 days. Thereafter, J made a formal objection to such conduct by her co-employee. Post J’s making of such an objection, the aforesaid sexual advances and harassment stopped. However, this was replaced by excessively rude and uncooperative behavior. There was a case of excessive verbal abuse and reprimand without reason.

Thereafter, a complaint was made by J to the manager regarding the same. However, the manager didn’t take any steps to prevent it or mitigate it. Such conduct on part of the offending employee continued. Finally, after some time J was dismissed by the manager.

G, another employee in the same restaurant, soon thereafter also found herself at the receiving end of the same problems. She, too, complained to the manager after which although the sexual advances and harassment stopped, there was a continued spate of verbal abuses and non-cooperation at work along with unjustified reprimand. She was finally terminated by the manager.

Subsequently, the present appellants approached the Manitoba Human Rights Commission and filed a complaint against Pharos Restaurant and Platy Enterprises Ltd. along with its owners, agents and servants. It was found that the appellants had indeed been subject to sexual harassment at work place as per to s. 6(1) of the Human Rights Act. Therefore, exemplary damages and those for loss of wages were awarded. This decision was appealed before the Court of Queen’s Bench. The Bench upheld the adjudicator’s decision except as regards the amount of damages, and held that the harassment in the instant case was not based on discrimination based on sex, and therefore the employer could not be held liable.

The present appellants are challenging this order of the Court of Queen’s Bench before the Supreme Court of Canada.

ISSUES/QUESTIONS OF LAW

The following are the issues that are raised by the appellants in the instant appeal before the Supreme Court of Canada

 I. Whether the type of sexual harassment to which the appellants were subjected to is discrimination on the basis of sex?

II. Whether the employer can be held liable for the acts, specifically sexual harassment by its manager?

III. Whether the Court of Appeal erred in reducing the quantum of damages awarded to the appellants by the adjudicator?

IV. Whether the Court of Appeal was correct in ordering costs against the Manitoba Human Rights Commission in regard to the adjudicatory proceedings before it?

DECISION OF THE COURT

On the aforesaid issues, the Supreme Court of Canada ruled as follows

 I. The type of sexual harassment to which the appellants were subjected to is discrimination on the basis of sex, and this is not changed by the fact that only some women faced such harassment.

II. The employer should be held jointly and severally liable for the acts, specifically sexual harassment, of its manager.

III. The Court of Appeal erred in reducing the quantum of damages awarded to the appellants by the adjudicator as this case falls under the gamut of sexual harassment and in light of the nature of the complaints, the quantum should not have been reduced.

IV.      The Court of Appeal was wrong in ordering costs against the Manitoba Human Rights Commission in regard to the adjudicatory proceedings before it.

JUDICIAL REASONING

Sexual harassment is prohibited by law as it affects the efficiency of an employee at the work place.[1] Further, it is a direct attack against the dignity of an individual, and cannot be tolerated in the modern society. The instant act of harassment was indeed one based on sexual discrimination as only women were at potential risk of such harassment which included sexual advances by a heterosexual male.[2] Male colleagues were not at the risk of such harassment.

The employer should be held liable as when complaints were made to it by the appellants, he failed to take any steps whatsoever to improve the situation and correct the problem. This would go on to show that the employer was also conniving with the offender employee and therefore the employer’s liability would be joint and several.[4]

The Court of Appeal should not have reduced the quantum of compensation as this was a classic case of sexual harassment at the work place based on sexual discrimination.

RELEVANCE/IMPACT

This decision of the Supreme Court sends out a strong message to the civil society at large that sexual harassment at work place shall not be tolerated. Further, sexual harassment based on sexual discrimination is an even more serious offence, and invites a higher quantum of fine. Further, all employers should make sure that no sexual harassment is taking place at their respective workplaces, failing which, they would also have to share the liability of any such offence jointly and severally.

Corrections Trend Evaluation Essay

Corrections Trend Evaluation Essay

Corrections Trend Evaluation
There have been several assorted and strenuous general directions in the midst of the justice system. These general directions contain several topics and debates over the past years. As a nation individuals then study and perceive that the judicial tribunal method is increasing with time and expanding a diverse outlook to examine a better way to keep going ahead. In fact, a study will explain incorporating the past, present, and future of the development and operation of institutional and community – based corrections.

In addition, this document will speak of, and examine contemporary and impending concerns facing a place or state of confinement prison management today, and the functions, and concerns of alternate correction systems as an expanding trend. Past, Present, and Future

These three general directions belong to the improved function of organizations and areas based on corrections (Muraskim & Roberts, 2009). A consideration has built an unbroken extension and growth in places of confinement in the 20 – first century.

As the cycles continued individuals transformed, and the justice system continued to go forward in the direction of method familiarization. Society at large and correction will continue to be updated (Muraskim & Roberts, 2009). During the 1600s a transgression was revised to decrease transgressions through an improvement that contained help to violators, this contained fewer rough treatments to violators and less sympathetic arrangements (Muraskim &Roberts, 2009). In the 1700s dispositions became different, however, places of confinement continued to change and capital punishment continued. In fact, at the end of the 1800s there were occurring dilemmas with the rules. In addition, this was the discipline the inmates received, the population of the inmates, the upkeep of places of confinement, and the circumstances in which the inmates lived. Furthermore, by the 1970s the conventional trends of those periods of intervals became what is known today as the justice system (Muraskim & Roberts, 2009). Development and Operations of Institutional Corrections

In proceeding years the growth if establishments of institutional corrections left no visualization. The outlook of improvements and procedures of institutional corrections is one of several facts that the prisoners were
lodged in situations gloomy and dirty. Prisoners were treated rough, and worked very severe. Although today in places of confinement the population of prisoners is still high the prisoners are receiving his or her justice (Community Corrections, 1998). A right of the prisoners is health care. In today’s places of confinement the systems are not run the same. Governing actions and rules dealing with details of procedures are executed effectively not only by the department but also by the law officials. Prisons today are still over populated but no longer gloomy and dirty (Community Corrections, 1998). In fact, prisoners get three meals per day, showers, recreation, use of the prison library, and some technology. In addition, the significance of health care for prisoners is to guarantee prisoners let go from places of confinement are not in a situation in which he or she cannot mask civilization to deadly illnesses. The places of confinement systems decisive objection is to keep the inmates protected from infliction, and to equip the day – to- day requirements that the system of law enforcement permits.

In fact, the judicial tribunal needs to halt the inmates from receiving leisure’s, and concentrate on the concerns of why the violators are incarcerated (Community Corrections, 1998). Development and Operations of Community – Based Corrections Future improvements should be effective and used with changes to adapt to communities. Community – based programs began in the 1950s. In the 60s and 70s the programs came to be numerous goals for individuals responsible for making policies and the system of law enforcement tasks. In fact, community – based corrections are for individuals who are not brutal violators proposed by the judicial tribunal system. In addition, the community – bases corrections aid individuals through special areas of the criminal process (Community Corrections, 1998).

Options for community – based programs are compelled to the individual but he or she remains in places of confinement. In fact, individuals awaiting appearances are in the custody of another individual until he or she goes to his or her hearing or judgment. In addition, Global Positioning Systems (GPS) for example, ankle bracelets are used to inform law enforcement officials on the individual’s position. Furthermore, alternative measures are binding agreements the violator’s takes part in to reply his or her violation. Moreover, the felon may settle for advice, aiding in neighborhoods, giving professional duties to the individuals injured or donate funds, and if the violator brought infliction or damage to an individual he or she may be required to pay back money to the individuals (Community Corrections, 1998). Current and Future Issues

Some of the present topics comforting the judicial tribunal and the judicial tribunal managers are accumulations of false unperformed, postponements, and overcrowding. This generates greater dilemmas in the judicial tribunal method because it solemnly jeopardizes the character and bearings of the judicial tribunal. In fact, the judicial tribunal gets backed up on the case that in turn causes the judicial tribunal to play catch up. In addition, the judicial tribunal systems are not laid out to operate under pressure, and the judicial tribunals are not laid out to perform fast tasks on the cases the judicial tribunal have. Furthermore, when the judicial tribunal tried to play catch up on the numerous caseloads it has there is room for error for example; making mistakes (Court Issues, 2004). Another concern that might ascend is the judicial tribunal is behind on cases an agreement that permits a defendant to plead to a lesser charge is expanded. In fact, an agreement that permits defendants to plead to a lesser charge provides an opportunity for the judicial tribunal to accept a lesser charge for the individuals.

In addition, charge bargains are used when individuals accused with grave transgressions the wrongdoings receives an unusual title to create an agreement that permits a defendant to plead guilty to a lesser charge so the case can be resolved. Furthermore, both of these agreements put the protection of the community at risk (Court Issues, 2004). If the judicial tribunal system is pressured it can bring results for the members of the judicial tribunal system. These interferences can lead to law enforcement releasing the convicted individual, more pressure for law enforcement officials to obtain legal punishments for convicted violators, and more formal statements. In fact, there are several ways for the judicial tribunal to relieve the pressures of the judicial tribunal system for example, the use of applied science. The use of applied science aids law enforcement official to hurry the process for the judicial tribunal because the lower judicial tribunals have control over certain regions in the judicial tribunal systems for example, unauthorized substances, violence or physical harm to an individual, agreements or conflicts (Court Issues, 2004). In addition, there are areas that aid in the many fields in the judicial tribunal for example, injury to the body of an individual, medical providers negligence, and work agreements. Agreements between individuals are not as costly, and easier to use than the use of lawsuits (Court Issues, 2004). Furthermore, individuals in places of confinement are under pressure from the penalties he or she has received from the judicial tribunal.

Moreover, in places of confinement the prisoners are given the chance to reestablish his or her wrongdoing when he or she if released on parole (Muraskim &Roberts, 2009). With several prisoners in places of confinements troubles are likely to occur for example, the deaths of other individuals. This in turn directs additional injury or abuse to prisoners in the set of agencies established by the government. In fact, prisoners are stripped of his or her essential programs and these circumstances affects places of confinement management because he or she has the obligation to make sure that the requirements, manager’s safety, and the day – to – day procedures are taken care of. In addition, officials in places of confinement are obligated for the employees, and the rehabilitation curriculum in places of confinement (Community Corrections, 1998). Places of confinement are putting more tensions on a set of agencies and processes established by the government to control crime. These circumstances affect and expand the expenses of additional places of confinement, and additional inmates. Prisoners who have moderate punishments and prolonged intervals build additional problems in places of confinement. In fact, additional issues include how the general population views the beliefs those inmates receiving help is not enough, and the resolution for prisoners to prevent additional violations (Muraskim & Roberts, 2009). Roles and Issues of alternate Correctional Systems

There are tremendous dilemmas when bargaining with correctional systems. Individuals locked up in today’s places of confinement are not working as it should be. The government of politics economic system of corrections and the community at some point can devise the remedy. Crime will continue to go up and violators let go can reestablish hazards to community security (Inayatullah, 2002). In conclusion, the significance of the past, present, and future trends of community – based corrections are to comprehend and raise awareness in the United States. The individuals of a city or town need
to have freedom in his or her neighborhood and not felt threatened by inmates released early form places of confinement. In fact, the past, present, and future are sets of agencies established by the government. In addition, community – based corrections need to blend more procedures and discover substance plans of procedures. Furthermore, the set of agencies and processes established by the government to control crime began in the 1950s. Moreover, in the 1700s dispositions became different, and by the 1800s there were occurring dilemmas with the rules.

References
Communtiy Corrections. (1998). John Howard Society of Alberta, (), . Retrieved from http://johnhoward_ab-ca/pub/c29.ht Court Issues. (2004). , (), . Retrieved from http://facutly.ncwc.edu/mstevens.111/111ec09.htm Inayatullah, S. (2002, May). Working report for comment and scenario development Scanning for correctional futures a report for the department of justice Victoria office of the correctional services commisioner, (), . Retrieved from http://www.metafurture.org Muraskim, R., & Roberts, A.R. (2009). Visions of change; Crime and justice in the twenty – first century (5th ed.). Upper Saddle River, NJ: Pearson/Prentice Hall, (), .

European Court of Justice – Free Movement of Persons Essay

European Court of Justice – Free Movement of Persons Essay

From early on it became clear to close observers of the EU that the role and rule of law were going to be critical in anchoring EU policy regimes. If the legal system could ensure a high rate of compliance, a way of giving authoritative interpretation to disputed texts, and a means of redress for those for whom the law was created, then the EU process as a whole would gain solidity and a predictability that would help it to be sustained.

The ECJ was established in the first treaty texts; these have been virtually unchanged since then, except to cater for the increasing workload and successive enlargements of the EU membership.

The ECJ, sited in Luxembourg, is now composed of fifteen judges, as well as the nine advocates-general who deliver preliminary opinions on cases. The SEA in 1986 established a second Court of First Instance, composed now of fifteen judges, to help in handling the heavy flow of cases. The EU has thus something like a supreme court, able to provide an overarching framework of jurisprudence, as well as to deal with litigation, both in cases referred via the national courts and in those that are brought directly before it.

The Courts’ sanctions are mostly the force of their own rulings, backed up in some instances by the ability to impose fines on those (usually companies) found to have broken EU law. The T EU gave the ECJ power to fine member governments for non-application of European law. Also, as a result of its own rulings (especially one of the Factortame cases on fisheries — see Chapter 13), damages can be claimed against governments that fail to implement European law correctly. The Courts take their cases in public, but reach their judgments in private by, if necessary, majority votes; the results of their votes are not made public, and minority opinions are not issued.

A series of key cases has, since the early 1960s, established important principles of European law, such as: its supremacy over the law of the member states, its direct effect, a doctrine of proportionality, and another of non-discrimination. In doing so the ECJ has gone further in clarifying the rule and the role of law than had specifically been laid down in the treaties. In some policy domains court cases have been one of the key forces in developing EU policy regimes. Table 1. summarize the pattern and volume of cases before the Court.

Table 1
New cases at the European Court of Justice, 1972-1997 (no.) (five-year, periods, Since 1972; five-year 1992-1997; each year given)

Subject-matter Cases 1972 1977 1982 1987 1992 1993 1994 1995   1997
  until  
  1971  
Agriculture and 99 36 61 83 81 198 210 65 70 60 66  
fisheries    
Transport 3 2 4 5 14 10 11 5 3 11  
Taxation 27 1 2 9 35 20 21 25 36 33 61  
Free movement of 53 3 25 56 45 33 58 86 79 50 61  
goods and customs                        
Competition and 38 6 10 42 34 54 35 20 35 28 45  
state aids    
Freedom of 3 2 4 12 12 20 47 34 46 39  
establishment    
and to provide    
services    
Free movement for 37 11 19 17 35 49 59 44 54 70 51  
workers and social    
policy    
Environment 15 11 11 42 59 47  
Rest a 2 16 21 44 23 43 29 26 54 34  
Staff of EU 268 23 25 85 77 9 10 5 15 13 14  
institutions b    
Other(ECSC, EAEC, 25 27 11 9 4 13 4 15  
privileges and    
immunities)                        
All 895 82 162 348 395d 438 486c 347 409 420 444  
a Inc. common commercial policy and cases under agreements with third countries.  
b These are contract and ‘social security’ cases of EU ‘civil servants’, mostly dealt with by Court of First
Instance created in 1989, except for appeals to ECJ.
 

This strong legal dimension has a large influence on the policy process. Policymakers pay great attention to the legal meaning of the texts that they devise; policy advocates look for legal rules to achieve their objectives, because they know that these are favoured by the institutional system; policy reformers can sometimes use cases to alter the impact of EU policies; and in general there is a presumption that rules will be more or less obeyed. Hence policy-makers have to choose carefully between treaty articles in determining which legal base to use, and to consider car Efully which kind of legislation to make (Reich & Harbacevica, 2003).

Regulations are directly applicable within the member states once promulgated by the EU institutions. Directives have to be transposed into national law, which allows some flexibility to member governments, but within limits set by the ECJ. Decisions are more limited legal instruments applied to specific circumstances or specific addressees, as in competition policy. All three kinds of law may be made either by the Commission (under delegated powers), or by the Council, or jointly by the Council and EP (under co-decision). And all are subject to challenge through the national and European courts.

The vigour of the European legal system is one of the most distinctive features of the EU. It has helped to reinforce the powers and reach of the EU process, although in recent years the ECJ has become a bit more cautious in its judgments. We should note also that in some policy domains member governments have gone to considerable lengths to keep the ECJ out of the picture. Part of the reason for the three-pillar structure of the T EU was to keep both CFSP and JHA well away from the reach of the European legal system.

Even though the ToA goes some way towards incorporating parts of JHA and Schengen more fully within the system, it remains contested how far they will be brought within the jurisdiction of the ECJ. One issue which floats in the debate is how far the other European legal order, based on the European Convention of Human Rights attached to the Council of Europe, is to be linked to the EU, and whether the EU should adopt its own Charter on Fundamental Rights.

The wider institutional setting

The EU institutional system includes in addition a number of additional organizations that have an impact on, or provide instruments for, EU policies. Some are consultative. Some provide control mechanisms. Some provide autonomous operating arms.

Consultation and lobbying

The founding treaties established the Economic and Social Committee (and the Consultative Committee for the ECSC) as a point of access to the policy process for socioeconomic groups. Its creation borrowed from the corporatist traditions in some of the founder member countries. It has not, however, become an influential body in the policy process. Instead socio-economic groups have found their own more direct points of access since the 1960s, both through EU-Ievel federal associations and through sector-specific trade and producer organizations.

These became even more active in the period around the development of the single European market (Forder, 2002). Individual large firms have also taken pains to develop links with the EU institutions, again some since the 1960s, but many more and with more vigour since the early 1980s. A more recent development has been the increased activity of groups and lobbies representing societal interests, the consumers, the environmentalists, women’s groups, and increasingly a range of other advocacy groups and nongovernmental organizations (NGOs). Illustrations of the activities of these different kinds of groups can be found in many of our case-studies (Groenendijk & Guild, 2001).

The TEU introduced a second consultative body, the Committee of the Regions, in response to the extensive involvement of local and regional authorities in seeking to influence those EU policies that impacted on them. The Committee provides regional and local politicians from the member states with a multilateral forum, and an opportunity to enhance their local political credibility.

At least as important, however, is the direct lobbying by infranational (local and regional) authorities, many with their own offices in Brussels. These same infranational authorities also engage in efforts to influence national policy positions and the implementation of Community programmes. Chapters 9 and 13 comment on this in relation to the structural funds and the common fisheries policy.

Control and scrutiny

In the mid- 1970s concern started to be voiced that the EU policy process was subject to few external controls. The EP at the time had few powers, and national parliaments paid rather little attention to EU legislation and programmes. It was the growing scale and scope of the EU budget and spending programmes that led the arguments about the inadequacy of scrutiny.

This led to the creation of the European Court of Auditors by the 1975 Budget Treaty. Since 1978 it has, from its seat in Luxembourg, endeavoured to evaluate systematically both revenue-raising and spending. Both in its Annual Reports and in specific reports it has drawn attention to various weaknesses in the budgetary process, as handled by the Commission and national agencies.

Here we should note that about four-fifths of EU budgetary expenditure is disbursed by national agencies. Chapter 8 describes some of the Court of Auditors’ activities and impact. We note here that many of its criticisms fell for many years on deaf ears — member governments that were reluctant to face up to some of the issues, an EP that had other preoccupations, and a Commission which repeatedly undervalued the importance of sound financial management. In late 1998 this situation was reversed by the row over alleged financial mismanagement by the Commission.

Another new instrument of post hoc control is provided by the Ombudsman attached to the EP under the provisions of the TEU. The aim is to provide a channel for dealing with cases of maladminstration vis-à-vis individuals. Thus far the existence of this office has not had a large impact, although it may have contributed to making the policy process a little more open than hitherto.

Some control and scrutiny of policy depends on national institutions, both parliamentary and financial. National parliaments had no official recognition in the institutional system until the early 1990s. Each member state had developed its own, mostly rather limited, procedures for national parliamentary scrutiny of EU policy. The same discontent that had led to some strengthening of European procedures started to provoke a debate on national scrutiny.

Both the T EU and the ToA mention the importance of encouraging this, although there is little likelihood of standardized procedures emerging. Instead it seems likely that EU-level policy-makers, especially in the Commission, will pay more attention to national parliamentary discussions and appear more readily before national parliamentary committees of inquiry. This heightened sensitivity to country-level preoccupations is becoming a more marked feature of the EU policy process. It may well be emphasized by the establishment of national parliamentary offices in Brussels (by September 1999 from Denmark, Finland, France, and the UK).

From market citizenship to political and social citizenship

As mentioned previously, 184 it was at the 1972 Paris Summit that European economic integration was put into a broader perspective of social welfare. Since then, the neo-liberal philosophy that was at the basis of the European Economic Community (and still is, to a large extent, at the basis of the European Community, that is, the first pillar of the Union) was gradually turned into a more socially oriented philosophy.

From a perspective of citizen rights, this means that the rights that citizens enjoy by virtue of EC law are no longer only “market rights” but have been enlarged to include “political rights” as well, and slowly also “social rights” in the broad sense of the word, that is, rights (and duties) concerned with people’s welfare generally, including work, education, health, and quality of life. 185

This transformation started with the incorporation, by the Maastricht Treaty, of a new part II in the EC Treaty, entitled “Citizenship of the Union” and composed of Articles 17–22 (ex 8–8e) EC. According to Article 17 (1) EC, citizenship in the Union, “complement[ing] and not replac[ing] national citizenship, ” is established and accorded to every person “holding the nationality of a Member State.” The rights enjoyed by Union citizens are, according to Article 17 (2), “the rights conferred by [the EC] Treaty … subject to the duties imposed thereby.”

Those rights are in the first place the internal market freedoms (in the exercise of which discrimination on the basis of nationality is prohibited) and related consumer and worker rights specified elsewhere in the treaty. Then, in Articles 18 to 21 EC, a limited number of rights are enumerated, starting with the general right to move and reside freely within the territory of the Member States and followed by a number of specific political rights: the right to vote and stand as a candidate at municipal and European Parliament elections, the right to diplomatic protection in a third country, 186 the right to petition the European Parliament and to address complaints to the European Ombudsman. In Articles 39–46 of the (as yet non-binding) EU Charter of Fundamental Rights, this list of citizen rights was consolidated, and it was expanded with the rights to good administration and access to documents (Peers, 2004).

The enumeration of these lists of rights in the EC Treaty, as amended, and in the EU Charter may seem rather symbolic, many of the rights mentioned being already specified in other treaty provisions. However, the fact should not be overlooked that the rights enumerated in Articles 18 to 21 EC are granted to all citizens, that is, they are unconnected with the exercise of any economic activity. That obviously holds true for the political rights, but it is also becoming increasingly true, as we will see below, for the general right of citizens, established in Article 18 EC, to move and reside freely within the territory of the Member States.

Among the rights conferred by other treaty provisions are the rights that workers from other Member States, and by extension members of their family (so-called “dependents”), enjoy in the Member State where they work. These rights remain connected, however, to the status of “worker” in the sense of Article 39 (1) EC (relating to freedom of movement for workers), as interpreted by the ECJ in numerous judgments.

It means, in concrete terms, that nationals from one Member State who want to work in another Member State need a residence permit, for which they must produce proof of engagement from an employer. Similarly, family members, whether from a Member State or a third country, must produce proof of their relationship with the worker. it was expanded with the rights to good administration and access to documents.

The enumeration of these lists of rights in the EC Treaty, as amended, and in the EU Charter may seem rather symbolic, many of the rights mentioned being already specified in other treaty provisions. However, the fact should not be overlooked that the rights enumerated in Articles 18 to 21 EC are granted to all citizens, that is, they are unconnected with the exercise of any economic activity. That obviously holds true for the political rights, but it is also becoming increasingly true, as we will see below, for the general right of citizens, established in Article 18 EC, to move and reside freely within the territory of the Member States (Pettit, 1997).

Among the rights conferred by other treaty provisions are the rights that workers from other Member States, and by extension members of their family (so-called “dependents”), enjoy in the Member State where they work. 188 These rights remain connected, however, to the status of “worker” in the sense of Article 39 (1) EC (relating to freedom of movement for workers), as interpreted by the ECJ in numerous judgments.

It means, in concrete terms, that nationals from one Member State who want to work in another Member State need a residence permit, for which they must produce proof of engagement from an employer. Similarly, family members, whether from a Member State or a third country, must produce proof of their relationship with the worker. [1]

A financial burden on the host Member State, the student’s right of residence was directly based on Article 18 EC, with the effect that he was entitled in Belgium to financial assistance available to Belgians. In fact, not only EU citizens but also third-country nationals enjoy social rights under certain conditions, principally when they are family members of migrant workers, or migrant workers from countries with which the EU has special agreements. In this context, the Mary Carpenter case deserves to be mentioned: it concerned the right, under EU law, of the non-EU spouse of a U.K. national to remain with him in the United Kingdom, despite her having violated immigration rules.

The ECJ ruled in that case that, since the deportation of his spouse (who cared for children from his previous marriage) could adversely affect the husband in the exercise of his (EC) right to provide services in other Member States, the situation fell within the scope of EC law.

Furthermore, the Court held that although a Member State may limit the right to provide services on grounds of public policy or public security (as mentioned in Article 46 referring to Article 55 EC), the Member State concerned is bound to observe the human rights requirements embodied in EC law, including respect for the right of family life, as laid down in Article 8 ECHR. Citing the Boultif judgment of the Court of Human Rights, the ECJ held that the U.K. would be violating the right to respect for family life if it expelled Mrs. Carpenter without a more significant public policy reason than violation of immigration laws.

The ECJ’s case law deriving social rights for Union citizens from the free movement and residency right embodied in Article 18 EC raises the delicate issue of how far the ECJ can go in imposing financial burdens on Member State social security systems in the name of solidarity between Union citizens. The issue is underlying many recent judgments, but is most apparent in Baumbast. In that case, the ECJ ruled that Article 18 (1) EC is sufficiently clear and precise to be directly applicable (and directly effective), and this despite the fact, as pointed out previously, that the article submits the free movement and resident right “to the limitations and conditions contained” in the treaty and in secondary legislation.

The question at issue was whether the U.K. immigration authorities could reject Mr. Baumbast’s application for renewal of his residence permit on the grounds that he and his family were not insured for emergency treatment in the U.K., where the family lived (although they were covered by comprehensive medical insurance in Germany, of which Mr. Baumbast was a national).

Such a residence permit is needed under the three EC directives granting rights of residence to categories of persons other than workers. These directives provide that rights of residence are subject to two conditions: first, the applicant must possess sufficient resources, and, second, he or she must have comprehensive medical insurance for all risks. It was clear, as the court observed that Mr. Baumbast had sufficient resources, but it was equally clear that he had no health insurance for emergency treatment within the U.K (Dougan & Spaventa, 2003).

In its judgment, the ECJ ruled that the refusal of the British authorities was unfounded. It recognized that the requirements in the directives were permissible, being based on the idea that exercise of the Union citizen’s right of residency can be subordinated to the legitimate financial interests of the Member State, including the fact that foreign nationals should not become an “unreasonable burden” on the public finances of the host state.

Nevertheless, those limitations and conditions, laid down in secondary Community legislation, must be applied in compliance with general principles of Community law, and in particular with the principle of proportionality. The Court then found that to deny Mr. Baumbast residence solely on the grounds that he lacked medical insurance for emergency treatment within the United Kingdom would be a disproportionate interference with the exercise of his residency right under Article 18 (1) EC.

Conclusion

The difficulty with the ECJ’s case law in this case, but also in other “social rights” cases, is that the Court, and the EU, “cannot simply grant full rights of residency to all its citizens, because it cannot foot the consequent welfare bill, especially in respect of economically inactive individuals. The aspiration towards a supranational form of social citizenship, which many see embodied in Article 18, must therefore remain sensitive to domestic conceptions of belonging to (and being excluded from) the welfare society.”

Apart from this basic question, many other issues of a more specifically legal nature arise, such as which general principles other than proportionality will be permitted to qualify restrictions imposed by secondary Community legislation. The question is most acute with regard to economically inactive and financially dependent persons: What are the benefits of Union citizenship for them?

Should they not be able to derive residency rights from fundamental rights provisions, such as respect for private and family life and for human dignity? Should these rights not have an impact upon the ability of Member States to expel individuals who would otherwise be considered an unreasonable burden upon the public purse? A straight answer to that question would be to grant Union citizens who have been lawfully resident in another Member State, for example, at least five consecutive years “permanent resident” status regardless of their economic or financial status, as is proposed by the Commission in a draft general directive which, if adopted, would replace much of the existing secondary legislation.

References

Bright; Christopher. Business Law in the European Economic Area. Oxford University, 1994

Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, [2002] ECR I-7091.

Case C-60/00, Mary Carpenter v. Secretary of State for the Home Department, [2002] ECR I-6279.

Dougan, Michael and Spaventa, Eleanor; “Educating Rudy and the (Non-) English Patient: A Double-bill on Residency Rights under Article 18 EC, ” 28 ELRev., 2003, 699–712.

Forder, Caroline; “Editorial: Common Minimum European Standards in Immigration Matters, ” 9 MJ, 2002, 221–29.

Groenendijk, Kees and Guild, Elspeth; “Converging Criteria: Creating an Area of Security of Residence for Europe’s Third Country Nationals, ” 3 EJML, 2001, 37–59, at 52.

Goyder; D. G. EC Competition Law. Oxford University Press, 1998

Jarvis; Malcolm A. The Application of EC Law by National Courts: The Free Movement of Goods. Oxford University, 1998

Leibfried, Stephan; Pierson; Paul; European Social Policy: Between Fragmentation and Integration. Brookings Institution, 1995

Pettit, P. Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997).

Peers, Steve; “Implementing Equality? The Directive On Long-Term Third-Country Nationals, ” 29 ELRev., 2004, 437–60.

Proposal for a European Parliament and Council Directive on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States: COM (2001) 257 final.

Reich, Norbert and Harbacevica, Solvita; “Citizenship and Family on Trial: A Fairly Optimistic Overview of Recent Court Practice with Regard to Free Movement of Persons, ” 40 CMLRev., 2003, 615–38.

[1] The most important of these measures are: Council Directive 68/360, containing formal requirements for workers and their family members, and Council Regulation 1612/68, concerning the substantive rights and social advantages that workers and their family members enjoy. Further directives relating to rights of residence granted to categories of persons other than genuine workers are: Directive 90/366, replaced later by Directive 93/96, covering students exercising the right of vocational training; Directive 90/365, dealing with persons who have ceased to work; and catch-all Directive 90/364, governing all those persons who did not already enjoy a right of residence under Community law. These three residency directives have in common that the persons involved must have adequate resources not to become a financial burden on the social assistance schemes of the host Member State and must be covered by sickness insurance. For references, see Craig and de Búrca, n. 36 above, 756. The scope of these directives was reconsidered by the ECJ in its Grzelczyk and Baumbast judgments mentioned later in the text.

Supreme Court Essay

Supreme Court Essay

Marbury v. Madison:(1803) Judicial review In 1801, Justice William Marbury was to have received a commission from President Adams, but Secretary of State James Madison refused to issue the commission. Chief Justice Marshall stated that the Judiciary Act of 1789, which was the basis for Marbury’s claim, conflicted with Article III of the Constitution.

Marbury did not receive the commission. This case determined that the Supreme Court and not the states would have the ultimate word on whether an issue was in violation of the Constitution.

The Supreme Court judged that when the state of Georgia rescinded a land grant it was unconstitutional since it revoked the rights already granted in the contract. This was the first case to declare a state law in violation of the Constitution. . Dartmouth College v. Woodward: (1819) Contracts and State law The New Hampshire legislature amended the original charter of the college, which had been in place since 1769, to make the college more accessible to the public.

The problem was that the legislature acted without consultation with the college trustee.

The Supreme Court ruled that the original charter was inviolable as the charter was a contract. This decision led to a strengthening of property rights against state abridgement. McCulloch v. Maryland: (1819) Implied powers James Madison created a national bank, The state of Maryland believed this was an intrusion into states’ rights and attempted to tax the bank. James McCullough, who worked at the bank, refused to pay the state taxes because he believed the state had no right to tax a national bank. Marshall stated. That the bank was incompliance with the constitution and could not be subjected to state taxes.

This case established the rule that states could not tax an institution of the federal government. Gibbons v. Ogden: (1824) Interstate commerce Act issue was the right to carry passengers along a canal from New York to New Jersey. The state of New York had granted Aaron Ogden the exclusive right. The federal government issued a license to Thomas Gibbons for the same route. On appeal the case went to the Supreme Court after Ogden sued Gibbons and won. The Supreme Court decided that Gibbons was right and that states cannot stop Congress regulating’ interstate commerce.

This was a landmark case because it established federal authority over the states. This became the basis of the Civil Rights Act of 1964. Cherokee Nation v. The State of Georgia: (1831) State law and Indians The Cherokee Indians had been farming the land in the western part of the state and had established their own government. The Georgians passed laws and tried to have the Cherokee government declared null and void. The Cherokee nation brought the suit to the Supreme Court on the grounds that the Cherokee nation was a foreign entity and therefore the state of Georgia had no rights.

Marshall knew that if he ruled in favor of the Indians, President Jackson would not enforce the ruling. So Marshall ruled that the Cherokee nation did not constitute a foreign nation. Thus the Supreme Court had no jurisdiction over the Cherokee nation. Worcester v. Georgia: (1832) State law and Indians in Worcester v. Georgia John Marshall invalidated a Georgia law concerning entry into the Cherokee nation. In this case Worcester, a missionary, sued on the grounds that the state had no right to control any aspect of the Cherokee nation as this would fall within the powers of the federal government.

This was just one more instance of the Marshall Court increasing power for the federal government over state governments. The Marshall court attempted to protect the property rights of the Indians. Unfortunately, even Marshall was unable to keep the Indians from continually being forced off their land. . Scott v. Sanford: (1857) Citizenship and Slavery Dred Scott was the slave of an army doctor. The doctor had lived in free states and in free territories, but had returned to Missouri, a slave state, before his death. Scott sued the doctor’s wife for his freedom on the basis that in a free state he had been free.

The Supreme Court decided that Congress had no power to forbid slavery in the territories. They also said that as a slave, Scott was not a citizen and was not eligible to sue in a federal court. This decision annulled the Missouri Compromise and the Kansas-Nebraska Act. The case centered on 3 issues: a) Was Dred Scott a citizen? b) Could Congress prohibit slavery in the territories? c) If a slave was property, then shouldn’t Sanford be compensated? Scott and his family did win their freedom because Scott’s new owner was the widow’s brother and a known abolitionist.

This case was never about the freedom of Dred Scott but about the future expansion of slavery into the territories. Texas v. White:(1869) Legality of Confederate Government Policies After the Civil War the reconstruction government of the state of Texas brought suit to regain state-owned securities, which had been sold by the Confederate state legislators during the war. The defense claimed that since Texas had not been restored to the Union there were no grounds for a federal court case. Chief Justice Salmon P. Chase maintained that since secession was illegal, Texas had never left the Union.

Chase said the Confederate government of the state had been unlawful so all acts carried out by the government were null and void. Therefore the state was entitled to recover the securities. Plessy v. Ferguson: (1896) Separate but equal Homer Plessy was arrested in Louisiana for riding in a whites-only railroad car. Plessy, who was one-eighth African American, appealed on the basis of the equal protection clause of the Fourteenth Amendment. The court said that so long as the facilities’ were equal then it was legal to racially separate.

This became the impetus for segregation across the south. Swift and Company v. United States: (1905) Defining Interstate Commerce. Swift claimed to be participating in business that was intrastate and not interstate, which he added, meant the interstate commerce act did not apply to his business. The court agreed unanimously that this was not the case and Swift was trying to create a monopoly. Armed with the Sherman Antitrust Act, Oliver Wendell Holmes said the company had a “current of commerce” among states. Bunting v. Oregon: (1917) Government Enforcement of 10-Hour Workday. In 1913 Oregon established a 10-hour workday for all men and women in mills or manufacturing industries.

Any work beyond the ten hours was payable at a rate of time -and-a-half. Bunting, who owned a factory required his workers to work a 13 hour day and did not pay overtime. The Court was split on the issue and did not want to be seen as a regulator of wages. Eventually the court decided that overtime pay did not constitute wage regulation. Schenck v. United States: (1919) Freedom of Speech during Wartime. During World War I Charles Schenck had distributed pamphlets that said the draft was illegal. He was charged under the Espionage Act (1917).

Justice Oliver Wendell Holmes rejected the argument that the pamphlets were protected by the free speech clause of the Constitution. Holmes told the court that freedom of speech could be suppressed if there is a “clear and present danger”, and since this happened during a time of war, there was such a circumstance. Korematsu v. United States: (1944) Legality of Japanese Internment during WWII In1942, after the Japanese attack on Pearl Harbor, President Roosevelt issued Executive Order 9066, which required the forced relocation of over 100,000 Japanese-Americans to relocation camps.

The Supreme Court ruled the relocation was illegal. In1988 these people, of whom many were citizens, received compensation. tL-94l.. . Brown v. Board of Education of Topeka, Kansas: (1954) Equal protection Linda brown was denied admission to a local elementary school in Topeka, Kansas. The basis for her denial was that she was black. Chief Justice Earl Warren overruled the “separate but equal” doctrine of Plessy v. Ferguson. He stated that the public schools violated the fourteenth amendment condition of equal protection under the law.

The defendants claimed that the inferior conditions in segregated schools hindered their development. After the ruling was made, the court declared that segregation must end. Gideon v. Wainwright: (1963) Representation by Counsel Gideon was accused of a breaking into a poolroom in Florida but he had no financial means to secure a defense. He requested a defense counsel but was refused and was forced to defend himself.

The court returned ‘a guilty verdict. This led to the Supreme Court ruling that all people were entitled to legal counsel regardless of their ability to pay for legal counsel. Heart of Atlanta Motel v. United States: (1964) Interstate commerce In 1964 Congress tried to pass the Civil Rights Act based on its power to regulate interstate commerce. Congress believed it had the right to ban discrimination in public accommodation and in employment. A motel owner challenged the law on the basis, that he had a local business which should not be considered interstate commerce.

The Supreme Court ruled that since the business gained most of its income from interstate commerce; thus, the business was liable to the rules of Article 1, section 8 of the Interstate Commerce Act. Wesberry v. Sanders: (1964) one man tine vote This case dealt ith the apportionment of congressional districts in Georgia. The voters of Georgia’s fifth congressional district, easily the largest district, believed that their representation was not as equal as that of other districts with less people. They argued that because the state legislators had failed to, realign the districts their vote was debased. The Supreme Court ruled that as much as possible districts should be comparable in terms of population. Miranda v. Arizona: (1966) Rights in custody Ernesto Miranda a man who had not completed the ninth grade was arrested at his home in Arizona and identified as a suspect ina rape-kidnapping case.

When he was questioned about the crime Miranda maintained he was innocent, but after two hours of interrogation he signed a confession. At the trial the confession was admitted as evidence and the court found Miranda guilty. The police acknowledged that Miranda had not been made aware. of his rights during the process nor had he had access to legal counsel. While the Miranda confession was given with relatively little pressure it still violated the constitutional requirements that governed such procedures. Inthis case, the Warren court ruled that the accused must be made aware of his or her rights from the beginning.

Roe v. Wade: (1973) Right to Privacy During the sexual revolution of the 1960s and 1970s the number of abortions performed illegally was unbelievably high. Inits decision the Court struck down a Texas law that made it illegal to perform abortions unless the woman’s life was risk. “Jane Roe” an unmarried mother wanted to terminate her pregnancy but she did not meet the necessary requirements. The Court sided with Roe and said that a woman had a constitutional right to privacy that extended to cover a decision whether or not to terminate her pregnancy. Bakke v.

Board of Regents of California: . (1977) Affirmative Action In an attempt to get greater racial and ethnic diversity The University of California Medical School at Davis created a special category for minority students. This was the first constitutional test for affirmative action. Bakke, a white student, was rejected by the university and filed a lawsuit alleging discrimination under the Civil Rights Act of 1965. The Court said the university can use special criteria to determine which students gained acceptance so long as it did not use a quota system.

James Moore v Mack Trucks, Inc and Worldwide Equipment Inc Essay

James Moore v Mack Trucks, Inc and Worldwide Equipment Inc Essay

In the case of James Moore v. Mack Trucks, Inc. and Worldwide Equipment Inc. , the facts are that the Appellant appeals against the truck manufacturer and the distributor for recovery of business losses and losses associated with the truck’s eventual repossession. The Circuit Court, Floyd County had summarily dismissed the contention made by the Appellant. After ruling that the appeal has been preferred in a timely and proper manner, the court goes into the merits of the contentions of the Appellant.

The Appellant alleges that when he expressed concerns about the eighteen speed transmission of the vehicle, he was informed him the transmission had been completely redone by Mack. Appellant claims that he was informed him that the truck would suit appellant’s needs because the truck had a large rear differential and a larger motor, allowing it to get up and down hills.

This, the Appellant contends created an express warranty. However, the court dismissed the contention as the warranty and sales agreement of the defendant disclaimed all implied warranties.

In my opinion, the ruling is incorrect as even though the warranty agreements signed clearly disclaim any other implied warranties, a customer can ordinarily rely on statements made by the representatives of the defendants.

While the second statement made by the representative is merely an opinion, as rightly pointed by the court, the appellant should not have to suffer as a result of relying on the first statement. It is conceded that the appellant should have perused the documents diligently, yet to state that a vendor is exempted from liabilities arising out of a default of his promises so long as there is an exemption clause protecting him, would put the buyer in a very precarious position.

The ruling is somewhat contrary to Christian principles in that it legitimizes a certain amount of deception by the seller, allowing him to dupe and take pecuniary advantage. Ordinarily, the tenet of caveat venditor should be followed rather than caveat emptor. As per the Christian idea, we trust our fellow beings, and it would be of benefit and advantage to all. In the given case, the respondents are allowed to be exempt from their promises solely on the basis of a technicality in the contract.