European Laws

Introduction

The development and formation of European Union was from the three communities founded in the 1950s.The communities included the European Economic Community (EEC), European Coal and Steel Community (ECSC), and European Atomic Energy Community (Euratom).The entire communities block became European Union under the Maastricht Treaty of 1992.The Union has evolved from the six member states to twenty eight member states currently. The European Union has its personal courts such as the Court of justice, General Court and the Civil Service Tribunal. The major policy-making and legislative bodies included the Council of the European Union or the Council of Ministers, European Commission and the European Parliament. The objective of this essay is to elucidate various factors within the European laws.

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Meaning of “worker” under European Laws

A worker refers to that person who works full-time in a regular paid job, for the devotions of European Union law (Great Britain, 2007). Whether an EEA national or a union citizen, as well as a Danish national, a concrete assessment of each case is deemed being a worker under European Union law (Moens &Trone, 2010). Whether a person has had, effective as well as genuine employment is very crucial. Thus, employment that appears to be a marginal supplement is omitted from the range of application of the concept (O’Leary, 2017). Normally, it is a condition that the relevantwork was for at least 10 hours. According to the jurisprudence of the European Court of Justice, usually, it is anobligation that the candidate has been hired for 10-12 hours per week (Kennedy, Cahill, Power & Law Society of Ireland, 2011). (Kempf (C-139/85) and Megner and Scheffel (C-444/93). According to the case of Kempf, the occupationin question was 12 hours every week. In the case of Megner and Scheffel, the Court of Justice ruled that paid occupation where the working hours usually do not exceed 18, 12 or 10 hours every week do not omit the person is viewed as a worker under the European Union legislation.

The notion of “worker” has been developed for a period of time-based on cases resolved by ECJ.  The first case of Hoekstra. In the case, the ECJ advised that the definition of a “worker” is not necessarily dependent on any classification of workers as well as self-employed individuals. This meant that definition of worker is a matter of the matter for the European Community to agree on rather than definitions by the Member States.  In the Hoekstra case, the ECJ acknowledged that persons could retain worker status even if not employed, for instance, in thecase of illness, retirement.In another case of Lawrie – Blum.  The case gave the worker concept in that a test was formulated by ECJ to determine if someone qualifies to be a worker under Article 45 of the TFEU. The ECJ advised that in asituation when a court is challenged with the task of defining whether a specific person is a worker or not, the court in question must the following question in a positive manner; is the person indulged to work for another? Is the work done for payment or monetary reward? Lastly, is the individual subject to the direction as well as control of another? For instance is the work performed under instructions of another person? This case is predominantly imperative since it sets out clear rules to help courts in defining whether an individual is a worker for Article 45 of the TEFU 

In the judgment of Genc (C-14/09) the European Court of Justice established measures for the individual assessment as well as the purpose of the concrete of whether an employment for less than 10-12 hours per week insufficient and genuine. These criteria may be the entitlement to a collective agreement applies to the employment, paid leave, the duration of the employment, remuneration during illness. In the mentioned case, the employment was 5,5 hours per week. The European Court of Justice did not deliberate whether the occupation was just a marginal nature.It was left to state member to take the evaluation. Neither did it deliberately if the job of 5,5 hours weekly was adequate to be regarded a worker under European Union law.Fixing a lower limit for the period of the employment for assessment purposes is not possible.

A ruling was made by The European Court of Justice in Franca Ninni-Orasche (C-413/01) thatfor ten weeks, a fixed-term contract of employment was sufficient for the applicant to be considered a worker under EU law. The case concerned educational grants which led to the matter of rules to the local authorities about when a person is seen as an employee. The guidelines concern employment relationships for which a short-term contract has been resolved in advance. For such situations, the guidance fix a minimum period of ten weeks. However, it should be emphasized that a concrete assessment must be made in each case. An individual and concrete assessment must be made in each case accordingly, as well as the period of ten weeks fixed by the Court in theNinni-Orasche judgment is to be seen as an example of a condition in which ten weeks of work were deemed toavail.

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An EEA national or Union citizen who has a permanent work, but stops working after less than ten weeks, mightgratify the situations for being a worker under European Union law in some circumstances, while another person who has worked for more than ten weeks may not always satisfy the conditions since it is not a genuine work or for other reasons.

6.2.1.3 Confidence in public funds during periods of instinctive training as well as unemployment does not influence the right to remain under Community law. Nonetheless, while a person who has been in search of work for approximatelymore than six months might still be referred to as a ‘worker’ for Treaty purpose.The freedom of movement provision under 6.2.1.4  Article 39(4) of the EC Treaty,do not apply to certain public servants for instance judges test is whether the individual is in charge of practicing powers given by open law or for protecting the general interests of the state.

Question two

Potential reasons for the prohibitions set out in Article 30 TFEU

The concept mentioned above in the Treaty has no definition; therefore, the case-law has to provide one. The Court of Justice of the EUcogitates that any charge, no matter how it is called, ‘which, if imposed upon a product imported from a Member State to the avoidance of a similar domestic product has, by changing its value, a similar impact upon the free development of products as a customs duty’ might be viewed as a charge having identical impact, paying little respect to its tendency.

While Article 34 TFEU covers non-tariff trade obstacles, all charges, as well as customs duties having the same effect, are banned under Article 30 TFEU. Any pecuniary charge, whatever its designation, however small as well asmode of application, which is imposed unilaterally on goods becausethey cross a frontier and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect under Article 30 TFEU according to constant case-law. However, if a charge relates to a general system of internal dues applied systematically, and by the same criteria to domestic productsas well as imported or exported products, then it escapes classification as a charge having equivalent effects to a customs duty. 

The tax may be reclassified as a charge having equivalent effect or customs duty, given that in practice the ‘tax’ burdens only importers, if a charge is taxed without distinction on domestic as well as imported products, but the taxation carried out on domestic products is directly or indirectly totally compensated, for instance, if the revenue from it is intended to finance activities benefiting only the taxed domestic products, while imported products do not benefit from such return flow. The Court of Justice has paid certain attention to the question of so-called ‘hidden charges,’ for instance to national arrangements that are not evident but are effectively a charge having the same effect. For example, it was found that charges that were to be considered as having equal effect in one case where German legislation made shipments of waste to another Member State subject to a mandatory contribution to the solidarity fund for the return of waste, and in another case where Belgian legislation imposed taxes on imported diamonds in order to provide social insurance for Belgian miners.Any charge connected to the act of crossing a frontier irrespective of its aim, discriminatory, protectionist character or amount, will be seen as a charge having equivalent effect according to the general rule.

Article 110 TFEU increases the provisions on charges having an equivalent effect and the abolition of customs duties. Its objective is to eliminate all forms of protection which may result from the application of internal taxation that discriminates against products from the other Member Statesto ensure the free movement of goods between the Member States in normal conditions of competition.About Article 34 TFEU, Article 110 is considered as a lax specialist, which means that cases covered by Article 110 removes the application of Article 34 TFEU. The Court decided that a registration fee for imported second-hand vehicles, being of a fiscalnature, falls under Article 110 and that therefore Article 34 TFEU is not applicable, case in the Kawala judgment.  

Advice to Valmart Company to object the High taxes

Through European VAT Directives, the EU sets the broad VAT procedures as well as minimum VAT rate at 15%. Otherwise, the 28 member states are free to set their standard VAT rates.  The EU also authorizes a maximum of two reduced rates, of which the lowest must be 5% or above. The rules governing the European common system Values Added Tax on goods and services are containedin the EU VAT Directive.The European Commission in Brussels created it, and all 28 EU member states are obliged to incorporate it into their local VAT laws although there are certain optional elements, as well as opportunities to apply of derogations from the Directive.According to Article 28 TFEU,it institutes the Customs Union. The Customs Union is well-defined as “covering all trade in goods as well as which shall include the prohibition amid the Member States of customs duties on imports as well as exports and of all charges having a comparable effect, and the implementation of a conjoint customs tariff in their affairs with third countries.” Article 30 TFEU also indicates that “Customs duties based on imports and exports as well as charges having the same effect shall be prohibited to the Member States. The prohibition shall only apply to customs duties which are in fiscal nature.” As can be seen, the treaty places a total ban on customs duties in Article 30 TFEU.The law furtherindicates that not only customs duties are proscribed or prohibited but also levies having a comparable or equivalent impact. Both of these terms were not defined in the treaty but are well-defined in the case of Commission v Italy as “any monetary charge, however small as well as whatever its description and manner of application which is levied unilaterally on domestic or foreign goods because they cross a frontier.” (Basic legal instruments for the liberalization of trade: A comparative analysis of EC and WTO law, 2004). However, the European Commission also sets a maximum rate for each member state to impose customs duties rate. For instance, In France, a standard VAT rate of 20% should be charged on agricultural goods imported. It is therefore unfair and unlawful for the country to impose high taxes above 25%. 

Question 3

As per Danish, rule states that you can’t import, offer or fabricate items in which cadmium has been utilized as a surface treatment (cadmium plating); shading color; or plastics stabilizer. As cadmium may happen because of impurities, there is a contamination restraint. The control just applies to mineral fertilizers comprising of at least one plant supplements. Different fertilizers are represented by EU nations’ national enactment. In its Annex I, the control records fertilizer sorts as per their particular qualities (Craig & De, 2011). The fertilizer may then be sold and utilized all through the EU and this EC assignment ensures ranchers that the fertilizers contain base supplement content as well as are protected to utilize. For another sort assignment to be recordedin Annex I to the direction, the producer of a fertilizer comparing to that sortassignment must cabin a demand with a national capable expert. The request is sent to the European Commission, which counsels the other EU nations as well as chooses to acknowledge or dismiss the application given the exhortation of a board of trustees set up by the control (Petersmann, E.-U et.al, 2014). To accomplish the EC status, a fertilizer must give supplements adequately, not hurt human, creature or plant well-being or the earth and show it has been liable to the significant sampling, analysis, and test techniques. Producers must keep records that make it conceivable to follow a fertilizer while it is available and for a further two years from there on. Some basic data, for example, the producer’s contact points of interest and the fertilizer’s primary properties, must show up on the package. The control of risks of existing substances and European risk assessment on cadmium under Council Regulation (EEC) No 793/93 of 23 March 1993 on thecontrol and evolution of the risks of existing substances (5) was completed in 2007. A Communication on the results of the risk reduction strategies for cadmium and cadmium oxide and risk evaluation was published by the commission on 14 June 2008.From the above information, the percentage of the banned compound should be determined by Gregory if it is within the accepted levels with the European Laws. The percentage of the compound in the fertilizer will, however, favor him only if the protocol is within the accepted levels.

Part B.

Advice on French rule which requires that all fertilizers be packaged in biodegradable containers

Council Directive 94/62/EC European Parliament and was adoptedto reduce or prevent the effect of packaging and packaging waste on the environment. Plastic carrier bags do not contain specific measures on the consumption of such bags although it constitutes packaging within the meaning of that Directive (Kafkafi &Tarchitzky, 2011).The majority of the total number of plastic carrier bags consumed in the Union, which has a wall thickness below 50 microns, is less frequently reused than thicker plastic carrier bags. As a result, lightweight plastic carrier bags are more prone to littering due to their light weight as well as become waste more quickly.

Measures should be taken by Member states to significantly reduce the consumption of lightweight plastic carrier bags in line with the overall objectives of the Union’s waste policy and the waste hierarchy as provided for in Directive 2008/98/EC of the European Parliament and of the Council, in order to promote constant reductions of the average consumption level of lightweight plastic carrier bags. Such measures should take account of present consumption levels of plastic carrier bags in the individual Member States. Higher levels will require more ambitious efforts, and justify the reductions already achieved.  It is necessary that national authorities provide data on their consumption by Article 12 of Directive 94/62/EC, to monitor improvement in reducing the consumption of lightweight plastic carrier bags.

Following the above Articles, By 27 May 2017, and “the Commission shall adopt an implementing act laying down the specifications of labels or marks to ensure Union-wide recognition of biodegradable and compostable plastic carrier bags and to provide consumers with the correct information about the composting properties of such bags. That implementing act shall be adoptedbythe regulatory procedure referred to in Article 21(2). 18 months after the adoption of that implementing act, at the latest, Member States shall ensure that biodegradable and compostable plastic carrier bags are labeledby the specifications provided for in that implementing act.’”  Gregorio’s fertilizers being soldin large plastic tubs, therefore, does not meet the standard hence the French rule does not breach the provision in the European Union Laws.

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Part C

Advice on German that bans the sale of fertilizers to any establishment that also sells food and beverages for human consumption.

The current Fertilizers Regulation does not address possible contamination of soil, inland waters, sea waters, and ultimately food, by EC marked fertilizers. Some fertilizers may contain substances that are considered dangerous to human health and environment. “In particular, phosphate fertilizers can or may heavy metals, for instance,  cadmium. To avoid contamination of the food chain and limit environmental damage, the Commission proposes harmonized limits for heavy metals (cadmium, chromium, mercury, and nickel, lead, arsenic) in CE marked fertilizers” . However, the European Union Law does not restrict sale fertilizers to an establishment that also sells food and beverages for human consumption. The German rules that ban the sale to such entities breach European Union Laws.

Part D

Advice on Latvian rule that bares individual who is under sixteen of age from purchasing electric or powered garden shears.

The European Union Law permits any individual above eighteen years to access the electric gas or gas powered garden shears. It can be very dangerous if one is possession when a minor handles and operates them. This is due to risks and accidents associated with their handling. The Latvian rule that requires that one must be above sixteen years to be eligible to buy electric or gas powered garden shears is in line the European Laws.