Joined: Thu Nov 04, 2004 5:53 pm Posts: 10381
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jimbo wrote:
But it was not for the judge to decide what is and what is not applicable under european law. He can state an opinion, as can I, but it is for the european Court, not an Irish judge,to make a ruling. How many times over the past 20 years have different appellants attempted to overturn a Local Authority condition of license that all (or some,) hackney carriages be wheelchair accessible, by an attempt to take them to the european Court? How many have got past the High Court with a judicial review? How many have successfully appealled to the House of Lords? How many have gone on to appeal to the european Court? How many have won an appeal against their L.A's decision to go WAV? Several charlatan "Experts in european Law" have promised they have the answer, but they do not, as many taxi drivers have found out to their cost. It takes years, if not decades, now, to get a case in front of european justices, and probably costs squillions, so do I worry? should I worry? Will I worry? Go figure.
The ECJ do not rule on specific cases, they only rule on the interpretation of EU law. Individuals cannot take a case directly to the ECJ, the ECJ consists of a lower court called the Court of first instance, it is from this court that you can only go to the ECJ by appealing the ruling of that court.
You are most definitely wrong in saying the British or Irish courts cannot interpret EU law. The whole point of EU treaties is that individual countries can legally interpret them. The law will first be applied locally based on European legislation, If either party disagrees with the interpretation of the law then they would have the right to apply to the "court of First Instance" provided the subject matter was one in which the Court of first instance catered for.
In the Dublin case EU law was not referred to because it was never presented as an argument, however Justice Murphy went out of his way to inform those present that the case before him more than likely, not only breached Irish Legislation it also breached EU law.
Not only did Murphy cite the articles of law, which were possibly being broken, but he also backed that up with ECJ case law on the subject.
Murphy based his reasoning on existing case law something which you say needs to be applied but there is already ample case law out there based on ECJ decisions, so as far as Murphy is concerned he would have ruled on that basis.
Just in case you have forgotten what Murphy said I've taken this opportunity to post it again.
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169. However, beyond these considerations, I feel bound to add a further point, which is of no little importance. I was not addressed by Counsel in the course of these proceedings on the issue of the extent to which European Community law affects the scheme put in place by the Minister. Nevertheless, I consider that European Community law is relevant to these proceedings and may also be fatal to the scheme whereby additional taxi licences will only issue to current holders of licences.
170. The argument is just this. Non-discrimination is a general principle of Community law and, as such, it is a principle which is binding upon this State as a Member State of the European Union. It is no less binding upon this Court than it is upon the Executive and the Legislature. It need hardly be observed here that this principle has informed the development of Community Law as a whole and has found expression in fields of that law as diverse as nationality and sex equality. Most recently, the Amsterdam Treaty has inserted a new Article 13 EC which provides a legislative basis for Community measures aimed at combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
171. Discrimination on grounds of nationality is expressly proscribed by Article 12 of the EC Treaty (formerly, Article 6 EC). It is trite law that this prohibition extends also to indirect discrimination on grounds of nationality. Such a case of indirect discrimination would arise where, as in the case before me, a national rule which appears on its face not to discriminate on grounds of nationality in practice affects nationals of other European Union Member States to a greater degree than nationals of Ireland. In this regard, it is not necessary for it to be established that the national measure in practice affects a higher proportion of foreigners, but merely that the measure is “intrinsically liable” to affect nationals of other Member States more than Irish nationals: see, in the context of Article 39 EC (formerly, Article 48 EC) Case C-237/94, O’Flynn v. Adjudication Officer [1996] ECR I-2617 .
172. Article 12 EC is directly effective and can be relied upon before this Court without the necessity of relying on any other Treaty article: Case C-92/92, Phil Collins v. Imtrat Handelsgesellschaft mbH [1993] ECR I-5145, [1993] 3 CMLR 773 .
173. I have come to the conclusion that the scheme purportedly put in place by SI 3/2000 may very well indirectly discriminate against Member States of the European Union other than Ireland in a manner which is prohibited by Article 12 of the EC Treaty. I venture that all and, if not, the great majority of current taxi licence holders are Irish nationals. By restricting the grant of new licences to this category of persons, the Minister is effectively precluding nationals of other EU Member States from becoming the owners of new taxi licences in Ireland. That those nationals could purchase the licences at the market rate is no defence. It is true that Irish persons who are not taxi licence holders are equally negatively affected, but the favouring of one group. all or most of the members of which are Irish nationals, remains.
174. I am guided, in reaching this conclusion, by such seminal European Court of Justice cases as Case C-279/93, Finanzamt Koln-Altstadt v. Roland Schumacker [1995] ECR I-225 and, in applying such principles in the Irish context, by such cases as Bloomer v. Law Society [1995] 3 IR 14 .
175. Even if my interpretation of Article 12 EC is misguided because of the equal exclusion of Irish nationals who are not taxi licence holders, Article 86 EC (formerly Article 90 EC) has to be considered, which provides, in relevant part that: “1. In the case of ... undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to 89 .” [Emphasis added]
176. Wyatt and Dashwood, European Community Law (Sweet and Maxwell, 3rd edn., 1993), 551, explain that the rationale behind the portion of Article 86 EC quoted above is “the fact that the State has deliberately intervened to relieve the undertaking concerned wholly or partially from the discipline of competition, and must bear the responsibility for the consequences.”
177. It is my view that the taxis must fall within the regulatory framework of Article 86 EC, as “undertakings to which [the State] grant[s] special or exclusive rights” .
178. The scheme might further be impugned under Article 86 on the ground that it might lead taxi drivers to abuse Article 82 EC, which is the Treaty provision dealing with abuses of dominant positions. This might seem a little extreme, but the jurisprudence of the European Court of Justice has established that the grant of exclusivity, such as in the present case, may infringe Articles 86 and 82 either when the exercise of the exclusive rights cannot avoid being abusive ( Case C-41/90, Hofner and Elser v. Macrotron GmbH [1991] ECR I-1979, [1993] 4 CMLR 306 ), or where such rights are liable to create a situation in which the undertaking is induced to commit an abuse ( Case C-260/89, Elliniki Radiophonia Tileorassi AE (ERT) v. Dimotiki Etairia Pliroforissis (DEP) and Sotirios Kouvelas [1991] ECR I-2925, [1994] 4 CMLR 540 ). Also instructive in this regard is Case C-179/90, Merci Convenzionali Porto di Genova SpA v. Siderurgica Gabrielli SpA [1991] ECR I-5889, [1994] 4 CMLR 422 , as to which, see Craig and de Búrca, EU Law , 2nd ed., Oxford, 1998. Taxis may very well be induced to commit abuses of their dominant position in Ireland by the scheme purportedly put in place by SI 3/2000.
Regards
JD
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