Interpretation And Enforcement Mechanisms

Assessment 1

The Court of Justice of the European Union consists of two different courts and these are the general court and the court of justice. The general court concerns itself with annulment actions that are raised by individuals and even companies and other actions that are brought by EU countries. The court of justice concerns itself preliminary rulings requests from the national courts. The general court is involved with actions for annulment that are brought forward by companies and individuals and other actions that are brought by EU countries. This implies that this court mainly deals with deals with issues of agriculture, trade, state aid, trademarks and competition law.

The Court of Justice of the European Union interprets EU legislation and further ensures that it equally applies to the different EU countries. It also solves disputes between EU institutions and EU countries. In certain cases, organisations, companies and individuals are allowed to present cases to the European Court of Justice in the event they consider an EU institution to have in any way violated their rights.

The court is also involved in monitoring the implementation of the EU law (Infringement proceedings). In the case that an EU country fails to fulfil its obligations as stipulated in the EU law, it is possible to initiate an infringement procedure. Any European Commission or any other EU Country may initiate the procedure. In the event that a country has committed an offence, it is required to rectify the situation promptly, failure to which another action will be brought against it, which may bring about heavy fines. The court also ensures that the EU takes action (actions for failure to act). It is necessary for the commission, council, and the parliament to make certain decisions, failure to which the EU government and other institutions of the EU, companies and individuals can make a complaint to the court. The court is also involved in sanctioning of EU institutions (actions for damages). Persons and companies who feel that harm has been done on their interests as a result of the EU`s inaction or action or even its members of staff can decide, through the court to take action against them (European Union, 2018).

The Court of Justice of the European Union is also involved in the interpretation of EU legislation (preliminary rulings). It is important for national courts of the EU to ensure that EU laws are applied in a proper manner. There however exists the danger of different courts in different countries interpreting the EU laws differently. In case the national court is uncertain on the suitability or about its interpretation, it seeks advice from the Court of Justice of the European Union. It is also possible to use this mechanism to determine whether national practise or legislation is in line with the laws of the EU. Further the court is involved in the repeal of EU legislation (Actions for annulment). In case an act of the EU is deemed to be contrary to EU fundamental rights or treaties, the European Court of Justice is usually called upon to annul it. The request can either be made by an EU Council, EU country, in some cases the European parliament or even a European Commission. It is also possible for an individual to make a request to the court to annul an EU act that personally affects him/her.

In the case of Cháteau du Grand Bois SCI against Etablissement national des produíts de l`agriculture et de la mer on 7th August 2018, the following judgement was made.

The reference for a preliminary ruling concerned the interpretation of Commission Regulation (EC) No 555/208 of 27 July 2008 laying down detailed rules for the application of Council Regulation (EC) No 479/2008 on the common organisation of the market in wine with regard to aid schemes, trade with third countries, production capacity and wine sector (OJ 2008 L 170, P. 1).

That reference was made in the context of an existing dispute between the Cháteau du Grand Bois SCI and the Établissement national des produits de l`agriculture et de la mer (FranceAgriMer), in so far as the latter rejected the application of the Cháteau du Grand Bois subsidies for the restructuring and further conversion of its vineyards.

It was apparent from the order for reference that, on 29th July 2009, an application had been made by Cháteau du Grand Bois for aid for the restructuring and conversion of vineyards from the years 2008 to 2009. By a decision on 18th December 2009, the application was dismissed by FranceAgriMer on the ground that the inspections carried out by its inspector on 27th August 2009 and 15th September 2009 indicated that the grubbing up of vines was not carried out in certain areas in the vineyard of the appellant in accordance with the legislation in force. The action brought by Cháteau du Grand Bois against the decision was further upheld by the Tribunal de Nantes by a decision of 7th May 2013. A complain was raised by FranceAgriMer that the Nantes Upper Administrative court had overturned the ruling.

By its first question, the referring court asked whether in essence the articles 76, 78 and 81 of Regulation No 555/2008 was to be interpreted as permitting inspectors carrying out on the spot checks to enter the holding without prior authorisation from the farmer. The provisions referred to by the referring court in their first question were covered by Title V, Tittle V of Regulation No 479/2008 detailed rules.

Following the introduction of the Judicial Appointment Commission (JAC), changes have been made to England and Wale`s judicial appointment system. This is a non-departmental and independent body that was created under section 61(1) of the Constitutional Reform Act 2005 on April 2006 with the objective to select the candidates suitable for filling up different judicial offices in England and Wales. Previously, the responsibility of appointing judicial officers was solely in the hands of a government minister, the Lord Chancellor something that brought about a lot of criticism on the part of the judiciary that it failed to reflect the existing diversity in the population of England and wales in terms of gender, age and ethnicity and also had a tendency of coming from a social background that was narrow

Following the establishment of the Judicial Appointment Commission, this has however been changing as the commission was established to ensure that only the most appropriate persons were appointed to England and Wales judicial offices, even though different criticisms related to the matter still exist. The independent Judicial Appointments Commission is able to make a selection of candidates for different judicial offices on merit through competition that is open and fair from a wide range of suitable candidates. The Constitutional Reform Act of 2005 requires the selection of judges purely on merit and people whose character is good and having regard to the need to have encourage diversity in the available range of persons for selection for appointments.

The appointment system of judicial officers is always an important factor in the selection of a judiciary that is both accountable and independent. The creation of the JAC has been able to make the selection process even clearer and even more accountable and has also been able to review the process of appointment of judges and as such broadened the range the range of diversity amongst members of the judiciary. The Judicial Appointment Commission has been selecting the most competent persons and recommending them to the Lord Chancellor as stipulated by the Constitutional Reform Act 2005. The Lord Chancellor then makes a recommendation to the queen of the individuals for appointment to the Judiciary. The Lord Chancellor is however not involved in the process of recruitment and selection.

The reforms under the Constitutional Reform Act have been able to improve the transparency and openness of the judicial appointment system, because the system previously in place was largely criticised as lacking transparency. This has ensured that judges are of high qualities with extra-ordinary capabilities, in the proper numbers and who are appropriately qualified for the particular offices they have been selected for effectively and efficiently.

The range of people capable of qualifying for judicial appointments was extended by the Tribunals, Courts and Enforcement Act 2007 and also introduced the judicial-appointment eligibility condition. Wherever the judicial-appointment eligibility condition exists, judicial office eligibility is no longer based on possession of audience rights for periods that are specified. Candidates are today required to exhibit legal qualifications that are relevant for the requisite period and that while holding that qualification they have been able to gain legal experience. The TCE Act 2007 has also reduced the minimum length of time that a person must be suitably qualified before they are appointed to the judiciary. A good example is the qualification to be a High Court Judge or to be a Lord Justice of Appeal has been scaled down to seven years, while the requirement to qualify to become a district judge also been reduced from seven to five years. The TCE Act 2007 has also been able to identify five qualities and abilities that are core that are a requirement for any judicial office, even though they may be adopted for posts that are different. As such, today a judge of the High Court is expected to display high levels of legal knowledge whereas, lay tribunal members are expected to display high levels of expertise in their different fields professionally.

The five core abilities and qualities include intellectual capacity, personal qualities, abilities to deal and understand in a manner that would be deemed fair by everybody, authority and communication skills and finally efficiency. Under intellectual capacity, one is required to exhibit high levels of expertise in the chosen areas of profession and further abilities to absorb and analyse information even quicker. The persons should also have an appropriate knowledge of both the law and is underlying principles or better still have the abilities of acquiring the knowledge whenever necessary. The personal qualities required for persons for judicial appointments include independence of mind and integrity, sound judgement, objectivity, decisiveness and abilities and willingness to professionally learn and develop.

Under the abilities to understand and deal in a fair manner, the individuals should be in a position to treat different people sensitively and with respect no matter their background. They should also be willing to listen with courtesy and patience. Authority and Communication skills require the individual to be capable of explaining procedures and any reached decisions in a clear way and also succinctly to all those who are involved. The individuals should also be capable of inspiring confidence and respect and also maintaining authority whenever faced with challenges. The persons should also be capable of working with speed even when under pressure. They should also be in a position to effectively organise time and expeditiously produce judgements that are clearly reasoned. The individuals should also be capable of constructively working with others whenever called for.

The TCEA 2007, also introduced a long list of possible candidates for the position of judicial offices in England and Wales which has gone a long way in encouraging increased diversity in the judiciary.

References

• Cini, M., 2016. European Union politics. Oxford University Press. Collections Trust. (2018). Tribunals, Courts and Enforcement Act 2007. [Online] Available at: [Accessed 9 Aug. 2018]. COURTS AND TRIBUNALS JUDICIARY. (2018). Judicial appointments. [Online] Available
• Hodson, D. and Peterson, J. eds., 2017. Institutions of the European Union. Oxford University Press. Kapsis, I., 2016. The Court of Justice of the European Union. European Union Politics, pp.167-178.
• Larsson, O., Naurin, D., Derlén, M. and Lindholm, J., 2017. Speaking law to power: the strategic use of precedent of the court of justice of the European Union. Comparative Political Studies, 50(7), pp.879-907.
• Malleson, K., 2016. The new judiciary: The effects of expansion and activism. Routledge. Maute, J.L., 2007. English reforms to judicial selection: Comparative lessons for American States. Fordham Urb. LJ, 34, p.387.
• Nugent, N., 2017. The government and politics of the European Union. Palgrave. Tribunals, Courts and Enforcement Act 2007 Volcansek, M.L., 2007. Appointing Judges the European Way. Fordham Urb. LJ, 34, p.363.

Assessment 2

One of the most important essentials of a valid contract is free consent. In the event this consent is vitiated, generally the contract becomes voidable. It is possible to vitiate consent through duress. Duress comes about where a person is forced to perform an action due to a threat, violence or any other form of pressure against them. Common law uses duress as a weapon to protect different victims of improper pressure.

Initially, under common law, duress was just confined to threatened or actual violence to a person. For some centuries, for common law to provide a redress for duress, it required an unlawful or wrongful act, there was not much importance attached to the presence of fear in the victim. Often, a person’s common law duress would be assimilated to tort or crime; and as such these categories had the tendency of overlapping. This is the reason why duress under common law failed to develop much beyond the narrow scope of threatened violence. Victims of forms of pressure that were more subtle would be forced to seek redress that was equitable in the chancery which generally acted to protect individuals who were mentally and physically handicapped who as a result of undue influence had been impoverished. Equity was concerned with promises that had been extracted as a result of the immoral and unethical use of a superior bargaining position, such as was found in fiduciary or confidential relationships which inhibited the free exercise of the will of the victim. The inequity which existed in the equitable doctrine of pressure was that a compulsion had been made on the victim forcing them to do things they did not wish to do.

Historically, an exception to the common law rule existed that a voidable contract would be created by duress in the event it was induced by a threat of personal violence, that is, goods duress. It was in the eighteenth century that the single, early incursion into the economic duress area began and this was in simple cases of personal property detention or even wrongful seizure of personal property. However, in England, there existed no parallel developments. On the contrary, courts in England dedicated their time and energies towards the development of a distinction that was illogical between a promise to pay money in the future and payments of money at the time of the duress. In the former case, the victim would be ordered to pay money to their coercer while in the latter case, victims would be provided with a restitution of his money.

In the past, distress in common law was an ill-defined, crude and to some extent obscure notion that was little importance and which was only applied in the events of overt threats. In equal measure, while invoked by the courts even more often, pressure and undue influence have lacked sufficient definition to act as effective controls whenever coercion in the market place became an issue.

People get into contracts daily as a result of pressure, one way or the other. In the case of Barton v Armstrong, Lord Simon and Lord Wilberforce remarked that in life and even in the life of finance and commerce, many acts were done under pressure in such a way that it would be possible for one to conclude that the actor did not have another choice other than just acting. As such, concluding that each and every agreement that is entered into through pressure is liable to be avoided on duress grounds would imply that almost all agreements would be vulnerable to attack on this ground.

Today, the law is required to determine the pressure that is not acceptable and that amounts to duress and the acceptable pressure and as such cannot make up duress. This is usually done by laying down two requirements which have to be satisfied so that relief can be provided on the duress grounds. Pressure must exist that would amount to compulsion of the complainants will and the pressure must be one not regarded as legitimate by the law. In the case of Universe Tankships Inc. of Monrovia v ITF, Lord Scarman explained that there existed two elements in the wrong of duress (1) the illegitimacy of the exerted pressure, (2) and the pressure must amount to compulsion of the victims will.

The first element requires that the pressure that impairs the free judgement of the complainant to be illegitimate. This element is concerned with the defendant’s quality when exerting pressure. It is a must that the defendant to have behaved in a manner that made the pressure affecting the consent of the complainant so that it can be regarded as illegitimate. The second element is concerned with the coercive effect of pressure on the complainant. It makes an inquiry whether the consent of the complainant was truly given. The defective consent of the complainant is however not efficient to make up duress.

The parameters of the doctrine of duress were very narrow in that an agreement could be avoided for duress only in the cases that the duress took the form of a threat to the person. Subsequently it was also accepted that it is also possible for duress of goods to vitiate an agreements consent, and recent developments in respect of economic duress imply that the categories of duress should not be regarded as closed.

Here the potential contracts that have been identified include; Sandra v Ravensbourne Hotel, Sandra v Shard, Sandra v GMT society and Sandra v Flatron Catering. Determination of frustration in practice is never an easy task and remains a matter of the court to make a determination impliedly as one of the methods of discharging a contract. It is possible to discharge a contract by frustration. Contracts may be frustrated in the event there exists changes in circumstances, following the making of the contract, which was the fault of neither of the parties, which deprived the contract its purpose commercially or renders the contract impossible to perform. In the event a contract is found to have been frustrated, each of the parties to a contract is usually discharged from any future obligations under the contract and none of the parties is allowed to sue for breach.

On the contract between Sandra and GSM Law society, a summer ball event was the subject matter. Sandra had hired the Gold Event Rom from Ravensbourne Hotel on the Basis of the contract between her and the GSM Law society. On the 16th May, London was affected by a severe storm which caused the river Thames to burst its banks which led to flooding. This is `an act of God` and amounts to a supervening, unforeseen event beyond the control of both the parties or even a non-anticipated contingency at the time the contract was entered to which makes the contract impossible to perform for all the parties involved. The Law Reform (frustrated Contracts) Act 1943, decided the allocation for loss. In the case of Condor v Baron Knights, a 16 year old agreed by contract to play drums for the defendant band for 7 nights per week for five years. However, the claimant suffered a mental breakdown and the doctors advised him not to perform for more than 4 nights every week. The band went on and dismissed him, but he brought forth a claim for wrongful dismissal. The action of the claimant was however not successful because he was no longer able to perform his contractual obligation as a result of his medical condition and as such the contract was frustrated.

Possible weather predictability arguments by the UK weather forecasters is sometimes not fully reliable and is further limited to time. As such, it could be argued that summer begins in the month of May and as such it would not be possible to anticipate floods in May. Frustrating events come about as a result of the destruction of events, personal incapability also generally renders the contracts frustrated, in the event performing of the contract becomes illegal, the contract becomes frustrated. In the event that it is not possible to perform a contract in the manner specified, the contract becomes frustrated. Where a contract is deprived off its commercial purpose, a contract also becomes frustrated. It is however a must for a contract to be deprived off its whole commercial purpose so that it can amount to frustration. In Herne Bay Steam Boat v Hutton, the claimant`s steamship was hired out by the defendant. Taking paying passengers to view the Naval Review was the purpose of the contract. The Naval Review was part of the coronation celebrations of King Edward VII. A day cruise was also being offered to the passengers by the defendant. The Naval Review was however cancelled due to the king’s illness. The defendant was not able to use the steamship and as a result the claimant brought an action for the agreed contract price. The defendant made an argument that the cancellation of the Naval Review had frustrated the contract. In the final ruling, it was held that the contract was not frustrated. Because it was still able to perform the days cruise, it was held that the contract had not been deprived of its sole commercial purpose. The contract had other commercial purposes and not just Naval Review.

The cases between Sandra v GSM Law society, Sandra v Shard and Sandra v Ravensbourne may be said to have had their commercial purposes destroyed following the cancellation of the summer ball event. However, Sandra`s contract with Flatron Catering Limited can be viewed differently and this is despite the subject matter and its commercial purpose remaining destroyed because of exclusion clauses identified in the contract.

A contract cannot be deemed to have been frustrated if it is even more expensive or difficult to perform, in the case where the impossibility of performance is as a result of the fault of either of the parties, where a force majeure clause exists, and wherever it was possible to foresee the frustrating event. In Davis Contractors v Fareham UDC, Davis contractors had agreed to put up 78 units for Fareham council within a period of 8 months at an agreed price of £85,000. However, as a result of an inadequacy of materials and skilled labour, completion of the contract took 22 months to complete and was even more expensive to complete than it had been initially anticipated. After Davis contractors were paid the agreed price as per the contract, they brought forth an action arguing for more money based on the fact that the contract had become frustrated and as such they were entitled to even more payments based on a quantum meruit basis. The judge held that the contract had not been frustrated. The fact that a contract becomes not so profitable or even more difficult to perform is not sufficient to amount to frustration. It was still very much possible to perform the contract.

In the event that a contract is found to have been frustrated, both parties are usually released from their obligations under the contract and it is not possible for any of the parties to sue for breach. The Law Reform Act 1943, decides the allocation of loss. It provides, that all money payable under contract ceases to be payable and any money already paid may be recovered. In the event that this expenses have been incurred, they are usually deducted from the amounts paid or payable. This usually happens at the discretion of the court and is usually subject to what is equitable and just in the cases circumstances. There exists no provision that allows recovering of expenses which is more than the paid amount or payable amount. In the event that a valuable benefit has been conferred, it has to be paid for.

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References

• Jansen, N. and Zimmermann, R., 2011. Contract Formation and Mistake in European Contract Law: A Genetic Comparison of Transnational Model Rules. Oxford Journal of Legal Studies, 31(4), pp.625-662.
• Furmston, M. and Tolhurst, G.J., 2010. Contract formation: Law and practice. Oxford University Press, USA.