European Union Law Essay Example | Topics and Well Written Essays - 2000 words - 2

European Union Law - Essay Example The French authorities wish to deport Derek and his family back to the Britain. Here it will be important to consider the rights of the European Union citizens though before doing that it is perhaps important to consider whether the actions complained of by the French authorities are legally objectionable, or otherwise. Does Derek or his family have the right to stay Is their right independent of each other's Are Derek and his wife to be considered as "workers" Naturally, it is the European Court of Justice (the ICJ) that has severally been called upon to apply its wisdom in cases where a party suspects that his rights have been violated, and those instances will no doubt be crucial in gauging the status of Derek and his family. It may be wise to recite the relevant the full provision here in order to be seized of its full implications. Thus Article 39EC of the Nice treaty provides;2 2.. 1. Freedom of movement for workers shall be secured within the Community. 2.. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a)to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. A worker has been defined in the case of Lawrie-Blum V. Land Baden Wurttemberg as a person who for a time performs services for, or under a direction of another person, and receives remuneration in return.3 The ICJ has had to deal with cases where the rights of a migrant were considered. In the instant case, Hartley thinks that Article 39 on the freedom of movement of migrants is restricted in this aspect. A migrant has the right to cross borders once the offer is made before he leaves his country of origin, and as such, such migrant has no right to go to a member country to look for work4. This is premised on the fact that the Article 39 (3) (a) talks of "accepting offers of employment actually made." Thus I my advice to Derek is that his legal position as a migrant is already tenuous as he went to France to look for work. So unfortunately for Derek and his family, French authorities already have some legal ammunition they can use to deport the head of the family. For, Derek, the re prieve could come from a declaration made by the member states and recorded in the minutes meeting way back in 1968 that such migrants who crossed borders into other community member states could be allowed to stay for three months and if they have not been

TORT Essay Example | Topics and Well Written Essays - 2250 words

TORT - Essay Example Nevertheless, in Home Office v Dorset Yacht Co ([1970] AC 1004 (HL) it was suggested that Lord Atkin’s rationale remained applicable unless the specific circumstances merited exclusion of the dictum. As a result, commentators argued that the pendulum had swung too far in favour of claimants, which was reinforced by the decision pertaining to proximity in terms of who the duty of care was owed to in Anns v Merton LBC ([1972 2 All ER 492). The decision in of Anns v Merton London Borough ([1978] A.C. 728) asserted that the proximity test relies on a consideration of the nature of the relationship between the parties and Lord Wilberforce asserted that: â€Å"in order to establish that a duty of care arises in a particular situation... the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity ... such that in the reasonable contemplation of t he former, carelessness on his part may be likely to cause damage to the latter- in which case a prima facie duty of care arises†. However, subsequent decisions have struggled with this and in practice the courts have sought to water down the ramifications of Lord Wilberforce’s dictum in Anns v Merton as highlighted by the decisions in Peabody Donation Fund v Sir Lindsay Parkinson ([1984] 3 All ER 529) and Yuen Kun-yeu v AG of Hong Kong ([1987] 2 All ER 705). Moreover, in Rowling v Takaro Properties ([1988] 1 All ER 163) Lord Keith highlighted the point that a literal application of the judicial rationale in Anns v Merton could risk courts not taking into account all relevant factual considerations when evaluating whether or not to impose a duty of care. This line of thinking was reinforced by Lord Templeman’s dictum in CBS Sons v Amstrad ([1988] 2 All ER 484) which suggested that the decision in Anns undermined the purpose of negligence liability and risked open ing the floodgates of claims. In highlighting the implications of Lord Wilberforce’s test in Anns, Lord Templeman commented that Anns: â€Å"put the floodgates on the jar, a fashionable plaintiff alleges negligence.† Whilst the post Anns decisions clearly tried to avoid the literal implications of the Wilberforce test, the duty of care test was clarified by the decision in the case of Caparo Industries v Dickman ([1990] 1 All ER 568). In Caparo v Dickman ([1990]1 ALL ER 568), the House of Lords confirmed the following three stage test to determine whether a duty of care exists: 1) Whether the consequence of the defendant’s actions were reasonably foreseeable; 2) Whether there was sufficient proximity to impose a duty of care; and 3) Whether it is fair, just and reasonable to impose a duty of care. Moreover, Lord Bridge focused on the interrelationship between foreseeability and proximity elements for the existence of duty of care. To this end, Lord Bridge commen ted that â€Å"necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law