To be a part of the EU, the state must be eligible and in compliance with the requirements of the Copenhagen criteria established by the Copenhagen European Council in 1993 and strengthened by the Madrid European Council in 1995.
In is stated in the Copenhagen Criteria that a new member state must be in accordance with three measures: political: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; economic: existence of a functioning market economy and the capacity to cope with competitive pressure and market forces within the Union; acceptance of the Community acquis: ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union. (Commission, 2010)
The Status of Law in Innova
The third criteria as stated is the acceptance of the Community acquis. The European Union is a Union based on law. The “acquis communautaire” applies to all the states that are members of the European Union. The “acquis communautaire” or the acquis is regarded as the body of common rights and obligations that fundamentally covers all the members of the EU. The acquis is a law that takes precedence and overlays the national law of the state members.
Innova shall have competence in exercising certain treaties and directives that it finds essential in governing its jurisdiction as long as it is not in conflict with that observed by the European Union. In case of inconsistency, the primacy of EU law shall be utilized for the resolution. When the Treaties award on the union the exclusive competence or right do decide on a particular area of concern, only the Union may assume the legislation and adopt legally binding acts. The member states may exercise their competence only if the Union confers empowerment for its implementation (Title I, Article 2 (1))
An equal involvement between the Innova and EU applies in the following fundamental areas: (a) internal market; (b) social policy, for the aspects defined in the Treaty on the functioning of the EU; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; and (i) energy (j) area of freedom, security and justice;(k) common safety concerns in public health matters, for the aspects defined in the Treaty. The Union and Innova shall exercise legislation and assume legally binding acts. Provided that the Innova shall make use of such power to the extent in which the Union has ceased or has not exercised its competence (Union, 2008)
Whether women lecturers in Innova may rely on Directive123/08 to continue working after age sixty
One of the conditions of membership in the Union is that the state member that wishes to join the congregation of the EU accepts and transposes the acquis and thereafter, confirms its capacity in utilizing the laws that have been integrated into the national legal framework.
Directives are binding. However, they are different from Regulations because they only bind as to their objectives. The choice of form and the method of implementation are left to the national authorities of the member states. However, EU regulations and directives are generally applicable and should be observed by the national government that is under EU.
In the absence of a regulation or directive to be followed for a particular concern, therefore showing the absence of the member state’s fitness regarding the resolution of the matter in question, the member state shall absorb the directive or treaty that EU provides in that particular matter. Thus, women lecturers in Innova may rely on Directive 123/08 for the continuance of their professional services even beyond the age of 60 in accordance with the agreement that they may conclude with their employers. Innova is mandated to accept and transpose EU policies and legislation including its stand on equal opportunities for women in the work place.
What action may be taken by the Commission against Innova for failure to implement the Directive
Upon acceptance to the EU, each member state bears the responsibility to implement the laws of EU, under a specified deadline upon which the member state is given time to implement, conform and transpose for the correct application of the law in its own legal system. Similarly, the Commission of the European Communities is responsible for making sure that its members properly apply the EU law as provided under the Treaties (Article 258 of the Treaty on the Functioning of the European Union (TFEU); Article 141 of the Euratom Treaty )
When a member state is remiss and fails to abide by the EU law, the Commission has the authority to put an end to such infringement through an action for non-compliance. If the Commission finds it indispensable, it has the power to refer the case to the European Court of Justice.
If Innova fails to implement Directive 123/08, it may have to be a part of the pre-litigation administrative phase known as “infringement proceedings”. In this proceeding, Innova shall be given the opportunity to conform voluntarily to the requirements of the Treaty. In certain cases, the Commission may have to perform an investigation as the nature of the violation would require.
A letter of formal notice containing a request from the Commission for Innova to submit its observation and reason in connection with the infringement of the law passed by the EU. The reason for such is to determine the cause of action for the proceeding.
The complainant questions that the packaging of Venus chocolate has been misleading due to the 15% marking printed on its wrapper that appears to be more than 15% and that the marking gives the consumer the impression that the product had been increased by a quantity corresponding to the coloured part of the wrapping. Such assertion is unmeritorious.
When can marketing and advertising be considered as out of the bounds of what the law permits? The Consumer Protection Association in Viridia claims that our product has been misleading consumers with the aforementioned description of its wrapper. The question that may validly subordinate the first inquiry presented is this: When is a product advertising considered to be misleading?
In Article 2 (2) of COUNCIL DIRECTIVE of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising it has been defined that: A ‘misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor… (Communities, 1984)
The Directive speaks of a deceptive nature which could be considered as the paramount basis of the act of misleading as contemplated by the law. In the absence of such, the same may not be validly averred and thus, is utterly irrelevant to the question raised in connection to the Association’s ungrounded suspicion. The word deceive is defined as inducing another either by words or actions, to take that for true which is not. There is nothing dishonest in the claim of New Foods that Venus chocolate has 15% addition to its content. Venus chocolate has truthfully supplemented an additional 15% to the usual 100 grams bar. Thus, it is now out in the market weighing 115 grams which could be verified by sufficient evidence upon request of any concerned party.
New foods have guaranteed a 15% addition to the product and gave a 15% addition to the product. There is nothing misleading about such fact. The manner by which New Foods choose to package and present its product in order to expand its market is a method imparted to its advertisers in the form of instruction and training has with it the purpose of attaining the goal in the field where they choose their skills and knowledge to be relevantly applied. Opting to use colourful and attractive colours for candy wrappers or masculine presentations for perfumes for men is justified by the principles of advertising in order to accumulate its market. The choice for new foods to indicate the additional 15 percent content in their product is utilized in a way that consumers would be able to conveniently perceive the advantage of choosing the product. This method is a demonstration of one of the many ways to portray merchandise that a businessman ultimately wants to promote.
Naturally, there would be a need for companies which involve consumer products to effectively reach its consumer. In a grocery store where one would be standing before a wide range of chocolate brands, the consumer would be more likely to choose either the product that they trust or the one that catches their attention whether it is based on the appearance of the packaging itself or the products nutritional values and many other factors depending on the primary interest of the consumer. New Foods chose to show that their product has increased its content while maintaining its buying price. As one would have thought, it would be informing the buying public of this fact in order to increase its sales and go forward with the competition in the market. What other ways may the company choose but to make it form part of the chocolate wrapper in a manner by which consumers would be attracted to such extra attributes and grab the chance of the additional benefit. It is a natural occurrence in a world where products compete with each other using their own means and ways to keep their produce existing in the market. This further signifies and constitutes the nature of economic expansion in terms of fulfilling the wants and needs of the buying public.
In Case C-373/90 Judgment of the Court (Fifth Chamber) of 16 January 1992, the facts state with regard to advertising and describing motor vehicles already registered as new, less expensive and guaranteed by the manufacturer has been questioned by a claimant as misleading. The court held as it would be vitally in consonance with the case at hand that as particularly held on its third point that with regard to the claim about the manufacturer’s guarantee, it should be pointed out that such information cannot be regarded as misleading advertising if it is true ( Criminal proceedings against X. – Reference for a preliminary ruling: Tribunal de grande instance de Bergerac – France. – Motor vehicles – Misleading advertising., 1992)
In application to this case and as already been averred, the 15 percent content increase is not misleading due to the fact that such guarantee is true. With the consideration of the legal formalities of advertising more specifically with the Treaty, New Foods have the right to circulate its products with an advertisement and packaging that is in accordance with the ICC International Code of Advertising Practice. Given that the rules comprising the code such as aspects on honesty, social responsibility and truthful presentation have been complied with, there is no question about any factors that appear to deceiving the public to patronize the product.
The Treaty on the Functioning of The European Union provides in its Union Policies and Internal Actions under Title I of Article 46 that the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties. Thus it should be held that New Foods should be provided with the right to the free movement given that it is in accordance with the formalities prescribed by treaties and derivatives of the EU law and in harmony with the rules and regulations provided for by each of the state that constitutes it.
Since there is no question with regards to the aforementioned, and doubts on the part of the Association linking to the supposed misleading nature of the advertising and packaging has been validly contradicted, It may be concluded that New Foods particularly the product Venus Chocolate, is in acquiescence with the Treaty and the council directive concerning misleading advertising.
BibliographyCriminal proceedings against X. – Reference for a preliminary ruling: Tribunal de grande instance de Bergerac – France. – Motor vehicles – Misleading advertising., Case C-373/90 (Fifth Chamber January 16, 1992).
Commission, T. E. (2010, June 16). Accession Criteria. Retrieved July 16, 2010, from European Commission Enlargement: http://ec.europa.eu/enlargement/enlargement_process/accession_process/criteria/index_en.htm
Communities, T. C. (1984). Council Directive 84/450/EEC. Official Journal L 250 , 0017 – 0020.
Union, C. o. (2008). The Treaty on the Functioning of the Europian Union. Official Journal of the Europian Union , 3-6.