• Internal Code :
  • Subject Code :
  • University : Middlesex University
  • Subject Name : Law

Provisions of European Union Primary and Secondary Law

Issue

Whether the Polargaria Forever Act 2020 [PFA 2020], infringes Article 258 TFEU or not?

Rule

Article 258, 7 and 2 of the Treaty on the Functioning of the European Union (TFEU).

Application

Article 258 of the European Union treaty gives power to the commission that it can have discretionary powers to take action based on sufficient evidence. Under the treaty on European Union, the European commission is deemed as a guardian for the European Union treaties and it can apply European Union primary as well as secondary laws. However, it must be noted that article 258 of the treaty can only be applied partially by the commissions for the safeguards of the fundamental rights of the people. According to the European Union, the proceedings regarding the infringement are a basis of fundamental rights. Article 7 of the European Union suggests that there has to be political monitoring over the discretionary powers of the commission to protect the fundamental rights.

In situations, where the same condition is found, the infringement can be challenged under any domestic court following Article 167 of TFEU. There is a difference in every situation and it is very important to defend a member state that has been falsely sanctioned for a serious breach pertaining the utmost values attached with the European Union. It must be noted, that the basis of fundamental rights that are guarded under the European Union law can only be invoked by the combination of secondary as well as primary law by the states it must be noted that the same are not applicable independently. The protection of fundamental rights is a part of the proceedings for infringement and any part of the activity or action which leads to the failure of European Union laws for providing justice or employment.

In such a case, the same will be held under the in infringement proceedings under the European Union law. The test to ensure that whether there has been any breach of fundamental rights on the part of any state, can only be done by checking as to whether the values under which the European Union has been founded is still been upheld or not? Also to determine the infringement of fundamental rights, the court must balance the relationship between democracy and the rule of law. If any provision of the act imposed by any state seems to be in contravention to the rule of law or democracy will be held under the proceedings of entrenchment under the European Union law.

To test the value it is important to look into three cases, firsts it is important to check whether the imposed obligations under the treaties are based on rule of law, second the impost legislation on the state has the same values as the European Union laws, third whether the legislation of the state complies with the fundamental rights or not? Under the present facts and circumstances of the case, article 2 of the European Union will be applicable. The present matter is the case of systematic infringement as this will be applicable where the commission has performed any specific action which is connected to a larger pattern and creating an impact over the entire state. Under systematic infringement, the major element is the rule of law which has to be contravened and any such violations of the rule of law will be against the basic values of the treaty.

1. So far as the provision of 1 of the Polargaria Forever Act 2020 is concerned, where the prime minister had made a law where only Polargarian speaking lawyers for academicians will be allowed to teach in the universities are completely against the fundamental rights of individual and are completely against the values on which the European Union is established. The right to equality which is a common chloride has completely been overlooked by the prime minister of the country. The country cannot exclude the right of employment from an individual based on the language.

2. For the second provision, the Polargarian court cannot make such a provision that will undermine the values of the European court of justice. It is a clear case of systematic infringement because it is creating an impact over the entire state and this is simply inadmissible as per the values and rule of law. This is a complete case of liberal democracy under article 2 of the European Union.

3. For provision 3, there is a complete case of violation of fundamental rights. Under European law and the commonwealth law, every person has been provided with the right of freedom to express their opinions. Barring an individual based on speaking any negative statement about the government cannot bar that individual from entering into the territory.

The preventive component is an essential element concerning European Union’s Article 7 which provides recommendations to ensure that the values that are persisting in the European Union are being complied by every state. Under the present facts and circumstances of the case, the remedial mechanism will apply to the Polargarian country as it was subjected to a material breach of the values of the union upon which it has been found. All the provisions incorporated in the Act by the Polargarian country, give rise to various legal and political disputes and the rule of law must be formalized by the member states, which is not present in the case with the Polargarian country.

Conclusion

Hence, it can be established that the three proposals according to the provisions of the European Union secondary and primary law infringing the powers provided to the states under article 258. It can be concluded that the European Commission had given priority to the issues related to the fundamental rights as it impacts the mutual trust between the individuals of the state and the commission. The commission has already listed some basic principles upon which the recommendations were framed. The commission urged all the member states to follow the recommendations of the commission to avoid any infringement proceedings against the states.

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