The Concept of Direct Effect - Essay Example

?The Doctrine of Direct Effect By Word Count: 2032 Introduction The main issue for Rick and Malcom is whether or not the unimplemented Directive 2012/65/EU has direct effect in the UK. A Directive is an EU instrument and substantively, it is binding on the member state to which it is addressed, although the member state has some flexibility relative to the formal implementation.1 In this regard, the doctrine of direct effect refers to horizontal and vertical direct effect of EU law. This is different from the concept of indirect effect which refers to the reliance on EU sources of law in the interpretation of national laws.2 Direct effect is also different from direct applicability as the latter refers to sources of international law that are directly applicable without the necessity of implementation into national law.3 Horizontal direct effect, or the “incidental effect” occurs when EU law has direct effect between private parties within the EU.4 The direct effect of EU primary law such as non-discrimination within the original treaty will have direct effect between private parties.5 Direct effect is referred to as the principle of effete utile and is designed to integrate EU law.6 Vertical direct effect occurs when EU law has direct effect between private parties and a member state of the EU.7 The direct effect of Directives is a necessary part of the EU legal regime as EU law is administered through the Commission, the European Court of Justice (ECJ) and national Courts. For the most part, “indirect administration” of European law is the primary mode of enforcement via national courts and “national authorities”.8 The Applicable Law Direct Effect The doctrine of direct effect was established by the ECJ in Van Gend en Loos v Nederlandse Administratie der Belastingen, in which it was held that the Treaty Establishing the European Community created legal rights that individuals could enforce through national courts within the European Community.9 Directives would have direct effect if they were clear and precise, unconditional and conferred a right upon the individual seeking to enforce it.10 The doctrine has since been developed by the ECJ as a means of enforcing EU law consistently through the EU.11 For example in Van Duyn, the ECJ held that once the Van Gend requirements are met and even if a Directive was conditional, it could still have direct effect against member states, regardless of whether or not the Directive was implemented.12 The main objective was to ensure that the intended outcome of the Directive was accomplished. In Van Duyn, the Directive’s outcome was the elimination of discrimination and in cases of this nature, the intended outcome would be important. This was because, the intended outcome would be compromised if individuals could not enforce it in the national courts.13 With regard to the fictional Directive, although not implemented by the UK, has direct vertical effect against the government based on the rulings in Van Gend and Van Duyn. The UK may only escape liability for the unimplemented Directive if the Directive itself is unclear and conditional. However, the Directive appears to be quite clear on its intention, the member state’s obligations and it is not conditional on the occurrence of an event. The only condition, is that the obligations arise when temperatures fall below 1 degree Celsius. Assuming that the temperatures were below 1 degrees Celsius at the time of the accidents in December 2012, the UK’s obligations to ensure road safety on primary roads and motorways arise. The accidents occurred on the A5 and the M6 and as such fall within the Directive obligations as primary roads and motorways. The Directive clearly sought to prevent the kinds of accidents that occurred. The Directive instructed member states to ensure that primary motorways and roads are kept clear of snow and ice once temperatures drop below 1 degree Celsius. Both accidents occurred on major motorways when temperatures presumably dropped below 1 degrees Celsius. Moreover, the accidents occurred on major motorways where ice and snow were present, indicating that there was a lack of compliance with the Directive and that the UK’s policies and memos were not effective for satisfying the Directive. Thus, there is no doubt that the government failed to implement the directive or at the least, improperly implemented the Directive. The ECJ has also ruled that an unimplemented Directive will not have direct vertical effect unless the time fixed for implementation has expired.14 The ECJ reasoned that if a Directive has a fixed date that has not yet expired, it is not possible to argue that the Member State has not met its obligations under the Directive if the grace period for implementation has not yet expired. However, if the Directive is improperly implemented prior to the expiration of the date fixed for implementation, the Directive will have direct effect.15 The Directive in question was introduced in June 2012 and while the date fixed for its implementation is not provided in the facts of the case for discussion, it can be assumed that the fixed date was prior to the winter of 2012, when temperatures are expected to fall below 1 degrees Celsius. Therefore, assuming that the date fixed for implementation has expired, Malcolm and Ricky may seek remedies for the government’s failure to implement the Directive. The doctrine of horizontal direct effect is also applicable to the facts of the case for consideration. Of particular relevance is triangular situations such as the one contemplated by the ECJ in R (Delena Wells) v The Secretary of State for Transport, Local Government and the Regions. In this case the ECJ ruled that “the principle of legal certainty prevents directives from creating obligations for individuals”. 16 For individuals, Directives may only create rights as opposed to obligations. As a result, individuals may not make claims against the government for obligations that are under the control of a private party.17 The idea that individuals and private businesses can be liable for the government’s failure to implement Directives or to improperly implement directives is particularly controversial.18 The ECJ has however, gradually expanded the parameters for allowing private citizens to assume some measure of responsibility for damages in respect of the government’s failure to implement a Directive or for improperly implementing a Directive.19 The doctrine of effet utile will arise to incur state liability to avoid inconsistent enforcement of EU law and individual rights.20 Regardless, liability for an improperly implemented Directive is no different from liability for failure to implement a Directive, if the improperly implemented Directive causes an individual to suffer damages.21 Ricky’s case is a bit more complicated than Malcom’s as Ricky’s involves a triangular situation. Clearly, the M6 Toll road has assumed some government responsibility in the provision of a public service and as such is an emanation of the state. According to the facts, the M6 Toll Road is owned and operated by a private entity government concession to operate the road. Having determined that the private party is in fact an emanation of the state, Ricky is at liberty to pursue his claim against the UK government. Indirect Effect The ECJ has held that national courts are reminded of the duty to interpret national laws in a way that gives effect to EU law.22 In fact, the UK has assumed this duty by implementing this requirement in the European Communities Act 1972. Pursuant to the European Communities Act 1972, all EU treaties, remedies and procedures will have direct effect in the UK without the necessity of “further enactment” on the part of Parliament.23 Moreover, the UK courts are under an obligation to give effect to EU law in the event the national law conflicts with EU law.24 Since the UK is a dualist state in that national legislation is necessary for adopting a treaty, the European Communities Act 1972 is an important statute with respect to Ricky’s claim. If the UK was a monolist state, the European Communities Act 1972 would not have been necessary. Monolist states do not have to implement laws to give effect to treaties.25With the enactment of the European Communities Act 1972, Ricky has a right to expect that the Directive will apply in the conduct of his case, regardless of whether or not he takes the case against the government or the private company that owns and operates the M6 Toll road. The dualist constitution of the UK ensures that treaties will not have effect in the UK unless and until Parliament incorporates the treaty and defines the parameters for its application and enforcement.26 Section 2 of the European Communities Act 1972 not only adopts the EU Treaties, but also enacts and enforces current and future laws enabled by the Treaties.27 Therefore, the UK not only contemplates the enforcement of the EU Treaties, but all acts, decisions, rules and so on, that are enabled by the EU Treaties. This would necessarily include Directives, Regulations and decisions by the ECJ. Moreover, Article 46 of the Treaty on the Functioning of the European Union (Consolidation Edition) 2012, confers upon the EU the authority to enact Directives.28Thus, in stating that the Treaties of the EU will have direct effect in the UK without further enactment, the UK also recognizes that the EU can enact Directives and that in doing so, the UK is bound by the treaties itself and this includes the Directive enabling article. Section 2 of the European Communities Act 1972 also indorses all rights arising under the Treaty and this would necessarily include Directives. Thus even through the doctrine of indirect effect, Ricky and Malcom can invoke their rights under the unimplemented Directive. State Liability In considering the ECJ’s expansion of the doctrine of horizontal effect, the first case of note is Marshalll v Southampton and South-West Hampshire Area Health Authority. In Marshall, it was held that an improperly implemented or unimplemented Directive may have horizontal direct effect if the party against whom the individual has a claim is an “emanation of the state”.29 The ECJ subsequently made it clear that private individuals were not responsible for the results of an unimplemented or improperly implemented Directive.30In other words, a Directive would not have vertical direct effect against a private citizen when it was not implemented or improperly implemented. However, an improperly implemented or an unimplemented Directive could have horizontal direct effect if the private party against whom a claim is made is an emanation of the state. The Froncovich principles are therefore important. Pursuant to the Francovich principles, damages resulting from a state’s failure to implement a Directive incur state liability if the Directive confers rights to the individual; those rights can be identified and there is a connection between the individual’s loss and the state’s failure to implement the Directive.31 These principles are followed in the Factortame III ruling which applies to Community law in general and further requires that the breach complained of is “sufficiently serious.”32 Further guidance was provided in the ECJ’s ruling in Case C-188/89 Foster v British Gas Plc. In this case the ECJ defined what amounts to an emanation of the state and in doing so broadened the reach of unimplemented or improperly implemented Directives. The ECJ ruled that a private party could be an emanation of the state in circumstances where the private party is supervised by or is acting with the authority of the government or has been allocated some responsibility of the government’s in the provision of public services.33 At the same time, even if an entity is owned by the state, but has no special powers it may not be an organ of the state.34 However, the Foster test may be satisfied if a private body is subject to regulation by statute as in the case of a private school subject to a board of directors established and regulated by statute.35 The idea is to establish the extent to which the state has some control over the private party and thus incurs liability for damages in the event of an improperly implemented or unimplemented Directive.36 As previously discussed, state liability is straightforward in Malcom’s case. In Ricky’s case, much depends on the relationship between the operators of the toll road and the government, which for reasons stated establishes state liability under the expanded paradigm of horizontal direct effect. Conclusion Based on the authorities and reasoning discussed, Malcom’s claim against the state has a sound legal basis. By virtue of the doctrine of vertical direct effect, Malcom, as a private individual can successfully claim compensatory damages against the state. Since the A5 is under the control and supervision of the government, Malcom’s case for compensation is an issue between Malcom and the government and is therefore a proper case the doctrine of vertical direct effect. Ricky’s case is more complicated, since the party against whom he has a case is a private citizen. As discussed, there is a general rule against private citizens holding other private citizens accountable for damages arising out of the UK’s failure to implement the Directive or to improperly implement the Directive. However, there are exceptions. The main exception is the fact that the private entity or person is an emanation of the state. Ricky can likely proceed against the state on the basis that the company operating the toll was an emanation of the state. As an alternative, Ricky may seek to enforce the Directive against the private company in an indirect way. The indirect way is via the law of tort against the private company that owns and operates the M6 Toll road. The claim under the law of tort would be based on the negligence on the part of the private entity. Since Section 2 of the European Communities Act 1972 advocates for the harmonization of the European Union law by requiring its applicability and enforcement in the UK, the national courts in assessing the private company’s liability will take account of the Directive and apply it in any tortious claim that Ricky pursue. In both cases the appropriate damages would be for the personal injuries associated with the accident and loss wages for time off work. Bibliography Textbooks Craig, P. and de Burca, Grainine. EU Law: Text, Cases, and Materials. (Oxford, UK: Oxford University Press, 2008, 4th Edition). Birkinshaw, Patrick. European Public Law. (Cambridge, UK: Cambridge University Press, 2003). Dougan, Michael. National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation. (Portland, Oregon: Hart Publishing, 2004). Kaczorowska, Alina. European Union Law. (Oxon: Routledge, 2013, 3rd Edition). Woods. Lorna and Watson, Philippa. Steiner & Woods EU Law. (Oxford, UK: Oxford University Press, 2012, 12th Edition). Journal Articles Betlem, Gerrit and Nolkaemper, Andre. ‘Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation.’ (2003) 14(3) Eur. Journal of International Law, 569-589. Craig, P.P. ‘Once Upon a Time in the West: Direct Effect and Federalization of EEC Law.’ (Winter 1992) 12(4) Oxford Journal of Legal Studies, 453-479. Dougan, Michael.‘The “Disguised” Vertical Direct Effect of Directives?’(November 2000) 59(3) The Cambridge Law Journal, 586-612. Gardbaum, Stephen. ‘The “Horizontal Effect” of Constitutional Rights.’ (Dec. 2003) 102(3) Michigan Law Review, 387-459. Mayr, Stefan. ‘Putting a Leash on the Court of Justice? Preconceptions in National Methodology v Effet Utile as a Meta-Rule.’ (Autumn/Winter 2012) 5(2) European Journal of Legal Studies, 8-21. Snyder, Francis. ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques.’ (January 1993) 56 The Modern Law Review, 19-54. Wyatt, Derrick.‘The Direct Applicability of Regulations and Directives.’ (November 1977) 36(2) The Cambridge Law Journal, 216-219. Cases Blackburn v A-G. [1971] 2 All ER 1380. Cases C-46/93 & C-48/93 Brasserie du Pecheur and Fatortame III [1996] ECR 11029. Case C-43/75 Defrenne v Sabena (no. 2) [1976] ECR 455. Doughty v Rolls Royce [1992] 1 CMLR 1045. Case C-91/92 Faccini Dori v Recreb srl [1994] ECR 1-3325. Factortame Ltd. Secretary of State for Transport (No.2) [1991] 1AC 603. Case C-188/89 Foster v British Gas Plc [1990] ECR 3313. Cases C-6 and C-9/90 Francovich v Italian Republic [1991] ECR 1-5357. Case C-224/01 Gerhard Kobler v Republik Osterreich [2003] ECR 1-10239. Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR 1-4135. Marshalll v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723. Case C-157/86 Mary Murphy and Others v An Bord Telecom Eireann [1988] ECR 673. NUT v Governing Body of St. Mary’s Church of England (Aided) Junior School [1997] IRLR 242. Case 148/78 Pubblico Ministero v Ratti [1979] ECR 1629. Case C-201/02 R (Delena Wells) v The Secretary of State for Transport, Local Government and the Regions [2004] ECR 1-723. Case 41/74 Van Duyn v Home Office [1974] ECR 1337. Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. Statutes European Communities Act 1972. Treaty on the Functioning of the European Union (Consolidation Edition) 2012. Read More