The Directive and the Conduct of the Undertakings or Individuals - Research Paper Example

? In principle, a European Union’s directive does not have direct effect in the opposite direction, and it does not have a vertical inverse direct impact. If there is no implementation of a Directive by a Member State, then it cannot bank upon that unenforced directive in legal proceedings against undertakings or individuals, less so, if the Directive imposes certain penal provisions for the conduct of the undertakings or individuals. In case “Kolpinghuis Nijmegen1”, it was held that a Member Nation which never implemented an EU directive within the stipulated time limit cannot bank upon it in proceedings against it2. In this case, it was held by the European Court that a Member Nation cannot bank upon the direct impact of a yet to be implemented EU ruling in non-civil cases against a person. In “ Kolpinghuis Nijmegen “case, the Court appeared to suggest a thinning of the cannon of construal by reference to its effect on an individual, even if that effect does not result in the aggravation or imposition of criminal liability. The ruling in Arcaro3 implies that where an inference of national law in the background of a directive amounts to “infliction on an individual of a responsibility specified in the directive, it goes too wide, and it is neither required nor permitted by EC law. This connotes that a differentiation has to be made between the infliction of a responsibility on an individual, which is not allowed and the establishing the other kinds of legal detriments or disadvantages for that individual falling short of a legal requirement, which is authorised4. In “Pretore di salo v unknown5”, it was held that a directive cannot, of either independently or itself of a “national law perused by a Member Nation for its execution which have the impact of aggravating or deciding the accountability in criminal law of individuals who function in infringement of the provisions of such a ruling”6.” The above constitute as an incompatible with fundamental needs of legal certainty; individuals must be able to bank upon their national law. It is to be noted that no obligation can be imposed upon individuals if a directive has not implemented in a Member Nation. This connotes that where a Member Nation is yet to implement an EC directive, for instance, a specific environmental tax, it cannot legally levy the environmental tax directly in its region on the footing of such a directive. This also connotes that there is a choice for an individual: where national law is silent as about the directive, individuals may bank upon, by selecting the best alternative which is suitable to them, either, on the contrary provision of national law or on a directly applicable directive provision. Thus, in such cases, individuals are entitled to go for “provision shopping. “ This can be regarded as a one -way vertical impact of directives due to an inherent outcome7. However, there is a possibility that directive may have some negative impacts for taxpayers. National courts and authorities are needed to construe national law in such a manner that it confers with specific Community Law, particularly where directives have not or ambiguously or not correctly been integrated into national law. In “Colson and Kamann v Land Nondrhein –Westfalen8 ,” it was held that EU directives have poignant legal impacts in Member Nations even though they have not been implemented either correctly or failed to implement them by the national authorities9. Since, an EU directive cannot of itself inflict commitment on individuals; it cannot be extended straight away between two private parties i.e. horizontally. Courts have consistently rejected the horizontal implementation of EU directive as directives are meant for Member Nations and hence, therefore, in the background of needs of legal certainty, such directives cannot be competent to establish obligations for undertakings or individuals not considering with such requirements on the footing of their national law. 10 For instance, in case the “Queen, ex parte Delena Wells v Secretary of State11 “for “Transport, Local Government and Regions”, it was held by court that the cannons of legal certainty contrast directives establishing obligations for individuals where there is no implementation of the same into the national law. Thus, in Delena Wells’s case, an EU directive on statutory environmental impacts’ assessment compelled the UK to call back the permit already issued to a company since a neighbour had complained that the environmental appraisal quoted by EU directive had not been implemented12. In “Marshall v Southampton and SW Hampshire Area Health Authority case13”, the plaintiff worked for NHS, Southampton and NHS policy was that men should retire at 65 whereas women should retire at 60. Hence, Marshall was forced to retire at 60. On relying upon the EC directive 76/207, which stipulated that it would be illegal to dismiss an employee on the ground of her sex, Marshall sued her employer on the ground of sex discrimination. It is to be noted though the said directive was incorporated in the UK, but not as regards to retirement matters and hence, one of the main issues was that whether a directive is applicable to compulsory retirement. The European court affirmed it. The other issue was that whether such directive was directly effective. The Court of Appeal on its reference this case to ECJ viewed that NHS Southampton were part and parcel of the UK government and hence, the question whether such directive is applicable to an individual does not materialise. However, it was argued by the UK government that even the public body should be reckoned as an “individual” as it was not functioning as State. NHS is equal to a private employer as it is not enjoying any special governmental authority. Hence, it was argued by UK that NHS can be considered to be individual on the above basis and hence, the directive could not be implemented against it.14 In “Faccini Dori v Recerb”,15 at Milan Railway Station, Ms Dori had successfully completed a deal for an English language course through correspondence. It is to be noted that EU Directive 85/577 authorise laws concerning the safeguard of consumers as regard to contracts concluded away from business houses, and the said directive is so-called “Doorstep selling Directive.” Under this directive, Dori wanted to avail the cooling -off period facility where she could cancel the order within seven days from the date of initial contract. Since, Italy had not implemented the above directive, she could not exercise the right to cancel the order within the cooling -off period. The vendor initiated a case against her, but Dori wanted to bank upon the Directive to trounce the claim. In this case, ECJ held that Directive is not capable of horizontal direct effect. In this case , a reference was made to Marshall where there was a ruling which seems to exclude reliance on the Directive and the Court , in spite of a suggestion from Advocate General , the Italian court turned down to overrule the Marshall16. It is well known truth that provisions of a directive though have direct impact but not always, which depends upon their conceptualisation and that provisions of a directive are meant not to have a direct impact though on many instances on which they do have such impact, namely when their unambiguous, unconditional, precise provisions are not sufficiently applied in the national level. It is to be observed that European Court of Justice still maintains on its stand that directives do not have horizontal direct effect. In “Carp “case, ECJ viewed that as per settled case law, a directive cannot of itself inflict any accountability on an individual and hence cannot be banked upon as such against such an individual. It can be deduced that even a precise, clear and unconditional provision of a directive endeavouring to bestow rights or inflict accountability on individuals cannot of itself apply in proceedings absolutely between private parties17. However, it appears that the court’s canon turns rather closely on the words “of itself.” In cases, where a directive cannot be applied “of itself”, but is just employed to bar the application of a national legal directive, then there will be no issue, even when that non-application badly impacts the legal status of a private party. Just unfavourable consequence on the rights of third parties, even if the outcomes are definite, do not substantiate barring an individual from banking upon the provision of a directive against the Member Nation concerned18. In “Arcor”19case, it was held that there exists triangular or indirect effect and that an applicant had an ex ante privilege to oblige a decision to be initiated, but once taken in violation of the Directive which impacted their interest, they are having, every right to confront it. In “CIA Security International SA v Singnalson SA AND Securitel SPRL” 20 , it was held by the European Court of Justice that individual may bank upon the “ ‘notification directive’ so as to counter the application of a still to be notified national measure , even in a scenario where such application has been demanded by a private individual in civil law litigation21. Thus to sum up, in Marshall, it was held that a Directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual.” In Faccini Dori v Recerb case, ECJ held that Directive is not capable of having horizontal direct effect. In case “Kolpinghuis Nijmegen”, it was held that a Member Nation which never implemented an EU directive within the stipulated time limit cannot bank upon it in proceedings against it. In “Pretore di salo v unknown, it was held that a directive cannot be implemented against an individual in criminal cases. In “Carp “case, ECJ viewed that as per settled case law, a directive cannot of itself inflict any accountability on an individual and hence cannot be banked upon as such against such an individual. In Arcor case, it was held that if a Member Nation wants to implement a directive provisions without incorporating the same into its national law, the plaintiff has every right to confront it.In“CIA Security International SA v Singnalson SA AND Securitel SPRL, it was held that an EU directive which is yet to be implemented cannot inflict an obligation on an individual. Bibliography Craig P P & Burca G D, EU Law: Text, Cases and Materials (Oxford University Press 2008) Craig P P & Burca G D, The Evolution of EU Law. (Oxford University Press 2011) Hartley T C, European Union Law in a Global Context. Text, Cases and Materials. (Cambridge University Press 2004) Hartley T C, The Foundation of European Community Law (Oxford University Press 2007) Hervey T K and McHale J V, Health Law and the European Union (Cambridge University Press 2004) Kaczorowska A, European Union Law (Taylor & Francis, Brussels 2008) Stephen W, Cases and Materials on EU Law. (Oxford University Press 2007) Terra B J M & Wattei, P J, European Tax Law (Kluwer 2008) Read More