European Court of Justice - Essay Example

"The ECJ's refusal to countenance the horizontal direct effect of directives is based on unconvincing arguments. Furthermore the ECJ's various attempts to mitigate the effects of the lack of horizontal direct effect of directives by creating an array of additional doctrines has led to an unacceptable degree of confusion." Introduction The notion of direct effect which is rights conferred on individuals by the Community law to be enforced in national courts has not been openly contained in the EC Treaties. This idea was formulated first in the European Court of Justice's during the judgment of Van Gend en Loos in 1963.1 This case was a landmark in the history of the ECJ and the conclusion drawn was "the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals". The ECJ also held that either an individual or a firm can depend on the provisos of the accords against the national government and its rights are enforceable in a domestic court. The legal footing for the conclusion in Van Gend en Loos is very disputable. The Court interpreted Article 12 as meaning to bestow rights on individuals. The Court cited the Preamble, which mentions citizens and also States, and to the introductory indication system in Article 177 (which is now Article 234). This very clearly predicts that parties can bring up queries of Community law in the national courts. Actually here the general wording of the EC accord can be interpreted as one that inflicts direct effect and develops personal rights to be protected by the national courts.2 The court had implemented and elaborated direct outcome to include secondary legislation, especially the directives (Miriam Lenz, et al 2000, p.509). In fact the court had actually stated that the impact of a directive "would be weakened if individuals were prevented from relying on it before national courts and if the latter were prevented from taking it into consideration as an element of Community law."3 It is clear that the conception of direct consequence is one of the most essential legal doctrines created by ECJ (Prinssen and Schrauwen, 2002). The loyalty principle stated that the Member States had to obey their principles.4 As a result the national courts had a duty based on the principle of supremacy to give priority to community law when a disagreement arose with national law. Under these circumstances the community law would have to be applied directly in a legal challenge. Thus the effet utile, of EC law as a result called for the national courts to enforce community law in the circumstances where it was appropriate (Paul, and Grainne, 2003). This adaptation of the Court that a proviso of a directive has the capacity of being dependent even in legal proceedings amid individual parties has in reality blurred the inhibition of the horizontal direct outcome of directives. Fundamental policy The primary policy rationale for rejection of horizontal direct impact of Directives in Marshall5 was only a textual controversy. The ECJ adjudged that a Directive cannot be dependent against an individual since, "according to Article [249] of the EEC Treaty, the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national Court, exists only in relation to 'each Member State to which it is addressed"'6 The ECJ further states that "a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person". This conclusion formed the basis for succeeding case law. On close scrutiny three important problems can be reasoned out. A.G. Jacobs in Vaneetveld v Le Foyer SA7 stated that the approach as laid down by ECJ is difficult to resolve with the judicial interpretation to certain Treaty as also openly directed to the Member State. Thus in the Defrenne case8 the ECJ brushed off the disagreement that Art.119 EEC could be banked upon only alongside the state. It held that "Article 119 is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals" The second complexity is with regard to the reasoning in Marshall Case is not obvious in black letter. Actually Article 189 (now 249) EC, never states that Directives have to be compulsory "only" on the addressed Member State and this was formulated in this case. In reality regulations are obligatory on all Member States, and thus it is not lawfully probable for a regulation to address some and not all the Member States. Actually directives need not address all member states individually the effect being that they are compulsory on the Member States which are covered. The third difficulty is that the ECJ in Marshall furnished no clear underlying principle as to how come the Treaty authors should have refused the horizontal direct effect of Directives. The key disapproval against ECJ's interpretation of the legal impacts of directives is persuasively and evidently confirmed in the opinion of AG Lenz in Faccini Dori9 case. Actually AG Lenz favoured giving horizontal direct effect to directives. The most important argument which AG put forward in favour of the directives having a horizontal effect is the one which links to equality of conditions of competition. In addition if horizontal effect is absent then individuals of Member States complying with Community law are regularly positioned at a drawback. In spite of various criticism and stress from numerous generators and Advocate Generals the Court rejected in a crucial way in the Faccini Dori case to provide horizontal direct effect to a directive. The ECJ stated: "The effect of extending that case-law (that of direct effect of directives) to the sphere of relations between individuals would be to recognize a power in the Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations."10 ECJ in spite of criticism from all quarters made this decision in Faccini Dori case because ECJ also articulates itself about the effect of ability between Member States and adjudged that this consequence of capability was as a critical cause to reject horizontal direct effect to a directive. In fact the ECJ believes that the community cannot and does not have the ability to enforce responsibilities on individuals through directives. This is actually a capacity delegated to the Member states. The fundamental analysis from ECJ to deliver these judgments in Marshall and Faccini Dori is not simple to pull out but in reality the dispute is founded on the rule of law and legal certainty.11 The trouble with providing horizontal direct effect to directives dwells in the concept that several individuals would have to tolerate with legal doubt. Thus the result is that individuals will have to face grave difficulties while dealing with two different legal systems adverse to each other. The most realistic disagreement for not giving direct effect to directives is that the effect of a decree is not predictable for individuals accepting that the order has been issued and the time of substitution has passed. The actual reason is that directives if based on legitimate anticipations will have only future effects. Also it can never create rights for a member state against individuals or inflict criminal accountability.12 Pescatore (1983) states that the perception of direct impact was "a highly political ideal" drained from the ECJ's personal insight of the nature and structure of the Community as a Community of peoples as well as States. Steiner13 accords that the conclusion in Van Gend en Loos was political. It was in fact designed to be so she argues. She further states that to defend individual privileges and to make sure at a more common level agreement by States of their responsibilities under Community law. There is accompaniment for this analysis in the analysis of the Court, which looked up to the requirement to guarantee the usefulness of Community law. Craig and de Brca (1998) argue that as these aims are put down in very wide terms it provides the ECJ with an extraordinarily wide scope and "the technical constraints on the Court's decision-making are often weak". The key to the legal footing for the direct consequence of Treaty Articles are found in the mode of understanding applied by the ECJ, which may be identified as a goal-directed or teleological approach. Thus in Van Gend en Loos Article 12 was construed with reference to the full intentions of the Community recognized by the EC Treaty. In 2000 the ECJ presented a famous verdict among European lawyers. It was the case of Angonese14 which in fact acknowledged horizontal direct impact of community law amid private individuals in the area of free movement of employees. The ECJ consequently adjudged that a person applying for a job can file a suit against a private bank in the national court on the ground of the inhibition of favoritism in Article 39 of the EC Treaty (Article 39). Some reviewers disagree that this progress of EC law in the area of free movement of employees could have noteworthy control on private legal kinships while Article 39 at present obviously is bonding private employers.15 These reviewers actually argue and state that this case is a proof of ECJ's well-known "judicial activism". Even though the realistic significance and entailments of this version by ECJ of Article 39 still stays unknown but at the same time an assertion with regard to the acknowledgment of horizontal direct effect possibly support the consolidation and enforcement of EC law. The significance of the ruling is crucial when considering Article 141 of the EC Treaty. This Article was held directly appropriate in Defrenne just because it extends to favoritism in compensation founded on sex.16 Subsidiary Direct Effect Regrettably, the dispute on the horizontal direct impact of directives did not come to an end in the Faccini Dori rule. The current evolution of case law shows that provisos of directives can, at any rate under certain contexts, develop a direct effect in challenges involving two individuals (Maciej Szpunar, 2003, p3). For example, the CIA Security case related to a challenge between three competitor companies. Their business was production and sale of alarm structures and networks. The defendants suspected that CIA was not empowered as a defense firm by the Belgian government to sell alarm systems. CIA instituted an action at law for excessive trading practices on the bases that Belgium's acceptance of its directive without announcement was a violation of Article 817 of Directive 83/189. The ECJ construed that violation of Article 8 of Directive 83/189 had the capacity of being dependent on by people in front of the national court18. Thus the explanation by the Court with regard to a provision of a directive considered in actions among private parties, has distorted the ruling out the horizontal direct effect of directives as put down in Marshall/Dori. An additional conception facilitating the enforcement of personal Community law rights, is a conception of the ECJ and it that of indirect effect. This perception was first brought in the cases of von Colson and Kamann v Land Nordrhein-Westfalen19 and Harz v Deutsche Tradax GmbH20. Both these cases appeared before the Court on the same day. The complainants in both cases wanted to raise the provisos of Directive 76/207 which states about Equal Treatment. Both the cases were in nearly identical conditions. The difference was that in von Colson the Directive was to be raised against the German prison service whereas in Harz the Directive was to be raised against a private employer. The Directive actually was implemented by the German authorities, but the legislation had no proper/adequate remedy as expected by the Directive. The ECJ adjudged that the national court was indebted to construe the enforcing legislation in order to give force to the Directive. The court extended further in Marleasing SA v La Commercial International de Alimentation SA21 and assumed that the theory of indirect effect enforced whether the national statute law being interpreted was ordained before or after the Directive. In this instance the Spanish agencies did not attempt to enforce the Directive in question. Thus it could not be assumed that the objective of the authorities was to give effect to the Directive. This judgment was founded on the theory of the domination of EC law which was again a rule which the ECJ contended to develop from the EC Treaty The decision was picked apart as it violated the doctrine of legal certainty and non-retroactivity. Thus in Kolpinghuis Nymegen22 the Court assumed that the rule of indirect effect was subject to these other rules. The Court extended its ground-breaking understanding of the EC Treaty in the case of Francovich and Others v Italian State23. This case pertained to the crash of the Italian agencies to enforce in the time limit Directive 80/987 which necessitated States to establish a security establishment to pay wage amount overdue in the case of employer insolvency. In spite of an Article 169 verdict against Italy, the Directive was not carried out. The complainants sued the State in the Italian courts, because their employer was bankrupt. Conclusion Paradoxically, legal faith was the key cause against the relevance of the horizontal direct effect of directives. The situation now appears that private parties have to admit the "different nature" of Directive 83/189. Even though Advocate General Jacobs reasoning is unimpressive, he expressed that "to establish whether or not the Member State had complied with all the procedural requirements of the directive". Dougan arrogated, "sanction of inapplicability" in these events is to cover the functioning of judicial policy "in the garb of logical exigency"24. Actually it is not easy to perceive the rule from the Court's access to the direct effect of directives in the current leading to vagueness and unjust decisions. In reality an obstruction to the liberty of establishment that springs up from an individual or an organisation rather should be determined under the challenger rules in Article 81 and 82. Actually the similarities with the legal case on free movement of goods are clear.25 Since ECJ opinions are enforced straight by the Member States harmonising their personal administrative social organisation, the realistic appliance of the measures followed in the rulings are dependant on different national and local versions. Surely, the affect of the verdicts is not consistent throughout the Member States (Janne Sylvest and Andrew Beale, 2007). References 1. Janne Sylvest and Andrew Beale, The Impact of the European Court of Justice Case Law on National Systems for Cross-Border Health Service Provision 2007, briefing note pp.3-4. 2. Miriam Lenz, Dora Tynes and Lorna Young, "Horizontal What Back to Basics", E.L.Rev, 2000, vol. 25, pp.509-522. 3. Maciej Szpunar, Direct Effect of Community Directives in National Courts - Some Remarks Concerning Recent Developments, Centrum Europejskie Natolin, Warszawa 2003, p.3. 4. Paul, Craig, and De Burca Grainne. EU law, Text, Cases and Materials. Third edition. Oxford University, 2003. Print. 5. Pescatore P, 'The Doctrine of Direct Effect: An Infant Disease of Community Law' 1983, 8 ELRev 155, 158 6. Prinssen, S and Schrauwen, J.M.Direct Effect. Rethinking a Classic of EC Legal Doctrine, Groningen: Europa Law Publishing, 2002. 7. Stefan Enchelmaier, "Supremacy and Direct Effect of European Community Law Reconsidered or the Use and Abuse of Political Science for Jurisprudence", Oxford Journal of Legal Studies, 2003, vol. 23, pp. 281-299. Read More