The impact of Directive on UK Law - Essay Example

Where a Member has failed to implement or has poorly implemented a Directive by the implementation set in the Directive, an individual cancommence an action in the national court or tribunal under the principle of direct effect. Once that deadline has passed the Court of Justice will encourage national courts to enforce the provisions of the Directive directly, even in the absence of its domestic legislative implementation. On the facts, that seems to be the case here. In order to pursue a claim Z and D should first establish that their respective employers can be classified as being the State or an emanation of the State. In Z’s case we are told that he is employed by a council. In Case-C188/89 A Foster and Others v British Gas plc [1990] ECR I-3313, [1990] 2 CMLR 833 the Court of Justice expanded the definition of the ‘State’ to include “organizations or bodies which were subject to the authority or control of the States or had special powers beyond those which result from the normal rules applicable between individuals.” Over the years this has included tax authorities, local or regional authorities, independent authorities responsible for public order and safety and public authorities providing public health services. The decision in Case 41/74 Van Duyn v Home Office [1974] ER 1337, [1975] 1 CMLR 1 was based on the findings in Case 26/62 NV Algemene Transportatioin Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1; [1963] CMLR 105. The van Gend en Loos case dealt with Treaties, where it was said that Treaty provisions can be immediately enforced in national courts by individual applicants if the provisions were clear, negative, unconditional, containing no reservation on the part of the Member State and not dependent on any national implementing measure. Van Duyn made it clear that this was also true of Directives. If Directives are binding then it is possible that they will be relied upon in national courts, but clearly each case will turn on its own facts. Therefore since Z works for a Council this can be construed as an emanation of the State (specifically Case 103/99 Costanzo [1989] ECR 1839) and it is submitted that prima facie he is able to rely on the government’s non implementation directly in a UK court or tribunal provided the Directive is unconditional and sufficiently precise. However this is not true for D. His employer is a private company and as seen in the following case, the Court of Justice does not allow the direct horizontal enforcement of Directives. In Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723 [1986] 1 CMLR 688 Helen Marshall sought to sue a health authority for retirement age discrimination under the Equal Treatment Directive 1976. Her employer dismissed her at 60 in line with her contract. National law exempted retirement matters from its scope -- it did not impose retirement age at 60 - - only that women became eligible for pension at 60. The Court of Justice held that there was no ‘horizontal effect’ to a Directive where a government had failed to implement a Directive. Helen Marshall could not sue the Health Authority in these circumstances. If the employer is not the State or an emanation of the State then the Court of Justice allows the national court to look at indirect effect. In Case C-106/89 Marleasing SA v La Comercial Internacionale de Alimentacion SA [1990] ECR I-4135, [1992] 1 CMLR 305 2 private individuals sought a remedy which was not included in the Directive. Further, the Directive had not yet been implemented and there was conflicting national law which preceded the Directive in situ. It was held that a non implemented Directive could be relied upon by the national court in a case between individuals – essentially back door horizontal effect. Likewise in Case C-32/93 Webb v EMO Cargo [1994] ECR I-3567 the House of Lords interpreted provisions of the domestic Sex Discrimination Act 1995 in a way in which the Court of Appeal had deemed to be a distortion of the wording of the Act. However since then in the case C-168/95 Criminal Proceedings Against Lucian Arcaro [1996] ECR I-4705 the Court of Justice has again reiterated that the provisions of a Directive cannot be horizontally effective and could not by themselves create obligations for an individual. It said: “… obligation of the national court to refer to the content of the Directive when interpreting the relevant rules of its own national law reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a Directive which has not been transposed, or more especially, where it has the effect of determining or aggravating, on the basis of the Directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that Directive’s provisions.” It is submitted that since Luciano Arcaro the judgment of the House of Lords in Webb is no longer good law since EC law does not impose a requirement to interpret national law in such a way that it imposes on an individual an obligation laid down in a Directive which has not been transposed. Whether or not D has a remedy using indirect effect will depend on which precedent the national court prefers; Marleasing or Lucian Arcano. Certainly in the national court one could distinguish the cases on their facts and find for D under Marleasing. Equally if the Directive is not found to be sufficiently clear, precise and unconditional, then Z would not be able to rely on the Directive having direct effect against a State employer. In such a circumstance we would have to consider whether the State could be held liable for non-implementation of the Directive. The cases suggest that where an individual is denied a remedy through its national court because of a non-implementation of a Directive, there may be a remedy in for inadequate or non-implementation of a Directive. In Case C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5337, [1993] 2 CMLR 66 the Court of Justice ruled that a State could be liable to an individual in damages for loss caused by its failure to implement a Directive. This has since been extended to cover any breach of Community law by a Member State. We must establish that the conditions for State liability are met, namely “the result prescribed by the Directive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the Directive. Finally, the third condition is the existence of a causal link between the breach of the State’s obligation and the harm suffered by the injured parties.” At the time of the judgment there was some discussion about whether this imposed strict liability on a defaulting Member State. However the decision in C-46/93 and C-48/93 Brasserie du Pecheur SA v Germany and R v Secretary of State for Transport, ex parte Factortame Ltd and others [1996] ECR I-1029(C-4 and 48/93) made it clear that it did not do so. There would have to be a sufficiently serious breach in order for this remedy to be granted. Other than damages the exact remedy available to Z and D will depend upon the provisions of the Directive and its interpretation by the national courts as the Community has not yet developed a system of remedies and procedures. If the provisions of the Directive are sufficiently clear then the national court can directly implement them – given that the Member State has forfeited its right to do so once the deadline for implementation has passed. Where this is not true - - perhaps the Directive is vague as to the appropriate sanctions and/or remedies - - then the Court of Justice has typically left it to the national court to scrutinize the compatibility of national procedural rules with the principles of effectiveness and equivalence. Hence in Case 14/83 Von Coulson and Kamann v Land Nordrhein-Westfalen [12984] ECR 1891, [1986] 2 CMLR 430 2 female applicants successfully sued prison administrators for sexual discrimination when 2 posts advertised for social workers went to males. The question before the court was whether the Equal Treatment Directive 1976 specifically required that discrimination be remedied by the appointment of the complainant to the post. The Court of Justice said no, but that it did require the national law to provide an adequate and effective remedy – “national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article [249].” German law had poorly implemented the Directive because it had not provided for adequate sanction and the Directive itself was too imprecise to give rise to a directly effective remedy. Hence the reason the national court was called upon to read national legislation in line with the requirement of the Directive to provide a real and effective remedy. An advantage of this approach is that unlike direct effect the provisions in question do not have to be clear, precise, unconditional and require no further implementation. Hence Van Coulson was able to indirectly rely on the provision against a State employer. The foregoing assumes that Z and D will be seeking redress through the Court of Justice. Whether or not Z and D will be able to obtain redress therefore depends on whether they can proceed on the head of direct effect, indirect effect or damages and the type of redress they are seeking. As we have seen for direct effect Z would have to establish that the provisions of the Directive were sufficiently precise and clear. This will require detailed analysis of the provisions. With regard to indirect effect the requirement for precision is not required, and Z well may be better able to succeed on this head. D’s case is somewhat different as there are conflicting decisions as to the horizontal effect of a directive - - even when its provisions are clear. Their respective rights to damages will depend on them being able to satisfy the Francovich test of a sufficiently serious breach. However, the action will commence and the final decision be made by the national court. It is argued that there is no need for the national court to refer this matter to Europe as there is sufficient precedent on cases where there is no existing law and a directive has not been implemented within its time limit. We would therefore recommend that Z commence the action, and that once the national court has made a favorable decision, D will be able to rely on that decision without recourse to litigation. Read More