Breach of EU Directive - Essay Example

Breach of EU Directive The council of the EU adopted a directive 2004/222 in October 2004. This directive specified the maximum amount of nibline that could be used in food products. In particular, article 4 of this directive had specified that the amount of nibline that could be added to carrot juice was not to exceed 3 mg per litre. Moreover, article 6 of this directive had stipulated that by October 2006, the Member States had to limit the nibline content in the carrot juice sold. The UK government had instituted the carrot directorate to enforce the standards specified for carrot juice. In the year 2005, Grant enrolled at the Sunderland University, and resorted to consuming carrot juice, in order to cope up with the heavy academic demands of university work. She was compelled to remain awake throughout the night on a regular basis, and this made her a regular consumer of a particular brand of carrot juice, namely, Hyperbunny. Grant purchased this from the Zen hypermarket; and the latter procured this product from an organic cooperative Juump AG, located in Germany. On the 1st of November, 2010, Grant was diagnosed with nibline poisoning. She had completed her Master’s Degree, just before this diagnosis. She was also informed that nibline poisoning was incurable and that it would render her permanently incapable of working. A perusal of the medical evidence, disclosed that her ailment was the result of consuming Hyperbunny carrot juice, which was seen to contain 10mg of nibline per litre. A much harried and desperate Grant made considerable study into the circumstances responsible for her debilitating condition, and discovered that the UK government had failed to implement directive 2004/222. This permitted the sale of carrot juice with even 10mg of nibline per litre. In order to advise Grant, regarding her rights against the UK Government, manufacturers of Carrot juice, Zen Hyper Market and others, the relevant EC law in respect of the proper implementation of Directives, by the Member States has to be examined. Individuals belonging to the Member States of the European Union are entitled to claim the rights provided to them by the various treaties, regulations, decisions, and directives of the EU. If a Member State fails to implement the provisions of a directive, then it will be liable to compensate an injured party (An introduction to European labour law, 2011). Individuals can claim these rights, either under the concept of vertical direct effect, which is in relation to the state; or under the horizontal direct effect, which relates to other individuals. All the same the ECJ has been seen to be reluctant to apply the horizontal direct effect (Cini, 2007, p. 197). In the EU, Directives are legislative orders, which the Member States are perforce required to implement in a proper and complete manner. In this context, the doctrine of indirect effect comes into prominence. This doctrine imposes a duty on the Member States to interpret their national legislation, in accordance with the objective of a Directive, to the extent feasible (Cini, 2007, p. 197). Furthermore, the Member States are at liberty to enact their own laws, and the only limitation is that these laws should be in compliance with the purpose of the original Directive (Indirect effect, 2007). The outcome of this state of affairs is that implementation could vary across the Member States of the EU. In accordance with the doctrine of direct effect, the domestic courts are under an obligation to protect and implement the rights provided to individuals in the treaties of the EU. Individuals can report to the ECJ if their rights have been violated by Member States (Kaczorowska, 2008, p. 332). Subsequently, the ECJ developed the concept of supremacy of EC law over national law in Costa v ENEL in 1964. These two doctrines proved to be of great importance in the integration of the EU. Moreover, the principle of direct effect is an important legal doctrine in the EC law. The European Court of Justice (ECJ) formulated the doctrine of direct effect, via its decision in the 1962 Van Gend en Loos case. This doctrine requires the national courts of the Member States of the European Union to protect individual rights under the Treaty of Rome. The ECJ has also developed the doctrine of supremacy of EC law, which states that EC law has precedence over the domestic laws of the Member States (Horspool, 2006, p. 110). These two doctrines are of great significance, as they render the ECJ the preliminary ruling system in the EU. The national courts have to refer cases that challenge the compatibility of national law with EC law, to the ECJ for clarification. Under these doctrines, individuals can seek the intervention of the ECJ in national policies. In addition, the national courts can set aside domestic legislation that is in conflict with EC law (Craig and De Burca, 2008, p. 301). The indirect effect requires national courts to interpret their domestic legislation in a manner that conforms to directives. This rule applies, even to laws that are not based on a directive, and it was developed in Von Colson. Moreover, in Marleasing, it was ruled by the ECJ that indirect effect was applicable, irrespective of whether a law had been enacted prior to or subsequent to the implementation of a directive (Marleasing SA v La Comercial Internacional de Alimentacion SA, 1990). As such, the ECJ plays a significant role in the EU. Its case law introduces changes to be adopted by the Member States. The ECJ initiative has compelled the legal systems of Europe to adopt a more flexible attitude that no longer attempts to codify all human activity, in order to address all legal exigencies (An introduction to European labour law, 2011). The ECJ developed the doctrine of indirect effect in Von Colson. This principle compels the national courts to interpret their domestic laws in the light of EC Directives. Moreover, they have to ensure that their laws are compliant with the provisions, wording and aims of the EC Directives (Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen, 1984). As such, this doctrine improves the effectiveness of directives that have not been implemented or have been improperly implemented by Member States, and which do not have direct effect due to horizontal limitation. The domestic courts have to interpret directives by giving them effect, even in the absence of proper domestic implementation (Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen, 1984). In direct contrast to this are the Regulations of the EC, which in addition to being legislative orders, are directly effective in all the Member States. A Directive has to be implemented by a Member State, within the stipulated time. This was reiterated by the ECJ in Pubblico Ministero v Ratti. In this case, Ratti had violated an Italian law that was in breach of an EEC directive on packaging. It was held by the ECJ that Italy had failed to implement the EU Directive within the prescribed time, and that as a consequence, Ratti could not be prosecuted by the Italian government (Pubblico Ministero v Tullio Ratti, 1979). In order to hold a Member State liable, the national court has to ascertain; first, the Community law provision should confer some right on individuals; second, the infringement should be of a sufficiently serious nature; third, the loss or damage undergone by the complainant and the violation by the Member State should be causally related (Judgements – Regina v Secretary of State for Transport Ex Parte Factortame Limited and Others, 2000) The ECJ established the concept of state liability for breach of treaty obligations, with its decision in the Francovich case. In this case, Italy failed to implement a Directive, which constituted a breach of its obligation to implement directives in a proper manner. The ECJ held that it was obliged to ensure that a Member State interpreted and applied Article 220(1) EC, in a proper fashion. It also drew attention to Article 10(1) EC, which enshrines the general principle of Member State loyalty (Andrea Francovich and Danila Bonifaci and others v Italian Republic, 1991). As such, in instances, wherein resort to the horizontal direct effect is precluded, individuals can get a directive enforced. This favourable option was established in Francovich. In this case the court ruled that the damages suffered by an individual, due to the non-implementation of a directive, had to be compensated by the Member State. This was further developed in Brasserie de Pêcheur and R v Secretary of State for Transport, ex parte Factortame (No. 4) where it was held by the court that an individual who had suffered a loss, due to a serious breach of EC law by the Member State, could claim damages from the latter (Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others, 1996). In addition, in situations, wherein the requirements specified in Brasserie de Pêcheur and R v Secretary of State for Transport, ex parte Factortame (No. 4) are satisfied, Member States will be rendered equally liable for the defective implementation of EC directives. This was the decision of the ECJ in R v H M Treasury, ex parte British Telecommunications plc. As such, state liability denotes the empowerment of individuals to sue Member States on grounds of non-implementation or improper implementation of a Directive. However, this does not permit individuals to sue other individuals, on the basis of an unimplemented Directive, because Directives lack horizontal direct effect (Owen, 2000, p. 30). In Foster v British Gas, the ECJ provided the definition for a state. According to this definition, a state can be any organisation or body that was subject to the authority or the state (Foster v British Gas). Under this classification, the ECJ included several organisations, such as tax authorities, local or regional authorities, constitutionally independent authorities entrusted with the maintenance of public order or safety, and public authorities providing health services. As such, in the above case, the ECJ held that parastatal companies constituted a component of the state. However, it permitted the Member States to determine what comprised a state entity or parastatal company (Foster v British Gas, 1990). Furthermore, in Fratelli Constanzo v Milano, the ECJ ruled that municipal authorities and other administrative authorities were required to implement the provisions of a Directive (Fratelli Costanzo SpA v Comune di Milano, 1989). In Van Duyn v Home Office, the plaintiff, a Dutch national who had been employed by the Church of Scientology, applied for entry to the UK. The Home Office of the UK did not permit her to enter the UK, on the grounds that she was a scientologist. Van Duyen relied on Directive 64/221, which relates to the freedom of movement of workers within the EU. The court held that a Member State could exclude a person from entering it, on grounds of public policy (Van Duyn v Home Office). However, this judgement was criticised in all quarters, subsequently. In Duke v GEC Reliance, the plaintiff, Mrs Duke was unable to rely upon the Equal Treatment Directive, as her employer was a private individual (Duke v GEC Reliance Ltd, 1988). In Paola Faccini Dori v Recreb srl, the Government of Italy failed to implement a Directive, relating to the right of consumers to annul certain contracts that were negotiated outside business premises. Dori, who had concluded a contract at a railway station, claimed the right of cancellation under the directive (Paola Faccini Dori v Recreb Srl, 1994). However, this was disallowed by the court, which categorically refused to extend the notion of direct effect to encompass relationships between individuals. This decision exposed the inequitable distinction between the rights of state employees and private employees. The ECJ held that in order to eliminate such unfair distinction, Member States should implement the directive correctly into their national laws. In R v H.M. Treasury, ex parte British Telecommunications plc, it was held by the ECJ that a Member State was liable to pay compensation to parties who had sustained losses, on account of the incorrect implementation of a directive (R v H.M. Treasury, ex parte British Telecommunications plc). Moreover, if a member state fails to implement a directive correctly, individuals cannot demand application of horizontal direct effect to claim against other individuals. The ECJ developed the basic principles of direct applicability of EC law and the supremacy of EC law over national law, via its case law. These fundamental principles have proved to be instrumental in furthering European integration (The contribution made by the case-law of the Court of Justice of the European Communities). Individuals can rely on these principles to invoke EC law, in the national courts. In addition, they can demand the rescinding of any national law that is contrary to EC law. Moreover, the ECJ had established the principle of the free movement of workers within the Community, which in its opinion constituted a fundamental freedom in the EU (The contribution made by the case-law of the Court of Justice of the European Communities). In our problem, the UK Government failed to implement the Directive, within the stipulated time. Moreover, the English law allowed the sale of carrot juice with 10 mg nibline per litre. This was a gross violation of the directive 2004/222, since the EU Directive permitted just 3 mg nibline per litre. Thus, the UK Government had been negligent in implementing the Directive. Grant can approach the national courts to interpret and implement the national law as per the Directives. She can also sue the UK Government for the non implementation of the Directive and the resulting losses suffered by her, in accordance with the ruling in Francovich. In addition, it is to be examined whether Grant can rely on the doctrine of direct effect to take action, against Zen Hypermarket, the manufacturer of the Hyperbunny Carrot Juice. She is precluded from proceeding against this company, under the principle of direct effect, due to the fact that it is a non – governmental organisation. As per the case law, discussed above, one cannot take action against other individuals or non – governmental institutions, under the principle of direct effect. However, she can claim redressal under the principle of indirect effect. Hence, Grant is entitled to sue the Zen Hypermarket company for the diseases caused to her by nibline poisoning, resulting in the loss of health, loss of earnings and the resultant psychological trauma experienced by her. Furthermore, Grant can initiate legal action for damages against the Juump AG, who was the supplier of Zen Hypermarket, under the principle of indirect effect. Moreover, she can initiate action against the German Government, if the latter had failed to implement the directive, in a proper manner. She can do so under the doctrine of direct effect. References 1. Case Law Andrea Francovich and Danila Bonifaci and others v Italian Republic, ECR I-5357 (European Court of Justice November 19, 1991). Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others, Joined cases C-46/93 and C-48/93 ECR I – 1029 (European Court of Justice March 5, 1996). Duke v GEC Reliance Ltd, AC 618 (1988). Flaminio Costa v ENEL, ECR 585 (European Court of Justice July 15, 1964). Foster v British Gas, Case C-188/89 ECR I-3133 (European Court of Justice 1990). Fratelli Costanzo SpA v Comune di Milano, Case 103/88 ECR 1839 (European Court of Justice June 22, 1989). Marleasing SA v La Comercial Internacional de Alimentacion SA, C - 106/89 1 ECR 4135 (European Court of Justice November 13, 1990). NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, ECR 1 (European Court of Justice February 5, 1963). Paola Faccini Dori v Recreb Srl, C-91/92 ECR I-3325 (European Court of Justice July 14, 1994). Pubblico Ministero v Tullio Ratti, Case 148/78 ECR 1629 (European Court of Justice April 5, 1979). R v H.M. Treasury, ex parte British Telecommunications plc, (1996); ECJ. I-1632 436. Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen, ECR 1891 (European Court of Justice April 10, 1984). Van Duyn v Home Office, Case 41/71, (1974) ECR 1337. 2. Books Cini, M. 2007. European Union politics. Oxford University Press. Craig, P. P. and De Burca, G. 2008. EU law: text, cases, and materials. Oxford University Press. Horspool, M. 2006. European Union law. Oxford University Press. Kaczorowska, A., 2008. European Union law. Taylor & Francis. Owen, R. 2000. Essential European Community Law. Routledge. 3. Others An introduction to European labour law. (2011). Retrieved February 1, 2011, from Federatoin of European Employers: http://www.fedee.com/eulablaw.html Indirect effect. (2007). Retrieved February 1, 2011, from LawEuropa: http://www.laweuropa.com/English/index.php?d=topluluk&mod=AB_Topluluk_4_2 Judgements – Regina v Secretary of State for Transport Ex Parte Factortame Limited and Others. (2000, November 29). Retrieved February 4, 2011, from Roger Hornes Miscellany. Web Cases. House of Lords and Privy Council: http://www.hrothgar.co.uk/WebCases/hol/reports/03/64.htm The contribution made by the case-law of the Court of Justice of the European Communities. (n.d.). Retrieved February 3, 2011, from european navigator: http://www.ena.lu/ Read More