EU Law - Incidental Direct and Indirect Effects - Essay Example

EU Law: Incidental Direct effect and indirect effect The purpose of the following essay is to determine whether EU law will assist Bob and Martin with providing fibre optic for the two. The situations are as follows: The EU passes a (fictitious) regulation requiring the replacement of the current copper wire network with fibre optic cable by December 2013. GB Opensearch is the body entrusted with installing fibre optic cable throughout the UK. The scheme is devised and monitored by the Minister for Science and Technology. GB Opensearch is unable to provide Bob with fibre optic cable as he lives on the Isle of Skye off the West coast of Scotland and the sea channel between the Island and the mainland is very busy. In the second case, the EU also passes a (fictitious) directive on the right of all residents to high speed broadband by Jan 2014. This includes the duty to replace all existing broad band connections with modern connections to the new fibre optic system. The Directive is to be implemented by Member States by July 2013. The UK Statutory Instrument implementing the directive says that ‘all connections within private buildings will be replaced with modern connections.’ The connections are being changed by a subcontractor; Sparky Ltd. Sparky has been given a wide discretion as to how they complete the job as long as they are finished by December 2013. They are given details of all current broadband users so that they can contact them to arrange changing the connections. Martin’s small IT business leases part of a building used by the local secondary school. This is a public building. Sparky therefore refuse to replace the connections as they are only required to replace connections in private buildings. As a result, Martin loses business to operators who are able to offer high-speed broadband. The EU law should be able to assist both Bob and Martin. In the case of Bob, the regulation passed by the EU requiring that current copper wire network gets replaced with fibre optic cable by December 2013 is a type of EU law that is directly effective. Worth noting, however, is that the responsibility to enforce the EU regulation does not rest exclusively with the EU. EU law does not just come up with legal rights and obligations for member states; this was famously said by the Court during the Van Gend Loos case that obligations are also imposed. According to the legal system developed by the treaties of EU, a distinction is made between national and international law; the reason the system is in existence is because it was created by member states through agreements that bind the member states in international law1. However, by doing this, they opened doors of their respective legal systems to the EU law. Bob and Martin are intended to acquire new legal responsibilities and legal rights by virtue of the EU law operation, and for these responsibilities and rights to exist in a meaningful sense, they should be legally enforceable2. The Direct Effect Principle. The principle of direct effect is the foundation of community law. It is through this principle that the European Treaties, which were signed by the European Nations leaders as opposed to being of no relevance, or just political statements, grant effective obligations and rights that permeate every area of life to ordinary people to be enforced in their member state courts, just like their own national laws. The direct effect principal is not found in the EC treaty. However, it has been founded and developed by the ECJ in various judgements. This principal is the reason Bob and Martin can e assisted by the European Union law in each of these cases. According to the Van Gend en Loos vs Nederlands Administratie der Belastingen case, direct effect requires that the following conditions are met3. These include: the EC law should be clear and concise, it must also be unconditional, and the third condition is that it should not depend on additional action by the EC authorities or national authorities. The following four types of law all apply the direct effect principle: regulations, directives, decisions and treaty articles. Regulation is the strongest secondary legislation of EU Law. According to the declaration made by Article 249, regulation shall have general application, it is binding and more importantly, it is directly applicable to every member state4. According to direct applicability, whenever a regulation is developed it is directly applicable to every member state. The member states cannot subject a regulation to any measures of implementation other than those that require the act to do so. This was established in the Amsterdam Bulb BV case. This is irrespective of the rule that a regulation can have direct effect is this satisfies the three conditions, and they are both horizontally and vertically applicable. According to the reasoning of the Court of Justice in the Van Gend Loos case, the rights of individuals were placed centre-stage. In addition, by making the assumptions that the Treaty had to be seen as something unique and not just a standard international agreement that created mutual obligations between the involved parties, this allowed the principle of direct effect to be considered as the rule rather than the exception. It is from this reasoning that Bob and Martin stand a chance of their problems being considered by the EU law and being solved as appropriate. It can be argued that the Court of Justice only used a clever circular reasoning manner of reasoning, nonetheless, the fact remains that the interpretation provided by the Court is based on the assumption that all of the provisions of the treaty are capable of developing direct effect in consideration of the fact that it is a new legal order. In other words, the Court of Justice established that the concept of direct effect was a general operational principle used by the Community system. The direct effect principle should be considered as an unwritten principle that is functionally indispensable for the existence of the community as well as for achieving the objectives that were developed and laid down by the Member states during the signing of the treaty. This argument applies to supremacy. Another dimension to the issue of the direct effect is worth noting. Although the focus of both is the individual’s right, in addition to the idea of effective enforcement, these doctrines also imposing specific obligations given to national courts. According to the Simmental case, the ECJ explained that there are various consequences that accord precedence to the EU law. According to this case, it is the responsibility of every national court to ensure that they apply Community law in all of its entirety and protect rights conferred upon individuals. Every Court should also set aside any national law provisions that may conflict with the EU law, whether these are prior or they follow Community rule. Accordingly, national legal system provisions and legislatives, either judicial practice or administrative, which could impair the Community law effectiveness should put aside any provisions of national legislature that could prevent Community rules from having effect. A consideration of whether the principles of direct effect are efficient enough to secure overall enforcement of Community law reveals that Bob and Martin could encounter significant problems with the EU implementing their installation requirements. According to the ECJ conditions for direct effect, Community provisions should be clear, precise as well as unconditional. In the case whereby such conditions are not satisfied, the provision cannot be relied upon by persons in front of their national courts. This means that this concept falls short in the following ways. Firstly, direct effect conditions are fulfilled and the national law shortcomings still remain, which leaves litigants in uncertainty states. The problem of directives is also a significant consideration. The Court, with the use of arguments that are founded upon the form of the directives, as well as the obligation of Member States established in the Article 10EC, a basis for regulations’ vertical direct effect. This means, therefore, that they can be enforced against public bodies. This especially applies in the case of Martin. The Court does not, however, become successful in ensuring that there is horizontal direct effect of regulations. This means that there a significant anomaly developed between the protection provided to individuals, with regard to whether they claim a right against a private or public body. While the Court has sought to construe the subject of a public body as much as it can, in cases that involve two private parties, the Court has confirmed that individuals cannot rely on a regulation’s provisions. This problem has been solved by introducing the indirect effect principle, which was developed in the case of Von Colson and was further expanded in the case of Marleasing5. 6 The problems of both Bob and Martin can be solved by the EU law considering that national procedural rules are not supposed to treat Community claims any less favourably. This is in consideration of the fact that this requirement does not oblige a Member State to extend its most favourable principles and rules to applicants that rely on principles of EU law. According to the principle of effectiveness, the test established by the ECJ is found in the cases of Van Schijndel and Peterbroek. According to these cases, the Court established that compliance with the principles of effectiveness should be addressed according to the role of the established national procedural rules as well as the basic tenets of the domestic legal system, in this case the UK government. This means that before deciding whether to install the fibre optic or not in favour of Bob and martin, the national court has to weigh the Community right features as well as the Community rule from which it is established, as well as the gravity and nature of the breach. Other important factors to be considered include legal certainty, due process, as well as the right of defence.7 The following is a consideration of each of the two regulations passed by the EU and the reasons why both Bob and Martin cannot receive the services they need in the fibre optic installation process with regard to the regulations and treaty provisions of the EU law. All regulations have direct effect, and there is a clear basis for this provision in the TFEU treaty. In Art 288, a regulation is directly applicable in every member state and is also binding in its entirety, which means that the EU has not difficulty at all in arriving at the conclusion that regulations are directly effective. On the other hand, the treaties do not provide that the treaty provisions are directly effective themselves. Yet, according to the Van Gend En Loos, the Court held that the direct effect doctrine was, according to the reasons provided in its enactment, in principle applicable to provisions of the treaty. A consideration of the indirect effect principle also reveals that the EU law would assist both Bob and Martin in getting the installation of fibre cable according to the requirements of the EU law. This principle requires national courts to make interpretations of national legislation that is ambiguous with regard to, or in the light of any directive made by the European Union. Because the two regulations have been created by the EU, therefore, this means that the EU would issue a directive to the member state involves in the two cases, requiring them to implement the law, thereby promoting the purposes of the directive. This principle was passed by the ECJ in the Von Colson case, and only seeks to cover the case whereby national courts are interpreting national law that is passed with the sole purpose of implementing a directive made by the EU. A recent example how this legislation would be used to see to it that the cases of both Bob and Martin are solved was witnessed during the Marshall v Southampton case, which involved the German legislation that had been earlier on adopted in 1994 with the objective of implementing the directive 93/1048. The Von Colson case was confirmed and was also extended in the Marlesing case, where the ECJ established that the doctrine that had been applied when interpreting all national legislation, even when predating the relevant directive. 9 What is most important about the indirect effect policy is that it imposes an obligation to national courts to ensure that domestic legislation is implemented according to the wording as well as the purpose provided for in the directive of the EU. This is what the ECj established in the Marleasing case. This means that Bob and Martin are the ones to benefit from this directive. Therefore, it will not apply to unambiguous national law or law that cannot be interpreted by national courts. This was established in the cases of Oceano Grupo v Murciano Quintero and the case of QDQ media v Omedas lecha.The other principle that Bob and Martin seek to benefit from is the principle of legal certainty. Non retroactivity is also a principle that the two individuals can benefit from with regard to the EU law and the implementation of the indirect effect. These principles are bound to be taken into deep consideration before making decisions whether national legislation can have indirect effect. This was established in the Public Prosecutor v. Kolpinghuis Nijmegen BF case. According to the Webb vs EMO Cargo case, the court mentioned that is a Community law fails to be implemented by UK, then the tribunals and national courts will only interpret the national law with the purpose of avoiding any conflicts with Community law. This is especially applied if the national law meaning is not distorted. However, in the case of Lister Vs Forth Dry Dock, it was established that courts of the UK as well as tribunals have the responsibility of interpreting the national implementing legislation with the purpose of giving effect to the directive, irrespective of the fact that the UK meaning of implementing legislation gets distorted. 10 The failure of member state to implement a directive, the EU law has determined that such a directive can be enforceable. This situation, however, is a controversial situation that has drawn a debate on the implementation of directives. Faced with this question, the EU has faced a challenging situation.11 On one hand, it has taken the general view that European Union law should be enforceable so as the European Union can take effect as a real legal order. This means that directives should have direct effect, for the purpose of ensuring that whether by design of accident, they cannot be considered unenforceable by the lack of a member state to make correct implementations of them. The controversy, however, comes whereby the TFEU, in Article 288, establishes that, with reasonable clarity, all directives are not directly effective.12 So as to resolve the tension existing between these forces, the Court determined that directives can have direct effect. However, this can only happen in limited circumstances. According to the new requirements, the conditions of the direct effect should be met. This means that only the parts of the directives that are unconditional and clear can have a direct effect. Secondly, directives should provide a date whereby they should be accommodated according to national law. In addition, it has been established that the only time directives can have direct effect is when the period of implementation has expired. Further, directives are capable for vertical, rather than horizontal direct effect. This means that they can be enforced by citizens in legal proceedings.13 The fact that directives have vertical, as opposed to horizontal effect means that Bob and Martin are bound to benefit from the EU in their cases of fibre optic cable installation. In these cases, Bob and Martin wish to enforce the regulation provided by the Eu vertically. If the general principle that directives do not have direct effect are applied in this case, the state, can be able to evade liability if both individuals decided to sue the state for failure to implement the EU regulation. The state, however, in this case can choose to argue that the directive, since it laks direct effect, should not or cannot be enforced. In effect, this would reduce the UK government in both cases pleading its own unlawful inaction.14 The lack of implementing the regulations, as a defence, that is, would offend against the fairness principle, referred to as the estoppel principle. According to this principle, there is no one who should be allowed to benefit by, for example, escaping legal liability because of their own unlawful actions or misconduct. Because of the doctrine of vertical effect, the state of UK cannot profit in such a manner. It is the responsibility of the UK to fulfil its obligations according to the EU law by taking an appropriate measure to achieve this. This is the requirement f the TEU article 4 (3). What this requirement means is that, inter alia, every authority of states should play its own part and make sure that the obligation that are given to member states are met. 15 A transaction made to supply and install a fibre-optic cable that links two Member States and which is sited outside the territory of Community requirements should be considered a supply of goods according to Article 5 (1) of the Sixth Council Directive. According to this directive, it is evident that, after functionality tests conducted by the supplier, the cable can only be transferred to the client who in turn disposes it as the owner. Therefore, the price of the cable is a representation of the larger part of all of the transaction’s total cost. 16 References 1. Van Gend en Loos v Neder-Landse Tariefcommissie [1963] Case 26/62 p. 129 2. Defrenne v SA Belge de Navigation Aerienne (SABENA) [1976] 43/75 p.567 3. Leonesio v Italian Ministry of Agriculture and Forestry [1973] Case 93/71 p. 352 4.Antonio Muñoz Y Cia SA and Another v Frumar Limited and Another [2002] Case C-253/00 p.758 - "regulations operate to confer rights on individuals which the national courts have a duty to protect". 5. Marshall v Southampton p. 422 6. Foster and Others v British Gas Plc. [1991] Case C 188/89 p.427 7. Van Duyn v Home Office [1975] Case 41/74 p.377 8. Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) [1986] Case 152/84 p.422 11. Pubblico Ministero v Tullio Ratti [1980] Case 148/78 12. S. Arrowsmith, Green P. "The direct effect of Directives against utilities: the decision in Griffin v South West Water Ltd" [1995] 1 Public Procurement Law Review 11 Contrast with Rolls Royce Plc v. Doughty [1992] I.C.R. 538 at 541 per Mustill L.J. 13. National Union of Teachers and Others v Governing Body of St Marys Church of England (Aided) Junior School and Others [1997] 3 C.M.L.R. 630 14. Von Colson v Land Nordrhein-Westfalen [1986] Case 14/83 p.453 15. Ibid p.454 16. Pickstone v Freemans Plc [1989] A.C. 66 17. Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 A.C. 546 18. Marleasing SA v La Comercial Internacional de Alimentacion SA [1993] C-106/89 19. See for example Webb v EMO Air Cargo (UK) Ltd [1995] 1 W.L.R. 1454 19. Dillenkofer and Others v Federal Republic of Germany [1997] Joined Cases C-178, 179 and 188- 190/94 p.293 20. Francovich v The Republic (Italy)[1993] Cases C-6/90 & 9/90 p.114-115 21. Brasserie du Pecheur S.A. v Federal Republic of Germany and Regina v Secretary of State for Transport [1996] Joined Cases C-46/93 and C-48/93 p.499 22. R. v HM Treasury Ex p. British Telecommunications Plc [1996] (C392/93) p.655 Read More