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EU Law - Coursework Example

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EU Law Question 1 (A). The doctrines of indirect effect and horizontal direct effect inform whether or not the residents and gardeners may rely on the Directive 2008/01 in claims against both the government and Fattenem despite the fact that it has not been implemented…
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EU Law
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Download file to see previous pages It was held in Marshall v Southampton and South West Hampshire Health Authority that an anti-discrimination Directive that had not been implemented by the UK despite the expiration of time for doing so, could not be used against private parties. The ECJ’s decision was based on the rationale that Article 249 of the EC Treaty specifically stated that Directives were binding on the states to which they were addressed.3 The only real possibility for pursuing claims against private parties in cases where damages are sustained and claim would have arisen under an unimplemented directive is in cases where the private individual is under the control of the state, subject to some form of statutory control or provides a public service.4 Fattenem appears to be a private corporate body offering private services and thus cannot be characterized as an agent of the state. There are other possibilities for the residents and the gardener to pursue claims against Fattenem with respect to the unimplemented Directive. The doctrine of indirect effect as enunciated in Francovitch v Italian Republic [1992] IRLR 84. In the Francovitch case, the Italian government’s failure to implement a Directive seeking to ensure that employees receive fair compensation when their employers became insolvent resulted in employees losing out on compensation. The court ruled that Italy’s failure to implement the Directive was a breach of its obligation to ensure that the result intended to be achieved was ensured. Thus Italy was liable to compensate the employees.5 Based on the doctrine of indirect effect as enunciated in Francovitch, the residents and gardeners can thus pursue Fattenem for damages relative to the unimplemented Directive. Based on the ruling in Francovitch, the right to take action indirectly is substantiated if it can be established that the damages complained of is exactly the result that the Directive intended to prevent. The Direction was clearly intended to prevent water pollution and the government’s failure to implement the Directive resulted in significant water pollution and damages. Essentially, the Francovitch decision established that individuals may pursue claims against the state in respect of damages sustained as a result of the government’s failure to implement a Directive if three conditions were satisfied.6 First, it must be established that the Directive must transfer some right to the individual complainants. Arguably, the Directive conferred upon the individuals a right to clean and unpolluted water. Secondly, the rights must be discernible from the wording of the Directive. The Directive clearly intended to prevent contamination of water in the areas of waste disposal by those who manufactured fertilisers. Thirdly, there must be a link between the government’s failure to implement the Directive and the corresponding damages complained of. The evidence suggest that the government’s failure to implement the Directive resulted in Fattenem’s progressive and unrestrained use of chemicals. The residents had not complained of pollution and contamination before. Thus had the Directive been implemented Fattenem would not have continued to increase its use of the chemical to dangerous levels. Essentially, the ...Download file to see next pagesRead More
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