EU Law: The Doctrine of Indirect Effect - Coursework Example

?EU Law Question 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. The doctrine of horizontal direct effect applies to the right to enforce the law contained in a Directive that has not been implemented against individuals. The doctrine of indirect effect applies to the right to enforce the law contained in a Directive that has not been implemented against the state.1 A number of cases established that Directives were addressed to member states and thus binding on member states with respect to “the result to be achieved”.2 Therefore, a Directive could not bind private individuals. 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 doctrine of indirect effect permits action against the government in cases where Directives have not been implemented by the time set for doing so and individuals suffer damages as a result thereof. The ECJ has ruled that pursuant to Article 10 of the EC Treaty, members states are under a persistent duty to take all necessary and reasonable steps to ensure that they comply with their obligations under the Treaty of Rome. These steps included the government ensuring that national courts take account of the objectives expressed in Directives. Thus national courts must not only interpret national laws so that they incorporate the provisions contained in implemented directives, but also unimplemented directives to ensure harmony and standardization of Community Law.7 Based on the authorities discussed the residents generally and the gardeners have valid claims against the UK government for the damages sustained contrary to the result intended to be achieved by Directive 2008/01, albeit unimplemented. The residents and the gardeners may pursue claims against the government for the damages sustained on the basis that the Directive’s implementation would have avoided the damages ultimately sustained and the damages were precisely of the type that the Directive intended to prevent. Question 1(B). The residents generally and the gardeners’ right to claim an action against the government with respect to an improperly implemented Directive is dictated by the doctrine of vertical direct effect. The doctrine of vertical direct effect takes the position that Directives are directly binding on governments and thus confer upon individuals “directly effective rights”.8 According to Article 249 of the EC Treaty, Directives are simply directions for the contents thereof to be injected into national laws. Any action for improperly implemented Directives must therefore take account of the state’s right to use some discretion as to how the Directive will be implemented.9 There is however, no discretion as to when the Directive must be implemented. Nor is there any discretion as to the substantive law to be included in the Directive. As a result direct effect will only arise when the time stipulated for implementing the directive has expired.10 It therefore follows that since the Directive 2008/2 was implemented within the time frame set for implementing it, it is directly effective. The Directive was improperly implemented because it left out the testing framework established by the Directive. The fact is Article 10 of the EC Treaty imposes upon member states a continuing duty to ensure that community law if effective and equally applicable throughout the EU. Thus the duty to properly implement Directives is interpreted by reference to Article 10.11 The law applicable to an improperly implemented Directive is therefore essentially the same as the law applicable to an unimplemented Directive. Thus the main question is whether or not the Directive in question confers upon the individual impacted an identifiable right which was denied the individual as a result of the improperly implemented Directive.12 It is also necessary to determine whether or not the government’s failure to properly implement the Directive resulted in the damages complained of.13 On the facts of the case for discussion, the residents and the gardeners obviously had a right to expect that the regime for testing chemicals would have controlled the exploitive use of chemicals and thus protect water from pollutants. The failure to properly implement this particular part of the Directive deprived the residents and the gardeners of this right and ultimately resulted in the damages complained of. It therefore follows that the residents and the gardeners have right to take action against the government for its failure to properly implement the substantive law contained in the Directive. Question 2 In order to pursue judicial review it must first be established who or what administrative body or individual’s official decision should be the subject of judicial review. Secondly, it the acts and decisions under review must be established. Thirdly, the grounds for review must be identified and the standing of interested parties to pursue judicial review must also be determined.14 Under EU law and the administrative acts of the EU, Article 263 sets forth the parameters for identifying standing, grounds, decisions and grievances giving rise to an application for judicial review.15 Jurisdiction for judicial review is conferred upon the Court of Justice of the European Union (ECJ). The authority conferred upon the ECJ is the power to “review the legality of legislative acts, or acts of the Council, of the Commission and of the European Central Bank,” but does not include the power to review the legality of “recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-a-vis third parties.”16 Since the contentious issue relates to a decision of the European Council and not a recommendation or opinion, the UK has a statutory right to seek judicial review by the ECJ. In other words a formal act on the part of the EU Council is reviewable.17 A Decision which is binding on the state to whom it is addressed is certainly a formal act of the EU Council.18 The UK’s success will be determined by reference to the strengths of its grounds for review. There are four grounds for judicial review pursuant to Article 263 of the EC Treaty: the lack of competence, encroachment of procedure; encroachment of the Treaty or a rule of law relative to the application of the decision; and an abuse of power.19 The UK seeks to proceed on the grounds of improper procedure. Essentially the UK is of the opinion that the Article relied on for implementing the decision did not follow the appropriate Treaty provision which would have required a unanimous vote as opposed to a majority vote for implementation. The UK therefore wants to apply for judicial review and the subsequent annulment of the Council of Europe’s Decision impacting sheep farmer and the sheep business generally in the UK.20 In challenging the implementation of the decision on the grounds of procedural error, the UK will be challenging the legality of the decision.21 The purpose of Article 263 is to ensure both the validity and legality of acts and decisions of the administrative arms of the EU. The ECJ has jurisdiction to provide preliminary determinations on the validity and legality of those acts and decisions.22 The main question is therefore whether or not the UK can substantiate its claim that the Council put the decision to a vote under the wrong procedural Treaty provision. If the UK can substantiate that the Treaty provision used is inapplicable and is typically never used with respect to the determination of obligations on the part of member states it has a relatively good chance of succeeding. If the UK can also substantiate arguments supporting its position that another Treaty provision was the appropriate provision to use when putting the decision to a vote, the UK will likely be successful. However, if the UK cannot provide a good enough reason for justifying its arguments that another Treaty provision was the more appropriate it will not succeed in its application for an annulment. Article 263 of the EC Treaty confers standing upon the Sheep Farmers’ Association as parties who are directly and individually concerned. Article 263(4) provides as follows: Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.23 Therefore as an organization consisting of 250,000 sheep farmers and in the business of promoting sheep farmers’ business interests, the Sheep Farmers’ Association is directly concerned with the restrictions on the movement of sheep and the slaughter of sheep. As such the Sheep Farmers Association can either bring an action for judicial review or join the government’s application for judicial review as a party concerned with the outcome of the judicial review. The right of standing is referred to as a right of direct and/or individual concern.24 With the right of standing the Sheep Farmers Association is at liberty to participate in judicial review proceedings. Based on the foregoing discussion, the UK and/or the Sheep Farmers Association are at liberty to challenge the legality and validity of the decision made by the European Council. The grounds for challenging the legality and validity of a decision are contained in Article 263 of the EC Treaty. Similarly, Article 263 of the EC Treaty facilitates the standing of those who have concerns or interests in the challenged administrative act or decision. The strength of the UK’s procedural grounds will determine whether or not an annulment will be the outcome of an application for judicial review. Certainly, at this stage, the UK at the very least has the necessary grounds for obtaining leave to seek judicial review before the ECJ. Bibliography Textbooks Chalmers, Damian; Davies, Gareth and Monti, Giorgio. European Union Law: Cased and Materials, (Cambridge, UK: Cambridge University Press, 2010). Craig, P. P. and de Burca, Grainne. EU Law: Text, Cases, and Materials. (Oxford, UK: Oxford University Press, 2008). Harris, Phil. An Introduction to Law. (Cambridge, UK: Cambridge University Press, 2007). Mendez-Pinedo, M. Elvira. EC and EAA Law: A Comparative Study of the Effectiveness of European Law. (Europa Law Publishing, 2010). Turk, Alexander. Judicial Review in EU Law. (Glos. UK: Edward Elgar Publishing Limited, 2009). Cases Case 60/81 IBM v Commission [1981] ECR 2639. Case 152/84 Marshall v Southampton and South West Hampshire Health Authority [1986] 1 CMLR 688. Case 148/78 Publico Ministero v Ratti [1979] 1629. Case 26/62 Van Gend en Loos [1963] ECR 1. Doughty v Rolls-Royce [1992] IRLR 126. Francovitch v Italian Republic [1992] IRLR 84. Marleasing SA v La Comercial Internacional de Alimentacion SA [1992] 1 CMLR 305. Statutes Treaty of Rome 1957 (as Amended). Read More