The ability of individuals to enforce their rights under EU law before national courts - Essay Example

? The ability of individuals to enforce their rights under EU law before national courts. Table of Cases Atlanta AG and others v Council CIA Securityv. Signalson and Securitel Defrenne II Defrenne1 Faccini Dori v Recreb Factortame Kolpinghuis Nijmegen Marshall v. Southampton Unilever Italia v. Central Food Van Duyn Van Gend en Loos v Nederlandse Administratic der Belastingen Introduction Despite the fact that the individual can be regarded as a subject of Community law under the canons of direct effect and as a resident of the Union under the TEU , but the framework of the Community law pertaining to the individual judicial safeguard of his right has not been analogues. Thus, the safeguarding the individual rights emanating from the Community law has received very little significance as yet. Hence, the Court of Justice is belligerent to break these inherent ambiguities of the Treaty all these years. In a number of cases, the Court has awarded interim reliefs, which are an outstanding concept for the conceptualising the difficulties that individuals witness when initiating legal proceedings before national and European courts when trying to prey for safeguarding the rights offered by the Community1. European Union law is having an equal force with any EU’s Member State law. It offers commitments and rights on the officials of the each of the EU Member State as well as the businesses and the individuals. For implementation of the EU law in national law, the authorities will be held responsible in each and every Member State and such officials should warranty ordinary citizen’s privileges under these laws. EC can be approached by any individuals to make complaint against a Member State for any practice or any measure concerning to a Member State which such individual think not attuned with a principle or provision of EU law2. This research essay will discuss in detail with the support of decided legal cases and academic opinion about the ability of Individuals to enforce their rights under EU law before national courts. “Direct, Vertical and Horizontal Effect “ The canon of direct effect facilitates an individual to cite a European legal provision either before the European court or national court. However, direct effect is applicable only to some European regulations and is subject to many stipulations. Direct effect facilitates individuals immediately to refer EU regulations before state courts, despite the fact whether national law test exist or not. Hence, the direct impact guarantees the effectiveness and application of EU laws in the Member States. However, there are many conditions imposed so as to make a European law to be applicable instantly. Further, the direct effect may only relevant as to relations between a person and the Member State or be extended to relations between individuals. The direct effect has been preserved by the ECJ in the landmark case Van Gend en Loos3 in 1963. In this verdict, ECJ held that individuals do have rights and also impose some obligations on EU Member States as regards to individuals’ rights. Hence, individual may derive benefits from these privileges and can directly employ European legislations before European and national courts. Nonetheless, there is no obligation on the part of the Member States to adopt the concerned EU Act into its internal legal setup. It is to be noted that there are two features to direct effect namely a horizontal feature and a vertical feature. Horizontal direct effect connotes affairs between individuals which involve that a person can employ a European law as regards to another person. Vertical direct impact connotes the relationship between the State and the individuals. The ECJ has acknowledged either a partial direct impact which is restricted to the vertical direct impact or a full direct impact which has a horizontal direct impact as well as a vertical direct effect4. In Van Duyn5 case, it was observed by the European Court that while the EU regulations may have their direct effects, the EU directives may not have direct effect automatically. It goes without saying that both the Treaty provisions, and regulations are showering to enjoy rights by private individuals but at the same time, it also inflicts some duties on them. In Defrenne6 (second) case,it was observed by the court that Treaty provisions will also an impose obligation on individuals in addition to rights, and this was affirmed in later verdicts also. However, it was observed by the European Court many times that EU directives can only offer rights on individuals against member state and however, they cannot inflict duty on individuals either in favour of other individuals or the state. Thus, EU directives are capable of only vertical direct impact and do not offer horizontal rights as in the case of EU Treaty provisions. In “Marshall v. Southampton7 case”, the Court held that an EU directive cannot itself inflict a duty on individuals and hence, a provision of a directive could not be banked upon against such individual. In Kolpinghuis Nijmegen8, the EU viewed that a Member State cannot bank upon the direct effect of a directive which is yet to be implemented against an individual in criminal proceedings9. In Faccini Dori v Recreb10, it was argued that the EU directives are capable of horizontal direct effect where as the Court reiterated its earlier stand that directive does have direct effect only11. In “CIA Security v. Signalson and Securitel12,” a Belgian degree implemented in 1991 required that alarm system without prior approval from Belgian government could not be sold in Belgium Market. However, the degree was not notified to EU as demanded by an EC directive. The defendants who were also in security system trade claimed that the plaintiff was barred from selling security system in Belgium by virtue of the ban set by the degree. However, the plaintiff argued since the degree was not notified to EU, the court could not apply them. When a reference was made to ECJ, it was held by ECJ that Belgian court could not apply the decree. Since, the parties in this case were all private companies; it can be said that this synonymous to horizontal direct effect. The Belgian decree inflicted a duty on an individual and it barred any individual from marketing an alarm system that had not been authorised by the Belgian government. However, the plaintiff CIA Security could have employed the EU directive as a justification if the Belgian public authority had sought to implement the decree. Such move by the CIA Security can be explained as a vertical direct effect as the CIA Security would have been claiming a privilege against the State13. In Unilever Italia v. Central Food14, the defendant refused to pay for the olive oil supplied by the Plaintiff on the ground it did not adhere with Italian law. The Italian legislation was a technical regulation whereas EU directive 83/189 was of a procedural regulation. It was argued by the plaintiff that the EU court could not relate the legislation in determining whether the olive oil adhered with Italian law, and the EU court accepted the same. It viewed that the view held in Faccini Dori was not applicable to technical rule, which was implemented against the provisions of Directive 83/189. The court observed that the Directive 83/189 dealt with procedural exclusion to the implementation of national law while the directive in Faccini Dori demanded the Member States to adhere to positive regulations sanctioning rights to, and inflicting duties on individuals15. (Hartley 2007:208). AG Maduro has detailed the factual variances between the situations of direct impact of international agreements in the EU legal setting and of EU law in the Member States which gives more preference to the capability to bank upon on an international agreement. In Intertanko, the Court extended a stern test to international law and excluded the individuals to take refuge under UNCLOS16. (Orakhelashvili 2011: 303). How Individuals Rights are preserved in EU? It is to be observed that there is no specific provision or general rule is available in EU Treaties on the impact of the provisions of the EU laws on national governments. However, in the landmark case, Van Gend en Loos, the canon of Direct Effect was introduced by the Court of Justice. In Van Gend en Loos v Nederlandse Administratic der Belastingen17, the Dutch officials levied an import duty for importing of chemicals from Germany by Van Gend en Loos. But, Loos regarded it as an infringement of law as the present Article 30 TFEU (erstwhile Article 12 of TEEC) which forbids the levy of customs’ charges or duties having analogues impact being placed on the transhipment of products between EU Member States. Loos tried to initiate legal proceedings before the Dutch tax court namely, the Tariefcommissie. In this case, the crux of the issue raised was that whether a party or an individual can pray for and bank upon provisions of EU Community law in legal proceedings before a national court. For this question, the court answered it in affirmative. The court observed that Treaty was more than agreement, which just establishes mutual commitments between contracting member states. The Treaty also offers privileges to individuals which emanate not only where they are openly offered by the Treaty expressly but also by a reason of commitment which the Treaty inflicts upon individuals, EU institutions and Member States18. However, some EU treaty provisions have been drafted in more general terms and not all the treaty provisions are intended to be adhered directly by national courts. For giving direct effect, the Court of Justice has framed some yardsticks. For direct effect, the provision essentially must of self-executing in nature. The provisions should be meant to offer privileges to individuals. The treaty provision should be adequately precise and clear in this regard and should be unconditional. In Van Duyn19 case, it was held that EU directives will have a direct impact if the Member States refuse or fail to introduce them either within the time from or not properly, provided if they adhere to other parameters for direct effect as the EU directives are obligating and will be more efficiently implemented if an individual can trust upon them20. (Weatherill 2012:112). In Factortame case, a dispute was made by many numbers of Spanish fishermen against the Merchant Shipping Act, 1988 of UK. The non-British boats were barred from fishing in UK waters by inflicting a sequence of residential requirements as a prerequisite. The UK court referred the issue to the EU Court of Justice. It was alleged before the House of Lords that many fishermen would become bankrupt if no interim relief was given as they would suffer irreparable fiscal losses. As the English courts had no authority to annul the said UK Act at that juncture, it raised a question before ECJ whether the national law should be annulled where its function would deny a party of being benefited from the rights enshrined by the EU law. The EU Court of Justice held that it had the authority to annul such law which is contradictory to the EU law thereby preserving the rights to the individuals21. In Defrenne122 case ,an individual tried to impose his privileges against a non-state body. It was held by the court that the EU treaty article is mainly intended to states, but it yet offers privileges on individuals and hence, has horizontal direct impact and will be impacting the body controlled by Member State. Both social and economic objectivities have been taken into account by the court in arriving at its decision23. Marshall was the case involving a public health official acting as an employer, where the court analyzed the vertical direct impact of a directive .The court considered the health authority of the organ of the Member State, and hence a directive can be employed against a body acting on behalf of Member State24. The court in Francovich25 case held that Directive 80/987 could not be regarded directly impacted. The individuals should approach the state concerned to recoup the losses sustained due to infringement of community law. In Zuckerfabrik26, a German court referred to the ECJ a question of law whether any interim relief is to be extended where a national administrative measure executing a Community law which was confronted in a national court on the footing that the Community law itself is not valid for being in contradiction with general norms of community law. It was held by the ECJ that the interim legal safeguard which the Community law extends for individual should prevail27. The verdict in Atlanta AG and others v Council reiterated the safeguarding of rights of individual by facilitating the individual to claim for interim relief from the national court irrespective of the fact that the matter had been challenged already before ECJ and such plea had been turned down by ECJ as unacceptable. Hence, now individuals are permitted to file a plea before the national court claiming interim relief against any community action, which he may not be authorised to confront before a national court under the stipulations of Articles 230 and 242 & 243 EC Treaty. Thus , it is to be observed that due to Atlanta and Zuckerfabrik verdicts , individuals are entitled to claim interim safeguard of their Community privileges than what they enjoyed earlier28. Under EU competition regulation 17/62 as contained in the Article 3(2) (b), a juristic or a natural person who had a legitimate right or interest could make a complaint with the Commission contending an infringement of Articles 81 and 82. In such cases, the Commission may offer a negative clearance or to give an exception under Article 81(3). In Metro1 v Commission, an individual electronic whole-sale dealer made a complaint against SABA, an electronic products manufacture against its discriminative practice in appointing wholesalers for its products which it alleged as a contravention under Article 8129. (Turk 2009:79). Conclusion In Van Gend en Loos case, ECJ held that individuals do have rights and also impose some obligations on EU Member States as regards to individuals’ rights. In Van Duyn case, it was observed by the European Court that while the EU regulations may have their direct effects. Further, EU directives are capable of only vertical direct impact and do not offer horizontal rights. In Marshall v. Southampton case, the Court held that an EU directive cannot itself inflict a duty on individuals and hence, a provision of a directive could not be banked upon against such individual. In Marshall case, it was held that a directive can be employed against a body acting on behalf of Member State. In Atlanta AG and others v Counci30l reiterated the safeguarding of rights of individual by facilitating the individual to claim for interim relief from the national court irrespective of the fact that the matter had been challenged already before ECJ and such plea had been turned down by ECJ as unacceptable. It is to be observed that due to Atlanta and Zuckerfabrik verdicts, individuals are entitled to claim interim safeguard of their Community privileges than what they enjoyed earlier. In Francovich, Van Gend en Loos, Defrenne and Marshall Cases, the court has set out the canons of direct effect, supremacy and state’s accountability thereby paving the way to facilitate the individuals to approach the courts to implement the rights offered by community laws in national courts. However, some EU treaty provisions have been drafted in more general terms and not all the treaty provisions are intended to be adhered directly by national courts.Hence, it is a concern that there still exists provision which cannot be regarded as directly effective to be implemented for safeguarding interest of individuals which EU should make adequate provision to plug such loopholes. In view of the above, it can be concluded that the development of the principles of direct effect, indirect effect and state liability is to be applauded. But they are plagued by incoherent and artificial conditions and restrictions which have only served to deprive individuals, without justification, of the ability of individuals to enforce their rights under EU law before national courts. Bibliography Chalmers D, Davies G & Monti G, European Union Law: Cases and Materials. Cambridge: (Cambridge University Press 2010) EC.Europa.EU,’Exercise Your Rights’< http://ec.europa.eu/eu_law/your_rights/your_rights_en.htm> (2012) accessed 6 November 2012 Europa.eu, ‘The Direct Effect of European Law’ (2012) accessed 6 November 2012 Hartkamp, A S & Hondius, E H. Towards a European Civil Code (Kluwer Law International 2004) Hartley, TC ,Community Law: An Introduction to EU Law (Oxford University Press 2007). Landau, EC & Beigbeder, Y. From ILO Standards to EU Law (Brill 2008) Micklitz, H-W, The Politics of Judicial Co-Operation in the EU (Cambridge University Press 2005) Orakhelashvili, A, Research Handbook on the Theory and History on International Law. N ( Edward Elgar Publishing 2011) Sinaniotis, D, The Interim Protection of Individuals before the European and National Courts. (Kluwer Law International 2006) Turk, A. Judicial Review in EU Law. New York: (Edward Elgar Publishing 2009) Weatherill, S, Cases and Materials on EU Law (Oxford University Press 2012) Read More