Rationale for Differences among the Effects Ascribed to Directions, Directives and Decisions - Research Paper Example

? EU Law Word count:2167 (excluding bibliography and foot s) Introduction The distinction between a regulation, a directive and a decision, which combined form part of secondary law, is the one that has problems with the application of the doctrine of direct effect. Before attempting to discuss the manner in which a directive, a decision or even a regulation will appear to override one another, it is important to consider their definitions. These are found in Article 288 of the Treaty on the Functioning of the European Union (TFEU): “A directive shall be obligatory, to the expectedoutcome, upon each member state to which it is directed, but shall departfrom the national authorities the option of form and methods.”1 A regulation shall have general application. It shall be obligatory in its totality and directly pertinent to member states. Rationale for Differences among the Effects Ascribed to Directions, Directives and Decisions The above three provisions of Article 288 (TFEU) can be explained in the following manner: a regulation is a general provision of legislation. This means that a regulation is indiscriminate, and all people are bound to them, are not binding on an individual level but are more binding on the individual at the community level.2 In other words, they are specific and mainly aim to enhance uniformity among all member states.3 Forster further states that regulations do not need to be implemented by member states as they are self-executing. At this juncture, it is vital to note the case of Commission v. Italy [1973] ECR 00101also known as slaughtered cows, is a case about premiums imposed upon slaughtered cattle as well as withholding milk and milk products from the market.4 This was an application by European Communities known as Commission which aimed at having the European Court of Justice declare that Italy had failed in the obligations imposed by Regulation 1975/69 of 1969. It was held that member states cannot implement sections of the community regulation to the exclusion of others. This means that a member state must implement a regulation as per the requirements of that regulation and cannot change anything or even attempt to introduce anything that is not in the regulation.5 A directive, on the other hand, is not specific in nature. It sets out the vision or primary goal that must be achieved and then left to the individual state to see how best it will implement the directive. In other words, a directive is aimed at allowing a country’s national laws to easily conform to the international laws. This means that a country has the option to already rely on its own existing laws if it feels they are sufficient.6 It will also have the option of coming up with the laws to which the latter grant them a period of between one to five years. It is stated that the differences between regulations and directives are aimed at member states or individuals while regulations apply to everyone. It is also argued that regulations are designed to apply directly while as seen in Article 288, directives are made effective after some form of legislation is implemented by the member state to give the said directive a form of validity.7 In the case of Van Duyn v. Home Office [1974] ECR 1337, the applicant Yvonne Van Duyn, a Dutch woman, was denied entry into the United Kingdom to work as a secretary in the Church of Scientology.8 The conflict that caused her to sue Home Office was that she had rights to movement as a worker. This meant that the Home Office had no right to turn her away. On the other hand, the Home Office argued that it had a right to deny a person entry on the basis of public policy, public security and public health. At this time, the Church of Scientology was banned, and on this basis, the entry of Van Duyn was denied.9 Evaluation of the Differences, Advantages and Disadvantages As discussed above, it emerges that a difference exists between these two decided cases. A regulation as shown by the case of Commission v. Italy, part of the ruling was that a directive cannot be interfered with.10 It must be implemented in its entirety. On the other hand, as Van Duyn v. Home Office has shown, a country has the discretion to implement a directive as it sees fit. This means that the individual country has the advantage of refusing to implement a directive if it contravenes national law.11 This is an advantage more to the individuals than the state as their rights safeguarded in a directive cannot be infringed on by the state. To this point, it is apparent that the doctrine of direct effect does not apply to both regulations and directives, but it acts differently allowing national law to apply where necessary, while at the same time allowing community law to play a role where it is suited. So far, this article has mentioned the doctrine/principle of direct effect without mentioning its basis.12 This was articulated in 1963 by the European Court of Justice as per case of the Dutch firm of Van Gend en Loos. Article 30 of TFEU which prohibits charging of custom duties including additional charges of corresponding effect from being levied among member states. The act further prohibited levying of custom duties of a fiscal nature.13 Enter Van Gend en Loos. Before 1958, it was importing glue from Germany while applying a customs duty of three percent. In 1959, the Dutch government ratified an agreement with other governments that raised duty to eight percent.14 The company went to the customs court to raise the issue. It was held that a country could not reduce Article 30 (then Article 12) into its own law and, therefore, could not alter the law and had to apply it as it was.15 It was, therefore, clear that treaty and regulation can apply directly if they meet the requirements laid down by ECJ – this worked in the favor of the company whose rights were protected. In a decision that has applied the doctrine of direct effect; the Finnish Court upheld Community law over national law in the decision of VAT Deduction Case. In this case, the Supreme Administrative Court held that, “It follows again from the principles expressed in case-law of the Court of Justice that Article 4 of the Directive must be applied for the benefit of the private party if the national legislation does not lead to the tax treatment required by the Directive.”16 In another similar ruling, in the case of United Distillers France v. Agent Judiciaire Du Tresor Public, the Court of Appeal at Douai held among others that if national legislation is inconsistent with Community Law, the Community Law will take precedent over the national law. This is a show that it is possible for the doctrine of direct effect to apply. This means that the courts are willing to allow the regulations to be read as being in tandem with directives.17 Again another advantage on the application of directives as the combined effort by both laws allowed the best interests of the company to be upheld. In R v. Employment Secretary, exparte EOC, the Equal Opportunities Commission (EOC) [1994], the House of Lords was attempting to have the threshold of the provisions of the Employment Protection (Consolidation) Act 1978 be viewed as discriminatory to women as the Act protected workers who worked for over sixteen hours a week.18 Many women worked on a part time basis, which meant that they worked less than the time allocated of sixteen hours. Attempts to have this law amended were rebuffed by the Secretary of State and thus the Commission sought a judicial review. However, the Divisional Court and the Court of Appeal discarded the matter, and this prompted the EOC to take the matter over to the House of Lords. The following statement was made at this point,“each member state shall during the first instance ensure and subsequently uphold the use of the code that all people should be paid equally for work done. For the purpose of this article, paycan be argued to be the normal, basic or least wage or salary. Equality in payment devoid ofbias based on sex means: (a) that payment for the equal work rates shall be designedin relation tothe same unit of measurement; (b) that shall be the same for the similar job.19” as per Lord Keith. As shown above, Lord Keith was upholding Community Law in contrast to National Law as the latter was in essence discriminative to women. This is an indication that regulations and directives have been seen to have the same effect when the doctrine of direct effect applies. This has been shown in the Defrenne v. SABENA Case 43/75.20 In this case, the applicant brought a suit before the Belgian Appeals Court to complain about poor payment in comparison to her male colleagues among other issues. This case has a lot of similarities with R v. Employment Secretary, exparte EOC. As was the case in EOC case, the court upheld the Community Law on this matter as being more superior to National Law.21 This is an indication that the doctrine of direct effect applies. The Community Law is not always effective as it is not always able to fully address the matter at hand. In the EOC case, for example, the plaintiff was not able to gain employment in the UK. Likewise, in R v. Secretary of State for Transport Ex Parte Factortame Limited and Others, the United Kingdom wishing to protect its citizens from exploitation from overfishing by Spanish fishermen, introduced strict rules to bar Spanish fishermen from exploiting fish within British waters.22 This was held to be contrary to Community Law. This goes to indicate that, in a case where Community Law contradicts national law, there are few instances where National Law prevails. The conflict of application between Community Law and National Law cannot be considered to imply that the two cannot work together. The two laws have a way of working together. It is as a matter of fact seen in the domestication of Community Law regulations. Countries as discussed above have the opportunity to domesticate Community Law.23 This allows them to keep away fromvariance between the two sets of law. The case where the Domestic Law has not conformed to Community Law, it will be subordinate to the International Law.24 This has been indicated in the case of Community v. Italy. In this case, as seen above, Italy was held to be in the wrong for imposing the levy against directives of the European Community. It is also argued that there are among direct effects, horizontal as well as vertical effects. One major difference between directives and regulations is that regulations confer rights as well as duties on a private individual something that a directive cannot do.25 A directive can only grant individuals rights against the state and not individuals against other individuals or in favor of the state. In other words, directives confer only vertical direct effects while regulations and treaty provisions confer horizontal direct effect.26 This means that directives are issued to cover individual rights and, therefore, all laws that are aimed at protecting human rights will be qualified as regulations. They are vertical since they operate within the level of the individual in that they deal with the individual and how he or she relates to others. On the other hand, those laws that cater for the checking of state excesses against the individual will fall within the category of directives. Such laws include freedom of expression, freedom from arbitrary arrest or detention. Forster goes on to ask whether it is possible to have directives with horizontal direct effect and here he states that in Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching). In this case, the court held that a directive ‘may, not of itself impose obligations on an individual’ and that a stipulation of a decree may not be relied on as such against suchan individual. This means that no matter the nature of a directive, it will not apply to the individual by itself but will do so when it is read together with another regulation.27 Conclusion The doctrine of direct effect has to the most part had the result of not fully integrating directives and regulations. This article agrees that a directive must be read to the exclusion of a regulation and vice versa. This article, however, acknowledges that there are instances where the two come together. As indicated above, there are benefits of having directives in that the interests of the citizens are safeguarded and, as a consequence, the excesses of the state are kept in check. On the other hand, the states have ceded some of their sovereignty to the greater European Union and as the case of Commission v. Italy has indicated, it cannot make decisions without consulting the European Union rules. Bibliography Andenas M, Services and Free Movement in EU Law (Oxford: Oxford Univ. Press 2004).Bell A, Employment Law (London: Sweet and Maxwell Limited 2006) Bungenberg M, Griebel J and Hindelang S, International Investment Law and EU Law (Heidelberg; New York: Springer. 2011) Commission v. Italy [1973] ECR 00101 Craig P and De Bu?rca G, EU Law: Text, Cases, and Materials (Oxford [u.a.]: Oxford Univ. Press 2008) European Union. ‘Consolidated version of the treaty on the functioning of the European Union’ (2010) 30 (3) JEU 47 Forster N, Questions and Answers: EU Law 2007-2008 (Oxford: Oxford University Press 2007) Great Britain, Foreign and Commonwealth Office. Consolidated texts of the EU treaties as amended by the Treaty of Lisbon (London: Stationery Office 2008) Hilaire B and Robert J, Constitutional & Administrative Law (New York: Routledge Taylor & Francis 2011) Landau E, From ILO Standards to EU Law: the Case of Equality between Men and Women at Work (Leiden; Boston: Martinus Nijhoff Publishers 2008) Laura L and Ioan L, ‘Considerations on fiscal harmonization in the EU in the field of value added tax’ (2010) 12 (1) AUASO426 Medhurst D, A Brief and Practical Guide to EU Law (Chichester: John Wiley & Sons 2008). Oppenheimer A, The Relationship between European Community Law and National Law: the Cases (Cambridge: Cambridge University Press 2003) Papadopoulos T, EU Law and the Harmonization of Takeovers in the Internal Market (Austin: Wolters Kluwer 2010) Psychogiopoulou E, The Integration of Cultural Considerations in EU Law and Policies (Leiden; Boston: Martinus Nijhoff Publishers 2008) Reich N, Understanding EU Law: Objectives, Principles and Methods of Community Law (Antwerpen [u.a.]: Intersentia 2005) Toner H, Partnership Rights, Free Movement, and EU Law (Oxford [u.a.]: Hart 2004) Tu?rk A, Judicial Review in EU Law (Cheltenham, UK; Northampton, MA: Edward Elgar 2009) United Distillers France v. Agent Judiciaire Du Tresor Public (Court of Cassation, 21 February 1995), 195 SA Lilly France (Consield’Etat, 26 June 1995) Van Duyn v. Home Office [1974] ECR 1337 VAT Deduction Case (Supreme Administrative Court, 31 December 1996) Weatherill S, Cases and Materials on EU Law (Oxford [u.a.]: Univ. Press 2007) Read More