Directives Implementation in the EU Law - Essay Example

?European Union Law The case is that the Member U.K. has not transposed the EU Directive No 65/EU for the reason that according to the UK Department of Transport, existing law would suffice to meet the directive’s requirements. Guidelines state that there is no exemption from implementing a EU Directive and that it should not be treated as an add-on to the existing legislation. Besides, the existing internal legislation should be amended, repealed or revoked and a new legislation brought in its place to fully the reflect the new directive. 1 For example, in connection with transposition of Pharmacovigilance Directive 2010/84/EU, consultation document states that it would be difficult to ensure transposition of the directive without resorting to legislative tools.2 Directives and decisions are not directly applicable and they have to be enacted by primary or secondary legislation in the U.K. Section 2(2) of the ECA enables such legislations to be enacted locally in the U.K. This is the enabling provision to repeal domestic laws inconsistent with EC law.3 The Directive comes into force once the set time limit has expired. If the Directive’s provisions are directly effective, an individual can invoke the provisions of the directive before a national court if the time limit has expired and accident occurred after the expiry of the time limit for transposition. The Commission may also bring action under article 258 of TFEU against the Member State. It can also bring an action against the Member State during the period of transposition or before the expiry of the set deadline if it finds that Member State has not taken national measures as in the present case, which can compromise the result envisaged by the Directive. In the case of Directives, they should be transposed within the time specified by the Commission failing which actions could be taken against the Government in the national as well as European Courts. Infarction proceedings before the European Court of Justice can be initiated by the Commission as provided for under Article 226 of the EC Treaty. The Commission can also invoke article 228 in case a member State fails to rectify the lapse even after Article 226 proceedings, which can impose a lump sum fine on the State or an ongoing fine on a daily basis until the breach of law is corrected4. Recently, Ireland lost a case in the European Court of Justice in April 2013 for having failed to transpose the Article 8 of EU Directive 2008/94. In this case of No 398/11 Commission v Ireland, the court has stated at para 48 “Individuals harmed have a right to reparation against a Member State” if three conditions are fulfilled: There must be an infringement of EU law conferring certain rights to the citizens; the infringement must be serious; and direct causal link between the lapse and the damage to the individuals must be established 5 Liability of the State arises from Article 4 (3) of TFEU which the national courts must ensure in the event of rights conferred by EU law on individuals being denied. To constitute a state liability, there must be a breach of EU law, attributable to the Member State and it must have caused damage to individual(s) as mentioned in the Francovich principle which arose out of Francovich case (1991)6 resulting from violation of the EU Directive which the Member State failed to transpose. Failure to implement can be total or partial. The Government is responsible for violation by different departments and also for the acts or omissions of public bodies who have been delegated with the responsibilities of performance. In Dillenkoffer and others v Federal Republic of Germany (1996)7, the failure to transpose within the time limit itself was held to be a serious violation. Thus, if an individual has interest safeguarded by the directive, state is held responsible for damages incurred by an individual caused directly as result of failure to transpose. This is especially relevant in cases of directives on health and safety at work, equal treatment of women etc.8 Individuals like employees, employers and trade unions cannot generally prefer a direct complaint to the ECJ. Rather, they have to approach national court which can refer to the ECJ by means of a procedure called “preliminary reference” under article 267 of TFEU 9 Article 288 TFEU states that directive shall be binding on a Member State in respect of its objective to be achieved. The form and methods of its application are left to the choice of national authorities of the Member State (Kaczorowska, 2013, p. 125). It does not mean that a Member State need not act as in the present case under the pretext of existing national laws being already in place to cover the prescribed results of the directive in question. The law expects that the member state must initiate proceedings so as to embed the elements of the directives in the national law in order to be legally effective and enforced and recognized as well by the European Union for having given due credence to the new directive. In the present case, the individuals Malcolm and Ricky have been injured in two separate road accidents due to untreated black ice on “A5” road and due to untreated snow on “M6 Toll road” respectively. The directive in question requires Member States to ensure that primary "A" roads and motorways are free from accumulated snow when the temperature falls below 1 degree Celsius. While primary A road is directly under the supervision of the Government department, Motorway is under a contract held by a private company for whose acts and omissions, the member state shall be responsible. From the legal provisions seen above, individuals can approach national courts for damages if three conditions are fulfilled. i.e there must be an infringement of EU law conferring certain rights to the citizens; the infringement must be serious; and direct causal link between the lapse and the damage to the individuals must be established. This principle has been enshrined in Van Gend en Loos10 whose judgement states that European law not only applies to Member States as obligations but also to individuals as rights. Van Duyn v Home Office 11 was the first case to be referred to the European Court of Justice by an English court. The case involved appeal against the refusal of the Home Office to permit the applicant entry into UK on the ground of public policy as the applicant, a Dutch national, was a practicing Scientologist whose entry was considered undesirable for public policy reasons although the organization the applicant belonged to might not be an unlawful one and nationals of member state might have been permitted to work for it. This decision established the principle that directives produced vertical direct effect if it was clear, precise and unconditional. There can be no direct effect until the date of implementation of a directive has expired as held in Publico Ministerio v Ratti12. Directives should be transposed by Member State within the time limit laid down therein. An individual cannot invoke provisions of a directive against another individual which amounts to “horizontal effect”. 13 A Directive can be invoked vertically against a public body as established in Marshall v Southampton & SW Hampshire AHA14. This case established that an individual can invoke a directive‘s provisions against a public body as a vertical effect and not against a private body or individual as a horizontal effect. The case involved one Mrs Marshal who was forced to retire at the age 60 while men could retire at 65 as per UK law. But the EU directive enjoining equal treatment of men and women had not been implemented by the U.K. Yet Mrs Marshall could proceed against the public body relying on an unimplemented directive. Relying on this decision Malcolm in the instant case can sue the state even though the Directive to clear accumulated ice and snow has not been implemented. In Foster v British Gas ,15 court confirmed that a directive has vertical effect on a public body. British Gas being a public body and emanation of a State could be sued. In the instant case, Vicky can sue the private body Midland Express Way Ltd as an authorised contractor the state to provide services on its behalf. This satisfies the test in Foster v British Gas as " a body whatever its legal form, which has been made responsible pursuant to a measure adopted by the State for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals." 16 In the present case, it must therefore be examined whether Malcolm and Ricky were injured due to untreated ice and un-cleared snow when the temperature had fallen below 1 degree Celsius. There is no mention in the facts of the case about the temperature reading below 1 degree Celsius. Hence, an individual can claim damages upon establishing causal link between the failure to transpose the directive and the injuries sustained. Thus, if snow and ice had collected despite temperature not falling below 1 degree Celsius, it is doubtful if the individuals are entitled to damages though the Member State is liable to be fined by the European Court of Justice or National courts. However, assuming that there is a direct causation of the injury as a result of failure to implement the directive, the individuals can sue the Member State for liability in the national court of their respective State. It is for the national court to make a preliminary reference to the ECJ or adjudicate by itself according to law. Thus, individuals are entitled to make a claim before national court for non-implementation of a directive within the prescribed time limit. In the present case time limit has not been given though it has been stated to have been issued in June 2012. Assuming that time limit had expired at the time of accidents involved in by Malcolm and Ricky, a member state is liable as below. In the present case, the Department of Transport has expressed its confidence that current internal memos and policies would meet the Directive’s requirements which can be evidence of compromising the result of the Directive in question. In the present case, Malcolm and Ricky as individuals can sue their Member State and the private body Midland Expressway Ltd respectively after the expiry of the time limit if certain conditions are fulfilled. The direct causal link between the breach of law and loss sustained by an individual is evidentiary in nature. Thus, in the joined cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame (1996)17, ECJ ruled that national courts must determine the causal link stated above as a question of fact for which national procedural rules must be applied to establish the link and quantification of damage and its recoverability.18 Although there is prohibition on horizontal effect, an individual is entitled to sue Member State in damages as a result of Francovich decision for loss sustained due to failure of the member state to enforce a directive. In the instant case, Ricky can directly sue the Member State instead of suing the private party Midland Expressway Ltd, entrusted with the maintenance of M 6 Toll Road. Ricky as a private claimant may pursue dual legal actions both against the Member State as well as against the private party Midland Expressway Ltd as the former’s liability hinges on the claimant’s failure to impose obligations on the private party by way of indirect effect.19 In sum, Malcolm and Ricky can claim damages from the Member State before national courts by virtue of direct effect which requires that applicable EU laws are to be clear enough, precise and without any conditions. Direct effect generally confers rights on individuals though not always. Bibliography Books Craig, P., & de Burca, G. (2011). EU Law: Text, Cases, and Materials. Oxon: Oxford University Press. Kaczorowska, A. (2013). European Union Law. Oxon : Routledge . Cases Andrea Francovich and Others v. Italian Republic, C-6/90 and C-9/90, ECR I-5357 (1991). Brasserie du Pecheur and Factortame , ECR I-1029 (ECJ 1996). Dillenkoffer and others v Federal Republic of Germany , C-178-9/94, 188-190/94 (1996). Websites BBC-Nwes. (2009, July 21). Q&A: How UK adopts EU laws. BBC News , p. http://news.bbc.co.uk/2/hi/europe/8160808.stm. EUROFOUND. (2011(a)). Complaints to the European Court of Justice. Retrieved Nov 11, 2013, from EUROFOUND: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/complaintstotheeuropeancourtofjustice.htm Eurofound. (2011). State liability . Retrieved Nov 11, 2013, from EUROFOUND: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/stateliability.htm EuropeanParliament. (2007). Comparative Study on the Transposition of EC Law in the Member States . Directorate General of Internal Policies of the Union . HMGovernment. (2013). Transposition Guidance: How to implement European Directives effectively . London : Department for Business, Innovation and Skills, UK. MHRA. (2010). Transposition of Pharmacovigilance Directive 2010/84/EU. Scannel, Y. (2013, May 15). Implementing EU Directives : How to Avoid Costly Failures. Retrieved Nov 11, 2013, from Public Policy.IE: http://www.publicpolicy.ie/author/yvonne-scannell/ Read More