State Liability and Direct Effect - Essay Example

The implementation of law of state liability is the responsibility of national courts of EU states1. Certain incidents in EU states led to the development of the doctrine of state liability. In 1991, the Italian government was held responsible for not completely enforcing the Directive 80/987, which ensured a minimum wage of all employees when employers suffered from insolvency. The European Court of Justice made Italian government pay compensations for all workers who suffered as a result of its non-implementation of the law.

It was modified in 1996 after the cases of Brasserie du Pcheur v Federal Republic of Germany and R v Secretary of State for Transport ex parte Factortame Ltd (Cases C-46 and C-48/93) took place. The law was further clarified and the details were given. The law of State liablity could only be used in three conditions :when the law which was under scrutiny was meant to deliver individuals's rights, when the law has caused serious damages and when a clear link would be established between the state 's breach and the damages caused.

2 Direct Effect is one of the ways through which the citizens of EU countries can file cases of non-implementation against the state. . There are two types of direct effect: vertical direct effect and horizontal direct effect. In case of the former, the individual can file a case against the state, while in the case of the latter the inidividual can use it against another individual or any non-State entity. Further, in order to use Direct Effect , the particular European Community law must be either a Directive ,or Treaty Article or a Regulation and it must claim to confer individual laws.

3The working of Direct Effect is different in case of Treaty Articles, Directives and Regulations and the distinctions between them needs to be understood.In case of Treaty Article, it can be used both vertically and horizontally, i.e. it can be used against the State as well as a non-State entity. in case of Regulations, direct effect is only viable if its confers rights on persons and if the Van Gend criteria is satisified. It can be applied both , horizontally and vertically. However, not all regulations of European Community law have a Direct Effect, for instance laws dealing with crime and criminals such as Tachograph Type Regulation, which don't confer rights upon an individual don't have Direct Effect.

It is directly applicable but not directly effective.4For direct effect to be applicable for directives, certain criteria needs to be satisifed. First the provisions of directives in question should be precise, clear and unconditional as stated in Van Duyn case. The court stated that"provision [which] lays down an obligation which is not subject to any exception or condition and which, by its very nature, does not require the intervention of any act on the part either of the institutions of the Community or of Member