The Substantive Law of the EU - Case Study Example

EU Law Summary This essay discusses the procedure and substance involved in the consideration of an Art 226 action by the Council against a member state (the UK) for a failure to implement the directive and whether Syd and Aneesha (hereafter referred to as S and A) will be able to take action against the state in the national courts using an Art 234 reference if necessary. The better part of the answer will however discuss whether S and A can rely on the direct effects of the Directive. This will be followed by a discussion of vertical and horizontal direct effect, the rules and regulations in applying this, the differences between the enforceability of rights contained in regulations and directives. Answer The Fictitious Carrier Pigeons Directive 2004 provides that all carrier pigeons must be subject to quarterly veterinary inspections, their health problems must be promptly remedied, and that the animals must be kept separately from other animals, until they are certified as being in good health. If certification does not take place within three months of the inspection reporting problems, the animals must be slaughtered. More importantly the directive provides that a fund must be set up to compensate farmers whose animals are slaughtered pursuant to the directive. The directive was to be transposed into UK law on the 1st of January and the time has expired as at now .In such circumstances the Council would be entitled to commence a formal Article 226 action if subtle persuasion and warnings failed to convince the UK that it should implement the directive within reasonable time .According to Article 226 "if the commission considers that a member state has failed to fulfill an obligation under this Treaty it shall deliver a reason opinion of this matter". Therefore once the commission has been alerted regarding this implementing omission of the UK.1 Following the reply from the member state or after a reasonable time where no reply is received the commission will then deliver a reasoned opinion which records the reasons for the failure UK to implement this directive which required the setting up of a fund and the treatment of such pigeon's.2.If the matter is taken to the ECJ in this regard, its judgment would be merely declaratory; the member states are required under Art 228 to take the necessary measures to comply with the judgment. It seems here that the UK does not have a defence that could be raised for non compliance because under Art 10EC the member states are required to fulfill all their community law obligations and Art 292 obliges Member States not to seek other solutions to disputes. S and A are advised that if the UK does not comply with this judgment a further action may lie against their government under Art 226 for a breach of Art 228.3 Remedies for S and A Secondly, coming to the remedies available to S and A because of the loss of profit they have suffered due to the death of their gaming pigeons ,they are advised to start an action for compensation for the dead pigeons with a UK court. They can rely on community law within their domestic courts but only on the condition that the directive must have either been already implemented by the UK (which it has not been done so here) or give rise to direct effects. As mentioned before the directive has already passed its deadline for implementation by the UK. Therefore subject to the application of the doctrine of direct effect in this regard S and A might have a possible remedy under EU law. The doctrine of direct effect is one of the most important aspects of the community law. Summarised, it states that community law creates legal rights which are directly enforceable by individuals in member states. This was held in the case of Van Gend En Loos v Nederlandse Belastingadministratie (case 26/62) as follows:4If a legal instrument of the EU confers direct effects then the individual has locus standi to enforce a right under community law in national courts and the European Court of Justice (ECJ) .Under Article 249 EC regulations are directly applicable in all member states and automatically become a part of the national legislation without the requirement for any further implementing measures to be taken.5However in this question we are concerned with the direct effects( in the vertical and horizontal capacity )of Directives. Under Art 249 EC directives must be implemented by member states,the result to be binding on the member states,but these states will then have a choice of "form" and "method".Therefore directives are not directly applicable like Regulations as they do not become a part of the law automatically.In the case of Grad v Finanzamt (9/70)the court implied that directives could have direct effect while stating that ECJ decisions could have direct effect and this was subsequently confirmed in the case of Van Duyn v Home Office (41/74).6 Therefore the doctrine of direct effect has been extended beyond the provisions of the treaty to encompass regulations7 and decisions.8 In the case of Van Duyn9 the court held that refusal to allow a Dutch national leave to enter the UK for the purposes of employment with the Church of Scientology was contrary to Directive 64/221 concerning freedom of movement of workers. Thus the Carrier Pigeons Directive will be held to give rise to direct effects given that it satisfies the criteria laid out in the case of Van Gend (26/62) and subsequent cases10. The criteria is that; For a particular provision of community law to be upheld before a national court in the face of non implementation or incorrect implementation of national law the provisions have to be clear and precise11 , They should leave no discretion at the hands of the authorities of the member state12 They are unconditional and require no further implementation by either the community or the member state13. The ECJ has interpreted these criterions in a very relaxed way; though it has not been prepared to give direct effect to a provision which it felt was too widely phrased, containing only expression of intent rather than rules14. There are two kinds of direct effect: Vertical direct effect, referring to relationship between individuals and the state; and Horizontal direct effect, referring to the relationship between individuals. The Court has refused to give Horizontal direct effect to directives15. In Factortame16 the House of Lords gave direct effect, iter alia, to art 6, Lord Bridge of Harwich observed: "Directly enforceable community rights are the legal heritage of every citizen of a member state of the EEC. They rise from the treaty itself and not from any judgment of the ECJ declaring their existence." There are, however, two major limitations placed on the application of the principle of direct effect to community directives. Firstly the principle only applies to directives which remained unimplemented after the date has passed for adoption. The entry into force of directives which have been adopted, but which have not yet entered into force, cannot be anticipated or pre-empted. Secondly the ECJ has only been prepared to apply this principle to the relationship between individuals and national authorities (Vertical direct effect). Directives are addressed only to member states and are intended to be addressed by them. Therefore this entails that they should have vertical direct effect. So how will S and A be able to sue the state under the Directive .In the case of Marshall v Southhampton Area Health Authority (152/84),it was held that " a directive may not of itself impose obligations on an individual and may not be relied upon as such as against a person". This rule has been extended to include an action against any emanation of state17 ,for example in Marshal(152/84) the rule was extended to a public health authority to allow the claimant to sue them. Therefore the relevant party who S and A might wish to sue would be either something like the ministry or authority regulating animal health or the State may be made a party to the proceedings directly. The next question will be if they are allowed to sue given that the directive is found to be qualifying under the Van Gend Criteria discussed above.The fact that the deadline for this directive has already expired goes in the favour of S and A. This is because in a case of time limits for directives, Publico Ministero v Ratti (148/78) there were some ground rules laid down by the learned court regarding actions based on unexpired directives. It was said in that case that the individual cannot rely on unexpired directives. Lack of insurance and Damages Here although we know that these two individuals have a fair chance of recovering damages under the law the question is whether the courts will be willing to award a loss of 4000 just for the death of gaming pigeons Moreover the preceding discussion also relates to how the court will perceive the lack of insurance in this case.. In the present case the obligation clearly states that people whose animals are slaughtered will be compensated. The cases of Von Colson 14/83 and the second Marshall 1986 (CMLR 688)show that member states are required to provide an effective remedy which in this case is damages or compensation for the uninsured pigeons. The question states that these two individuals keep carrier pigeons as a hobby and use them for gaming or contests. Therefore the loss of these pigeons is a matter of the loss of the livelihood of S and A. This case is reminiscent of the time there was considerable litigation over the slaughter of farm animals and the compensations awarded to them after the foot and mouth disease epidemic.18Many cases show how the government awarded high levels of compensation for the farmers because they were reluctant to have their animals, which were a source of their livelihood, slaughtered.19 Based on this chances are that if S and A can show how much of a "consequential financial loss" they have suffered the Court may award them damages for their troubles. However the figure is unlikely to climb to 4000.Another problem is insurance. Recent case law shows that the courts do not view the lack of insurance on a party claiming large amounts of damages. This position has been very clear in the ECJ cases of Francovich v Italy (C6/90),Paul v Germany (C222/02)20,Three Rivers DC v Bank of England (No.3) 21 and the case of Poole v HM Treasury, Court of Appeal 22.In these cases the court made it very clear that losses suffered as a result of the lack of insurance will not be decided favorably for the claimant who omits to insure his risks. However this will not lead to a total bar in recovery of a reasonable amount of compensation. Horizontal direct effect of the directive Another interesting aspect of this question is that if A's pigeons got infected due to the infected pigeons of S and had to be slaughtered, does A have an action against SThe doctrine of horizontal direct effects would prevent A from suing S because the general rule in this regard is that directives are addressed to member states and not individuals.(Marshal 152/84).Therefore they may not sue each other or any individual in this regard until the directive is transposed into national law. Conclusion In conclusion S and A will be able to sue their state and recover a fairly reasonable amount of damages which is of course subject to the judicial attitude to awarding large sums of compensation for damage occurring primarily through the lack of insurance.23 Furthermore A will not be able to sue S for the slaughter of her pigeons because the infection came from his pigeons. This is because the directives do not provide horizontal direct effect thus enabling individuals to sue each other. It should also be noted that the EU commission will not let this omission of the UK in the transposition of the directive go unnoticed and it will take the relevant procedural steps to expedite its implementation. References Barnard, The substantive Law of the EU(Oxford University Press 2004) Craig and De Burca,EC Law,Text,Cases and Materials ,3rd Edition (Oxford University Press 2002) Horsepool,European Union Law,3rd Ed(London Butterworths,2003) Kent,Law of the European Union 3rd Ed (Harlow;Pearson,2001) Lasok and Bridge,Law and Institutions of the European Communities 7th Ed.(London Butterworths ,2001) Lee Robert ,Campbell 2002,Public Law,The power to panic: the Animal Health Act 2002 ____________________________________________________________ Read More