Drivers Working Hours Directive - Essay Example

Drivers’ Working Hours Directive The last for the implementation of the Council Directive 2000/XXX on the ‘working hours of drivers of inner public transport’ (the Directive) by all the Member States was 31st December 2003. This Directive specifies that drivers in the inner city public transport are to be provided with a fifteen minutes recess, every three hours, and that their number of hours per week is not to exceed thirty – five. There was to be no overtime and drivers could request their employers to provide them with flexible working hours. The UK ostensibly implemented this Directive as the Employment Rights (Inner City Public Transport) Act 2005 (the Act), with effect from 1st October 2005. However, the Act only provides for a ten minute interval, once in four hours; and specifies a thirty – five hour week with fifteen hours of weekly overtime. Workers cannot request flexible working hours. Maria is driver for the London Underground, whose management is appointed by the Mayor of London. The expenditure incurred by it are defrayed by private enterprise and public funds, as such, it is run as a public private partnership. During the past year, Maria had worked, on an average, for fifty hours a week. She had been provided with ten minute breaks every four hours. However, her domestic commitments made it very difficult for her to cope up, and her requests for flexible working conditions had been ignored by the management. Subsequently, she became very ill, and she has obtained medical evidence that her disease was due to the stress caused by her employment. i) Can Maria invoke the Directive against her employer? Maria’s employer, the London Underground, had been financed by public as well as private funding, and the management was appointed by the Mayor of London. Hence, this employer is an organization run by the state. Thus, Maria can invoke the Directive against her employer. The ECJ had extended the scope of the definition of state for the enforceability of council directives. In the case of Marshall, the Court ruled that individuals could invoke the rights provided by the directives. Moreover, individuals could rely on the rights that had been set out in directive for initiating legal action against a health authority. This is because a health authority is automatically an organ of the state1. The government of the United Kingdom had implemented the Directive with some changes. As such, the working hours were increased and the time of rest was reduced. With regard to compensation for damages, the ECJ made it clear in R v H.M. Treasury that individuals can claim damages for the losses they had incurred due to the non – implementation or incorrect implementation of a Directive by a state. However, an individual cannot invoke the horizontal direct effect of a directive against another individual, if the state had failed to fulfil its obligation as required by the directive for the proper and correct implementation of the directive2. Since, the UK government had modified the Directive, it could be construed to be an incorrect implementation of the Directive. Maria had contracted several stress related diseases, which could be attributed to this incorrect implementation by the Government of the UK. Hence, she can claim damages from the UK government. The ECJ decided that states were required to pay compensation for damages. The conditions for claiming damages must not be less reasonable than what was being awarded in cases dealing with domestic claims. Furthermore, Member States had to ensure that the process of claims was not rendered unduly more complicated. The ECJ had developed the principle of state liability through its case law. In the Brasserie and Factortame3 cases, the ECJ developed this principle to a major extent. The Court developed the principle of state liability under which a Member State could be held liable for breach of Community law. Accordingly, the Court, in its first step, developed a common principle that was compatible with the national legal order of the Member States. This common principle required the Member State, which had breached the EC law to make good the loss incurred by an individual due to the breach. Thus the ECJ is bringing a jus commune to the EU. The common principle developed by the ECJ requires Member States to incorporate the Treaty provisions that are directly effective into their national legal systems. Failure to incorporate directive principles into national legislation renders a Member State liable for payment of compensation. Such liability transpires if there is an infringement of the rule of law by a Member State, which withdraws the rights of individuals in that state; second, if there is an apparent and serious breach or infringement caused by a Member State and third, if there exists a causal connection between the violation of an obligation by the state and the damage sustained by an individual. ii) Would it be advisable for Maria to rely on the indirect effect of the Directive? Directives have direct effect and hence they should invariably be implemented, within the specified time and without any delay. In order to deal with the problems that could result from these requirements, the ECJ developed the doctrine of indirect effect. The doctrine of indirect effect becomes applicable in two contexts. First, the defendant must be a state entity and the wording or provisions render a directive vertically directly ineffective. Moreover, if the provisions of a directive are insufficiently precise, conditional and require state action for its implementation, then the doctrine of indirect effect applies to such directives to make them effective. Secondly, a directive and its provisions could be enforced indirectly against private parties. However, the defendant must not be a state entity. The directive applies horizontally between two private actors. In the case of Marleasing, the Court had dealt with a horizontal situation, and had ruled that the doctrine of indirect effect could be applied between two individual parties4. Therefore, if the national law does not permit the proper implementation of a directive, then a private party or an individual can seek remedy against another private party or individual by invoking the doctrine of indirect effect. Moreover, there is no need for individuals to seek the direct enforcement of the directive and in addition, there will be no restriction regarding horizontal limitation of the directive. If an individual sustained a loss or damage due to the incorrect or non – implementation of EC law provisions by a Member State, then that individual can sue against the state in the national court and seek compensation for such damage. Moreover, individuals can invoke the provisions of EC law before their national courts, in order to seek redressal. The Van Gend en Loos v Nederlandse Administratie der Belastingen5 case was the first such case. In that case, the plaintiff, a Dutch company sued the Dutch customs authorities in a Dutch court by invoking the provision of the EC law to obtain compensation for damages. The national court referred the case to the ECJ for an interpretation, in this regard. Moreover, the Dutch government argued that mere infringement of the EC law provisions did not enable individuals to seek damages. The ECJ ruled that the new legal system of the Treaty confers rights on individuals and held that the Dutch government had infringed the provisions of Article 25 EC, which prevents Member States from imposing new customs duty on imports and exports. In Alfons6, it was decided by the ECJ that a Member State would be liable if it fails to implement provisions of EC law within the stipulated time. Individuals can claim damages for such failure by the state. In Sabena7, the ECJ held that individuals can invoke EC law in their claims for damages against the state as well as against other individuals. The horizontal effect of EC law applies to such claims, and in this case, the claim was made in respect of the breach of Article 141 EC, which provides for equal pay for equal work for both men and women. In the case of Von Colson, the ECJ developed the principle of indirect effect. This principle enhances the effectiveness of directives that have not been implemented or that have been incorrectly implemented. The doctrine of indirect effect also increases the effectiveness of directives that lack direct effect due to horizontal limitation. The ECJ held that national courts had to interpret their national legislation in the context of the exact wording of the directives and for the very purpose of the directives for which these laws had been formulated. This decision increased the effectiveness of directives, even if there was no proper national implementation of these directives8. In Brasserie du Pecheur and Factortame the ECJ held that the principle that addresses state liability does exist, irrespective of the organ of government that breaches the Community law. The ECJ had also recognised the role of the national courts in implementing and interpreting the Community law with regard to individuals. The Court held that if an individual sustained or incurred a loss or damage due to a wrong decision made by the court of last instance in a Member State, then the state should allow the individual to sue before the national court for compensation of the damages sustained9. Maria can rely on the indirect effect of the Directive and claim damages against the state for improper implementation of the Directive. iii) Could Maria initiate a state liability claim under Francovich? Member States are under an obligation to provide compensation for any loss sustained by individuals as a result of non – implementation of a Directive. In the case of Francovich and Others v Italy, the ECJ established a test of three conditions that are to be fulfilled to make a Member State liable for damages due to non – implementation of a Directive. First, the objective of the Directive should be to confer rights on individuals; second, the Directive must provide the description and scope of such rights and third, there should be a failure on the part of the Member State to implement the Directive, which had caused the damage10. Member States have to implement Treaty provisions, without fail. They have to incorporate the EC law in their national legislation, and they have to adopt and implement the EU law appropriately. In the event of failure by a Member State, in this regard, the EU will approach the ECJ to initiate necessary action against the Member State. National governmental entities, private or public utility organisations and firms must invariably apply EC law provisions at the national level11. Individuals can seek the enforcement of a Directive even if there is a horizontal direct effect limitation, regarding such enforcement. This principle was established in Francovich12. The ECJ held in that case that Member States were liable for damages or losses incurred by individuals due to failure to implement a directive. The applicability of this decision was extended by the ECJ to the joint cases of Brasserie de Pêcheur13 and R v Secretary of State for Transport, ex parte Factortame (No. 4)14. The ECJ held in these cases that the individual who had undergone a loss, could seek compensation against a Member State, if the latter had failed to implement the EC law provisions or if had committed serious breaches of the EC law. In the case of Maria, the three conditions, set out in Francovich and others were satisfied. She had suffered physical and mental damage due to the failure of the state to properly implement the Directive. Hence, Maria can initiate a claim against the state under the Francovich principle. iv) Is EU law relevant at all on the issue of compensation? The ECJ acceded to the demands of the Member States, and held that it was up to the national courts to adjudicate in matters relating to state liability, subject to maintaining a minimum EU standard. The domestic legislation of a significant number of the Member States is such that only under very restrictive or substantive conditions, these Member States become liable. In this manner, the legislation precludes state liability, in most of the cases. In addition, the payment of compensation, with retrospective effect is also severely restricted15. Therefore, the compensation laws in the EU are unsatisfactory. The Court strongly conveyed its opinion, in several cases; wherein it held that a Member State that enacted legislation, which significantly violated the rights of an EU citizen, had to pay damages to that person. Moreover, the Court held that a Member State would be held liable if it failed to enact EU Law. Furthermore, the Court specified that an individual had to be compensated, if the individual’s rights had been violated by the Member State; if the nature of the breach was sufficiently serious; and if it could be established that the damage caused was due to the actions of the Member State16. However, the reality is that the issue of state liability is determined by the national laws; thereby limiting compensation awarded in such claims. List of references Beth A. Simmons & Steinberg, Richard H. International Law and International Relations. 2007. Page 509 - 510. Cambridge University Press. ISBN: 0521861861. C-6/90 and C-9/90 Francovich and Others v Italy (1991) ECR I-5357 Case 14/83, Von Colson v Land Nordrhein- Westfalen (1984) ECR 295 Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, [1963] ECR 1 Case 43/75 Defrenne v Sabena (no 2) [1976] ECR 455 Case 48/65, Alfons Lutticke GmbH v. Commission, 1966 ECR 19 C-48/93 Royal v Secretary of State for Transport, ex parte Factortame Ltd and Others ECR I-1029 Case C-91/92, Paola Faccini Dori v Recreb Srl [1994] ECR I-3325 Case C–106/89, Marleasing, (1990) ECR I–4135 Case 152/84, Marshall v Southampton & South West Area Health Authority [1986] ECR 723 Hine, David & Kassim, Hussein. Beyond the Market: The EU and National Social Policy. 1998. Page 99. Routledge. ISBN: 0415152380. Implementation. (2000). In Encyclopedia of the European Union. Retrieved May 17, 2008, from http://www.credoreference.com/entry/864694Implementation. (2000). In Encyclopedia of the European Union. Retrieved May 17, 2008, from DISPLAYURL "Implementation." Encyclopedia of the European Union. 2000. CredoReference. 17 May 2008 . Encyclopedia of the European Union, 2000, s.v. "Implementation," DISPLAYURL (accessed May 17, 2008). http://www.credoreference.com/entry/864694 Joined Cases C-46/93 & C-48/93 Brasserie du Pêcheur and Factortame III [1996] ECR I-1029; [1996] 1 C.M.L.R. 889 R v H.M. Treasury, ex parte British Telecommunications plc (1996). ECJ. I-1632 436. Zuaan, Jaap Willem. The European Union: Liber Amicorum Alfred E. Kellerman. 2004. Cambridge University Press. P. 166. ISBN: 9067041874. Read More