The Failure to Implement Parts of the Directive - Case Study Example

1) Can Dr Brilliant invoke direct effect of the Directive? The implementation of the European Communities Act 1972 (ECA) expressly incorporated EC law into national law, creating what has been termed the “new legal order1”. Indeed, Lord Denning MR presiding in the case of H.P Bulmer Limited v J Bollinger SA2 asserted that the effect of the ECA was to ensure that “any rights or obligations created by the treaty are to be given legal effect in England without more ado”3. However, the term “directly applicable” has created ambiguity and the principles of direct effect and indirect effect will determine whether the Council Directive in the current scenario (the Directive) is directly applicable under UK law4. The current scenario is concerned with the failure to implement parts of the Directive and this section will review whether Dr Brilliant can enforce the rights she would have had if the Directive had been implemented under the doctrine of direct effect. The specific nature of directives lies in the type of obligations they impose5. Ultimately Member States have discretion as to how to implement a directive, however they must comply with the positive obligation to implement the directive in the first place6. Problems have arisen as to whether Directives themselves can be invoked by individuals in national courts as giving rise to individual rights7, further compounded by the question as to whether a Member State can be liable for damage resulting from its failure to implement a directive, which is pertinent to Dr Brilliant’s position. In order to be directly effective, a provision of EC law must constitute a complete legal obligation capable of enforcement as such by a court8. Moreover, in the case of Francovich v Italian Republic9, it was asserted that the pre-requisite for direct effect was that the relevant provision of EC law had to be sufficiently precise and unconditional. Furthermore, in the case of Van Gend En Loos10, it was asserted that “the wording of the…….. [EC Treaty] contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of the States which would make its implementation conditional upon positive measure enacted under national law………which makes it ideally adapted to produce direct effects in the legal relationship between Member states and their subjects.11” However, this initial approach of limiting the applicability of direct effect to negative obligations has subsequently been abandoned and extended to cover a wide range of EC law, in particular Treaty provisions12. With regard to directives however, the controversy as to whether these are directly effective has continued to exercise EC judicial authorities in practice13. In the leading case of Van Duyn14, it had been argued that as directives included obligations of result and not conduct, coupled with the fact that only regulations were expressed to be “directly applicable” under the EC Treaty provisions, they were not capable of judicial enforcement under national law. However, this argument was emphatically rejected and the European Court of Justice (ECJ) asserted that “if …….. By virtue of the provisions of [Article 189], regulations are directly applicable, and consequently, may by their very nature have direct effects; it does not follow from this that other categories of acts mentioned in that article can never have similar effects15”. Moreover, in the case of Marshall v Southampton and South West Hampshire AHA16 (Marshall II) the Court asserted that the fact that a directive gives a choice to Member States as between alternative methods of attaining a given result does not necessarily mean that the provisions in question are not capable of judicial enforcement under the principle of direct effect. Furthermore, it was also asserted in Marshall II17 that once the state had chosen pecuniary compensation as the means by which it would implement a provision, it was then bound to provide an effective compensatory remedy. As such, it had no discretion in applying the chosen solution and in reaching this conclusion the Court effectively widened the scope of direct effect, combining it with effective remedies18. If we apply the Marshall reasoning by analogy to Dr Brilliant’s position, it would appear that the Directive is capable of being directly effective based on the positive obligation on the UK to ensure that all employed medical doctors have the right to a minimum of one week’s study leave per annum paid by their employers in addition to any contractual study leave entitlements. However, the Marshall decision was based on the rationale that whilst the directive in that case had conferred discretion as to the method of implementation, the state had itself chosen to offer pecuniary compensation as its preferred method of implementation. Accordingly, once the state had chosen this method, it was under a positive duty to implement this. On this basis, if we consider by analogy, the Francovich19 decision, the requirements under the Directive clearly specifies that the study leave is to be for a minimum of a week and therefore it is sufficiently precise obligation to be directly effective. Even the Directive does have direct effect as regards Dr Brilliant, her ability to enforce her rights will depend on the principles of horizontal and vertical direct effect or alternatively indirect effect20. The case of Marshall v Southampton and South West Hampshire AHA (Marshall I)21 stated that Directives were not horizontally directly effective, which was reiterated in the Duke case22. On this basis, Dr Brilliant would appear to have no claim against her employer under the Directive due to the limitations of horizontal direct effect. Alternatively, she may be able to claim against the NHS due to the decision in Foster v British Gas23 which extended the definition of “emanation of state” in order to widen the applicability of direct effect.. Alternatively, as asserted in Marshall I24, she will only be able to rely on the rights under the Directive vertically against the state. As the Directive has not been implemented, the questions pertinent to Dr Brilliant’s legal position are as follows: 1) Have the time limits for the implementation of the Directive expired25? And 2) If so, are the relevant provisions of the Directive directly effective?26 With regard to the current scenario, the deadline for implementation was 31 December 2008, whereas this part of the Directive has not been implemented yet and it is 4th April 2009, therefore the first requirement is satisfied. With regard to direct effect, the obligation appears to be sufficiently clear and precise under the Directive and therefore it is likely that Dr Brilliant will be able to rely on the doctrine of vertical direct effect against the state. 2) Can Miss Hardup invoke indirect effect of the Directive? An option for Miss Hardup would be to rely on indirect effect to enforce her rights. In the Von Colson27case, the ECJ held that although a directive may not be horizontally directly effective, the Member States’ courts should take the provisions of a Directive into account when applying national law, thereby according rights to individuals under EC law by the principle of indirect effect. This was reiterated in the case of Marleasing28 and Kopinghuis29 asserting the positive obligation of the ECJ to interpret national law in accordance with Article 10 of the EC Treaty. The Directive clearly states that single parents are to be given the right to have the reasonable costs of their childcare reimbursed and the UK’s implementation of the Directive under the Act provides that employers are only required to pay nursery fees to single parents where there is hardship. The failure of her employers to make payment under the Act could be challenged as being in breach of the Directive requirements under the principle of indirect effect. In Fratelli Costanzo v Milano30 it was held that courts were legally bound to implement directives notwithstanding contradiction with national law provisions. Therefore, Miss Hardup could challenge her employers’ refusal to contribute to her costs under the Act and the courts would have a positive obligation to ensure the Act’s provisions complied with the requirements of the Directive. 3) State Liability Mr Counter could pursue a claim against the state for damages caused by its failure to implement the Directive. As such, he would be able to claim against the state for full loss and damages directly caused by the failure to implement the Directive as a result of the principles relating to state liability established in the leading case of Francovich v Italian Republic31, further developed in the case of Van Gend En Loos32. Moreover, in the case of Brasserie du Pecheur v Germany; Factortame v UK33the ECJ re-defined the basis for state liability claim as follows: 1) There must have been a serious breach by the community law making institution of a superior rule of law for the protection of the individual; 2) The law making institution has manifestly and gravely disregarded the limits of its powers; and 3) There must be a causal link between the breach and the damage suffered. In the case of Dillenkofer and others v Federal Republic of Germany34it was held that failure to implement a directive within the time limit will automatically constitute a sufficiently serious breach. Therefore, in failing to implement the relevant part of the Directive which affects Mr Counter, the UK Government will have committed a serious breach of community law, thereby entitling Mr Counter to recover damages for direct loss caused under the state liability principle. BIBLIOGRAPHY Craig & Burca (2007). EU Law: Text, Cases and Materials. 4th Edition Oxford University Press. Damian Chambers, Christos Hadjiemmanuil, Giorgio Monti & Adam Tomkins (2006). European Union Law. Cambridge University Press Trevor Hartley., (2004). European Law in a Global Context: Text Cases and Materials. Cambridge University Press. Norbert Reich., (2003). Understanding EU Law: Objectives, Principles and Methods of Community Law. Intersentia. Hanlon, J., (2003). European Community Law. 3rd Edition Sweet & Maxwell. Lasok, D., & Bridge, J.W (1994). Law and Institutions of the European Communities. Butterworths. Franz C. Mayer (2006). Supremacy –Lost WHI Paper 2/06 German Law Journal Vol 6 No 11 pp1497-1507. GF Mancini and T Keeling, (1991) From CILFIT to ERT: The Constitutional Challenge Facing the European Court”. Yearbook of European Law 1. Jo Shaw. (2000). Law of the European Union. 3rd Edition Palgrave Macmillan Steiner, Woods & Twigg-Flesner (2003). Textbook on EC Law. 8th Edition Oxford University Press. 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