Legal Instruments of the European Commission - Essay Example

DISCUSSION OF CRAIG’S THEORY “The rejection of horizontal direct effect of directives, coupled with the complex qualifications to that proposition, means…that there is very significant legal uncertainty.”(Craig) Introduction The European Union is more than just an economic or trade union or a single market, such as the ASEAN or the NAFTA economic zones. The EU aims for complete economic integration that will also require the free mobility of not only of goods and services, but most importantly, of people. It has many attributes of a country – its own flag, anthem, currency, founding date, foreign security policy, set of laws and law-enforcement institutions1. The primacy of EU law, and its necessary integration with the national laws of the Member States, has spawned many contentious issues. Clashes between the rights of individuals, particularly pertaining to employment, under their national laws and under EU principles and regulations have given rise to claims by private parties among each other and with the State. Questions of procedural processes and the enforceability of these rights have been the subject of decisions by the European Court of Justice which until now are undergoing development. Legal Instruments of the European Commission Borchardt2 described the legal character of the EC as laid down by the European Court of Justice (ECJ) in 1963 in the case of Van Gend & Loos vs the Netherlands customs authorities. In its judgment, the ECJ noted that in the preamble to the EEC Treaty, it is stated that the Treaty is more than a mere agreement that merely creates obligations between member states, but that it creates a new legal order of international law. This law is now made evident in the form of regulations, directives and decisions. Those legal acts that “encroach furthest into the domestic legal systems” are the regulations. Borchardt3 notes that two features of international law mark them out: their community character, in the sense that they lay down the same law applicable throughout the Community without regard to borders between nations, and that they apply in fall to all Member States. As such, the failure of a Member State to fully apply a regulation at the designated time is not a defense against any action brought by an aggrieved party on the basis of the rights conveyed by the regulation. Nor could a Member State selectively apply only those provisions it deems compatible with its national law. Regulations are directly applicable, and Member States and governing institutions are required to comply therewith. Directives, on the other hand, are aimed at reconciling “the dual objectives of both securing the necessary uniformity of Community law and respecting the diversity of national traditions and structures.” A directive is held to bind the Member State as far as the intended objective of the act in concerned, but “leaves it to the national authorities to decide on how the agree Community objective is to be incorporated into their domestic legal systems”. Directives do not, as a rule, convey rights or create obligations on citizens, but are expressly addressed solely to the Member State4. Finally, decisions form the third category of legal acts. Decisions are distinguished from regulations in that they are of individual application; that is, it is directed to particular persons who must be named in it, and who are the only ones bound by it. Likewise, decisions are distinguished from directives in that they are binding in their entirety, unlike directives which leave to the Member State the manner and details of the implementation. Direct Effect The ECJ has ruled, and it is generally acquiesced, that the Treaty principles, regulations, and directives have “direct effect” in their implementation. According to Craig and De Burca5, that the specific meaning of direct effect is still contested. There is a broad definition of direct effect, however, and under this definition it is taken to mean that provisions of binding EC law can be invoked by individuals before national courts, as long as they possess certain attributes; these are: clarity, precision, and unconditionality; and, the quality of being self-executing. In short, as long as the law is unambiguous and its intent and provisions are readily determinable, and no enacting provision is required of any institution, then the particular EC Treaty article, regulation or directive is considered to be justiciable. There is a narrower definition of direct effect, which is that EC laws are capable of conferring rights on individuals. Thus the broader definition allows the individual the procedural right to bring suit on the basis of the law, while the narrower definition conveys upon the individual some substantive right subject of the provision of law. The doctrine of direct effect is a novel one, because other than the EEC Treaty, all treaties embody agreements between States, and are never sources of rights of individuals, because they generally do not transgress into national law. In this respect, the EEC Treaty is unique and without precedent. There are two general kinds of direct effect as distinguished by the ECJ: horizontal direct effect, and vertical direct effect. Vertical direct effect is a legal doctrine that allows private individuals to rely directly on Treaty provisions and EU law in claims against the state before national courts. Horizontal direct effect, on the other hand, is a legal doctrine that allows private individuals to rely on EU law to proceed directly against other individuals before national courts6. Treaty provisions and regulations may be relied upon by individuals to proceed directly against other individuals in their national courts, pursuant to the doctrine of horizontal direct effect. However, directives do not fall within this doctrine; directives may provide basis for individuals to proceed only against the Member State, and not other individuals. Bases of Rejection of Horizontal Direct Effect of Directives As described by Borchardt7, directives are addressed to the Member State, and thus do not directly create rights or obligations. It is the Member State that enacts legislation that makes the intention of the directive operational in its jurisdiction. The recourse of an individual who perceives his rights violated as pertaining to a directive could bring action against the Member State, but not directly against an individual. Craig lists a number of reasons given by the ECJ and other authorities as to why directives may not be given horizontal direct effect, and argues to the contrary: (1) It is debatable in textual terms. According to the case of Marshall v Southampton8, Advocate General Slynn in his opinion stated that to give horizontal direct effect to directives would violate the definition of directives being addressed to Member States. Craig comments, however that if a particular Member State is bound by a directive, then such may also impose an obligation on a private individual. Furthermore, the Court’s “textual faithfulness” as to directives is not made to apply to Treaty articles, which, like directives, are also explicitly addressed to Member States, as found in Defrenne vs. Sabena (1976)9. This apparent ambiguous application of textual construction works an undue disadvantage to those who rely on directives. (2) The rule of law argument was advanced by Advocate General Slynn in Marshall, when he stated that directives were not at that time required to be notified or published in the Official Journal. Craig counters that a great majority of directives were published, however, and the requirements of publication is not contained in Art. 254 EC. Furthermore, all directives contain a time limit for their implementation, Craig contends, eliminating the rule-of-law concern. (3) In Marshall, Advocate General Slynn was concerned that allowing horizontal direct effect for directives would “totally blur the distinction between directives and regulations established by the Treaty.” Craig contends that in so far as the argument has force, it is equally true of vertical direct effects of directives. Giving direct effect to directives, whether vertical horizontal, does not undermine the intention behind directives to give Member States the choice as to form and methods of implementation. Conclusion: The Presence of Legal Uncertainty It is evident from the foregoing section that there seems to be no salient reason for directives not to be given the same horizontal direct effect that is allowed for regulations. In fact, Longhorn notes that there are disadvantages for the Community citizen when the Member State does not enact the implementing measures to achieve an objective specified in a directive that would have benefited him, or where measures that had been taken amounted to an inadequate transmittal of rights. The point remains that as Craig observed, while the individual could proceed against the Member State for redress on the basis of the directive, there is no indication as to whether the Member State may then proceed against a private individual, or rather if it is compelled to do so. The recourse afforded the individual thus appears to be a dead-end, with no procedural guarantee that any action brought through vertical direct effect will achieve the desired relief. There is greater assurance of the enforceability of the directive if it is brought against the private party against whom the claim is made, and there is no cogent reason why this should not be the case. WORDCOUNT = 1,500 excluding title and statement (Craig theory). REFERENCES Borchardt, K-D 2000 The ABC of Community Law, 5th ed. European Commission Directorate-General for Education and Culture. Luxembourg. Accessed 10 January 2010 from http://ucblibraries.colorado.edu/govpubs/eu/abccommunitylaw.pdf Central Intelligence Agency 2009 The European Union. The World Factbook. Accessed 8 January 2010 from https://www.cia.gov/library/publications/the-world-factbook/geos/ee.html Craig, P & De Búrca, G 2007 EU Law: Text, Cases and Materials, 4th ed. Oxford: Oxford University Press. European Industrial Relations Dictionary 2007. Accessed 10 January 2010 from http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/verticaldirecteffect.htm Foster and others v British Gas plc. [1990] Case C-188/89 Gabrielle Defrenne v Societe anonyme belge de navigation aerienne Sabena. [1976]. Case 43-75 Longhorn, R. 2009 EU Regulations, Directives and Decisions: A Comparison. EUROGI International Affairs Working & Advisory Group. Accessed 10 January 2010 from http://www.agi.org.uk/SITE/UPLOAD/DOCUMENT/policy/Directives_Decisions_explanation.pdf. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723 Read More