Law of European Union - Essay Example

Law of the European Union In the initial stages, the Direct Effect could be utilised by individuals for proceeding against a Member that had failed to implement EC Law. Subsequently, the ECJ extended this principle to permit individuals to invoke Treaty provisions against other private individuals, in accordance with the principle of Horizontal Direct Effect1. In the Van Gen en loos case, the European Court of Justice (ECJ) introduced the term Direct effect.2 This decision had a far reaching effect, and was aimed at improving the effectiveness of Community Law.3 The bestowal of Direct effect on a Community Law provision, results in its application by the domestic courts, as a component of the national laws. There is no necessity, to enact a domestic law that explicitly refers to such Community Law proviso. All the same, the domestic law should incorporate a legal tenet that entails a general provision for Direct effect. 4 It is mandatory for a Member State to implement EC Directives. Failure to do so entitles the affected individual to claim damages. For instance, in Francovich the Italian government’s failure to implement a Directive, resulted in loss to individuals, and the ECJ ruled that such loss was to be compensated by the Italian government. 5 In the Marleasing case, a Spanish company sued the Spanish government for failure to implement a Directive. The ECJ ruled that the Spanish Courts had to interpret their domestic legislation, in a manner that would conform to EC Law. 6 In von Colson, the ECJ held that Member States should implement the EC Directives properly, and within the prescribed time. Failure to do so would render the Member State liable, for any loss or damage sustained by individuals, due to the non-implementation of a Directive by the former. The outcome of such non – implementation would be that the injured individuals could sue the Member State for the damages caused by the non-implementation7. The UK government failed to implement the Directive; because it was of the opinion that its extant laws and administrative practices, in the area of health and safety equipment, were adequate for complying with the main provisions of this Directive. Billy is a refuse collector, in the employ of the West Midlands County Council. He suffered damage to his hands, due to exposure to toxic chemicals. He can enforce the rights derived from EC Law, by invoking the Vertical Direct Effect in the domestic courts of the UK. Since West Midlands County Council is a local authority of the Government, he can claim redressal against it under the principle of Vertical Direct Effect. He can claim damages from the UK government for non implementation of the directive. The European Court of Justice developed the concept of horizontal direct effect of EC Directives. This concept enables individuals to rely on the provisions of the Treaties of the EC, in order to make claims against private individuals in the domestic courts. The principle of Direct Effect renders EC Law directly effective in their national courts. In other words, it is not necessary for the EC Law to have been incorporated into the domestic law of the Member States for application8. The decision in Brasserie du Pecheur established that the plaintiff is required to establish that there had been a serious violation of the provisions of EC Law by the Member State. It is incumbent upon the plaintiff to prove that such violation had caused the loss sustained by the plaintiff9. The ECJ ruled in Dillenkofer, that failure by a Member State to transpose a Directive, within the prescribed time, constituted a serious breach of EC Law. As a consequence, an individual who had suffered an injury due to the non – implementation of the Directive, would be entitled to seek appropriate reparation10. The ECJ established the principle of State responsibility in instances, wherein a Member State had failed to implement EC Law provisions. The national courts have to adopt the decisions of the ECJ, in the areas of employment and industrial relations, in respect of individuals’ rights and state liability11. Moreover, the direct effect of Directives ensures the proper implementation of the rights provided by the Treaty Articles and Directives to individuals. If a Member State government fails to implement EC Directives, then it will be held liable12. In the Francovich case, the ECJ established the principle of state liability. This principle applies under three circumstances; first, there should be a breach of a provision of the EC Law by the Member State; second, the concerned Member State must have committed the breach; and third, such breach must have caused damage to an individual13. In order to claim compensation for damages, these three elements have to be established. Article 10 EC contains provisions that deal with state liability; and in accordance with these provisions, the domestic courts have to protect the individuals’ rights provided by EC Law14. The ECJ established in Francovich that the doctrine of State liability was one of the salient features of the Treaty founding the EU. Moreover, there are certain substantive EC Law provisions that govern the doctrine of State liability15. In Marshall, the defendant company required the female employees to retire from service, prior to its male employees. The ECJ held that this requirement was in breach of the provisions of the Equal Treatment Directive of the EC16. In Foster, the ECJ further extended the meaning of the term public so as to include private entities in the utilities sector. By doing so, the ECJ extended the scope of application of the EC Directives. Moreover, national courts of the Member States were under a duty to interpret their domestic law in the light of EC Law. In addition, such interpretation should not violate the EC Law17. Another individual affected by the non – implementation of the Directive by the UK government is Bob, who works for a private waste disposal firm. With the decision in Francovich, an individual can compel the enforcement of a Directive, if there is any impediment to the Horizontal Direct Effect. Moreover, damages can be claimed against the erring Member State in a domestic court. The damages awarded have to be commensurate to the damages awarded in a comparable domestic claim, and there should be no attempt by the Member State to unduly complicate the claim process. Based on the above discussion, Bob can seek legal action against his employer in UK courts for breaching his rights under the Principle of Horizontal Direct Effect. As per the decision in Francovich, a private individual can seek damages from a Member State for non – implementation of a Directive. Hence, Bob can file a claim for damages against the UK government for non – implementation of the Directive. Consequently, UK Government is liable for damages, in respect of the non – implementation of the directive. The EC constantly enforces the infringement policies and applies pressure on Member States to harmonize and discharge the Community obligations. Therefore, Bob can impel the EC to compel the UK government to implement the Directive. The UK Government may argue that it had not violated the Directive, since it had enacted similar legislation for the safety of the workers. This is untenable because, the gloves supplied to the workers were not up to the standards required for that purpose. As such, by not implementing the Directive, the former had compromised upon the quality of the gloves and harmed the workers’ safety. The basic objective of EC law is to maintain the same standards throughout the European Union. The UK Government’s non implementation affected this objective. Consequently, the aggrieved parties can approach the EC, as a last resort to compel the UK Government to implement the Directive. List of References Case 26 – 62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, (1963) ECR 1 C-106/89 Marleasing SA v La Comercial Internacional 1992 C14/83 von Colson (1984) ECR 1891 Cases C-6, C-9/90 Francovich and Bonifaci v Italy (1991) ECR I-5357 Cases C-46 & 48/93 Brasserie du Pecheur SA v Germany and R v Secretary of State for Transport ex parte Factortame Ltd and others (Factortame III) [1996] ECR I-1029 Cases C-178, 179, 188-190/94, Dillenkofer and others v Germany (1996) ECR I-4845 Case 152/84 Marshall v Southampton and SW Hants Health (No 1) [1986] ECR 723 C-188/89 Foster v British Gas Plc (1991) ICR 84 Craig, P. & de Búrca, G., EU Law: Text, Cases, and Materials (New York: Oxford University Press) (1998) p.183 Hartley, C. Trevor, The foundations of European Community law: an introduction to the constitutional and administrative law of the European Community (Oxford University Press) (2007) p.192 Horizontal direct effect, retrieved 18 January 2010 from http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/horizontaldirecteffect.htm Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v Italian Republic (1991) ECR I-5357 State liability, retrieved 18 January 2010 from http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/stateliability.htm Read More