The System of Community Law in the EU - Essay Example

EU LAW The question pertains to the direct effect of directives and horizontal direct effect directives. Each of these will be discussed at length. The doctrine of direct effect in simple terms means that, subject to satisfaction of certain conditions, rights and obligations which are created by EC law, may be relied upon by individuals and can be enforced in their national courts. The principle was first expounded in Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen1 where the national courts referred the question of whether an Article of the EC bestowed a right upon an individual thereby allowing him to challenge an increase in duty in the national court under article 12 of EC Treaty. The Court in this instance held that the Treaty was more than an international agreement; it introduced a ‘new legal order’, which had its own institutions as well as legislative powers, thereby granting rights and obligations on individuals as well as governments. The conditions that were to be satisfied in order to enforce a Treaty in the national courts were that the provision must be clear and precise; it must be unconditional; and its operations must not be dependent upon further action by national or EC authorities. For a provision to be conditional, it must confer discretionary powers upon a third party (e.g. Member State) and thus cannot have direct effect. Furthermore, the requirement that an action must not be dependent on any further action can be done away with when the time limit within which such action should be taken has expired, thus allowing direct effect to be used (Case 43/75 Defrenne v. SABENA)2. Finally lack of clarity can be circumvented by national courts, by way of seeking clarity from ECJ through Article 234 preliminary reference procedure. Thus the doctrine of direct effect operates as a norm rather than as an exception. Thus in Van Gen where the parties were in a vertical relationship the direct effect was allowed, However the question on whether an individual could rely on an article of EC Treaty in respect of a horizontal action that is an action against another individual was affirmed in Defrenne v. SABENA where it was held that an individual can rely on some treaty articles to enforce rights against another individual in national Courts. The question as to whether a Directive could have direct effect was found to be controversial as Directives are designed so as to be implemented and brought into effect by member states within a stipulated period of time. ‘A Directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed…’3 Thus if a literal interpretation of the Article is made it confers powers on the Member State and if individuals are provided rights it would cause confusion between Directives, which on the one hand require national implementing measure. Thus it had been thought Directive could not have direct effect as the condition in Van Gend of further implementing measures could not be satisfied. However, in Case 41/74 Van Duyn Home Office4, the court held that a directive could be relied upon an individual, even though it had not been introduced by the national law. This was further developed, basing the direct effect of Directives with the doctrine of estoppels, whereby it was stated that a State could not rely upon its own wrongdoing so as to frustrate the rights that had been conferred upon individuals under the Directive. Thus where the Member State is at fault, by failing to transpose the Directive in national law or has done so inaccurately, the individual is allowed to claim against the state the rights which would have been provided, had the Directive been (correctly) implemented (case 148/78 Pubblico Ministero v. Ratti)5. This has been carefully thought of, as allowing vertical effect is appropriate cases because it is the fault of the Member State which has failed to implement the measure and not the fault of any individual {Case 152/84 Marshall v. Southampton & Southwest Hampshire Area Health Authority (Teaching)}6. This rule had been criticized for inequality, as an action could only be brought against the state. (Advocate General’s opinion in Case C—91/92 Faccini Dori v. Recreb srl)7 however the same has not been followed by the Courts and the Courts have confirmed that the Directives can have direct effect in vertical situation between an individual and the state, moreover ECJ has extended the principle of Direct effect by allowing incidental horizontal direct effect to directives in a triangular situation as in case 194/94 CIA Security International V Signalson8, case 441/93 Panagis Pafitis9 and Unilever Italia V Central Food SpA10 In light of the question the answer is straightforward and clear that a directive may not of itself impose obligations on an individual and hence cannot have horizontal direct effect, the justification for this provided by the Courts and takes its roots from the art 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to “each Member State to which it is addressed”. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person’. The main reason for the Courts to refuse horizontal direct effect to directives is clearly based on the idea that if the horizontal effect is allowed individuals would be burdened which was clearly not the idea under the treaty, However approach has said to discriminatory and unsatisfactory at times and it has increasingly been heard ideas favoring for horizontal direct effect of directives. It has been stated that in order to derive justice the principles of horizontal effect of directives has been used and so and indefinite period of default in respect of member states obligations is prevented. One of the arguments in favour of horizontal effect is the equality in respect of the conditions of competition. Furthermore, if such horizontal effect is not present then persons who are in compliance of Community law can be said to be at a disadvantage. A step forward would the one of the fundamental right that is the prohibition of discrimination is tilted in favour of such horizontal effect. The first reason in that respect that can be cited is the it is clearly contrary to standard principles that laws/rules would differ depending on an individual’s connection with a state or with a private individual. The second argument is that of the duty of harmonious interpretation and measure which has been undertaken by Community is a pre-requisite and clearly the interpretation done of the effect would be contrary to such interpretations. Thus, if these disparities exist then it would be contrary to the aim of the approximation of legislation and so inequality could only remain for the period which has been prescribed form implementation and the aims of the comparable condition should have priority after expiry of such period. Citizenship of Union has allowed for expectation that citizen of such union would be able to enjoy equality in respect of Community law. “In the case of directives whose content is intended to have effects in relations between private persons and which embody provisions designed to protect the weaker party it is obvious that the failure to transpose a directive deprives it of effect hence, in my view, the nature of directives does not preclude their having horizontal effect and for reasons of legal certainty the public must be prepared as of now for the fact that directives will in future have to be recognized as having horizontal direct effect”. (Advocate General Lenz) In view of the above if the directives are allowed horizontal direct effect i.e. to create rights and obligation between the individuals it would best achieve the result as one would not have to wait for the directive to be implement under national law in order achieve the ends of justice and hence a change and more certainty could be brought in to the system of Community Law if horizontal direct effect is allowed in appropriate cases where situation demands to meet the ends of justice References E DEARDS and S HARGREAVES, European Union Law [Oxford University Press, 2004, Oxford] GD BURCA and P CRAIG, EU Law: text, cases and materials [Oxford University Press, Oxford 2008]. J FAIRHURST, Law of the European Union [Longman, Harlow 2010] J HANLON, European Community Law. [Thompson Sweet & Maxwell, London 2003] J STEINER and L WOODS, EU law [Oxford University Press, Oxford 2009]. J TILLOTSON, European Union Law: Text, Cases and Materials (Cavendish, London 2003) fourth edition M HORSPOOL, European Union law [Oxford University Press, Oxford UK 2006] NG FOSTER, Foster on EU law [ Oxford University Press, Oxford 2009] P CRAIG, The evolution of EU law [Oxford University Press, Oxford 2003]. S WEATHERHILL, Cases and Materials on EU Law. (Oxford University Press, Oxford 2003) sixth edition Read More