Concept of Direct Effects - Coursework Example

Concept of Direct Effects Direct effect refers to the principle of European Union Law conferring rightsto individuals that the member states of the European Union are required observe and implement.1 The role of national regulations is to protect the interests of the individuals and provide remedies where the individual rights are infringed.2 The principle relates to certain European Acts subject to various conditions. The concept of direct effect implies that “appropriately worded provisions of EC law…may give rise to individual rights which national courts are bound to safeguard, even though there may have been no national implementing legislation, or only incomplete national legislation” as stated in Law 2005 Law of the EU Institutions - Direct Effect 2014/15. This study examines the concept, origin and application of the principle of direct effect in UK and the extent to which it safeguards the interests of the individuals. The treaty has created a community of states and persons such that both individuals and member state are subject to the Community Laws.3 Origin of direct effect The code of direct effects was established by the European Court of Justice (ECJ) in Van Gend en Loos v. Nederlandse Administratie der Belastingen, but was not granted in the European Union treaties. As stated in 26/62 Van Gend en Loos [1963] ECR 1 the community law enacts duties and individual rights upon individuals arising from making an explicit grant in the agreement as well as through obligations imposed by the accord between people and the Member States. It imposes absolute injunctions without states power to subordinate its submission to an affirmative Act of interior laws.4 As decided in Van Gend en Loos, a citizen can enforce a right to conferred by the EU legislation against state. The limitations are seamlessly suited by its nature to generate a direct effect in the legitimate relationships between individuals and a member state. The ECJ established a criterion (Van Gend criteria) for determining direct effect. The test of direct effect requires the principle to be clear and precise, offer no room for implementation and be unconditional.5 The provision must be unconditional, clear, negative obligation, independent of any national implementing measures and must not contain any reservation on any part of the member state. The EU Courts must satisfy that all these requirements have been fulfilled in order for the rights envisaged in the principle to be enforced before the national courts. However, the failed to recognize the rights of individuals against other individuals until decision was made in the case of Defrenne V. Sabena. In 43/75 Defrenne V Sabena (No 2) [1976] Ecr 455 Para 16-41 Art 119 Ec (Art 141 Ec: Art 157 Tfeu), the law require workers to have equal pay for equal work. The law protects all workers irrespective of their gender against discrimination and unfair treatment in deals relating to the public authority as well as contracts involving individuals. The conclusion by the European Court of Justice established horizontal and vertical direct effects as stated in 39/72 Commission v Italy [1973] ECR 101 para 17. The horizontal aspect of direct effect is a consequence in relation between the individual and the state that indicates that a person can invoke the European provision in relation to the state. On the other hand, the vertical aspect refers to consequences in relation between individuals implying that an individual can invoke the European provision in relation to another individual.6 Regulations functions by conferring rights on the individuals whose national courts have the responsibility to protect ‘owing to their nature and place in the system of sources of Union Law’ as stated in C253/00 Munoz v Frumar [2002] ECR I 7289 para 29. The application of direct effect is determined by the extent to which it fulfils the Van Gend en Loos criteria. Therefore, regulations are enforceable in the case of treaty articles that can be both vertically and horizontally directly effective. They are directly effective since they confer specific rights to the individuals.7 In the case of Verbond [1977] ECR 113 the judge issued a verdict that the principle of direct effect can be relied on when the member state has either failed to implement it or has incorrectly implemented it. Therefore, such directive can only be relied on in a situation where the state has applied it but the application was incorrect as was stated by the court’s decision in the case of Marks & Spencer [2002] ECR I 6325. Understanding of what constitutes a state is what confers individual’s right to involve the European provision and claim for compensation. In the case of Marks and Spencer Plc -v- Commissioners of Customs and Excise; ECJ 11-Jul-2002, the claimant dared the defendant for reducing the limitation period from six years to three years for recovering of overpaid Value Added Tax (VAT) instantaneously thus denying them a chance to reclaim the excess amount.8 The claimant had overpaid VAT after selling the voucher and sought to recover the excess amount following the European Court rulings. The court claimed that the withdrawal was against the community law. Such law must be sensible and requires suitable intermediate provisions. No one should rely on decree that was misapplied but incapable of applying it where the national authority applied measures appropriately implementing the decree in a method mismatched it. In the C282/10 Dominguez, CJ 24/1/12 case relating to working time and paid annual leave directives in the Annual Leave Act the court issued that no more derogative is necessary in relation to workers entitlement to the paid annual leave. That principle is very essential component of European Union social law. The interpretation of the directive should unilaterally prohibit the Member of States from limiting the rights to paid annual leave granted on all workers by imposing a pre-condition for such rights with effects of prohibiting some employees from enjoying those rights. Furthermore, working time directives should not impose conditions on minimum working period of ten days or one month for paid annual leave. The directives were intended to modify the Annual Leave Act and establish criteria for determining the paid annual leave days and abolish the exclusion of the right to annual leave for the uncontrolled workers and home workers.9 Therefore, the directives benefited the home workers and other uncontrolled workers by enforcing their rights to paid annual leave and criteria for calculating the number of paid annual leave days. A similar issue of discrimination of workers on the basis of age was determined in the case of Mangold Vs. Helm – Ecj Case C-144/04 Regulations Regulations could either be vertical or horizontal so long as they meet the criteria for the direct effect. Article 288 of the Treaty on the Functioning of the European Union (TFEU) (ex Art 249 TEC) issues guidelines that are enforceable in totality and applicable in all Member States. Although the regulation applies to general categories of persons, it can also apply to certain categories of persons. It is actionable against Member State; individuals who it is addressed and instructions provided. Regulations apply in all Member States.10 This implies that it can be used as a reference in relation with other individuals or member states, no required measures for including it in national law and that it qualities and rights are independent of any implementing measures. Once the treaty is enforced it becomes effective to the member states immediately. This implies an individual can challenge the stat government by invoking a regulation enacted by a treaty which the specific country is a member.11 The direct effects of regulations were determined in the case of Slaughtered Cow in which the court issued “that all methods of implementation were contrary to the treaty, which would have the result of creating an obstacle to the direct effect of Community Regulations and of jeopardizing their simultaneous and uniform application in the whole of the Community.” In Munoz, the ECJ argued that due to the nature and place of regulations in system of sources of Community law the they confer rights on individuals which the court has a mandate to protect. Directives Directives are legal performance of the European Union that requires member states accomplish particular outcome without specifying the means of achieving it. It offers the member states with variety of options to implement the legal directives through a variety of legislative procedures depending on the issue being addressed. Directives are specific to member state or group of member state being addressed. N individual or company can sue the state for damages in case of improperly implemented or lack of implementation of directives. Directives can be direct or indirect. Marshall V. Southampton and South West Hampshire AHA (1986) creates horizontal direct effect of directives while Van Duyn V. Home Office established vertical direct effect of directives. In the case of Foster v British Gas the court issued that any nationalized company, government organization and company working in the public sector can be regarded as the public body to enable implementation of public vertical direct effects. In the case of Francovich v Italy, the direct effect of directives confers right on individuals. Directives are directly effective for a particular period specified for Member State to implement it. This was decided in the case of Grad v Finanzamt Traunstei in which the Member State was prohibited from applying it since the stated time had passed. Decisions Under Article 288 TFEU, a decision is a legal mechanism under the European Union law enforceable on individual. They can be addressed to member states or individuals. The council of European Union bestows decision-making powers on the European commission.12 The procedure for legislation is dependent on the subject matter and requires agreements and amendments to involve European Parliament and Council of the European Union. It requires the consent of both council and parliament on the implementation procedure and may propose for any amendments.13 Decisions are essential for the commission involved in deciding cases dealing with proposed mergers and day-to-day agricultural issues such as standardizing commodity prices. Decisions have direct effects implying that an individual can invoke decision before the national courts. In the case of C80/06 Carp Snc di L Moleri cV Corsi v Ecorad Srl [2007] ECR I 4473, Ms. Kucukdeveci and her former employer Swedex had disagreements in determining the working period of notice pertinent to her sacking. The claimant was employed for more than ten years before she was dismissed on a one month notice as opposed to required four month notice for an employee who has served for more than ten years. Swedex had relied on s.622 (2) of German Civil Code (BGB) that did not consider the work duration for employers who had served for less than 25 years. However, the claimant argued that such regulation was against the EU law and propagated discrimination of the basis of age. The national court decided that the application of BGB was discriminatory and contrary to Article 6(1) of 2000/78 Directive. The court examined the decision for issuing a one month notice to employee with less than 25 years of service as discriminatory because there was no reason to believe that young workers could easily get jobs in other areas. The ruling in the case emphasize on the need to examine both direct and indirect directives instead of assuming the effects of vertical or horizontal directives without proper reasoning. Decisions are applicable to specific addressee to addresses such decisions are directed to. Conclusion Direct effects enable enforces individual’s rights by invoking the European Union provision in case they feel that the rule was improperly applied. Vertical direct effect enables individuals to invoke the provision in dealings involving those individuals and the state. On the other hand, horizontal direct effect involves individuals against other individuals. The provision defines what constitutes state in order to enable individuals understand when they can invoke the European law provision against the state. The provision ensures enforcement of the agreement between individuals and state or individuals versus individuals. Regulations and decisions apply the principle of direct effect in order to protect their rights against infringement by their employers or partners in business. Also, it gives directives on how individuals can claim for their rights against the state. Bibliography Berry Elspeth, Homewood Matthew and Bogusz Barbara, Complete EU Law: Text, Cases, and Materials (Oxford University Press, 2013) 542 Craig Paul and de Burca Grainne, EU Law: Text, Cases, and Materials (Oxford University Press, 2011) 1155 Craig Paul. The Legal Effects of Directives. Legal Research Paper Series No 24/2009, 2009: 1- 31. Retrieved from http://www.ssrn.com/link/oxford-legal-studies.html. Chalmers Damian and Tomkins Adam, European Union Public Law: Text and Materials (Cambridge University Press, 2007). Chalmers Damian, European Union Law: Text and Materials (Cambridge University Press, 2006) 1235 Defrenne v. SABENA. In 43/75 Defrenne v SABENA (No 2) [1976] ECR 455 Para 16-41 Art 119 EC (Art 141 EC: Art 157 TFEU Douglas-Scott Sionaidh, a Constitutional Law of the European Union (Longman, 2002) 553 Fairhurst John, Law of the European Union (Pearson Education, Limited, 2010) 830 Foster v British Gas (BG) [1990] ECR I 3313 Foster Nigel, Foster on EU Law 4th ed, (Oxford University Press, 2013) 480 Grad v Finanzamt Traunstei Hartley Trevor, The Foundations of European Union Law 8th Ed (Oxford University Press, 2014) 569 Horspool Margot and Humphreys Matthew, European Union Law 8th Ed (Oxford University Press, 2012) 672 Kaczorowska Alina, European Union Law 3rd Ed. (Routledge, 2013) 969 C53/04 Marrosu & Sardinov v Azienda Ospedaliera Ospedale San Martino di Genova [2006] ECR I 7213 NUT v Governing Body of St Mary’s Church of England Junior School [1997] 3 CMLR 630 C555/07,Kucukdeveciv.Swedex Judgment of the Court(Grand Chamber), (19 January 2010). 539-550. Law 2005 Law of the EU Institutions - Direct Effect 2014/15 C157/02 Rieser Internationale Transporte Gmbh [2004] ECR I 1477 Pernice Berlin Ingolf, Mangold Vs. Helm – Ecj Case C-144/04 – Did The Court Gets It Wrong? 9th ECLN-Conference, European University Institute Florence, November 18- 19, 2013 Pescatore, P. The doctrine of direct effect – an infant disease of Community law, 1983, European Law Review (ELRev) 155 Storey Tony and Turner Chris, Unlocking EU Law 4th Ed. (Routledge, 2014) 522 Woods Lorna and Watson Philippa Steiner and Woods EU Law (Oxford University Press, 2014) 721 Read More