European Union Law and Legal Advice to John - Case Study Example

EU Law Name: Instructor: Course: Date: EU Law The legal basis upon which European Union Law is founded comprises mainly the European Community (EC) Treaty and associated conventions between the Member States, such as treaties of accession, EU legislations (including Directives and Regulations) and rulings of the European Court of Justice (ESJ), among others. Among these, the EU legislations and the EC Treaty remain the most important elements governing the EU law. Member States have a legal duty to conform with the provisions contained within the Treaty and to the legislations made under it. To a larger extent, the Treaty (through the principles) aims to close the legal gap between the EU law and national legal orders. In practice, the most widely applied principles include direct applicability, direct effect, and supremacy. Direct applicability implies that EU legislation or a provision in EC treaty automatically becomes part of the national law if it has a capacity of transposition without the need for further action by member states.1 Direct effect means that a provision or EU legislation can be enforced against states in their local courts and sometimes against legal entities.2 Under the principle of supremacy of community law, a member state cannot use national law to excuse itself from failing to conform to a provision of community legislation as the principle stipulates that EU law reign over any contradictory national law. These principles apply to both the regulations and Directives, which remain the principal sources of EU law. However, the two legal orders differ in the way they become transposed into the national laws of the EU member nations.3 A regulation represents an entirely binding legislation, meaning that it is directly applicable or has an automatic force of law in EU States, without their need for any extra actions. In contrast, an EU Directive is a form of legislation that requires transposition into the national laws of the member nations. When it is issued, each of the EU countries is compelled to enact or adopt a national law (within a predefined timeframe) that addresses the requirements of that particular Directive. Thus, a Directive is normally said to be obligatory as to the consequence to be realized, but that it grants the member states the freedom to choose the way and means of implementation. However, unconditional and precise Directives have vertical enforceability and as such, legal persons can rely on them to sue state or public institutions (popularly referred to as state emanations in EU law) in case their governments fail to implement promptly or transpose incorrectly the Directive.4 The present research relies on a particular case to explore whether a car mechanic, John, can use a particular EU directive to sue his employer or his state (UK) for injuries caused by lack of work standard covered by the Directive, but not by a national act. Overview of the Case Under the Safety of Vehicles (Road Transport) Act of 2006 (Fictitious), Ministry of Transport in UK has a principal obligation to control testing (MOTs) of motor vehicles that are over three years old. The Act gives the Ministry the authority to approve particular garages to perform MOTs and enforce established safety working procedures, particularly the type of clothing of the car mechanics in the garages. In June 2008, EU law-making organ issued Directive 2008/431 (Fictitious) requiring Member States to make sure that (by June 2010) safety helmets worn by the car mechanics complied with relevant EU standards and to establish compensation frameworks for workers injured by non-compliant garages. Owing to the existence of the Act, the UK government did take measures to implement the Directive. A car mechanic, John, was injured in January 2011 while operating a car testing equipment in a garage approved by the Ministry under the Act. The injury resulted when a piece of heavy equipment broke his safety helmet, which did not comply with the specifications set out in the Directive. Now, John wants to know whether he can rely on the Directive 2008/431 in an action against his employer or anyone else. Legal Advice to John The case builds on the principle of direct effect of an EU Directive. Therefore, it calls for the exploration of the issues of vertical enforceability and horizontal enforceability to determine the liable party (the employer or the state) under EU legal framework. Vertical Enforceability In many legal actions involving EU Directives, the enforceability of the requirements of a Directive is governed by the doctrine of vertical direct effect, which gives legal persons the power to file legal proceedings against Member Nations or State organs. In such legal actions, the first step involves establishing failure by the concerned state to comply with provisions of the Directive. ESJ ruling on case 148/785 demonstrated that the failure might arise in two different ways. First, a private citizen can rely on a Directive to sue an EU nation (in a national court) that failed to transpose the particular Directive on time. Secondly, a legal person can also vertically enforce a Directive in a national court if the Member nation failed to the implement the Directive properly. The reason behind this ruling was that states should not be allowed to gain advantages from its illegal laxity to integrate the provisions of Directives into their national laws. Our present case passes this first stage, as the UK government did not transpose the Directive 2008/431 into its national legal orders on time. Although the Directive stipulated the deadline for transposition as June 2010, UK (as a Member Nation to EU) failed to implement it within the deadline. As a result, John was injured from unsafe work standard that was primarily a consequence of this failure. Therefore, John can choose to rely on the Directive to bring legal action against UK (Ministry of Transport) in a local court. However, he further needs to prove presence of two other significant elements for the court to accept the case based on vertical enforceability. ESJ ruling on case 26/626 argued that for a Directive or its provisions to have direct effect, it is essential that its content is explicitly precise and unconditional. ESJ’s reasoning on the element of sufficient accuracy has been to make sure that only those Directives or provisions whose content or subject matter expresses the specific objective of the EU legislation unambiguously can have direct effects. In practice, the disputed legislation must communicate a precise and lucid requirement that does give Member States discretion in terms of measures that needs to be implemented to comply with the Directive.7 In our case, Directive 2008/430 meets this criterion, as its content is exact and unambiguous. In particular, the Directive required EU Nations to ensure that safety helmets worn by car mechanics conformed to EU standards and to establish compensation schemes for workers injured due to non-compliant safety helmets. Thus, it is clear on safety clothing, type of workers, safety standards, and remedial actions covered by the Directive. UK cannot thus, use the national act or issue of ambiguity in the Directive to excuse itself from its failure to comply with the Directive. The element of unconditionality acts as a complementary of the element of enough precision. ECJ in case 236/928 describes the criterion as being where a relevant Directive or its provision does not require further actions, in its effects or implementation, by the EU institutions or Member States. This implies that the unconditionality criterion emphasizes on the significance of a Directive being a self-contained standard, whose results can be realized from its subject matter alone without need for national authorities or EC to take additional actions. In our case, only the first provision of the Directive 2008/430 meets the condition of unconditionality. It unconditionally sets out the type of safety clothing, the type of workers, and the type of standards covered by the Directive. Therefore, the provision can be said to be a self-reliant norm, which can be separated from the other provision and applied independently as it is, without the need for further action by the UK Ministry of Transport. However, the second provision requiring Member States to establish compensation schemes fails to meet the criterion. It allows the Member States to choose the form and method of compensation to injured car mechanics and does not provide any minimum legal guarantee as required by the unconditionality doctrine. Thus, John can only rely on the first provision of the EU Directive to bring lawful action against the UK Ministry of Transport. The provision passes the three most important elements required for a private citizen to sue an EU state under the doctrine of vertical direct impact: failure of a state to implement a provision promptly and criteria of adequately exact and unconditional provision of a Directive. Horizontal Enforceability In several occasions, ESJ has ruled out that Directives cannot have horizontal direct effect, that is, a private individual cannot use them against another individual or private entity in a court of law. For example, in the case 152/849, ECJ held that even if a Directive is precisely clear and unconditional, legal persons cannot use it to sue other individuals in national courts. In the ruling, the court argued that the binding nature of EU Directives provided by Article 189 EC Treaty implies that it can only be used in legal actions against a Member State on which it is communicated. Therefore, a Directive does not confer responsibilities to private citizens and that it or its provisions may not be used against such individuals. Based on this, John cannot rely on the principle of horizontal enforceability to sue his employer using the Directive 2008/430. However, based on the relationship between his employer and the state (UK Ministry of Transport), he can rely on a 1990 ECJ ruling in Case 188/8910. In the case, the plaintiffs (employees of British Gas plc) sued their employer for employment discrimination using 1976 Equal Treatment Directive. The company operated as a nationalized business with a monopoly to operate the gas supply system in the country. In issuing the ruling, ECJ argued that any legal entity, whether private or public, which has been granted a legal right by a Member State to offer services to the public under regulation of the state falls among ‘state emanations’, which Directives or their provisions capable of direct effect may be used against them.11 The court considered such companies to enjoy special powers that are superior to those enjoyed by individuals operating under normal regulations. Thus, in our case, John can use the Directive (only the first provision) to bring a legal action against his employer not as a private entity, but as a state organ. Before they can operate, the garages doing the MOTs receive approval from the Ministry of Transport. Moreover, the Ministry has powers (as provided by the Act) to supervise the working conditions within the garages. Therefore, to a larger extent, the garages enjoy special powers over other garages and consequently, operate as state emanations. Conclusion From the case, John can rely on the first provision to file a legal case against the UK Ministry of Transport or his employer. In the first case, he can invoke the doctrine of vertical direct effect because the provision is not only unambiguously exact and unconditional, but also the UK government failed to implement it within the required time frame. In the second case, John can use the Directive (only the first provision) to bring a legal action against his employer not as a private entity (or under the principle of horizontal direct impact), but as a state organ (or emanation of UK). Compared to the second case, the first case seems stronger in terms of evidence and as such, John should consider relying on the provision in the action against the State where he has higher chances of winning. Bibliography Cairns W, Introduction to European Union law, 2nd edn, Routledge, London, 2002. Craig, PP & GD Burca, EU law: text, cases, and materials, 4th edn, Oxford University Press, Oxford, 2008. Difesa della Cava v Regione Lombardia, [1994], ECR 1-483 Foster and Others v British Gas plc, [1990], ECR 1-3313 Kaczorowska A, European Union law, Taylor & Francis, London, 2008. Lelieveldt, H & S Princen, The politics of the European Union, Cambridge University Press, Cambridge, 2011. Marshall v Southampton Area Health Authority, [1986], ECR 723. Pubblico Ministero v Ratti, [1979], ECR 1629 Van Gend En Loos v Nederlandse Adminstratie Der Belastingen, [1963], ECR 1 Read More