A Remedy under European Law - Case Study Example

I will advise James and Neil that they both have a remedy under European law specifically under the Greyhounds Directive 2005 the Directive to claim for damages and compensation against the British government. The primary issue in the given problem is whether the Directive has a direct vertical effect such that James and Neil can claim rights under it against the State. In the landmark case decided by the European Court of Justice,1 the ECJ stated that EC law "has direct application within the territory of a Member State", or in other words, "nationals of such a state can, on the basis of the Article in question, lay claim to individual rights which the courts must protect." Consequently, EC law provides not only member states with rights and obligations, but individuals also; and such rights and obligations can be enforced by individuals before their national courts. However, the ECJ in the Van Gend case laid down the conditions before EC law would be capable of direct effect, otherwise known as the Van Gend criteria. First, the provision or law must be "sufficiently clear and precise" before being capable of direct effect although it does not mean that the whole provision must comply such as for example in one case2 where it was held that even if only a part of Article 141 fulfilled this criterion, the same was directly effective. Second, a provision should be unconditional. If it conditional if the right provided depends in some way on the judgment and discretion of an independent body unless such discretion is subject to judicial conduct.3 Finally, the third Van Gend criterion is that the provision should not be subject to any further implanting measures on the part of either the EC or the national authority. The third criterion appears to be liberally applied as can be observed in one case4 where based on the wording of the Treaty, it had been anticipated that the EC would have to enact secondary legislation before the objectives contained in Article 43 would provide rights to individuals. However, the ECJ declared the provision to be directly effective ratiocinating that to do otherwise could result in individuals being denied their rights under EC law. In the given problem, it is clear that all the three conditions of the Van Gend criteria are present. First, the provision of the Directive in question is "sufficiently clear and precise" by Defrenne v Sabena standards. The Directive is clear that owners of animals may be compensated from a fund be set up for the purpose of compensating owners whose animals are slaughtered pursuant to the Directive. Second, the provision in the Directive is not conditional. The right to be compensated for animals being slaughtered is not dependent upon the judgment and discretion of an independent body. Finally, the third Van Gend criterion has been complied in the given problem because the Directive is not anymore subject to any further implanting measures on the part of either the EC or the national authority. Be that as it may, the third criterion had been liberally applied because to do otherwise would produce an anomalous result where individuals can be denied of their rights under the EC law. A corollary issue in the given problem is whether the Directive as such may be directly effective. A negative answer to the issue means that James and Neil are without any recourse under the Directive. Article 249 EC provides that: "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods." Directives are therefore not directly effective as directives require implementation into national law and as such, directives do not appear to provide rights to individuals until they are incorporated by way of national legislation although directives do place obligations upon member states. However, in another case,5 the ECJ ruled that a directive maybe given direct effect it imposes an obligation to achieve a required result. Furthermore, following the ruling in the Becker case, the ECJ ruled that "wherever the provisions of a directive appear...to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or insofar as the provisions define rights which individuals are able to assert against the State." Moreover, it was stated in one case6 that if the period required for the implementation of the directive has not lapsed, it cannot be given direct effect because directives are directly effective only after the lapse of prescribed period when a member state is supposed to implement it. The ECJ has readily argued that the said approach both makes directives more effective and also estops member states from relying upon on their own wrongdoing or omission should the state fail to incorporate or implement a particular directive into domestic law. This approach by the ECJ has widely been criticised as removing the fine distinction between regulations and directives. In reply to such arguments, the ECJ has counter argued that directives are distinct as they may only be enforced vertically or against the State and not horizontally or against an individuals. As stated in one case,7 directives, unlike Treaty provisions and regulations, cannot have horizontal effect as it is against the principles of equality. As such, Directives are currently only vertically directly effective against a state to include state schools and other "emanations of the state". Parenthetically, in situations where the member state has passed the required legislation but in a defective way, the directive may still be given direct effect.8 Hence, the source of law in the given problem, the Directive, can be given a direct effect and hence, individuals like James and Neil may enforce the rights and benefits afforded them granted by the Directive. In view of the foregoing, James and Neil may claim damages and compensation against the British government. However, the next issue is whether or not the British government maybe liable as a state under EC law. The ECJ has developed general principles of state responsibility for failure to comply with EC law based on the fact that that EU member states are responsible for the implementation and enforcement of EC law within their jurisdiction. The enforcement of state liability for individual rights granted under EC law is done by the national courts of member states. In one case,9 the ECJ has laid down the resulting principle of state liability (known as the 'Francovich principle') with the following elements: (i) there is a breach of EC law; (ii) the breach is attributable to the Member State; (iii) the breach caused damage to an individual. Furtheremore, the right to compensation was subject to a number of conditions such as: the directive must confer a right on the citizen, the content of the right must be identifiable by reference to the directive, there must be a causal link between the breach by the state and the individual's damage. The ECJ decision in the Francovich case reinforces the obligations of member states under Article 10 EC and provides an incentive to member states to ensure that rights granted under EC law are not denied to individuals. The liability of the state to pay compensation and damages has been extended not only in cases involving directives but also in cases10 involving other sources of EC law as well. In the given problem, these elements are clearly established. Hence, as a consequence, James and Neil may claim for compensation by way of a legal action and for damages against the British government before a British court. References: Case 26/62 Van Gend en Loos (Van Gend) Case 43/75 Defrenne v Sabena Case 41/74 Van Duyn Case 2/74 Reyners v Belgium Case 9/70 Grad v Finanzamt Traunstein [1970] ECR 825 Case 148/78 Pubblico Ministero v. Ratti [1979] ECR 1629 Case 152/84 Marshall v Southampton and South West Hampshire AHA (1986) Verbond van Nederlandse Ondernemingen (VNO) case Cases C-6/90 and C-9/90 Andrea Francovich and Others v. Italian Republic [1991] ECR I-5357 Case 48/93 Pecheur and Factortame Read More