The Effect of Direct Effect on Directives - Essay Example

THE Effect of Direct Effect on Directives Introduction: Direct Effect: The new regulations of European Union Law now that the European regulations that have been framed in accordance with the provisions of the new European treaties have a direct effect upon all citizens of the European Union and on the laws that are made by the member states of the Union. This principle was first laid out by the European Court of Justice in the case of Van Gend en Loos v Nederlanse Administratie der Belastingen1. In this case, the Treaty of Rome was at issue and the ECJ ruled that individuals could take action against a State for breaching EU rules, since the new treaty grants rights and imposes obligations on individuals. According to the ruling laid out in this case, European Community regulations were also valid when tried in the national courts, because the regulations were similar to the national laws in that they had a similar effect upon an individual’s rights and responsibilities. Therefore in effect, the Court has ruled that a new legal order has been created. The Direct Effect creates individual rights which the domestic courts must protect without needing to resort to the States concerned, since EU law took precedence. This is known as the “vertical direct effect” of Treaty articles. A “horizontal direct effect” was laid out in the case of Defrenne vs Sabena2, wherein provisions of EU law were directly applicable in a domestic court, in proceedings by an individual against a Company. This has affected the application of internal laws within each of the European member States. By virtue of the Direct Effect, member States are now obligated to comply with Community Law as it has been framed according to European laws within the framework of their own internal laws. In fact, no room has been left for partial measures or partial implementation. In the case of Commission vs UK3, the ECJ stated that EU regulations were binding upon the member States “in their entirety” and they also stated that “a member state cannot choose to implement them piecemeal.” Moreover, because of the direct effect, the European Court of Justice can further influence the framework of internal law of a member state by ordering that State to change its laws in the event that a noncomplianace with the European regulations is found4. Procedural rules of member states also apply to cases falling within the purview of EU law, which will be govered by the degree of its equivalence with EU law and the effectiveness of the law5. Although member states have the freedom to interpret and apply their own procedural laws, they must be implemented in accordance with the pricniples of equivalence and effectiveness. There is also a difference that has been spelt out wherein EU member states and/or their citizens can be sued in European courts for violating the EU regulations. But this same principle does not apply to the European Commission, which is the executive branch of the European Union and overseeing its functioning in accordance with the regulations. It proposes and implements legislation and is responsible for overseeing all the treaties and regulations that have been framed6. The Commission cannot be sued for failing to enforce a directive7. Direct Effect and Directives: There are regulations and directives that have been framed under EU law in order to permit EU community law to supersede national law in certain cases. These are laid out in the Treaties in the form of regulations and/or Directives. The most notable of these are Article 249 of the EC Treaty and and Article 161 of the Euratom Treaty8. There are a range of other Directives as well, which are meant to apply equally to all Member States and constitute a uniform law laid out for all states which takes precedence over national law. The concept of Direct Effect is mooted in the supremacy of European law9. Directives are said to be policy decisions, regulations or recommendations that are to be followed by the member states. The Directives were framed to address the inadequacies in the ECSC treaty and these Directives are the instruments through which community European law may encroach on domestic law. Therefore through the Direct Effect, if European law has a direct effect on national law, then individuals will have rights and be granted justice according to the terms of European law rather than the national laws. In order for the Direct Effect of EC law to be operational, the law must be a treaty article or directive and it must also confer certain rights upon individuals.10 Thus international law confers applicability of EU law on a community wide basis irrespective of national laws and do npot need to be transposed into national law for them to become effective. The direct effect can apply to directives, subject to certain limitations – (a) the text of the Directive must not be vague or ambiguous (b) they are subject to an implementation period. Thus, an individual who claims certain remedies from the Law on the basis of a European directive must rely upon one whose text is not ambiguous and the directives should have been implemented in order to be effective. In the case of Re Flynn11 for example, it was held that the provisions of an EU treaty could not be directly effective because it was limited by the failure to meet the requirements set out above. However, failure to implement cannot per se qualify and therefore, the European Directive supersedes a national law, because the equity argument ensures that the failure of a state to implement a Directive will not negate its effect. In fact, in the case of Francovich and Bonifachi12, the States were asked to make reparation to individuals for the violation of the EC treaties. Individual rights: The creation of the European Commonwealth has raised the issue of federalisation of the member states wherein the distribution of powers between the federal and state powers is an issue. The EU has framed a set of laws and regulations and has provided for their enforcement13 wherein a “public enforcement mechanism” is called for. However, this was found to be inadequate to involve EU citizens and their national courts in the need to frame legislation and implement measures that would be compatible with the “new legal order” that would hold good for all member states14.Therefore it has introduced the “EC Judicial Liability System15 in order to ensure that an individual will always have recourse to remedies under EU law. The net objective of the direct effect is one which empowers the individual and permits him/her to sue for enforcement of his rights granted to him through EU law, by superseding national law when necessary. The principle of individual judicial protection may be noted the case of Johnston v Chief Constable16. This confirms the existence of an autonomous and separate framework for EU law17. Through the Direct Effect of EU Directives, EU law emphasizes the principle that state rights are subordinate to individual rights granted by EU law. While this is a laudable effort to maintain and enhace individual rights, it creates a conflict and clash with national laws, which in some cases may render them ineffective. EC law relies upon the provisions of national laws in order to enforce its provisions on a state by state basis, however, through the introduction of the Direct Effect on Directives of the EU, has created a situation where the conduct of national authorities is being subjected to the control of the EU, thereby creating an untenable position. It is forcing national law enforcers and judicial authorities to re-evaluate the prosecution of State authorities under national law, which would normally not be possible but are mandated under the enhanced proviso of the Direct effect on the EU Directives which pertain to domestic policies that are to be adopted by all member states. The case of Francovich and Bonifaci has introduced the principle of State liability18, however the Direct Effect has created a situaiton where the degree of state liability is associated with the provisions of the Directive in question. For example in Brasserie du Pêcheur SA v Germany19 and RV exparte20, it was established that the plaintiff has to show that the State’s breach of EU Directives intending to confer certain rights on individuals, was serious enough to merit a breach of EU law and that the degree of losses suffered by him was correspondingly substantial. In other cases, it was determined that23, this rule will apply to all such breaches of EU law by the State. But these conditions apply only in the case of Directives where the State enjoys a greater latitude of power. On the other hand, in certain cases, where the State enjoys little flexibility in the implementation of a Directive, an individual Plaintiff will be able to easily establish that a serious breach of EU law has occurred, without the necessity to provide extra proof24. Although the Court declared in the case of , Brasserie du Pêcheur SA v Germany that compensation is to be made in “accordance with the domestic rules on liability”25 the principles of equivalence and effectiveness associated with the Direct Effect on EU Directives have often meant that EU law fails to recognize the boundaries of national law. The greatest difficulty that has arisen through the implementation of the Direct Effect lies in the encroachment of EU Law on national laws. This has produced a situation whereby the aims of the Commonwealth - which are an equitable framework of laws applicable to all EU citizens – are often an anathema to the nations that the individuals live in and are a threat to the preservation of equitable levels of national controls. The degree of confusion and congestion to the national law that has been created by the Direct Effect is the most contested and disputed issue. The Direct Effect on the EU Directives has created problems for the constituent member states in the reconciliation of their own laws on public liability vis a vis the relevant case laws of the ECJ, that has increased the reparation due to individuals for breach of EU Directives by the States26. The issue raised is one of national procedural autonomy versus the implementation of the procedures spelt out in the EU Directives. As an example, the case of Francovich raised the issue of Italy’;s breach of EU law, which created confusion within that country in the implementation of a national Directive in the matter of imports which would not be in violation of EU Law. Once the ECJ had established Italy’s guilt on the basis of an individual complaint, it was then up to the State to embark upon the complex legal process of deciding which organizations to which extent were responsible for the claims sought by the Plaintiff and how liability was to be distributed. Some legal bodies within Italy came to the conclusion that Italy was to be held responsible under Article 2043 of the Italian Civil Code27. On the other hand, other legal bodies held that under the terms of the national Legislative Decree no: 80, the Government could not be held responsible for the alleged damages suffered by Plaintiff, rather the corresponding guaranteeing institution had to be held liable. Therefore, their conclusions were exactly the opposite in terms of the liability of the State Government. This matter went through considerable dispute before being resolved in favor of the legislative decree. This raises the issue of individual differences that exist among States in terms of implementation of their laws. In Italy, damages for liability of subjective rights is available to the individual from the Government, since these subjective rights arise due to the relationship between the administration and the citizens, while the purely administrative regulation lies in the hands of the regulating bodies. Therefore, in effect, the case of Francovich raises the issue of the enforcement of non contractual liability of the States which is mandated by the Direct Effect on the Directives. The Direct Effect therefore, directly impinges upon the sovereignty of the States and their domestic divisions. Rules and laws that are framed by an individual state are generally enforced in the context of the domestic scenario and the manner of operation of a particular area and contractual liabilities and responsibilities are assessed according to the domestic framework and is usually left to the purview of the relevant courts in that particular jurisdiction. The Direct Effect however, supersedes all these local parameters and imposes upon the member states, liabilities that may arise out of laws which may or may not be relevant to a particular terrain. The difficulties of resolving the local objectives and measures within a larger EU framework has been one of the difficult issues needing to be resolved. The issue of interference with local procedural laws is a thorny issue that arises in the context of the Direct Effect. The difficulties in implementing the broad based EU laws that are intended to guarantee that every individual enjoys certain rights within the Union, within the framework of local procedural limitations have created difficulties in cases where the Direct Effect has resulted in favorable decisions to individuals against the States. Ensuring compatibility with EU law has undermined the sovereignty of the laws of the States and created problems as far as implementation of EU Directives are concerned. For example, the EU’s Draft IPR Enforcement Directive has been mooted to protect the individual rights of patent and copyright holders in the European Union, yet this has been strongly opposed on the grounds that it rises in conflict with the goals of enhancing competition which is the common objective of all the member States. This proposed Directive has raised conflicts within the computer industry, welcomed by some and resisted by others on account of the prevailing conditions of competition vis a vis the practical difficulties in patenting software 28 Conclusion: In view of the foregoing, it is imperative that the Direct Effect be re-evaluated. While it was framed to address the issue of individual equity, there is also a need to balance the rights of the States and address the difficulties that arise our of procedural implementation when State liability is decreed by the ECJ. States should not be prevented from reserving the doctrine of State liability in cases where implementation may involve substantial modifications to national legislation or where it would create severe confusion in allocating remedies. The EU also needs to address the instances where certain States may transfer their liability to other organizations or private individuals through their failure to implement relevant Directives. There is a need for more attention to be directed to the measures whereby national objectives may be aligned with EU objectives in order to derive a more homogenous framework for the operation and implementation of the laws. References: * Anderson, Ross. (No date). “The Draft IP Enforcement Directive: A Threat to Competition and to Liberty” [Online] Available at: http://www.fipr.org/copyright/draft-ipr-enforce.html; accessed 11/20/2005 * Craig, P (1992. ) “Once Upon a Time in the West : Direct Effect and the Federalisation of EEC law”. 12 Oxford Journal of Legal Studies 453 * Cases C-94 & 95/95, Bonifaci & Berto v Istituto Nazionale della Previdenza Sociale (INPS), [1997] ECR I-3969, * Case C-261/95, Palmisani v INPS, [1997] ECR I-4025 * Case C-373/95, Maso & Gazzetta v INPS, [1997] ECR I-4051. * Commission vs UK : Case 128/78 Commission v UK (1979) ECR 419 * Case C-246/89R Commission v UK (1989) ECR 3125 * Case no: 45/76 Comet v Produktschap (1976) ECR 2043 * Case 247/87 Star Fruit Co v Commission (1989) ECR 291). * Case 228/84, Johnston v Chief Constable of the RUC (1986) ECR 1651, para 18-19 * Case C-5/94, R. v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas, [1996] ECR I-2553, para 28). * Cases C-6 & 9/90, Francovich and Bonifaci v Italy, [1991] ECR I-5357 * Cases C-178, 179, 188-190/94, Dillenkofer and others v Germany, [1996] ECR I-4845, para 23 * Cases C-46 & 48/93, Brasserie du Pêcheur SA v Germany * “The Community’s range of tools”. [Online] Available at: http://europa.eu.int/eur-lex/en/about/abc/abc_20.html; accessed 11/22/2005 * “Direct Effect: Sorting out the confusions.” [Online] Available at: http://www.learnedcounsel.com/de.htm * (Pretura di Pistoia, 16 November 1992, Mass. giur. lav., 1993, p. 97, Pretura di Bassano del Grappa, 9 July 1992) * Ross, M (1993) “Beyond Francovich”. 56 Modern Law Review 55. * Ruskin, Jay. (2005). “European Commission moves “right” causing despair in Paris.” United for Peace. [Online] Available at: http://www.ufppc.org/content/view/3615/; accessed 11/20/2005 * Snyder, F (1993) “The Effectiveness of European Community Law : Institutions, Processes, Tools and Techniques”. 56 Modern Law Review 19. * Re Flynn [1995] 3 CMLR 397 * R. v Secretary of State for Transport ex parte Factortame Ltd. and others (Factortame III), [1996] ECR I-1029, para 51 * Defrenne v SABENA [1976] ICR 547, ECJ Case 43/75 (April 8th 1976). * Van Gend en Loos v Nederlanse Administratie der Belastingen : 1963 ECR Read More