Reliance on EC Law, Treaty Articles - Essay Example

Reliance on EU Law QUESTION ONE - PART a Treaty Articles and Regulations are directly applicable and therefore do not require to be integrated with national legislation by the Member States. However, Directives require such integration. This is due to the fact that Member States have to implement the Directives through their domestic legislative procedures, in order to make them effective1. In order to be directly effective, Treaty Articles have to be clear and precise. Individuals can invoke Treaty Articles against the state or private individuals. Treaty Articles have horizontal as well as vertical direct effect. The state will be held liable if it fails to implement the provisions of the EC Directives properly and within the date prescribed for such implementation. Individuals can seek the Court’s intervention, if their rights are breached, due to the non – implementation or improper implementation of Directives, on the basis of the doctrine of state liability. However, in such cases, the violation committed by the state should be of a serious nature2. For instance,the ECJ held in the Angonese case that Article 39 EC is directly effective. This Article deals with the free movement of workers3. The European Court of Justice, through its case law, had established that certain Treaty Articles would have direct effect. However, not all Treaty Articles have that characteristic, and some Articles do not provide rights to individuals. Such Articles, under no circumstances, can have direct effect. The prominent case in this regard was that of Van Duyn v. Home Office4. The principles relating to direct effect were discussed threadbare in this case. The Van Duyn case was chiefly based on Article 39 EC Treaty, which provides for the freedom of movement of workers throughout the community. This Article was designed to have direct effect. In order to have direct effect, a provision must be legally justifiable, or the provision should be deemed to be appropriate, for a court to enforce it. Such provisions should be free of ambiguity for the purpose of enforcement by a Member State5. In Defrenne v Sabena6, the ECJ held that Treaty Articles would have direct effect between individual and the state as well as between two private individuals7. Dev, a school teacher, applied for seven days paid leave in March 2008, which was refused on the grounds that he was eligible for only three days, in accordance with the Study and Training Act. Dev can take recourse to EU law for claiming seven days paid leave. He can file a case in the national courts against the employer, which is a state run school; and the government for its failure to implement a Treaty article. He can do so under the principle of vertical direct effect. PART b - i The provisions of Directives, Regulations or Treaty Articles have direct effect only when they are clear, precise and unconditional8. Directives should be implemented within the prescribed time. Furthermore, individuals can invoke Directives only against public authorities or public entities, because directives are addressed to the state and not to individuals9. Directives do not have direct application because the Member States have to implement them after having integrated them with their national legislation. The ECJ in Fratelli held that the individual provisions of a directive can be directly applicable10. For this to transpire, first, the prescribed period of the integration with national legislation should have expired without the Member State having transposed the directive, or the directive’s implementation should have been inadequate. Second, the provisions of the directive should lack clarity or precision. Finally, the provisions of the directive provide rights to individuals. In Francovich11, the ECJ developed the concept of state liability and held that individuals could sue Member States for failure to correctly transpose a directive or for the inadequate implementation of a directive. However, the directive must have intended to confer rights on individuals; the nature and characteristics of such rights must be ascertained based on the directive as a whole; and there must be a causal link between the state’s violation of its duty to transpose the directive and the loss incurred by the individual12. Dave can rely on the Francovich principle to obtain leave for seven days, because his employer is a public entity, and the directive provides specific rights to individuals, in this context. As such he can file a suit against the state, for having failed to properly implement the Directive, under the vertical direct effect. PART b - ii The horizontal direct effect requires national courts to comply with directives. The ECJ confirmed this duty through its ruling in Marleasing13 and Von Colson14. Furthermore, if a court ruling contravenes a directive, in respect of dispute between individuals, then the aggrieved party can proceed against the state for not having properly implemented the directive. In Duke v. GEC Reliance Ltd15; Duke was unable to fall back on an equal treatment directive, because of her employer being a private entity. Hence, she was unable to employ the principle of horizontal effect. Similarly, Dev cannot rely on the horizontal direct effect; however he can obtain redressal against his employer under the indirect effect. The proper implementation of the directive is the duty of the state, which has to enact suitable legislation for that purpose. Thus, he can also, proceed against the state for improper implementation of the Directive, which had resulted in significant loss to him. As such, he can seek redressal under the principle of state liability and also the indirect effect. List of References Article 39 EC. Retrieved on May 21, 2008 from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12002E039:EN:HTML Case C-6/90 and C-9/90 Francovich [1991] ECR I-5357 Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen (1948) ECR 1891 Case 26/62 Van Gend & Loos (1963) ECR 1 Case 41/74 Van Duyn v. Home Office [1974] ECR 1337 Case 43/75 Defrenne v Sabena (1976) ECR 455 Case C-281/98 Angonese V Cassa di Risparmio di Bolanzo SpA. Case 103/88 Fratelli Costanzo (1989) ECR 1839 C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion (1989) David Medhurst. A Brief and Practical Guide to EU Law. 2001. Page 37 – 38. Blackwell Publishing. ISBN: 0632051841 Duke v. G.E.C. Reliance (1988) I.R.L.R. 1988, H.L European Parliament Fact Sheets. Retrieved 20 May 2008 from http://www.europarl.europa.eu/factsheets/1_2_1_en.htm Enforcement of the directives. Retrieved 20 May 2008 from http://ec.europa.eu/employment_social/fundamental_rights/legis/lgenforce_en.htm Erika M. Szyszczak. Understanding EU Law. 2005. Pg 67. Sweet & Maxwell. ISBN: 0421878606. Read More