European Law

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European Law is ultimately beyond the challenge of all members states as seen in Costa v ENEL [1964] ECR 585, where the European Court of Justice (ECJ) said that ” The member states have limited their sovereign rights, and have thus created a body of law which binds both their nationals and themselves”.

The question refers to directive 109/01, which required employers to provide foreign language training to all employees. As a result of Sophie’s employer refusing to make the necessary provisions, she wishes to be advised on any remedies she might have in community law. Article 249 states a directive is ” . . . binding, as to the results 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”.

As the question does not suggest whether Sophie’s employer is a private or public body, I will therefore explain the situation in relation to both and examine whether the directive can be enforced and what remedies may be available under state liability. Directives are problematic as they are not complete legal instruments but are left to member states to implement within a time limit. So they do not create individual rights. The fictitious directive 109/01 in the question was issued in September 2001 with an implementation date of 30th September 2003. It was held by ECJ in Grad v. Finanzamt Traustein (Case 9/70) [1970] ECR 825 that, where the criteria for direct effects are satisfied, decisions and, by implication, directives may be directly effective.

The conditions were laid down in Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1 that the directive must be clear and precise, unconditional and leaving no room for discretion in implementation. However in the current case although the directive is clear, precise and unconditional it gave some discretion as to when it must be implemented. Therefore the directive would be directly effective once the time limit for implementation has expired. If in the current case the time limit has not expired the directive is not directly effective as seen in Pubblico Ministero v. Ratti (Case 148/78) [1979] ECR 1629. Although had they been no mention of implementation, then the directive may have taken effect at once provided the criteria for direct effect are met as seen in Van Dugn v. Home Office (Case 41/74) [1974] ECR 1337.

The doctrine of direct effect may be applied vertical and horizontally. So if in the question Sophie was working for a public body, i.e. an arm of the state, she can seek to invoke a directive against the state. This is known as vertical direct effect, reflecting the relationship between Sophie and the state. Where as if the employer was a private person then hence she will invoke the directive against that individual. This is known as horizontal direct effect, reflecting the relationship between individuals.

However, the case of Marshall v. Southhampton & South West Hampshire Area Health Authority (Teaching) (No.1) (Case 152/84) [1986] CMLR 688 made it clear that a directive can be imposed against a public body via vertical direct effect. The concepts of a public body were further discussed in Foster v. British Gas Plc (Case C-188/89) [1988] 2 CMLR 697 where it was concluded that a directive might be invoked against ” a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.”

Although a restrictive approach was taken in Rolls-Royce Plc v. Doughty [1992] ICR 538 where the court concluded that Rolls-Royce did not possess the necessary special powers and responsibility and was not a public body, despite being owned by the crown. But did rule in National Union Of Teachers v. Governing Body Of St Mary’s Church Of England (Aided) Junior School [1997] 3 CMLR 630 that governors were a public body “charged by the state with running the school”. Other bodies, which have been held to be public bodies, include the Royal Ulster Constabulary: Johnston v. RUC (Case 224/84) [1986] ECR QB 129, local or regional authorities: ECSC v. Assiaiera Ferrier Bussen, (Case C-221/88 [1990] 1 ECR 495), and tax authorities: Becker v Finanzamt Munster (Case 8/81) [1982] ECR 53.

Therefore it is clear if Sophie’s employer is a public authority or organ of the state then the directive may be enforced against the state vertical, as long as the criteria for direct effect are satisfied. However if Sophie’s employer is a private individual then the directive cannot be enforced horizontally as seen in Dori v. Recreb Sri (Case C-91/92) [1994] ECRI-3325. As directives cannot be enforced against a private company as seen in Duke v GEC Reliance (1988). Therefore horizontally she has no claim until the country in question passes the relevant legislation.

Although the ECJ has not shown willing to allow horizontal direct effect of directives, it has developed an alternative tool by which individuals may rely on directives against another individual. This tool is known as the principle of ‘indirect effect’, which is an interpretative tool to be applied by domestic courts interpreting national legislation which conflicts with a directive in the same area. The principles of indirect effect were established in two cases, the case of Von Colson v. Land Nordrhein-Westfalen (Case 14/83)[1984] ECR 1891 and Harz v. Deutsche Tradax GmbH (Case 79/83) [1984] ECR 1921. In the two cases the vertical/ horizontal anomaly was openly raised and argued before the ECJ. Although the courts solution focused on Art 10 of the EC Treaty which states to “take all appropriate measures’ to ensure fulfilment of their community obligations”. The courts concluded the obligation applies to all the authorities of member states including the courts. It therefore falls on the courts of member states to interpret national law in such a way as to ensure the objectives of the directive are achieved.

However the Von Colson approach was rejected as the basis for interpretation of a UK Statute as seen in Duke v. Reliance Systems Ltd [1988] AC 618. Although in Litster v. Forth Dry Dock Engineering [1990] 1 AC 546 the House of Lords interpreted a UK regulation implementing directive 77/187 so as to comply with the directive. It was concluded that the national courts should adopt a purposive approach to statutory interpretation, wherever possible to translate English so as to comply with EC law, even if this involves departing from a strict, literal approach.

However the scope of the doctrine was considered in Marleasing SA v. La Comercial Internacional de Alimentacion (Case C-106/89) [1990] ECR I- 4135 where the ECJ under Art 234 held that the obligation to interpret national law, as far as possible, in the light of the wording and purpose of the directive applies whether the law was adopted before or after the directive and the court concluded that the courts were required to interpret domestic law to ensure that the objectives of the directive were achieved. Although the approach was slightly modified in Wagner Miret v Fondo de Garantira Salaria (Case C-334/92) [1993] ECR I-6911 where the courts acknowledged that national courts will not always be able to translate domestic law to comply with an EC directive. However Lord Keith in Webb v. EMO Air Cargo (UK) Ltd [1993] 1 WLR 49 noted that national courts were only required to translate domestic law to accord with the directive ‘only if it was possible to do so’.

Therefore it can be seen that the indirect application of EC directive by national courts cannot be guaranteed. However in the case of Kolpinghuis Nijmegen (Case 80/86) [1987] ECR 3969 the ECJ has imposed limitations on the indirect effect of directives. It was held in this case that a directive cannot have indirect effect in criminal proceedings where it would cause the accused to be convicted where he would otherwise have been acquitted. Nor can a directive indirectly aggravate guilt as seen in Arcaro (Case C-168/95) [1996] ECR I-4705 where the ECJ held that the obligation to interpret national law in line with a directive reaches a limit where the obligation has not been transposed.

Finally it can be seen from the case of Faccini Dori v. Recreb Srl (Case C-91/92) [1994] ECR I-3235 that directives do not create horizontal enforceable rights. In relation to the current directive 109/01 the circumstances may not make it possible to apply the directive even though the court may be under an obligation to apply national law either predating or postdating to achieve the results envisaged by the directive. As the courts concluded in Wagner Miret, it may not be possible to translate domestic law to comply with EC directive, particularly when the provision of domestic law are clearly at odds with an EC directive, and there is no evidence that the national legislature intended national law to comply with its provisions, or with a ruling on it provisions by the ECJ. Therefore in such a case Sophie will be better off pursing the alternative remedy of a claim in damages against the state under the principles laid down in Francovich v Italy (Case C-6 & 9/90) [1993] ECR 66.

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