Outline the approach of the European Court of Justice in Van Gend en Loos, Defrenne v Sabena, Marshall v Southampton Area Health Authority and Francovich v Italy and consider the contribution these cases have made to the ability of the individual to enfo

 It can be seen that direct effect gives rights to individuals against their member states; this is known as a vertical relationship as the individuals are beneath the state in a hierarchy.6 In the above case of Van Gend en Loos individual rights are talked of and so an individual may need to use these rights against another equal individual, this is known as a horizontal relationship.

In the case of Defrenne v Sabena7, horizontal direct effect was confirmed. Miss Defrenne was an air hostess who was being paid less money for doing the same work as a male employee, she argued that under Article 141[ex119] EC that she had a right to equal pay. The judgement given by the Court of Justice was that the company Sabena was in fact in breech of Article 141[119]EC. 8        

Although the court had set out 3 criteria for direct effect, article 141 seems to be neither clear nor unambiguous, it may be said that the criteria as laid out may just be a code by which the Court decides whether a measure is capable of being sufficiently operational in itself to be applied by the court.9 The fact of discrimination in this instance can be identified purely by reference to the criteria of equal work and pay found in Article 119EC. The EC Treaty in this respect has created a direct right of action against the employer whether they are in the private or public sector.10 From this it is also evident that the Court of justice has used the same approach as in the Van Gend en Loos case, the purposive and teleological approach, as they have developed what has been stated in article 141[119]. 11

Having held that directives can have direct effect12 , it was also held that they only have vertical as opposed to horizontal direct effect13 and so the Court of Justice was faced with the question of whether directives could be horizontally directly effective; this was first answered in the case of Marshall V Southampton and Southwest Hampshire Area Health Authority.14 In this case Mrs Marshall who worked for the Health Authority was asked to retire at the age of 62, when men weren’t ask to retire until they were 65 years old. Mrs Marshall argued that the difference in retirement ages was discriminatory as it was a breech of the Equal Treatment Directive 76/207. In this case the idea of horizontal and vertical effect had to be argued and the court held that the compulsory retirement ages was in breech of the directive and could be invoked against a public body such as the Health Authority.15

In the case of Francovich and Bonifaci v. Italy16, Andrea Francovich and others were former employees of a company which was now insolvent brought a domestic action against the Italian Government for not implementing Directive 80/987.17 This directive gives employees certain minimum rights to payment of wages in the case of insolvency of their employers. If the employer is no longer able to pay, a guarantee institution is to take over reimbursement18. Italy did not have a guarantee institution as meant in the directive. Consequently, the employees had nowhere else to go for their outstanding rights to payment and so they sued the Italian state for their damages.

In this case the Court began by saying that the directive cannot have direct effect, as it is not clear which person or institution should be liable in the absence of any transposing measure. As to the possibility of Member State liability, the Court ruled that with reference to the well-known Van Gend en Loos and Costa/ENEL cases, the Court pointed out that the EC Treaty had created its own legal system in the form of an autonomous legal order, integrated into the national legal systems, which the national courts are bound to apply. 19 Also private parties now have an entitlement to invoke directives independently of the requirements of direct effect when petitioning for compensation of state authorities.20

There can be no doubt that this decision was a breakthrough concerning the legal protection of citizens in the community legal order. Even if a directive does not have vertical or horizontal direct effect, its indirect effect can be such that any Member State will have a great incentive to implement it and uphold its community obligations. From the judgment in this case the term the ‘Francovich principle’21 was coined and further used in judgments in later case law.

As I have briefly mentioned above, in terms of interpretation the Court of Justice adopts a contextual and purposive interpretation of such cases as above. This interpretation method has also called the teleological approach, the main reason that the court adopts this approach is that the Treaty articles are merely statements of intent and the court sees it as their role to interpret and develop these articles. This approach has been criticised, on the grounds that the court often enters the realms of policy making.22

In conclusion It is evident that these cases have contributed a lot to the ability of an individual to enforce their rights arising within European Union Law as in the groundbreaking case of Van Gend en Loos23 the concept of direct effect was established and without the principles of direct effect and supremacy, individuals could not have directly invoked Community law to contest violations of their fundamental rights and Community measures contrary to national fundamental rights guarantees would have been held inapplicable by national courts.24 The case of Francovich V Italy25 also states that if a member state does not properly implement an EEC Directive then the member state may be held liable if an individual wishes to take a case against them for the breech of a directive. Overall these cases have widened the horizon for individual’s rights in their own member states.

Bibliography

Texts

• James Hanlon, European Community Law 2nd Ed 2000
• J Shaw, Law of The European Union, 2nd Ed 1996
• Craig and De Burca, 2nd Ed 1998

Journals/Articles

• Tim Connor, Community Discrimination Law: No Right to Equal Treatment in Employment in Respect of the same sex partner (1998) 23 EL Rev Aug

• Weiler, Directives: Direct Effect, Indirect effect and the Construction of National Legislation(1997)22 EL Rev. Dec

• JHH Weiler, The European Union Belongs to its Citizens: Three Immodest Proposals, 1997

• Weiler, Methods of Protection, supra note5

• John Temple Lang, The duties of National Authorities Under Community Constitutional Law, 1998,23, EL Rev Apr  

• Angela Ward, New frontiers in Private Reinforce Meant of EC directives, 1998 23 EL Rev Feb

• The Treaty of Rome, Article 12 (now article 25 post Amsterdam)

• EEC Directive 80/987

Webpages

• www.rae.gr/Europe/pdf.co.uk ,Document: Judgement of the court 19/11/91, accessed on 11/04/05

Caselaw

• Van Gend en Loos v. Netherlands Inland Revenue Admin., 1963 E.C.R. 1, [1963] 2 C.M.L.R. 105 (1963)
• Defrenne V Sabena 43/75 [1976]ECR 455
• Marshall v Southampton and Southwest Hampshire Area Health Authority 152/84[1986]ECR 723;[1986]1 CMLR 688;[1986]2WLR 780; [1986]2ALL ER 584

---