The law of the EU is considered to be supreme to national law; it takes precedent over all internal legislation. As a member state the UK must give up the notion of parliamentary sovereignty and adhere to the law of the EU. This is because of the nature of the EU, it requires full cooperation from its members and so it regulates the law of the country. In the Simmenthal case the court decided that “...any national court must [...] apply community law in its entirety [...] and must accordingly set aside any provision of national law.” Courts are now required to directly apply EC law. The notion of supremacy was further extended in the case of Larsy where the court ruled that administrative agencies should apply EC law.
EU law grants four main freedoms to the nationals of member states, the freedom of movement of labour, services, goods and capital. The right to free movement of persons allows both Sadie and Bill as EU nationals to move to another member state. They have the right to move, live and work there through the freedom of movement. Bill and Sadie have moved from their home countries to live and work in the UK. They are entitled to be treated no differently to the nationals of that state.
The EU use regulations and directives to communicate any changes or supplements to its articles. Article 249 highlights the direct applicability of EU law; a regulation ‘shall be binding in its entirety and directly applicable in all member states.’ With regard to directives the article states “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.” The nature of directives is such that they may require some time or preparation for publication before they can effectively be implemented within the internal system of a member state. Directives are limited to the time in which they must be enforced; if they are not officially introduced within the time given they are applicable in their original form.
Direct effect of Directives originates in the case of Van Duyn v Home Office, the ECJ found that directives have direct effect and allowed a Dutch national to enforce her right to free movement of persons via the directive. The case of Van Gend en Loos, the court decided for the direct effect of a directive it must be, “clear, precise and unconditional.” The Council Directive on Transportation (fictitious) outlines transport benefits for retired EU citizens. The first part of the Directive allows the retired citizen to free travel on domestic public transport the second part gives citizens the right to one complimentary flight per year to another member state. The directive meets the requirements of being “clear, precise and unconditional.”
The Ratti case uncovered a limitation to direct effect which was, that a directive is not applicable before the “time limit for implementation has expired.” This does not apply in this case as the last date for implementation was March 2008 this directive now has authority over any national law. The two types of direct effect are vertical or horizontal. Vertical direct effect is where the individual can only claim “against the state or state entity.” The horizontal effect is where the individual claims against a private body.
In this case only vertical effect is to be applied as the directive applies to public bodies. The notion of a public body is an organisation that is an organ of the state. This was clarified in the Foster Case where the ECJ ruled “...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...” There must be a service being provided to the public and the organisation must be in control of the state, however what constitutes as control has not been clarified. The Marshall Case states that more than deciding whether or not an organisation is a public body or not, it is important “to prevent the State from taking advantage of its own failure to comply with Community law.”
Sadie has requested free travel between Birmingham and London, via Virgin Company. This company is the one that provides trains from London to Birmingham; they have refused. Under the criteria above Virgin Company can be an organ of the State, or “emanation of the state.” It meets the criteria of being “subject to control or authority of the state or had special powers beyond those which result from the normal rules applicable to relations between individuals.” Virgin is not identified as a private company and as they provide a public service they can be considered as an organ of the State.
In Bill’s case he is able to directly apply the directive as the Department of Transport is a state organ. He can apply for vertical direct effect to enforce his rights as stated in the directive. The Department of Transport cannot refuse him the right to his complimentary ticket. The factors that may hinder his access to the ticket rely on his employment status; he is retired however he does gardening work for friends in return for meals. The definition for self employment includes that the employee will receive a residual benefit for work. This is not the case and so Bills work arrangement does not constitute employment.
Bill behaved very irrational after his application was refused he became abusive and smashed a window. He also has previously behaved aggressively with a police officer. To explore Bill’s situation the limitations on EU freedoms must be considered. The EU specify three reasons which may constitute the denial of a freedom these are; public health, public security and public policy. Public Health covers diseases that may cause an epidemic. Public policy is concerned with any policy conditions that would hinder the availability of the right. In Directive 2004/38/EC it states that “previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.” The last limitation of public security is considered with public policy and is based on the individual conduct of the person.
Bill’s previous conviction was almost nine years ago, his conduct or behaviour since has not been an issue. To help clarify his case the Directive 2004/38/EC states that before a decision can be made on a person’s conduct the member state should consider “how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.” Bill has lived in the UK for at least nine years, he is 55 years old, for health reasons he want to spend winter in Spain and he has in the past misbehaved with a police officer. Bill’s situation should have been considered in light of these criteria before his deportation order was issued.
The obvious remedy is the implementation of the directive the remedy that is next most sought after is for compensation. The three principles stated are; “the conferment of specific rights, whose content must be identifiable under the directive upon an individual and a causal link between the States breach and damage to the individual.” This means that the directive conferred right to the individual who the state fails to implement, the content of these rights are identifiable from the directive and that there is a causal link in the breach.
The Brasserie case further developed on the rules to decide how damages should be awarded.
The failure of the UK to fully implement the EC directive means that the state can be held liable under the Frankovich criteria. In conclusion Sadie’s situation meets the requirements of the Frankovich criteria and the directive should be directly effective. In Bill’s case the situation is more complex due to his personal conduct the member state is entitled to refuse him stay if they find him in breach of public policy or public security.
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Simmenthal Case 106/77 [1978] ECR 629, [1978] 3CMLR 263
Larsy v INASTI Case C-118/00 [2001] 1-5063
Commission v Portugal Case C-345/05 [2006] ECR I-10633
Van Duyn v Home Office Case (41-74) [1974] ECR 1337
Van Gend en Loos (case 26/62) [1963] ECR 13
Van Gend en Loos (case 26/62) [1963] ECR 13
Van Gend en Loos (case 26/62) [1963] ECR 13
Pubblico Ministero v Tullio Ratti (Case 148/78) [1979] ECR 1629
Pg 271, EU Law Texts, Cases and Materials, Craig & De Burca, Oxford, Fourth Edition
A Foster and others v British Gas plc Case-C 188/89 [1990] ECR I-3313
Paragraph 20, ECJ ruling, A Foster and others v British Gas plc Case-C 188/89 [1990] ECR I-3313
Marshall v Southampton and South –West Hampshire Area Health Authority (Teaching) Case 152/84 [1986] ECR 723
A Foster and others v British Gas plc Case-C 188/89 [1990] ECR I-3313
A Foster and others v British Gas plc Case-C 188/89 [1990] ECR I-3313
Article28, Directive 2004/38/EC
Frankovich and Bonifaci v Italy Cases C-6 and 9/90 [1991] ECR I-5357
Brasserie du Pecheur SA v Germany, ex parte Factortame Ltd. Cases C-46 & 43/93 [1996] ECR I-1029