In Marshal v Southamton Area Health Authority the ECJ made a clear distinction between horizontal and vertical direct effect. An individual can attempt to enforce a directive in his national court against the state or an emanation of the state. This is known as horizontal effect. An individual can not be held liable for failure of his state to enforce a directive. The individual or private entity is only obliged to follow laws which are enacted by the member state.
In order to establish that her employer represents an “ emanation of the state” Grace must prove that her employer is a public Service under the control of the state and has special powers. Even if the entity is fully controlled by the state, it will not be an emanation unless it has special powers. The court must be satisfied that the public service is in control of the state.
Little is knows of harwicke and a sophisticated conclusion be reached purely on the grounds that it is a limited liability company. However, even if we presume that it does provide a public service controlled by the UK, it may still not be an emanation of the state on the basis that, as a limited company, it is not likely to have special powers. On the other hand, Ealing Borough Council Grace will be able to enforce the Retirement Directive. However, she will be prohibited from doing so against Hardwicke.
In the case of Von Colson the ECJ introduced the concept of indirect effect. This serves as a rule of interpretation which obliges national courts to interpret the directive implementing national legislation in accordance with the directive itself in cases where there are discrepancies between the two. In its initial stages the doctrine of direct effect only applied where domestic laws were passed with the specific purpose of implementing a directive. The doctrine was extended to apply to legislation passed before the directive in Marleasing v La Commercial.
Although the doctrine obliges the English Court to interpret the Retirement Act in a manner consistent with the provisions of the Retirement Directive, it must be noted that indirect effect can only applied as far as possible. In this scenario the directive and the Act appear to contradict each other as the directive prohibits discriminatory retirement ages, whilst the Act permits them. Thus, it might not be possible for the court to apply the interpretive obligation.
The Marleasing obligation cannot be applied where it would lead to the imposition or augmentation of criminal or civil liability on an individual. An exception to this rule can be found in the case of Bernaldez where the court imposed an indirect obligation, from an EU Directive, on an insurance company. This case is seen by academia as merely an indication that the ECJ is cautiously taking each case on its own merits instead of generating case law and applying it indiscriminately. Hardwicke may use this limitation to argue that the interpretive obligation should not be applied to their detriment as they are merely obliged to comply with the Retirement Act. In Grace’s case against the council it would be irrelevant.
Furthermore, Hardwicke may argue that the Marleasing principle cannot be applied in this case as this would distort the meaning of the Retirement Act. The likelihood of this argument being accepted by the court would depend on two factors: First, whether the provisions of the Act appear to be vague. If the court believes that the language is ambiguous and the provisions are subject to more than one interpretation, then it may be possible to apply the interpretive obligation without distorting the meaning of the Act. If however the language is precise and it can be inferred that parliament has clearly expressed their intention to set discriminatory retirement ages, it would not be possible to apply the interpretation. The second factor to consider is whether the directive precedes the Act. If the Act precedes the directive then the court would have to examine the first factor. If however the directive precedes that Act, the first factor becomes irrelevant as Parliament are obliged to implement the directive correctly. As the Retirement Directive precedes the Act, it can be inferred that the court will apply the interpretive obligation despite the fact that it will distort the meaning of the domestic legislation.
Grace may also have a claim against the UK for failure to implement the directive. Per Francovich v Italy, member states have an obligation to ensure the adopt community law. Failure to do so or an incorrect adoption of community law may lead to liability of member states to their citizens. If Grace makes a claim before 1st September 2012, the court will strike it down and it will be difficult for her to argue the same claim launched after the deadline. Grace need to prove that the result prescribed by the directive should entail the grant of rights to her and that such rights are identifiable. She also need to prove that there is a casual link between UK’s failure to implement the Directive and the damage she suffered. The UK will argue that she had not suffered any damage yet and this requirement is not satisfied. She must also prove that the breach was sufficiently serious taking into account the threefold test in Van Gend as well as whether the UK made the breach in bad faith; wheather there was an excusable mistake, whether EU institutions themselves had contributed tot he breach by not objecting to the Retirement Act.
However, the UK does not have a defence for not implementing a directive. Non- implementation of a directive is regarded as an automatic serious breach. The UK will argue that the Retirement Act was intended to implement the EU directive and therefore the breach is not automatically serious. However, if this argument is raised, and if Grace is able to prove that Parliament clearly intended to legislate different retirement ages, then she may have an argument that the breach is sufficiently serious on other grounds for example bad faith.
Therefore, in Grace’s claim to enforce the Retirement Directive it is clear that the Directive creates identifiable rights, but it is not clear whether the breach is sufficiently serious. However, the member state may win the argument on the grounds that there is no casual link between the breach and the damages since she has not suffered any damage at the time she made the claim.
In conclusion, in her case against Ealing Borough Council, Grace is likely to succeed enforcing the directive vertically or indirectly by applying the Marleasing interpretive obligation. In her case against Hardwicke, she will not be able to use the concept of direct effect. Hardwicke may also have a solid argument against the application of the interpretive obligation based on the case of Arcaro. In her claim against the UK under the state liability principle she will probably have to satisfy the Van Gend criteria to prove a serious breach. Although a directive does not need to have direct effect for it to be used in a state liability claim, the joined cases of Basserie du Pecheur and Factortame have considerably raised the requirements for proving serious breach. Therefore, it is not clear wheather Grace would be successfull under Francovich,
BIBLIOGRAPHY:
Books
Chalmers, D; Davies, G and Monti, G, European Union Law (2nd edn; Cambridge University Press, Cambridge 2010)
Fairhurst, J, Law of the European Union (8th edn; Pearson Education, Essex 2010)
Horspool, M and Humphreys, M, European Union Law (4th edn; Oxford University Press, Oxford 2006)
Electronic Sources:
EUR-LEX: Criminal proceedings against Maria Pupino
Accessed 27 November 2012
EUR-LEX: Article 288 TFEU
Accessed 27 November 2012
EUR-LEX: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
Accessed 27 November 2012
TABLE OF STATUTES
European Communities Act 1972 c.2
The Treaty of the Functioning of the European Union; Article 288
by
pitbulljan (student)
