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".

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 European Law

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.”

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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) ...

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