Direct effect of Directives –
Van gend en loss is the main case that concerns direct effect, once the court has established the point of principle that provisions of the treaty are capable of direct effect, the court then considered article 12 of the treaty itself. Community law can be directly effective before a national court.
Article 249 states that directives are ‘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’ In other words, it is up to the member state how they want to implement the directive into their state and how it will be best achieved but the main objective for all of the state shall remain the same.
Each directive has time period in which the member states should have achieved the results required, this is usually two years. If this has not been done then an individual can enforce any rights given to them in the national courts using the principle of direct effect. As the UK did not implement the directive at all 2006/124, Gunilla can possibly bring proceedings under article 249 using direct effect.
If a member state hasn’t implemented the measures that are required by the directive, in the time period they were prescribed, they cannot rely on their own failure to perform the obligation which the directive entails.
Whilst directives are binding upon the member states, the rights of individuals arising from it depend on the scope of a particular directive. They have no direct effect upon individuals unless they are implemented into national legislation. In contrast with treaty provisions and regulations, an imperative condition for the direct effect principle to be effective is that the directive has not been implemented, properly or all by the member state within the specified time for doing so. The direct effect is distinct from that of other provisions of EC law. In this case, the UK has not implemented directive 2006/124 and hence the principle of direct effect may be relevant because the member state has not implemented it at all and hence Gunilla may be able to use the principle. The judgement in Van Gend en Loos pointed out that Art 25 EC was ideally capable of having direct effect between the member states and their subjects. The courts achieved this by creating conditions which have to be applied if direct effect is to be enforced. These conditions are:
- The provision must be clear and unambiguous – in this scenario the provision is sufficiently precise.
- it must be unconditional – in this case the provision unconditional
- Its operation must not be dependent on further action being taken by community or national authorities – it is dependant on implementation by the government
Regardless of the fact that only one of this criteria has been fulfilled, it does not necessarily mean that the directive is not capable of having direct effect. If member states were free to stray from their obligations to implement directives then may important directives would remain implemented. As a result of this, the UK cannot use the defence that they thought the national curriculum was sufficient enough to encompass the requirements of the Directive. If this was the case then a lot of directives wouldn’t be implemented because member states would think they weren’t necessary.
The effectiveness of a directive would be weakened if the nationals of a member state that had failed to implement a directive were denied the rights contained in the directive by the national courts. Gunilla can use the directive because if the courts deny her this, it would mean that she was denied individual rights that are contained in the directive.
The ECJ stated three conditions that had to be satisfied for there to be a cause of action for non-implementation.
- The Directive had to create rights for individuals – directive 2006/124 did create rights for individuals
- Those rights had to be ascertainable from the text of the directive – which would be available from the text of the directive
- There had to be a causal link between the non-implementation and the claimant's loss – and there is a link between the non implementation and Gunilla’s loss.
‘The provisions of the decision and of the directives, taken together, produce direct effects in the relations between member states and their citizens and create for the latter the right to enforce them before the courts’.
Stated by the Court of Justice
Emanation of the state:
Would the school be regarded as an emanation of the state?
Public sector employers are known as ‘emanations of the state’
Emanation of the state was defined as ‘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 that which result from the normal rules applicable in relations between individuals’.
The government, local authorities, public schools are an emanation of the state. If an employee is employed by the state, they can rely on the directive whereas if the individual is employed by a private company they may not succeed.
However in the scenario, as the school has just recently become grant maintained it can no longer be said that it is an emanation of the state. However this doctrine of direct effect can be limited in respect to directives. While direct effect allows legal actions based on directives against the state, enforcement of individual rights contained in directives is not permitted against private individuals. ECJ made this very clear in its decision: ‘..it must be pointed out that where a person involved in legal proceedings is able to rely on a directive as against the state he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with Community law.’
The European Court of Justice accepted that while direct effect could allow legal based actions against the state, the ‘state’ could appear in a number of guises.
There are two sufficient conditions to be satisfied in order to be included within the emanation of the state, they are:
- That the body has been made responsible for providing a public service and;
- That the body, in providing the public service does so subject to the control and authority of the state and/ or that the body has special powers beyond those relating to the individual.
We must now look at whether the school satisfies these criteria’s in order to see if direct effect towards the direct would be applicable for Gunilla.
The school can be said to provide public services as it teaches children, and it could have been said that it did so subject to the control of the government. However, as it has recently become grant maintained it may mean that it is no longer subject to the control of the government. Nevertheless as it formerly provided public services, so it could still be seen as an emanation of the state. As it did formerly provide public services it did so under the control of the state and for that reason it has special powers.
State liability.
The conditions for state liability are:
- Rule of law infringed must be intended to confer rights on individuals.
- The breach must be sufficiently serious – non implementation of a directive is a serious breach.
- Causal link between the breach of a states obligation and the damage suffered by the persons affected – as a result of the breach, Gunilla suffered a loss as she had to pay for English lessons which if the directive had been implemented would have been free.
In Franovich, Italy did not comply with the directive and Francovich pleaded direct effect of the directive. They argued that the people who suffered a loss should be compensated and in this situation, Gunilla should be sufficiently compensated.
Advocate General Jacobs argued in favour of the contribution for legal security made by the application of time limits even in cases which involved unimplemented Directives. He suggested that a Francovich claim was the best and appropriate way of protecting an individual suffering loss in such circumstances. This way the protection of the individual would pose a lot of emphasis on the importance of the defaulting states culpability as an element in the criteria governing Francovich liability.
If the individuals can not obtain compensation when their rights were infringed then according to Art 10, the EC law would come into question and the protection of the EC obligations. When the EC obligations have been breached therefore, individuals should receive adequate compensation.
In order to decide the availability of compensation for Gunilla, the courts will have to have an assessment of the gravity of the breach of the UK.
Gunilla can use direct effect to impose proceedings on the UK government. She can also claim for damages for losses that occurred under state liability. Community law will back Gunillas claim up using the rights that are entitled to all individuals by the EC law and the Directives.
Tullio Ratti v Ministerio Pubblico 1979 ECR 1629
Francovich v Italy [1991] E.C.R. I-5357
In 837 Grad v Finanzamt Truanting 1970 ECR 825 at
Foster and others v British Gas plc [1991] 2 W.L.R. 1075
Marshall v Southampton Area Health Authority (1986) ECR 723
Duke v GEC Reliance 1988 2WLR 359
M.H. Marshall v. Southampton and South West Hampshire Area Health Authority [1990] 3 C.M.L.R. 425