The least one can expect from a Court is that it be consistent and promote legal certainty. If the Court of Justice decides that directives only impose obligations on Member States and only after the period for their transposition has expired, liti

AV Dicey stated that for the rule of law to be upheld, citizens must be able to know their rights and of whom these rights are against, and it is this assertion, which provides much emphasis for my first argument. There is an inherent lack of clarity as to exactly what bodies Directives can be enforced against and this sees ‘litigants, especially private litigants’ precariously placed.  So what to does this all-embracing title, Member State, actually entail? This has been the subject of much scrutiny for academics and litigants alike.

The ECJ has explained that vertical direct effect of Directives may affect not only the state but also bodies that could be described as, emanations of the state’ and in Foster, a test was devised to discern which bodies can be classed as emanations of the state.  In its rawest form, the test says that the body must provide a public service, be under the control of the state and the body must exercise special powers that would not be available to a private body. This has lead to some rather uncompromising judgements, such as in Griffin v South West Water where the national court considered a privatised water company was an emanation of the state, merely because certain of the services it operated were under the control of the state, even thought the body itself was not.  Conversely, in Doughty v Rolls Royce plc, a publicly owned manufacturing company was held not to be an emanation of the state, even though it was under state control.

Thus, the fact that Directives can only be vertically effective inevitably creates major anomalies and injustices where an applicant’s case is against another individual or a private body. This point can be vividly seen in Duke v GEC Reliance, which involved the identical point in the Marshall case, where the House of Lords held that it was not bound to apply the Directive horizontally. Even though the UK was entirely at fault for failing to implement the Directive fully, the availability of a remedy was entirely dependent on the identity of the employer. This shows one of the harsh injustices faced by litigants, in that there is a poor rationale underlying the absence of horizontal direct effect of a Directive. Private litigants suffer the worse, as a consequence of the Marshall ruling in that, for example, a private employee may not rely on a Directive but a state employee may. As S Douglas-Scoot commented: the ruling provokes unjust and anomalous situations, particularly in the field of labour law, where the scope of the Equal treatment Directive has been reduced.’ 

One such obscure doctrine, that the ECJ has created alongside direct effect, is the concept of indirect effect. The principle was developed in Von Colson, where it was stated that: ‘since the duty under Article 10 to ensure fulfilment of an obligation was binding on all national courts…it follows…courts are required to interpret their national law in the light of the wording and purpose of the Directive’. This concept of sympathetic interpretation thus ignored the problem of horizontal effect and vertical effect, and in fact ignored direct effect in general. However, the ECJ left ambiguous the question of to which national law, the process of indirect effect could actually apply. The House of Lords, thus subsequently refused to apply the principle in Duke, even though it would have provided a remedy for the applicant.

In Marleasing, the definition of indirect effect was expanded in saying: “the national court asked to interpret national law is bound to do so in every way possible in the light of the text and the aims of the directive to achieve the results envisaged by it.” The scope of this definition is potentially very wide and has thus allowed for horizontal effect to be given to Directives. However, an important limitation, which throws this whole process up in the air at times, is the fact that the process is entirely dependent on the willingness of national courts to use it and has been seen by cases such as Duke, national courts are not always so willing. This means there is a real lack of uniformity throughout the EU, with litigants unable to foresee how the courts will approach their case. Such inconsistency can be seen when comparing the above case with Litster v Forth Dry Dock and Engineering Co. Here, the House of Lords advocated a different approach, even though the case was one year later, and felt bound to interpret the English Regulations in a way that would give full effect to the Directive.

This is clearly unacceptable, especially when one looks at it from a rule of law standpoint. Cases with identical arguments can be treated in completely different manners, with some being interpreted in light of its corresponding Directive, whilst others are treated in ignorance of a Directive. In line with the question, the ECJ can be said to have provided a stark contradiction, as in Ratti, they said a Directive will only take effect after the transposition period has expired and then here, with this process of indirect effect, effect can be accorded even before such a transposition period has expired.

Overall, it can be said that the indirect application of EC directives cannot be guaranteed, but I think fault is more rightfully accorded to the ECJ rather than national courts. As J Steiner said: “in extending the principle of indirect effect in this way, the ECJ is attempting to give horizontal effect to directives by the back door, and imposed obligations, addressed to Member States, on private parties, contrary to their understanding of domestic law. Where such is the case, as the House of Lords remarked in DUKE…this could be most unfair.” 

Lastly, the ECJ has devised the concept of state liability, in its quest in avoiding the problems caused by direct effect of Directives This principle was introduced in Francovich, where it was held that citizens should be able to sue the state for non-implementation of a Directive. The court gave three conditions which must be met for state liability to be incurred: the directive must confer rights on individuals, the context of those rights must be identifiable in the wording of the measure and there must be a causal link between the failure to implement the Directive and the damage suffered. Whilst this seemed fairly straightforward, 5 years later, the ECJ was to expand and re-define this in Brasserie, which saw an expansion of the definition of the word ‘state’ to include acts and omissions of any organ of the state.

However, in relating this to our initial premise, although the ECJ has stated that a Directive will take effect after its transposition period has expired, regardless of the Member States attempts, they can be accused of not being adept in upholding this. In HM Treasuries ex p British Telecommunications plc, the UK was excused by the ECJ for acting differently to the requirements of the Directive, base on the fact that it was not phrased in sufficiently precise terms. This is an inadequate justification, because it begs to ask what about the two other methods aforementioned above. If indirect effect were used, then the UK would have been forced to comply with the Directive. But more importantly, had direct effect been used, in vein prescribed in Ratti, then the UK’s inability to satisfy the Directive’s requirement would be purely academic and of no concern, as the Directive would have become directly effective. It is decisions such as these, which see the helter-skelter of the ECJ’s jurisdiction.

The ECJ has often cited the concepts of ‘supremacy’ and ‘supra-nationalism’ as justifications for their judicial activist approach. Whilst these concepts remain fundamental to the functioning of the entire organism that is the EU, the ECJ must be careful not to attempt to wear more hats than they have been assigned, in their quest for creating a coherent Europe. As seen, in attempting to do so, they have reached conflicting decisions, which makes it hard for litigants at times to know what to expect from their judiciary.

 

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