Assignment in EU Law

2. Direct effect of directive

This important principle was created by the ECJ it follows on from the principle of supremacy of Community law; this close link is mentioned in Van Gend en Loos that the ECJ stated that in order to bring action under the direct effect of Directive these conditions must apply:  

1. the provision must be clear and unambiguous;
2. it must be unconditional; and
3. Its operation must not be dependent on further action being taken by community or national authorities.

Later, the ECJ goes one-step further in the Marshall case.

In this case, Miss Marshall was dismissed by her employer the Health Authority, when she reached the age of 62; it was argued that a male employee would not have been dismissed at that age. This was clearly discrimination on the grounds of sex, but it was not discrimination under the Sex Discrimination Act 1975 because a provision had excluded discrimination arising out of treatment in relation to retirement. However, the Directive 76/207 required equal treatment between the two sexes but that directive was not implemented in the UK.    

Marshall was able to rely on the directive because she had been employed by the state. However, if she had been employed by a private sector she would have been unable to rely on the direct effect of the directive. Therefore, as far as direct effect is concerned, there are two requirements, which always apply:

1: It must be ‘unconditional’ meaning it left no room for the exercise of discretion in implementation by Member State or Community institution.

2: it must be ‘sufficiently precise’, and clear from any ambiguity.

However, for a directive there are extra requirements: first that the implementation date has passed. Secondly, that the state is the party against which enforcement is claimed. In other words, directive may be vertically directly effective, but not horizontally directly effective. In 1994, ECJ again insisted in Dori case that there is no need to have a horizontal direct effect because it would not be enforceable against an individual. Even if all the three conditions (which is mentioned above in Van Gend en Loos) had been fulfilled, unless the individual is able to show that there is some relationship with the state. Furthermore, ECJ insisted that if the Community wished to enact obligations between an individual with immediate effect it could do so by adopting regulations.    

It is very important for Monique to establish that Conker plc is a public company and not private in order to have grounds under direct effect of directive. In order that a company (organisation) is recognized as a public body, it must be providing a public service, under the control of the state with special powers.  

In the case of Foster, the ECJ sought out a preliminary ruling under Article 234 (ex 177), whether British Gas was a body of the kind against which the provisions of the Directive can be invoked.

The CJ held in para18 that: ‘The Court has held in a series of cases that unconditional and sufficiently precise provisions of a Directive could be relied upon against organizations or bodies which were to the authority or control of the State or had special powers beyond those which resulted from the normal rules applicable to relations between individuals.’  The ‘or’ was changed to ‘and’ in Para 20 of the judgment so the definition can be narrowly applied or widely as the national courts may wish it to apply.

So it was held that British gas was a public body providing a public function to the public, but in the case of Griffin [1995] IRLR the CA held that a privatized water company who had special powers, was also providing a public service so it should be held as, ‘an emanation of the state.’

Applying this to this scenario with Conker plc are they providing a function for the public or are they merely a private body with contractual obligations with the civil service to maintain computer equipment?

It can be argued that Conker plc is an emanation of the state by providing a public function to the civil service. In addition, that the company name Conker plc may be an indication that it is a public body as the plc is an abbreviation of a Public Limited Company, or it can be argued that it is purely a private body that has a contract with the civil service. It is for the courts to decide this as it is at times not easy to establish.

It would be advised to Monique that Conker Plc is a public body and she can recuperate her loss from them.

3. Indirect effect of directive

“The duty on national courts to give effect to unimplemented directives by refusing to apply any conflicting rules of national law, even in a cases concerning disputes between individuals”. Saggio AG   

This quote from Advocate General is a good supporting authority for Monique’s situation because the directive that she can rely has not been implemented, as there has been a conflict between national law and Community law. Therefore, referring to the quote she should be able to use indirect effect of Directive under the Community law to claim for the money that she is entitled.  

Von Colson sought remedies in the German courts for unlawful discrimination she had claimed that this was contrary to equal treatment directive 1976. On a preliminary reference, the ECJ was asked whether article 6 of the directive had direct effect, the importance of Von Colson case is that courts did not restrict itself to the question whether there was horizontal or vertical direct effect. In other words, even if the principle of direct effect does not apply, the courts in the Member States are required to interpret national legislation specifically passed to implement the Community act to comply with the Community law and that is the recognition of the principle of indirect effect. The House of Lords used the principle not only to give effect to the directive but also the subsequent interpretation of ECJ. As above consideration shows, the directive does not include any unconditional and sufficiently precise obligation as regards to the sanction for discrimination, which in the absence of implementing measures adopted in good time may be relied on by individuals in order to obtain specific compensation under the directive where that is not provided for or permitted under national law. (Para 27 von Colson case).

In Marleasing ECJ took it one-step further than the Von Colson principle, CJ held that the principle could be applied even if necessary national legislation had not been introduced to comply with the directive. Applying this principle, Monique should get seven months payment for her redundancy because the (Imaginary) directive 12/05 provides workers that if they serviced for at least two years are entitle to get one-month payment for each year of the service. Hence, Monique has worked for seven years.

This would conclude that an unimplemented directive does not directly impose a legal obligation on the parties, but only indirectly through a change in the meaning of pre-existing settled national law. In my opinion, after reading these cases, it may be that cases that were claimed under discrimination are more likely to be favored by the ECJ. In addition, the ECJ would make the decision in favour of them.      

4. State Liability      

For Monique to enforce the provisions of a directive, she needs to sue the UK for damages, pursuant to the famous Francovich ruling of the ECJ, for the loss caused by its failure to implement a directive.  

In case 479/93, Francovich v. Italian State the ECJ held that damages are available against the State for failure to implement EC directives, if three conditions are met. These conditions are:

1. That the result required by the directive includes the conferring of the rights for the benefit of the individual;
2. The content of those rights is identifiable by reference to directive; and,  
3. There exist a causal link between the breach of the state’s obligations and the damage suffered by the person affected.

 

 Considering the above criteria, firstly does number 1 apply to Monique? The answer to this is yes, the directive 12/05 would have provided Monique with her redundancy payment- this directive gives the workers of at least two years continuous service entitlement to a minimum redundancy payment of one month’s remuneration for each year of service, so as Monique has worked there for seven years she would qualify to receive this.

Secondly, it is easy for Monique to bring action under this criterion as the UK government has been in breach with the Community law by not implementing the directive.

ECJ stated in Pecheur that the principle in Francovich applied whether it was an act or omission by the organ of the state, which caused this breach.

Thirdly, Monique has not suffered in a physical sense but she has suffered a financial loss due to the fact that the directive had not been implemented resulting in her having no payment for her services, this would result in the state being liable and would now owe her compensation for the damages she has suffered.

Bibliography:

♥ EU law text cases and materials, third edition, 2003, Paul Craig and Grainne De Burca  

♥ Cases and material on EU Law, seventh edition, 2006, Stephen Weatherill.

♥ Nutshells, European Union Law, fourth edition, 2003. Mike Cuthbert.  

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♥ Blackstone’s EC Legislation, sixteenth edition, 2005 – 2006, Nigel Foster

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