We now need to consider against whom Sophie will bring the action. From the stated facts it is difficult to establish whether the employer she was working for was a private body or a public body. Hence we need to consider both possibilities as the advice would differ for both.
The advice to Sophie would differ if the employer she worked for was in private owner ship. A Directive itself cannot impose obligations on an individual and cannot therefore be relied upon against another individual. This notion is referred to as “Horizontal direct effect” the authority for this limitation of direct effect is well illustrated in the Marshall case. The ECJ excluded the probability that directives should have horizontal direct effect on the basis of Article 189, which states a directive brought before the national court can only be relied upon each member state to which it is addressed and not on the individual itself.
The ECJ has more recently reaffirmed its holdings on this issue in Faccini Dori. The court reiterated its opposition to the granting of horizontal direct effect to directives. The ECJ reemphasised that community authorities hitherto do not have the power to impose obligations on individuals as this remains the power within regulations.
The nature of denial of horizontal direct effect to directives has created as many problems as it solves. One problem being the individual may find themselves discriminated. As there is no uniformity in the application of community law between public bodies and private bodies within member states, because there are different concepts of what is the state and what are private and public employers. This position can be further complicated by the movement of utilities and companies in and out of public owner ship. Certain individuals are thus denied rights that employees in the public sector can enforce of non compliance by member states.
However to give Horizontal direct effect to directives would be to infringe legal certainty. Since it would subject private individuals to obligations, to the content of which are vague and uncertain.
If Sophie was working for a private individual her claim would fail for her rights being infringed under the directive 109/01 as it not addressed to her employer, thus does not protect her rights.
However if Sophie was working for a public body she may be able to rely on the directive, this is known as vertical direct effect. This principle is known as vertical direct effect. The ECJ have interpreted the notion Public body (widely) also known as “emanation of the state” to over come the denial of rights to many under horizontal direct effect. The Foster case is of high significance in this are of law as the ECJ introduced a test in the case that needs to be satisfied in order for a company to be classed as an emanation of the state. The case concerned plaintiffs who were employed by British gas, whose policy was to require women to retire at age 60 and men at age 65. British gas was a nationalised industry with responsibilities for a monopoly of the gas supply in Britain. The ECJ developed a general test which needs to be satisfied in order to distinguish an emanation of the state and a private body. The importance of which lies in the fact that an action can be brought for the former but no action can be taken against the latter. Firstly the organisation has to have responsibilities which enable it to provide a public service. Secondly, the public service provided by the organisation has to be controlled or under the control of the state. Finally the organisation has to have special powers. Which are apt to provide a service beyond those normally applicable to individual organisations. In the present case the ECJ held that British gas was a body of the kind against which the provisions of the 1976 Equal treatment directive could be invoked. They had special powers beyond those that resulted from the normal rules applicable between individuals. This meant that British gas was an emanation of the state and therefore the directive could be used against them.
However as illustrated in the case of Doughty v Rolls Royce. It was held that a company might be owned by the state, however if it did not provide a public service, it was not an emanation of the state. This meant that Rolls Royce was not an appropriate company to invoke a directive.
In this respect looking at the leading cases in this area, it is not clear whether the company Sophie works for provides a public service under the embodiment of the state. If Sophie’s employer is an embodiment of the state and satisfied the test laid down in Foster then it would be subject to the directive 109/ 01 and Sophie could bring a claim for her rights provided by the directive being infringed. If it is not under state control then it would not be subject to the directive thus implying Sophie will not be able to bring an action against her employer on the basis of vertical direct effect.
Sophie may be able to rely on the second interlinked doctrine of direct effect, known as Indirect effect. This is a tool by which an individual may rely on directives against another individual. The ECJ will allow national law to be interpreted in the light of directives whenever necessary. Thus imposes a duty on the national law to interpret legislation in light of the requirements of the directive.
The principle was developed in the cases of Von Colson and Harzboth cases concerned Article 6 of the Equal Treatment directive (76/ 207) but one concerning a public and the other a private employer respectively, thus the contrast of remedies was different. Rather than highlight the unfortunate results of the lack of horizontal direct effects of directives, which would have helped Von Colson but not Harz. The ECJ concentrated on articles 10 and 249 (ex 5 and 109) EC which require member states to construe with community obligations. The court held that this requirement applies to all authorities of member states including the courts, who must interpret and apply legislation adopted to implement a directive in the light of the wording and purpose of the directive in order to achieve the objective of the directive.
The decision in Marleasingtook the principle of indirect effect a stage further by ensuring that an obligation existed to interpret national law to comply with a directive. Irrespective of whether the national law came in to effect prior to or after the directive. Thus Sophie may rely on the directive based on the indirect effect principle.
However when domestic law can’t be interpreted in such a way as was in Wagner Miret v Fondo de Garantira Salaria. The individual can pursue the alternative remedy of a claim in damages against the state.
Thus Sophie may rely on the last interlink doctrine of direct effect, state liability, to seek damages from the state. Damages may be given under EU case law precedent as a remedy in cases where the member state fails to implement a directive. The liability of the member state is inclusive of non-implementation of a directive therefore the member state has to rectify the damage done to the individual by the breach. The state liability doctrine was first applied in the leading case of Francovich.In Francovich the relevant directive was not capable of giving rise to direct effect, but the requirements of the effective and uniform application of community law gave rise to a liability on the part of the state to compensate for its failure to implement the directive. The ECJ set a test which needs to be satisfied for member states to be obliged to compensate individuals for breach of European community law for which they are responsible. Firstly the objective of the directive must include the conferring of right to the individual. Secondly, that the content of the rights must be identifiable from the directive, there must be a casual link between the breach and the damage caused.
Although the principle of state liability in Francovich has been welcomed as a means of enforcing community law and thus encouraging member states to implement EC legislation, it also had far reaching implications in that it did not determine how wide the meaning and scope of a member states failure could be extended.
The conditions mentioned in Francovich appear to be satisfied in Sophie’s case. The directive109/01 does clearly confer rights on individuals and this is clearly identifiable. It states clearly that all employers to provide foreign language training for all employers. However Sophie may find it difficult to satisfy the last condition which is a casual link between her right being infringed and damage caused. If Sophie is able to show that due to her employer depriving her of the ability to have foreign language training and this subsequently has had an effect on her working condition. This could amount to a breach caused by this link. Hence satisfy this criterion.
Furthermore the court held in Brasserie du Pecheur that all manner of breaches of community law by all three arms of state could lead to liability to individuals. Thus it expands the circumstances which might give rise to liability in cases where otherwise there would be no enforceable rights because there is either no horizontal direct effect or even no direct effect at all. The court also confirmed that national courts are required to grant relief to private individuals who suffer as a result of a breach of community law by a member state. However private individuals are unable to bring direct actions against a member state in the EC.
The focus has now moved to the seriousness of the breach, the Factortame case introduced the revised criteria that the breach must be analogous to that applied to liability of the EC institutions under article 288 (old 215) (2). This is known as the shoppenstedt formula and in order for liability to arise on the part of the member. There must have been a sufficiently serious breach of a superior rule of law designed for the protection of individuals.
The “decisive test” in determining whether the breach is sufficiently serious is whether the state concerned has “manifestly and gravely exceeded the limits of its discretion”. If the state have not implemented the directive or implemented it incorrectly then this will amount to a sufficiently serious breach. Giving rise to state liability providing the other two conditions is satisfied. In the case of Dillenkoferthe ECJ reiterated that a mere infringement of community law may be sufficiently to establish the existence of a sufficiently serious breach.
Sophie may succeed if directive 109/ 01 was not implemented or implemented incorrectly, as this will amount to a sufficiently serious breach.
In order to determine what can amount to a sufficiently serious breach the court said certain factor should be taken in to account in assessing this question including:
“The clarity and precision of the rule breached…….whether the infringement and the damage caused was intentional or voluntary…..” (Para 56)
The new test has provoked further case law to help decide how serious a breach is required for a member state to incur liability. British Telecom takes a generous view of what constitutes a breach but this can be contrasted with Hadley Lomas case where a mere infringement will invoke potential liability.
Thus if Sophie is able to establish a breach, the UK must compensate her according to the principles established in Francovich. Damages must be adequate to retreat the loss suffered.
In conclusion it is submitted that Sophie may use any of the three interlink doctrines to receive damages. For direct and indirect effect Sophie can go to the national courts to exhaust all remedies. However if Sophie’s employer is not an emanation of the state then she will not be able to rely on direct effect. Then her option will be indirect effect for this too Sophie will have to seek remedies from the domestic courts. However if the UK are not able to interpret national law in compliance with community law. Then Sophie may sue the state for damages and take her claim to the ECJ. The ECJ will determine whether the UK is liable to pay damages under Francovich. However the ECJ don’t determine how much an individual should receive. Thus the state has the discretion in determining how much damages are appropriate to retreat the loss suffered. However the doctrine of state liability is not a universal panacea, for Sophie to succeed she will need to establish that the law infringed was intended to confer individual rights and that the breach is sufficiently serious. Thus if Sophie is able to show that the UK have not implemented the directive or have done incorrectly then she can receive damages. Thus Sophie should pursue all possibilities starting with the domestic courts under direct and indirect effect and if unsuccessful should then sue under state liability to achieve best possible outcome.
BIBLIOGRAPHY
BOOKS
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King, V., “The fault in issue in state liability: from Francovich to Dillenkofer” 1997, ECLR, Sweet &Maxwell.
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WEBSITES
Van Duyn v Home office (1974) ECR 1337
(1979) ECR 1629 Case 148/ 78
Marshall v Southampton Area Health Authority 1986 ECR 723 152/ 84
Faccini Dori v Recreb Srl (1994) ECR 1-3325
Foster.N., 2001, Blackstones law questions and answers, EC law, 3rd edition, Blackstones press limited.
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Foster and others v British gas PLC case c188/ 89 (1990) ECR 1-3313
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Francovich, Bonifaci and others v Italy C-6 & 9 /90 (1991) E.C.R 1-5357
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