In further cases, the Court of Justice went on to rule that Regulations and Decisions could also have direct effect.
The case of Van Gend en Loos1 initiated the right for private parties to enforce their Community rights from EU Treaties on Member States and became a precedent to allow private parties to rely on other sources of EU legislation. The Van Gend en Loos criteria are now the test for the application of direct effect for provisions of EC law. Furthermore, the Court of Justice in a later case allowed for Treaties to have both vertical and horizontal direct effect: (the horizontal effect of Treaties being clarified in the case of Defrenne v Sabena (Case 43/75)) vertical direct effect meaning that a State’s citizens are able to rely on EC law in actions against the State; and horizontal direct effect meaning that citizens are able to rely on EC law in actions against each other. Despite this, the use of the doctrine of direct effect is somewhat limited by the restrictions which the Court of Justice set: that the Articles must be clear, unconditional and may be relied upon only against the State. In this way, the judgement of the case did provide avenues to enable private party applicants to enforce their rights given to them by the provisions of EC law in their national courts to a certain extent.
The case of Von Colson (Case14/83) was concerned with the ability for private parties to rely on Directives in a national court. Unlike Treaties, Directives cannot be relied upon by private parties because Directives have vertical direct effect only. This means a legal action in a national court is only possible if the defendant is the State or a body controlled by the State. (This is seen in Marshall v Southampton Area Health Authority (Case 152/84).) However, this problem can be overcome if the possibility exists that a Directive has indirect effect: it may be used in a national court in interpreting the relevant national legislation, even if the Directive is too vague to be applied itself, or if the action is against another individual. This is so that national courts interpret national legislation ‘so far as possible’ in accordance with the aims of a Directive.
Von Colson (Case 14/83)5 involved the appointment of two men as social workers. Two disappointed female applicants alleged that they had been discriminated against contrary to Directive 76/207. Under German law the applicants were only entitled to compensation in the form of travelling expenses. They alleged that Directive 76/207 had not been properly implemented in Germany because it did not provide for an effective remedy. The Court of Justice held that the provisions of the Directive as to remedies were not sufficiently precise and unconditional to be directly effective, on the other hand, the Court decided that national law should be interpreted in the light of its provisions, which required that an effective remedy be granted, and the remedy under German law was not considered adequate. Therefore the case founded the concept of indirect effect, and provides a different avenue for private parties to enforce the protection of their rights set down in EC legislature by ensuring that national courts interpret national law in the light and wording and purpose of the Directive.
In addition to the doctrines of direct and indirect effect, the Court of Justice has developed a third potential remedy for those individuals who have suffered as a result of breach of Community law. The Member State may, in certain circumstances, be liable in damages for its own breach of Community law. This includes not only the national government but other public-law bodies such as territorial bodies to which certain legislative or administrative tasks have been devolved. Therefore, the Court of Justice has developed the Francovich conditions to govern such liability.
In Francovich (Cases C-6/90 & C-9/90) Italy had failed to transpose Directive 80/987, a Directive to protect employees in the case of their employers insolvency. Under the Directive, the State was required to set up a Guarantee Fund to pay arrears of remuneration. Francovich was owed wages by his employer, a company which had become insolvent. The Court of Justice ruled that the Directive was not sufficiently precise to have direct effect. It could not be indirectly effective because there was no relevant Italian legislation in accordance with which it could be construed. The Court of Justice ruled that the Italian State must compensate the loss suffered by Francovich. The Court of Justice gave two reasons for the burden of liability to be held on Member-States. Firstly, Community law would be ultimately seen as unjust if individuals could not be remedied directly from a State which was responsible for a breach of Community law that had caused them loss. Secondly, Article 10 (ex 5) EC obliged Member States to take all the measures to ensure that they fulfilled their Treaty obligations and this included making good the consequences of a breach of these obligations.
The Court of Justice restricted Member State liability for failure to implement a Directive to situations where three conditions were fulfilled:
1. The directive requires a Member State to give rights to individuals; and
2. The content of those rights must be clear from the Directive; and
3. There is a causal link between the breach of the State’s obligation and the damage suffered by the individual.
The Directive in question was to give employees the right to be paid their wages within a certain time. However, the Directive only applied to employees whose employer had been made subject to specific types of proceedings that defined insolvency. Under Italian law, Francovich’s employer could not be subject to these proceedings and so in the later case of Francovich (Case C-479/93), the Court of Justice ruled that Francovich was not covered by the protection of the Directive. Therefore, Italy’s failure to implement the Directive had not caused Francovich loss. It appears, therefore, from the Court of Justice’s decision that Member State liability will only be considered where direct and indirect effect cannot provide a remedy.
Although the from the outcome of Francovich (Cases C-6/90 & C-9/90), a precedent and further avenue for private parties to enforce their rights set out in EC legislation seems to have been made, it is only in the instance that direct and indirect effect can not provide a remedy that the Court of Justice will consider that the Member State has liability. It seems that the Court of Justice would strive to protect the Member State and apply resolving doctrines of direct or indirect effect as an alternative to applying the onus of fault onto a State.
The three remedies examined, for private parties to pursue in able to enforce their rights given to them by EC legislation in their national courts, were the doctrine of direct effect, indirect effect and Member State liability developed by the European Court of Justice in the cases: Van Gend en Loos (Case 26/62), Von Colson (Case 14/83) and Francovich (Cases C-6/90 & C-9/90). In each case, the remedies have clearly expanded the possibilities for private parties to be able to enforce their EC law rights in their national courts, all in significantly differing ways. Although this is most obviously can be seen as important progression of the European Communities in the sight of protecting private parties rights, each remedies creation seems purely to protect the European Communities legislation, rather than to investigate the Member States action in implementing or transcribing the EC laws. While on the whole, this allows for each Member State to maintain their own degrees of sovereignty, control, interpretation and discretion, the remedies do not suggest that the institutions of the European Community are willing and prepared to discipline Member States who are liable for not implementing legislation and penalise them for doing so. Much rather, they would ideally remedy the dispute by striving to directly or indirectly apply the EC legal rights into the national law of Member States.
I declare that this piece of work is solely my own work and that I have not copied or plagiarised this work from any source, nor have I collaborated with others in its production except where instructed to do so by the module leader. I have read and understood the University regulations regarding plagiarism. I have not submitted this work as part of any other assignment.
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Bibliography
Primary Sources
Van Gend en Loos v Nederlanse Administratie der Belastingen (Case 26/62) [1963] ECR 1
Von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ERC 1891
EEC Treaty of Rome 1958, Article 25 (ex 12)
Defrenne v Sabena (No 2) (Case 43/75) [1976] ECR 455
Von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ERC 1891
Marshall v Southampton and South West Area Health Authority (Teaching) (No 1)(Case 152/84) [1986] ECR 723
Francovich and Others v Italian Republic (Cases C-6/90 & C-9/90) [1991] ECR I-5357
Francovich v Italian Republic (Case C-479/93) [1993] ECR I-3843 (Francovich II)
Elspeth Deards and Sylvia Hargreaves: European Union Law, 1st Edition, Oxford University Press, 2004, pages 79-91.
Secondary Sources
www.oup.com/uk/booksites/law/eu
Van Gend en Loos v Nederlanse Administratie der Belastingen (Case 26/62) [1963] ECR 1
Von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ERC 1891
Gleaned from Elspeth Deards and Sylvia Hargreaves: European Union Law, 1st Edition, Oxford University Press, 2004, page 79, an extract from the EEC Treaty of Rome 1958, Article 25 (ex 12)
Defrenne v Sabena (No 2) (Case 43/75) [1976] ECR 455
Von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ERC 1891
Marshall v Southampton and South West Area Health Authority (Teaching) (No 1)(Case 152/84) [1986] ECR 723
Francovich and Others v Italian Republic (Cases C-6/90 & C-9/90) [1991] ECR I-5357
Francovich v Italian Republic (Case C-479/93) [1993] ECR I-3843 (Francovich II)