Eu Directives Problem Case. Difficulties arise in situations such as the one faced by Gunilla, where Directives are improperly transposed or ignored by the implementing national authority.

 A properly implemented Directive however becomes part of the national law, thus an individual would rely on that national law which would be enforceable against the State and other individuals.

In Van Duyn v Home Office the Court established that Directive could have direct effect, giving three reasons for this conclusion.

Firstly the Court said, ‘it would be incompatible with the binding effect attributed to a Directive by Article 249 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned.’

Secondly, the Court stated that the ‘useful effect ‘of a Directive would be ‘weakened if individuals were prevented from relying on it before their national courts’.

Thirdly, the Court argued that Article 234 of the Treaty implies that Directives may be invoked by individuals in the national courts.

In Marlesing SA v la commercial internacionel de alimentacionwhereas Von Colson involved an improperly implemented Directive, this case concerned a Directive that had never been implemented at all. Spain had never implemented the Directive and Spanish law conflicted with its provisions. The ECJ applied the principle of indirect effect and expanded on the definition given in Von Colson.

‘....in applying national law, whether the provisions concerned pre-date or post-date the directive, 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.’ 

In Johnson v Chief Constable of the RUC the court suggested that it was the duty of national courts to interpret national law in conformity with EC law (indirect effect) and only if this was not possible to then enforce EC law in preference to inconsistent national law(direct effect).

In Van duynv V home office (1974)  established that, to be directly effective, Directives must be sufficiently clear, precise and unconditional. Later, in pubblico v ratti one further condition was applied that a Member State’s obligation to implement becomes absolute only when the time limit has expired.

Directives must be notified to the person to whom they are addressed.The date of entry into force of Directives is the same as that for regulations: either the date specified in the Directive or, in the absence of any such date, the twentieth day following that of publication.

Emanation of State:-

In the case of Foster v British Gas it was stated that for a body to be an emanation of the State

• it must be under a statutory duty to provide a public service
• be under state control
• and has special powers given to it by the State

As in the case of NUT v St. Mary’s the court decided that the definition of ‘the State’ should be a ‘broad one’. Schools and other educational establishments would therefore be part of the ‘the State’. An emanation of the State could be defined as a body that had been made responsible, pursuant to a measure adopted by the State, for providing a public service that was under the control of the State and which exercised special powers for the purpose, beyond those which operated between individuals. The powers of the local authority and the Secretary of State for Education meant that education was a public service under the control of the State. Grant maintained Schools would therefore be part of’ the state’.

Also the case of Marshal v Southampton shows that ‘the State’ is ‘the State’ regardless of what functions it is performing.

Gunilla should also be informed that damages may be awarded as a remedy in situations where a Member State fails to transpose EU law. Where applicable the liability of the Member State is determined by the non-implementation of a Directive and a technical breach of its EU duties. In this case the United Kingdom could be compelled to rectify directly the damage done to Gunilla by this failure.

So Gunilla can sue the state for compensation as the state has not implemented the Directive, she has suffered a loss by paying for something that in all honesty should have been free.

State Liability for breach of EC law obligations:

There are still situations where a party could be without a remedy because of the failure of a Member State to implement directive or because of improper implementation. The ECJ devised a third way of avoiding the problems of direct effect and Directives. This is State liability. In simple terms, if the reason that a citizen lacks a remedy and suffers loss or damage is the failure of Member State should be made liable for the damage suffered.  

There is one final method for Gunilla of gaining a remedy based on EU law that is to sue the State because of its failure to implement a piece of legislation where it was obliged to do so.  The final means of enforcing a Directive is through State liability. This arises when a Member State breaches a rule of law which confers rights upon individuals. A Directive confers rights and obligations upon individuals, thus, whether a Member State has breached a rule of law depends on whether they have implemented the Directive at all, or whether they have incorrectly implemented it.

An unimplemented Directive automatically gives rise to State liability provided that there is a direct casual link between the breach and the damage to the injured party. The doctrine of State liability was established under Articles 226 to 228 was defined in the Francovich Case. These articles illustrate the limitations of the citizen accessing justice whereby article 226 allows the commission to bring an action against a Member State for not fulfilling its obligations. Article 228 forces the State to take all steps to comply with the ECJ's decision in respect to the possible breach of obligation.  It is this approach that it has been argued protects the rights of EU citizens:

It can be argued that it is largely due to problems concerning the enforcement of directives, that state liability rules were developed. Member States were failing to implement directives on time, thus a damages remedy was needed in order to stop them from neglecting their duties. State liability rules did not only ensure and strengthen individuals' rights; they also closed a long-existing gap in the area of efficient sanctioning of breaches of Community law.

Francovich cemented the notion of State liability by enforcing payment by State's that allowed private companies to breach of the EU citizen's rights, which used the rights under Articles 226 to 228 to cement this payment; as well as backing this argument up with Article 10:

Member States are required to take all appropriate measures to ensure fulfilment of their obligation under Community law, [i.e.] to nullify the unlawful consequences of a breach of Community law.

This approach was expanded in the case of Brasserie du Pêcheur v Germany (1996) which included state liability when there was an act of omission on behalf of the legislature, therefore including not only positive but also negative acts that breached the EU citizen's rights. The three conditions which must be fulfilled for a member state to have to make reparation for loss or damage caused to an in individual are:

• The rule of law must be intended to confer rights on individuals;
• The breach must be sufficiently serious.
• There must be direct casual link between the breach and damage sustained.

In the case of Rechberger and Others v Austria this approach was held to include incorrectly implementing a directive. The case of Dillenkofer held that even a mere infringement was a breach and the State was order to pay reparation to the offended individuals:

Failure to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury if the result prescribed by the directive entails the grant to individuals of rights whose contents are identifiable and a causal link exists between the breach of the State's obligation and the loss and damage suffered.

So acc to Dillenkofer and others the ECJ held that non implementation of Directive amounted, in itself, to a sufficiently serious breach. Failure to implement directive is manifestly sufficiently serious breach.

In another case of Kobler v Austria ,held that an erroneous interpretation of Community law by a court of last instance can give rise to state liability, though in this case the breach was not sufficiently serious.

Therefore the EU and other Member States could find the UK is in breach and bring an action against it and as Gunilla’s rights had been breached by the State's actions it may be found liable and has to pay reparation to the citizen.

It may well be, therefore, that Gunilla has claim for compensation against the UK. Any damages they do obtain must compensate them in full for losses directly incurred because of the breach.

Conclusion:-

Direct effect, indirect effect and State liability are crucially important for the protection of individuals' Community law rights in national courts. 

On the basis of the above considerations, one may identify several important principles that guide the transposition of and the implementation of directives. First, it is the principle of discretion, which allows a member state to choose the form and the method of implementation. Secondly, an important principle is the obligation imposed on member states to implement directives either through adopting national measures or through adapting already existing measures so that the result pursued by the directive in question is achieved. Thirdly, the implementation of directives is subject to the administrative control of the Commission under Article 226, to the indirect control of other member states under the procedure under Article 227 and to the judicial control of the Court of justice pursuant to the two provisions.

BIBLIOGRAPHY 

• The Treaty of Rome (1957 as amended)
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