In the case of Van Duyn v Home Office the ECJ held that a Directive could produce vertical direct effects so long as it met the Van Gend Criteria.
In this case the Directive 2003/32/EC (fictious) was required to be implemented by the member states by September 2004 and the UK failed to implement it before the stated date therefore it does not meet the Van Gend Criteria because there is a need for “implementing measures to be taken by the member state” It was further held in the case of Publico Ministerio v Ratti that an unimplemented Directive could only become effective after the date for implementation had past. In which this case it has. Therefore the directive is capable of being directly effective, additionally, in instances where the Member State has introduced the required legislation, but has done so defectively; the directive may still be directly effective, as in the Verbond van Nederlandse Ondernemingen case.
In Defrenne v. SABENA, the European Court of Justice decided that there were two varieties of direct effect: a vertical aspect and a horizontal aspect. Vertical direct effect is of consequence in relations between individuals and the State. This means that individuals can invoke a Community provision in relation to the State.
Horizontal direct effect concerns the relationship between individuals (including companies). If a certain provision of EC law is horizontally directly effective, then citizens are able to rely on it in actions against each other. are usually incapable of being horizontally directly effective due to the fact that they are only enforceable against the state.
A Directive can be used vertically against a public body this was outlined in the case of Marshall v Southampton & SW Hampshire] where the ECJ held that a Directive could only be used against a state or a public body vertically and not against another private individual or private body horizontally.
The meaning of a public body was decided in the case. of Foster v British Gas The Court of Justice held that “With regard to Art.5(1) of the Directive, its provisions could be enforced against a body, whatever its legal form, which had been set up to provide a public service and which had ascribed to it powers beyond those normally applicable in relations between individuals”
The West Midlands County Council could be regarded as an emanation of the state as it provides a public service under the control of the state. Therefore Jim can invoke his rights however it is not quite clear if Bob would be able to invoke his rights as it is not apparent whether Waste Co would be regarded as an emanation of the state or a public body. It was held in the case of Doughty v Rolls Royce plc “that the nationalized Rolls Royce was not a public body for the purposes of the claim to direct effects because it was not providing a public service and was to subject to special powers” This decision may seem obvious but in some cases it can become increasing difficult to distinguish a company as private or as part of the public sector, where private companies are carrying out similar services that are provided by the state. A more recent case concerned with the concept of the state, is the of Riser Internationale Transporte GmbH v Autobahnen- und Schnellstraben Finanzierungs Ag in which the Court of Justice held that private companies undertaking a public duty came within the scope of the Foster ruling. Whether Bob is able to invoke the directive vertically would depend on whether the Courts regard Waste Co within the scope of a public body. If the Courts see Waste Co as a private company the directives will not have vertical effect this was the case in Duke v GEC Reliance Ltd Where Mrs Duke was not able to rely on an equal treatment directive because her employer was a private company. She could not use the principle of horizontal effect.
If Waste Co is regarded as a private company then Bob may have the option of taking action against Waste Co using the concept of Indirect Effect. This concept refers to an action taken against an individual by another Where a Directive has not been implemented by Member State or has been inadequately implemented This was provided by the Case of Von Colson v Land Nordrhein-Westfahlen it “provided a solution where national law was not in tune with Community and direct effects were not available.”
Article 5 EC requires Member States to comply with community obligations. This means that courts must interpret national law so as to ensure the objectives of Directive are achieved. This requires an effective remedy that has a deterrent effect and is adequate in relation to the damage sustained.
It was held in the case of Marleasing SA v La Comercial Internacional de Alimentacion that a Directive itself cannot impose obligations on private parties. Therefore, national courts must as far as possible interpret national law in the correct manner and try and obtain its actual intended purpose in order to achieve the result pursued by the Directive. This obligation applies whether the national provisions in question were adopted before or after the Directive; national courts were 'required' to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved. So, courts must do everything possible to interpret domestic law to comply with Community law. The likelihood of Bob succeeding in invoking his rights through the concept of indirect effect would be down to “the willingness or ability of the member state courts to interpret national law, if it exists, to achieve the correct result.”
State liability arises when a member state fails to comply with its obligations under EC Law and an individual suffers a loss as a result. The effect of state liability is Member State may be liable to compensate an individual, in respect of the loss suffered as a result of the breach
The doctrine was introduced in the case of Francovich v Italy which focused on the primary liability of Member State for a failure to fulfil a Community obligation. Despite the fact the Directive was not sufficiently clear and precise to be directly effective against the State, under Article 5 EC. Italy was under an obligation to implement it. And since Italy had failed to do so, it was under a duty to compensate individuals for damage suffered as a result of its failure The ECJ found that to establish state liability on the basis of the failure the implement a , the claimant must prove that it is possible to identify the content of these rights from the Directive; and that there is a causal link between the state's failure to implement the directive and the loss suffered.
Brasserie du Pêcheur v Federal Republic of Germany and R v Secretary of State for Transport ex parte Factortame Ltd later modified the doctrine. The ECJ defined the criteria for establishing state liability was that, the EU law breached must have been intended to confer rights on individuals, the breach must be sufficiently serious, and there must be a direct causal link between the state's breach and the loss suffered.
Jim will be able to claim damages as he can establish a direct vertical effect however it is unlikely that Bon will succeed in doing so either under the concept of indirect effect or state liability as he would have to establish that there was a sufficiently serious breach by the UK not implemented the Directive however as the UK already had effective Health and Safety regulations in place this may be difficult to establish.
Bibliography
Nigel Foster, Foster on EU law, page 175
(Case 2/74) [1974] ECR 631
Foster v British Gas Plc (C188/89)