As a result, when applying this hypothesis to the scenario given, both Jim and Bill are in the position to use this principle as confirmed that directives could arise to direct effects; however it can be argued whether or not the particular provision of the directive relied upon was sufficiently clear and exact, when applied by a national court. This provision has been scrutinized further in the case of Becker where the subject matter concerned must be “unconditional and sufficiently precise”. As we are unaware of the exact wording to the Health and Safety in Offices Directive in question we cannot give an outspoken suggestion for Jim and Bill consequently we must rely upon the disagreement over the implementation period for the directive itself.
As the court indicated in Becker, provisions of a Directive, which show an absence of implementing measures prescribed within the prescribed period can bring their case in any national court. When the initial date of implementation has expired the directive is not effective, thus, member states which have allowed this time limit to terminate “may not rely, as against individuals, on its own failure to perform the obligations which the Directive entails.” The Court of Justice held that a defence was only available in respect of the directive for which the implementation date had passed. In passing guidance to Jim and bill in regards to their rights under the directive she is able to rely upon this argument, given that the date of implementation has expired. Conversely the Minister of Health has released a statement which ensured that UK legislation was in compliance with the directive.
This may result in Jim and Bill being left with an inconsistency; however it is possible that she could look at the case of Verbond and its reasoning process. The requirements of the Directive were unable to be successfully fulfilled, which raised the question, of whether the initial statement which had been published was sufficient enough to condone any enactment through UK legislation. This is when the Court of Justice intervened and held that the Directive was to protect the rights of the individual, therefore similarities can be drawn with this case as well as the scenario of Jim and Bill provided.
It is vital that we realize that directive can have both a horizontal as well as a vertical effect, it is important that this is considered whilst discussing cases which come under the direct effect. Directives are only compulsory on the member state to whom they are addressed and that therefore a directive may not of itself, inflict obligations on an individual and may not be relied upon as such against such a person. When the courts were considering horizontal and vertical direct effect they came to the conclusion that the Area Health Authority could be regarded as “the state” and that this applied to the state as employer, not just as a public authority. However this subject matter leads to much condemnation as two individuals with the same discrimination should be treated differently according to whether their employer is a public authority or private employer. Therefore courts have attempted to interpret the notion of public authority as widely as possible in the case of Foster, however although the courts held that concept of “public sector” enabled to include more employers there still remains a difference between public and private sector rights.
Should Jim and Bill be unsuccessful under the principles which were introduced under the direct effect they do have other options, one of which is their ability to rely upon the solidarity under Article 10. This is when all member states are required to take all appropriate measures required in order to ensure that there are successful obligations that arise out of a particular treaty. The Court of Justice held that there must be a duty of consistant interpretation which would lead there to being an indirect effect. This is a notion which has further been upheld in the case of Marleasing, where the outcome to be achieved is to be in agreement with the directive, merely furthering the individuals rights to bring a case before national courts. Here Spain viewed its Commercial Code as sufficiently implementing the First Company Directive, on the other hand if the courts prove that existing legislation is not complying with this directive this can give rise to indirect effect. As a result when applying this code to Jim and Bill, if the courts sufficiently prove that the statement given by the Minister of Health was not in conformity with the Directive then Jim and Bill would be in a position to raise a case to the courts within indirect effect.
Whilst further scrutinizing the application in the UK we must consider whether the directive has been implemented correctly, this is where UK courts and tribunals will only interpret the national law to shun a divergence with Community law, if the connotation of the national law is not distorted. If the UK law is not affected indirect effect will be given to Community law where the House of Lords must ensure there to be a sufficient remedy a “purposive” approach to statutory understanding must be taken to interpret Westminster statutes so as to abide by Community law.
In the case that meaning of UK law has been distorted indirect effect will not be given to Community Law, thus resulting in Strict Liability being the only other feasible option. This term derived from the case of Francovich whereby Court of Justice held that an individual may bring an action against the member state as there was a need to fill in the gaps in legal protection left out by direct and indirect effect. As a result three notions were derived; the rule of law breached must be anticipated to award rights on the persons involved; the breach must be sufficiently solemn and there must be a direct casual association between the breach itself and the injury sustained.
In the case of Jim and Bill the damage is apparent nevertheless to further her case it is important that we look in depth to whether the infringement concerns a lack of implementation in the correct time frame by the member states. It has been established in the case of Dillenkofer that if the date of implementation has expired the individual has the right to bring a case before national courts as the there has been a sufficient amount of breach thus giving rise to state liability. In relevance to Jim and Bill, one must discuss whether there has been a true implementation of the Health and Safety Offices Directive, if not then the state can be successfully been said to be liable. for that reason in order for Jim and Bill to bring a case before the European Court of Justice the must be able to prove that there has been sufficient vertical direct effect in order to be successful, however, in the slight possibility that this method fails they would be able to sue under state liability.
