The Direct Effect of Community Law

The direct effect of community law allows individuals the right to enforce their community law rights in national courts. However this principle is not expressly stated in the Treaty, so the European Court of Justice has had to rely on subjective approach to develop these rights, leading to very inconsistent and controversial rulings. To demonstrate these out of line judgements I will start by showing the origin of direct effect of community law, and then highlight its subsequent development in various case law.

Origin

In the case of Van Gend en Loos, the court controversially held that Article 12 (now 25) could give rights to individuals before Dutch courts. The court here used the character and language of the Treaty, and used the preamble to show it related to individuals as well as member states, and that individuals had a right to apply to national courts regarding infringements on their community law rights, and that these courts now had a duty to protect these rights. For a community law to be considered directly effective it must be seen to be precise, unambiguous and unconditional, as highlighted by Advocate General Van Geren’s statement in the case of H. Banks & Co Ltd v. British Coal Corporation

De Burca believes though that this argument by the ECJ is weak stating,

The strong submissions made on behalf of the three governments which intervened in the case (at the time there were, in all, only six Member States) indicate that the concept of direct effect … of Treaty provisions, probably did not accord with the intention or understanding of those States of the obligations they had assumed when they became parties to the EEC Treaty

The decision here would seem to be motivated by the overall aims of the community Treaty fuelled by political aspirations of the community and also a desire to protect the rights of its citizens by forcing member states to comply with their obligations under European community law

Vertical And Horizontal Direct Effect

The case of Van Gend en Loos concerned an individual suing a state, so we have vertical direct effect, the case of Defrenne v SABENNA explored whether direct effect could apply to a public body. This case involved women who were doing the same work as men but getting paid less. The court held that Mrs Defrenne was entitled to invoke Article 119 (now 141) which meant she was entitled to the same pay as men doing similar work.

This showed that the ECJ had now expanded direct effect to cover public bodies even where no legislation existed. The ECJ believed that the aim of Article 119 was to protect member states who had introduced the principle of fair play from suffering competitive disadvantage in intra-community competition against member states who had not yet introduced the principle yet. It would seem here that the court was of the opinion that Article 119 EC could enjoy horizontal and vertical direct effect in regards to regulations.

Directives

Article 249 (now 189) describes directives as ‘binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and method.’ Directives were originally viewed as not being ‘directly applicable’ this was because they were addressed to the member states directly and not the individual, and as such relied upon further national implementing measures.

This view was changed by the ECJ ruling in the case of Van Duyn v. Home Office, here a women was denied entry into the U.K. because of her membership of a religious cult known as ‘the church of scientology’. Under Article 39 EC citizens enjoyed free movement between member states, however directive 64/221 stated that exceptions to Article 39 could be made on the basses of conduct. Here the ECJ held that due to the fact that Article 39 required further implementation of legislation by a national government, it did not enjoy direct effect, however this case was important as it did find that directives could have direct effect under the following conditions. They must be, clear, precise and unconditional, not dependent on any further legislation by the member state and the date of implementation must have expired.

The case of Pubblico Ministero v Ratti unveiled two reasons why directives enjoyed direct effect. At paragraph 20 “ It would be incompatible with the binding effect which Article 189 ascribes to directives to exclude on principle the possibility of the obligations imposed by them being relied on by persons concerned.” And at paragraph 22 the court stated, “A member state which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails”.

So the first rational is in regards to the effectiveness of the Treaty, and how it would undermine its authority not to accommodate an individual’s right to rely on EC law, and the second part would seem to reflect estoppel, that basically member states cannot rely on their own failure to implement a directive, as a defence against a individual relying on its effect.

Horizontal And Vertical Direct Effect

The ECJ ruling in Van Dyun and Ratti would seem to have been tested and in some cases stretched to the limit in its rulings regarding the horizontal and vertical direct effect of Directives. Marshall V Southampton and South West Hampshire Health Authority (Teaching) regarded a claim for equal treatment over the age of retirement between men and women against the Health authority. The court was of the opinion that Article 249 only allowed directives to impose obligations on member states, but could not be invoked by one individual against another.

In this case the ECJ held that the health authority was a part of the state, and as such was covered by direct vertical effect. However if this same case had involved an action against a private body it would have failed because directives are not addressed to individuals so they can’t be bound by them. The court used the following to distinguish between horizontal direct effect i.e. “The application of a community law provision to legal relationships between individuals” and vertical direct effect i.e. “the applicability of a community law provision to legal relationships between individuals”

This case demonstrated the importance of distinguishing between public and private bodies, but also highlighted inconsistencies in the application of community law between public and private bodies within member states, because every member state would have different rules and regulations’ regarding what constitutes a public or private body. It would then appear that a person’s community law rights, which in principle should be consistent across all member states, depended on whether you worked in the private or public sector.

A case that demonstrates this inconsistency is Duke. This was very similar to Marshal, it concerned an inconsistency between the retirement age of men and women, but here the result was in complete contrast to Marshal as it involved a private body, and the House of Lords ruled that Mrs Duke did not have a case for equal treatment because direct effect cannot operate between one individual and another.

Expansion Of The Notion Of State

In Foster v British Gas, the court again ruled on an unimplemented directive and expanded the notion of state to bodies having ‘special powers beyond those which result from the normal rules applicable in relations between individuals’. This now included any private company in possession of these so called ‘special powers’. But the scope of direct effect horizontally was still very much the same and undermined the principle of EC law have a fair and consistent effect on all its citizens.

Indirect Effect

Indirect effect was developed by the ECJ in the cases of Von Colson and Kamann v Land Nordrhein-westfalenconcerning the provisions of directive 76/207. The court here used the provisions of Article 5 to force national courts to act where the political institutions of the state had failed to implement a directive. In this case Colson was taking her case against the German prison service, which would be considered a public body, regarding the fact that female candidates for a position were refused and the employer took on less qualified male candidates. The women here were seeking damages, but under national law were only entitled to claim travel expenses. The ECJ ruled that Directives require compensation to be adequate, the court stated,

“ member states’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of member states including…the courts. It follows that …national courts are required to interpret their national law in the light of the wording and purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189”

It would appear that the German Government had already implemented the Directive incorrectly, and it did not allow for the remedy prescribed by the Directive, so the court was able to construe the actual German provision in line with Article 10 and 240 thus allowing the individual to enforce the directive. But this approach adopted by the court was limited in that it was depended on a provision in the member states own national law in order for it to be able to interpret it, which again showed a lack of standardization in community law throughout member states.

Retroactive Effect

Another controversial decision was in the case of Marleasing SA v LA Comercial Internacional de Alimentacion SA. The court here considered the question regarding whether or not direct effect applied in a situation where legislation was introduced before or after a Directive. The court stated

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 …. to achieve the results envisaged by it”

This decision while it would appear to be in breach of the policy of non-retroactivity shows how far the ECJ was willing to go in order to protect the rights of individuals.

Liability

Another way the ECJ found around the problem of direct effect not applying horizontally was by using provisions of the treaty like 10 and 249 (previously 189) seen in the case of Francovich and others v Italian statute. This case involved the Italian Government’s failure to implement Directive 80/987 within the specified time limit. This case concerned how states were required to set up guarantee institutions to pay for wage arrears in the event of employment insolvency. In this situation the Directive still had not been implemented when the employer became insolvent.

The individual sued for damages against the state in the Italian court over this failure. As this case concerned two so called private individuals, direct effect could not be applied, so instead the courts imposed liability for damages. The court stated,

The full effectiveness of the community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of community law for which a member state can be held responsible.

The court held here that states could be held liable for non implementation of directives under three conditions,

1. The objective of the directive must include the conferring of rights for the benefit of the individuals
2. The contents of the rights must be identifiable from the directive
3. There must be a causal link between the breach and the damage.

The court here showed the lengths to which it was prepared to go to protect individual rights, because even though it found that workers could not rely on the direct effect of directives, the state should compensate them for the loss of the protection they would have enjoyed had the state implemented the directive in the first place. Ironically enough the court here used the principle of the fair and consistent application of community law, which I have demonstrated previously was lacking in the case of Duke.

..it could be argued that it would go against legal certainty to impose obligations on individuals regarding non implanted directives, because the private party involved might not know whether to comply with the non implemented directive or the pre existing national legislation. If directives were given direct effect horizontal effect, it would actually clarify what options were available to the private individual due to the supremacy of European community law over national law.’

Triangular Effect Of Directives

Directives can have what is known as a ‘Triangular effect’ which means they can be invoked against a member state by an individual and the outcome of this can lead to obligations being invoked against other private individuals. This would seem to contradict all previous rulings by the European court of justice and further cloud the issue of whether or not directives enjoy horizontal direct effect.

In Wells the court stated that,

Adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against a member state concerned

This decision by the courts allowed Mrs Wells who was living next door to a quarry to rely on a directive to make the government carry out an environmental impact assessment, which was provided by Directive 85/337 regarding work carried out on a quarry. This was to benefit wells in that it resulted in the halting of operations at the quarry. Even though the obligation here was placed upon the Member state involved, we can see that it was to also place obligations upon the rights of the quarry owners, so an example of one individual enforcing the direct effect doctrine on another.

Technical Standard Directives

This is another area in which ECJ rulings would seem to contradict all its previous rulings in regards to the direct horizontal effect of directives, and shows how relying on a subjective approach to law can lead to uneven and contrasting decisions. The decisions here are based around Article 8 of Directive 83/109, which imposes and obligation on member states to notify the commission of any new Regulations. In the case of CIA securitya dispute erupted between three companies in competition to each other the manufacture of alarm systems. There was allegations made that CIA was not authorised by the Belgium Government to sell alarm systems.

CIA countered this allegation by bringing a case for unfair trading practices, due to their belief that Belgium failed to notify the commission under article 8 of Directive 83/109. The ECJ agreed that Belgium was in breach of Article 8, and ruled that CIA could rely on it in a national court. This now meant that a Directive could be used by individuals against other individuals to enforce rights and obligations upon them, and has again added to the confusion and uneven rulings by the ECJ in regards to the horizontal direct effect of Directives.

The case of Lemmens caseaccording to Steiner and woodsrepresented an attempt by the ECJ to back track on the decision in the CIA Security case. Mr. Lemmens who was charged with driving while under the influence of alcohol, and challenged this charge on the grounds that the breath-analysis apparatus had not been notified by the state to the commission under Article 8 of Directive 83/189. The court held that while a failure in such circumstances would lead to a Regulation being inapplicable, that it could not affect the lawful use of the apparatus. So while we can see that in CIA security case the affect of a Regulation was deemed to be excluded because of a failure to comply with Article 8, in Lemmens, the court agreed in principle that the regulation would be inapplicable, but refused to exclude the Regulations effect on the individual.

Another case to represent this inconsistent approach by the ECJ was Unilever, this private company provided virgin olive oil to Central Food, but the latter refused to pay due to the fact that the olive oil was not labelled in line with a new law implemented by Italy. This case differed from my previous examples as the member state here had actually complied with Article 8 and informed the Commission. The problem here was that they had not complied with the standstill order issued by the commission under Article 9 of Directive 83/189. Unilever was to complain that because of this new national law was inapplicable.

The court here agreed with Unilever that the national law was inapplicable because it breached Article 9, thus could not be enforced. Advocate General Jacobs argued strongly that there was a distinct difference between the previous rulings by the ECJ in the case of CIA Securities and Unilever in that CIA concerned a dispute by two competitors over unfair trading practices and Unilever related to a dispute over a contractual relationship, and that there was no failure in Unilever to inform the commission, it concerned a failure to comply with a standstill order. However the court did not agree, and held that the breach of Article 9 must be considered the same as a breach of Article 8.

Conclusion

Due to the courts relentless pursuit of enforcing individual’s community law rights, and its effort to demonstrate the supremacy of community law, there have been many inconsistent and controversial rulings. The origins of these inconsistencies come from the fact that there is no express provision for direct effect in the Treaty, so the ECJ has had to infer this provision subjectively, which has led to a clear breach of the fundamental principle of EC law, legal and commercial certainty. However there is one certainty established here and that is the issue of direct effect of directives has far from reached its conclusion.