Secondary Legislation of the European Community

Question 1: (A) Can (I) The Residents Generally And (Ii) The Gardeners Specifically, Rely On The Directive Either Against Fattenem Or The UK Government?

Directives are a form of secondary legislation of the European Community (EC), as described in Article 249. All Member States are given time limits, within which they are expected to implement the directive, allowing them to harmonize the national laws or introduce legislative change. If a Member State fails to implement within the time frame a complaint from the Commission is sent to the European Court of Justice (ECJ), as per Article 226. As the incident persisted, the ECJ also developed two principles through which rights can be obtained; Direct Effect or Indirect Effect. The United Kingdom failed to implement the Directive 2006/2001 regarding the chemical ABC, by 31st July 2008 making it directly effective.

Direct Effect is where individuals acquire rights which are directly applicable to the national courts even if they have not been implemented into the States legislation. It is better explained in Article 25 and Van Gend En Loos, where the ECJ provided conditions which establish whether a treaty article is Directly Effective: “it has to be clear and precisely stated; unconditional and not dependent on any other legal provision; and it must confer a specific right upon which a citizen can base a claim.” The residents can for that reason acquire their rights.

The ECJ in Van Duyn v Home Office states that directives are capable of having direct effect as well as being capable of creating rights for individuals which they could use against the national courts. The case of Ministero Pubblico v Ratti (Ratti) states how a directive becomes directly effective once the time period of its implementation has elapsed. Direct effect is split into vertical and horizontal direct effect, the former meaning that the directive is effective between the state and the individual, the latter meaning that directives and treaty provisions are effective for private individuals when claiming against the state.

According to the treaty article 249 the residents acquire rights from the directive. The residents would then generally be able to rely on the directive against the UK government by Vertical Direct Effect. Vertical Direct Effect is when a directive is directly effective between the State and the Individual. The residents can rely on cases of Van Duyn and Ratti where both cases had individuals relying on directives against the State.

The residents however cannot rely on the directive against Fattenem, a manufacturer of fertiliser who is assumed to be a private body since the contrary is not mentioned, as it would be Horizontal Direct Effect. The ECJ stated that Horizontal Direct Effect would not fit within article 249 and the Faccini Dori case also stated that individuals could not claim rights from the directive against private parties. However claims that have succeeded only concern employment and industrial relations. The gardeners can possibly rely on the directive through horizontal direct effect, as it can be assumed, as it is not mentioned, they are private individuals and employed by the local gardening club.

The next possible alternative for the resident is to rely on state liability, where the state, in this case, has failed to fulfil its obligation of implementing the directive. Article 10 defines it as “Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.” The ECJ in Francovich stated that if three elements could be established then a claim and compensation could be made in the National Court. The principles being (i) individuals gain rights through the directive; (ii) the rights can be indentified from the directive; (iii), a causal link has to be identified between the States failure to implement and the damage suffered by the individual, the damages here being bad smell in the local streams and ponds alongside getting ill all of which is directly caused by the high levels of Chemical ABC.

The residents however can rely on the directive by the doctrine of Indirect Effect, which was defined by the ECJ in Von Colson, where National courts must take national provisions into consideration but should comply with the purpose of the directive and must not take into account the domestic law if it conflicts with the directive. “As directives only have vertical direct effect in claims based on directives against private persons, domestic law may be the only legal basis for a claim.”

The UK government are part of the emanation of the state as defined by the ECJ in Foster, A. and others v. British Gas plc, Case C-188/89, [1990], ‘a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond that which result from the normal rules applicable in relations between individuals.’ Since the residents cannot make claims against Fattenem they claim can on the other hand be transferred to the State. The ECJ in the case of M.H. Marshall v. Southampton and South West Hampshire Area Health Authority (paragraph 49) stated that ‘…it must be pointed out that where a person involved in legal proceedings is able to rely on a directive as against the state he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with Community law.’

Meaning that the state can appear in several emanations which were developed by the ECJ in Foster v. British Gas namely the ‘foster test’ whether the institution or body was a) given powers by law for provision of a public service b) under state control c) having special powers. This includes private industries or services.

Another case they can rely on is Dillenkofer v Germany which declares the non-implementation of a directive as a “sufficiently serious breach” and brings up the liability in damages to those affected by non-implementation. Therefore the residents should be able to bring an action by relying on the directive by indirect effect or even using the principles of state liability.

(B) Advise The Lawyers As To Whether The Residents And/Or The Gardeners Could Rely On The Directive Claim Against The UK Government.

Article 249 defines 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 methods.”

The doctrine of direct effect is based on the cases of Van Gend En Loos, where the ECJ found that individuals can acquire rights from unimplemented directives as it would be directly effective because the time frame for implementation has passed. The residents, as individuals can use the cases of Van Duyn and Ratti for failure to implement the directive 2006/2002 regarding chemical XYZ. Their action against the state (UK) would be valid as it would be Vertical Direct effect which is where individuals seek action against the state.

Under Article 10 EC the Member States are required to do everything in their power to fulfill their community obligations which means that they are required to interpret their national laws so that it fulfills the objective of the directive in order to achieve the end result and if the law does not comply then it should not be considered. This in other words is the definition of Indirect Effect, as per Von Colson, or Horizontal Direct effect through the back door.

However both the residents and gardeners could also rely on State Liability, where the MS has failed to fulfill its duty either by failure to implement the directive or by doing it inadequately. They can rely on the case of Francovich where the ECJ ruled that by failure to implement a directive the MS is in breach of its community obligation from Article 10. The EC treaty then required the State to compensate the individuals for their the damage they endured as a result of the failure to implement the directive.

If the conditions to satisfy State Liability can be established the gardeners can get compensation as a result of the damages they suffered, caused by the state’s negligence. Damages caused by non-implementation of the directive cannot be placed on anyone but the State as their incompetence caused the damage in the first place.

The gardeners can rely on Ex parte British Telecommuncations which concerns the improper implementation of the directive and damages for losses were claimed.

Question 2

Advise The UK Government About Their Chances Of Success Under A Possible Judicial Review Action Under Article 230 EC Treaty AND Advise SFA On Their Chances Of Establishing Standing To Challenge The Decision.

Article 226 states that the Commission can bring action against the Member State who hasn’t fulfilled their obligated duties. Article 227 EC, states that a Member State can bring an action against another Member State. Both cases are extremely rare but are sent to the European Court of Justice. This case however is different, where a Member State is bringing action against the Council of the EU and the European Parliament. It would therefore deal with Article 230, as it is the main part of the treaty that refers to direct complaints and Judicial Review

The measures that can be challenged are the legality of certain acts, which are reviewed by the ECJ, as per Article 230. Article 231 goes on to add that “If the action is well founded, the Court of Justice shall declare the act concerned to be void” i.e. it can be annulled. The grounds for review are “lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.”

Article 230 states that the Court of Justice can review the acts of the European Parliament and the Council of the EU, both of which are concerned in this case. However there are limitations against who can make a complaint, against whom, and what grounds the complaint is based on. This is because the article distinguishes between ‘privileged’ and ‘non-privileged applicants’. Privileged applicants are the Member States and the EU institutions to whom challenging acts of the EU, which are concerned with employment and industrial relations, is easy as they go straight to the ECJ. Non-privileged applicants, on the other hand find it quite thard to challenge the legality of acts as they are mostly individuals, employees, employers and trade unions and have to go to the Court of First Instance or the Court of Justice. The UK government as a Member State is therefore a privileged applicant and The Sheep Farmers’ Association (SFA) is a non privileged applicant.

The SFA although being a non-privileged applicant however still has a chance to bring their claim because the article in paragraph 4 states “Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.”

However the ECJ may refer to the leading case of Plaumann & Co. v. Commission, which stated that “…if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.” they would say that they are not “individually” concerned as there are 250,000 other sheep farmers who are affected by the decision. For that reason they don’t have locus standi.

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