The UK is Bound by Laws of the EU

Courts of the UK, when facing an issue regarding EU Laws often seek guidance from the European Court of Justice. Citizens of member states also appeal to the ECJ where they feel the member state has fallen below EU standard. Citizens can also rely on EU law where a national law contradict the EU law. However, often many claims against a state fail because they defend their mistake blaming the interpretation process, suggesting the provision was misunderstood therefore misinterpreted and applied differently.

EU Law can be enforced vertically or horizontally. This is the terminology used to describe a claim made by one party against another. Where a provision is has vertical direct effect it can be enforced by an individual/citizen against the State, whereas horizontal means an individual’s claim against another individual. Some provisions have both vertical and horizontal effect i.e. Competition Law (Art. 101 & 102).EU law is also created and enforced through Secondary Legislation, which consists of Regulations, Decisions, and Directives. Regulations become immediately enforceable and good law in member states because they have what is called “direct effect”. This is defined in Article 288 of the Treaty on the Functioning of the European Union: “…A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”. They seek to make all laws on the addressed subject the same in all member states and are directly applicable without any need implementing measures. The case of Commission v Italy [1] held that Regulations cannot be subjected to implementing measures. However they can be subjected so if it is to ensure the effectiveness of the Regulations as held in Commission v UK (Re: Tachographs). [2]

A Decision is also covered under the same article: “A decision shall be binding in its entirety upon those to whom it is addressed.” They are acts of law which address member states or specific individuals.

Directives, however, are not immediately enforceable in member states but are binding once they are brought into force. They are instructions addressed to member states, to achieve a certain result within a certain time. The method of achieving it is left up to the member states. This is done to simplify the way in which national law can be harmonized with EU Law. If a member state feels that it already has a domestic law which achieves the wanted result then it need not take further action other than informing the Commission of the measures taken to implement the Directive. [3] Directives enter into force on a specified date, provided when constructed. Member states are given a deadline by which to implement it, as is the case in the Directive mentioned in the scenario of Pavol “The deadline for implementation was January 2010″. Such periods usually can vary from one year to five, depending on the complexity and importance of the subject matter. Where there is an absence of a specified date, it comes into force twenty days after its publication. In Publico Ministero v Ratti the ECJ held that a Directive had direct effect once the date of implementation had expired.

In order for national courts to apply EU law, they must interpret the provisions in a way which achieves the desired result by the EU and cannot contradict EU law. [4] Article 234 of the EC, concerning preliminary-ruling procedure, acts as a bridge between national legal systems and European Union law. Under this article, national courts can seek guidance from the European Court of Justice to provide a ruling on whether an EU secondary legislation is valid. Article 234 created the means by which an individual could enforce EU Law against the State in national courts. The most important of these remedies are direct effect, indirect effect and state liability.

The doctrine of direct effect is a judicial development of the European Court of Justice, the role of which in EU law is central because it ensure application and enforcement of EU law in national courts. It is basically, the judicial enforcement of rights which arise from EU law provisions. So, “direct effect” is a remedy through which one can determine whether a law can be relied upon and enforced by citizens.

The first case on this matter was Van Gend en Loos [5] in which the ECJ introduced a set of criteria to determine whether a provision was capable of direct effect: The said provision must be: a) clear and precise, b) unconditional (e.g. time limit), c) not require any further implementation measures to be taken by the state or EU institutions, d) not leave discretion to the state or EU institutions. [6] This meant that private parties could defend their rights in the face of any national law which was inconsistent with or contrary to EU law.

Directives have two obstacles which stand in the way of them having direct effect. Firstly, directives are considered not clear and precise enough to be directly effective. Secondly, they are instructions addressed to the state, which means they cannot have horizontal, as well as vertical, direct effect. In the case of Van Duyn v the Home Office [7] , the ECJ held that a Directive could be directly effective against the state, provided its obligations were clear enough for it to be justiciable. In Publico Ministero v Ratti [8] the ECJ held that a Directive had direct effect once the date of implementation had expired.

Due to Directives being a set of instructions to the member state, they are not actually laws to be enforced by one citizen against another. This is because the state implements the Directive through its own set of laws i.e. an Act of Parliament. Therefore it is the law of the state that’s available to the citizens, no the directives. Thus horizontal direct effect of directives does not exist.

There are bodies, however, which are private organization but are under state control and operate some special powers. So to enforce a directive on a private body, as discussed, would not work. However, in the case of Foster V British Gas [9] the criteria were laid down to determine whether a body was under enough state control to allow vertical direct effect to be used a remedy against it. In Marshall v Southampton A.H.A. [10] the ECJ held that the Healthy Authority were an arm of the state therefore vertical direct effect was possible as a remedy. It was later decided that private companies undertaking a public duty come under the ruling of the Foster case. [11] So to compensate for the lack of horizontal direct effect, the Foster test expanded the realm of the word “State” in order to allow more vertical direct effect.

Also the outcome of the case of Von Colson [12] brought a solution to lack of horizontal direct effect. The principle of the case is to have national law construed as close as possible to EU law. Where applying this rule would bring out the result the Directive intended anyway, the courts undermine whether the date of implementation has passed or whether horizontal direct effect should be allowed. This is also known as the principle of “indirect effect”. It basically means that where a member state has failed to create laws within the state which reflect the Directive in a way which is fully faithful to the intended result by the EU, then a remedy is available. It is the duty of every member state to ensure all authorities, including courts, are bound and obliged by the rules set of in the Directive. Domestic courts on the other hand must ensure to interpret laws in a way which reflects the intention of Directives. [13]

The ECJ continues to refuse the recognition of a horizontal direct effect of Directives but does approve of the general principle of indirect effect because it brings out the intention of the Directive by way of over-coming incompatible national law. Therefore, to put it differently, rather than applying EU law, the ECJ simply is reviewing national law to make sure it meets the standards of the EU.

Another measure of horizontal direct effect of directives is that using a directive to “disapply” a national law. This was seen in the case of CIA Security International v Signalson and Securitel [14] , where a Belgian legislation was not allowed to be relied on because it did not comply with a directive and therefore incidentally created horizontal direct effect.

It seems however, unjust that individuals should face legal difficulties or be unable to rely on national laws where the state has failed to comply with EU standards and requirements. For that the ECJ developed a principle known as state liability from the outcome of the case Francovich. [15] This was allowing an individual to claim against the state for failure to comply with EU law which has resulted in damage or loss to the individual. It is also used to overcome the inability of a directive to have direct effect due to failing to fulfil the Van Gend en Loos criteria. In order for a member state to be liable there must have been a serious breach of a superior rule of law which was designed to protect individuals.

In the case of Pavol the facts provide that a directive has been passed to member states to enable all EU citizens who reside and work in the state, to be able to claim state benefits, no matter which member state of the EU they are from. However, before that, the University must be assessed as whether a public or a private body. The test laid down in Foster will determine whether they are under enough state control and provide public services with special powers for doing so, to be classed as a state-arm as was the case of Marshall. Universities are partially government funded and have a cap on the prices they may charge as laid down by the state therefore it could be argued that they are under state control and they are open to the public. However, they are not state owned but are privatized so this may be an obstacle.

The (fictious) Directive, under which Pavol wants to defend his rights, has an implementation date and whether it has expired or not would play a major role in whether he can claim or not. Should the Principle of Ratti be followed, it would come down to whether the Directive is still to come into force.

The Directive must pass the criteria laid down in the Van Gend en Loos case in order to establish whether it has direct effect or not. It may difficult to prove that it has because of the time limit and the discretion left to the member states. However, the principle of State Liability may apply and take into account the failure of the UK to comply with the EU directive which would have provided Pavol with the right to claim for sick-pay. The national law clearly is in breach of the EU directive’s intention which has been created to protect the rights of EU citizens to such benefits. Here Pavol can argue that the state has failed to comply with the intended result by the Directive and that the national law contradicts the EU law too much.