EU Law principles of direct and indirect effect PDF

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Principles of Direct and Indirect Effect EU law coursework: European Union Law presents itself through the democratic illustration provided within Article 20 TFEU, citizens of the Union shall under Article 19(1) TEU have their rights protected by the Union. Member states of the EU are required to follow the provision presented ‘in accordance with its own constitutional requirements’. However in accordance to these provisions, it may be argued that the principles of direct effect, indirect effect and state liabilities, although could in fact be ‘applauded’ for their development of the law, may in many ways be limited. This may be presented through the many criticisms which may be associated with the doctrine of direct effect as well as the struggle to determine whether directives may actually have directly effect. We find that these issues have in time aroused much commentary as to the extent which these incoherent requirements may have deprived individuals of the ability to enforce their rights under EU law before national courts. Throughout this paper we shall discuss critically the enhancement provided within the above principles as well as any anomalies which may have caused the provision to be seen as depriving and/or unjustifiable. The principle of direct effect addressed the requirements on imposing European treaties within member states. The treaties required member states to impose rights and obligation in their own national courts in accordance to the criteria set out in Van Gend en Loos1 . This was for the purpose of ‘ensuring uniformity of the interpretation of the Treaty by the national courts.’2 The Treaties Articles were to be presented in a clear and unconditional manner in order to have direct effect. The criteria also outlined rights and obligations through ‘horizontal’ direct effect, in which action could be brought against the individual, as well as ensuring that the individual may also bring action against their state through ‘vertical’ direct effect. Available mostly for Treaty articles as well as Secondary legislations such as Regulations, these direct effects could only be had in accordance with the criteria presented above. As outlines prior within Article 266, we find that the treaty has expressly called for a public enforcement body due to the horizontal direct effect; this may indeed be ‘applauded’ in that the article has effectively allowed individuals to be sued before the ECJ3 for breach of community law. We find that due to the weakness of article 266 as well as the limitation on using it against private individuals, the ECJ’s inclusion of direct effect at first instance may be argued to have been a basic purpose of constituting a way in which individuals may challenge ‘inconsistent national action’4 Direct effect has in the past faced much negativity being seen as an ‘infant disease of community law’5 we may argue that, as put by David 1 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR I 2 Ibid p.129 3 European courts of Justice 4 ibid 5 P. Pescatore, The doctrine of direct effect: An infant disease of community law, (1983) 8 Eur. L. R. p.155 ff.

Edward, its ‘linguistic conundrums’6 may have indeed created ‘incoherent and artificial conditions.’ we find that there is a great element of ambiguity around the exact meaning of the term direct effect7. This was criticised by Jacob AG8 as being broad worded as well as the courts justification for the case of Emmot.9 According to Craig, the ECJ may take two approaches to the definition of direct effect, these being the broad and narrow effects. The broader arguably, can be seen as the capacity of a provision to be invoked before a national court as in Van Gend en Loos and also referring to as the ‘objective’ direct effect,10 making the ‘subjective’ direct effect that of the traditional approach to conferring rights on individuals through a vertical direct effect. However we cannot ignore that many may see direct effect as somewhat of a revelation for community law. We find this the ECJ’s boldness to bring forward a development to the law which has ‘challenged inconsistent action, thereby bringing individuals into the community legal order’11, may be seen as a liberating form of involvement for the individual in that the law, through a horizontal direct effect, sees everyone the same regardless if they are the state or even an emanation thereof12. Issues have been raised of the significant differentness between Treaty articles and regulations. This is as Directives, unlike Treaty articles and Regulations, differ in that they are not ‘directly applicable’ to the national law. They must be implemented by the member state, though it is at their as to the ‘form and method’13 in which they achieve the result of the directive. Once correctly implemented Directives become part of the national law enforced by the state and individuals. Prior to Van Duyn14, directives could not have direct effect under the same conditions as Treaty articles and regulations however as of Grad v Finanzamt Traunstein15 the court implied that directives may have direct effect. Van Duyn presented the argument of why direct effect is to be afforded to directives, though still there remained a limitation on allowing horizontal direct effect. This has over time proved to be rather problematic in that if individuals could not bring action against their state in national courts for neither incorrectly or not at all implemented the directive. In addition directives have become greatly used by individuals because of their ‘binding’ nature; allowing individuals to rely on them16 for the purpose of providing equality in the claim for rights and obligations. If the directive is incorrect or even unimplemented, the initial purpose is not 6 David Edwards, DIRECT EFFECT, THE SEPARATION OF POWERS AND THE JUDICIAL ENFORCEMENT OF 'oBLIGATIONS 1998 7 T. Winter, ‘direct applicability and direct effects’ [1972] 9 CMLRev. 425 8 Case C-188/95 Fantask A/S v Industrieministeriet (Erhervsministeriet) [1997] 9 Case C-208/90 10 W. van Gerven, ‘Of Right, remedies and procedures’ [2000] 37 CMLRev. 501 11 P.Craig, the nature and effect of EC law: direct effect and beyond 12 Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary[1986] ECR 1651 13 Article 288 TFEU. 14 Case 41/74 Van Duyn v Home Office [1974] 15 Case 9/70 [1970] 16 Van Duyn [1974]

met. As suggested by Dougan,17 the denial of horizontal direct effect as well as creating discrimination between public and private sectors may actually generate an ‘imbalance’ with respect to legal protection offered to the individuals between member states. We find that this may actually show contradiction to the EU’s declaration to protect the rights of their citizens. Furthermore, include human rights may be breached as the inequality between member states may raise feeling of oppression. The issue of whether in light of this equality may actually be seen as a ‘cornerstone of many democratic jurisdictions’18 may be raised against direct effect. it is questionable whether all citizens of the Union’s rights are equally accessed at all. We find that by examining the issues regarded with directives lack of horizontal direct effect, there have also been notions that this limitation is in fact reasonable. Cygan & Szyszczak have argued that as the directives are ‘addressed to member states’, then that the obligation to impose, is that of the states’.19 As explained by the CJEU in Marshall20 , through a treaty justification21that Directives are incapable of imposing obligations on individuals. This was argued further by AG Slynn22under the justification that legislation such as Regulation may be fissured if horizontal direct effect is to be given to directives. Understanding that as if horizontal indirect effect is to be given, then as in Emmot [1991]23, directives which are either unimplemented, ‘exceeding a procedural time limit or transferred, may actually become directly applicable. We may also consider the argument established that a member state should not be able to rely on its own failure to fulfil its obligation on directives, this would be allowed if individuals are permitted horizontal direct effect which result in the own depravation of the individuals rights to have the state impose such a directive. 24 Looking at the at Indirect effect, we find that there lays an obligation from national courts to provide appropriate measures in interpreting directives lacking direct effect.25 This therefore allows interpretation of implementing legislation in ‘harmony’ with community legislation. The judgement in Marleasing26 established that the Von Colson principle also applies to non-implementing legislation. Although an issue which may be addressed is the suggestion is that an individual may not be able to rely on the principle of indirect effect as there may not always be national provision available to be interpreted. There are also instances in which a directive is contradicted by present national provisions. This limits the national court in terms of the absence of material to be interpreted as a 17 Marson. ‘Access to Justice: a deconstructionist approach to horizontal direct effect’. Web JCLI (2004) 18 ibid 19 Adam Cygan & Erika Szyszczak ‘Understanding EU Law’ Second Edition Sweet and Maxwell.2008 20 Marshall, Case C-152/84 [1986] ECCR723; Case C-271/91 (No.2) [1993] ECR I-4367 21 Craig. ‘Directives: direct effect, indirect effect and the construction of national legislation’ ELR 579 (1997). 22 Marshall, (No.2) Case C-152/84 [1986] ECR 723; Case C-271/91[1993] ECR I-4367 23 Case C-208/90 24 Case C-91/92 Faccini Dori v Recreb Srl [1995] All E.R. (E. C.) 1; [1994] ECR I-1325. 25 Van Colson v Land Nordrhein-westfalen [1986] case 14/83 p.453 26 Marleasing SA v La Comercial Internacional de Alimentacion SA [1993] Case 106/89

whole. In light of these incoherencies, Craig’s view that the principle of indirect effect shows higher levels of legal ambiguity then direct effect may be seen as considerate.27 Moreover, proof of the problematic nature of this principle can be reinforced as it then becomes useless to the individual due to the lack of clarity. We may relate this to the opinion that there seems to be a pattern of ‘incoherent and artificial conditions’ with regards to individuals enforcing their rights before national courts. It would therefore be seen as rather ‘irrational’ to impose an obligation on an individual if the directive itself has been incorrectly implemented and further continues with its ambiguities. We find that this may explain the rationale behind the limitation on the use of indirect effect in Kolpinghuis28. We find that the ‘harmonious interpretation’ addressed in Von Colson may ‘in light of’ the directive interpretation by the national court, present that the literal interpretation would effectively disable an individual from descending the rights of another. Looking at the instances in which indirect effect would prove to be effective in that the degree to which the literal interpretation is delivered has been limited in avoidance ‘to compromise the attainment of the result prescribed by the Directive.29 As of Mangold, the earlier presentation of discrimination due to the incoherent nature of direct effect may be challenged. This is as Mangolds’s recognised the non-discrimination principle as to the issue raised before relation to expiration dates on implementation. We may asses that as of these issues discussed, according to Craig indirect effect may have effect where the national courts see no issue of an obligation being imposed;30 the effect of Marleasing may be used accordingly in such an instance enabling the national courts to determine the extent to which the directive may be interpreted. The principle of state liability may be used as a final means of enforcing a directive. It is explained greatly in Francovich of the rights of the individual protected by national courts where a breach of community law has taken place. The member state may be liable of breach of obligation as well as rights of an individual in such circumstances. It is arguable to state that contrary to some opinions the principle of state liability seems the most consistent in its protection of individual rights. We are presented with the argument that in not doing so ‘would be weakened if individuals were unable to obtain compensation when their rights are infringed by a breach of Community law’31. However this may be labelled limited as an action can be brought as to damages against the state rather than for breached rights of the individual. Since now member states may be liable for not/never correctly implementing directives into their state law, the pressured issues in the absence of horizontal direct effect may be seen as irrelevant in that the principle of state liability offers an alternative.32 27 Craig. ‘Directives: direct effect, indirect effect and the construction of national legislation’. 22 ELR 579 (1997). 28 Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969 29 Chalmers, Davies and Monti. ‘European Union Law: Cases and Materials’. 2nd Edition. Cambridge. 2010 30 Craig. ‘Directives: direct effect, indirect effect and the construction of national legislation’ (1997) 22ELR 579 31 Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357 32 Case 6/64 Costa v ENEL [1964] ECR 585

Though the doctrine of state liability has also received criticisms as stated by Harlow, that through its allowance for ‘sanctions’33 a greater division from the unison the EU represents is created. It may be argued that this theory does in fact contradict the purpose of ‘ensuring uniformity’ for direct effect as a whole. This leads us to question whether this principle may be seen as ‘artificial’ in that it escapes the original resolution intended by the CJEU? In analysing the conditions for state liability as infringement, sufficiently serious breach and the direct causal link between the breach and obligation of the state, we find that member states are given no justification as to the correct implementation. We see this as in BT34 the assessment of whether a member state should be liable was raised. A ‘clear message that breaches will not be tolerated’35 provides that in conclusion individuals are in fact presented with the ability to enforce their rights under EU Law before national courts. We find that the term ‘applauded’ although may be associated with state liability may not actually be seen as the most precise with regards to direct and indirect effect. it may be presented that the concept of direct effect on a general level could be useful but rather that it’s ambiguities far weigh out the purpose. It may be seen as a far better action to take in replacing direct effect with a more developed state liability. In final conclusion it is questionable whether the rights of individuals are actually being deprived. We have found through this study that there have been many ways as well as justification on the ways in which individual right are protected by the EU under community law. However as a whole in agreement to Edwards theory, it would seem that the principles serve to more divide power in an attempt to limit divide sovereignty, then to reason logic.

33 C.Harlow. ‘Francovich and the problem of the disobedient state’ ELJ Vol 2 No3 (1996). 34 Case C-392/93 British Telecom (R v HM Treasury, ex parte British Telecommunications plc [1996] ECR I-1631) 35 The Europen Commission. ‘Case law of the Court of Justice of the European Union connected with claims for damages relating to breaches of EU law by Member States’. 2009.

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