the enforcement of EU law
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To answer this question I will firstly explain how EU law became incorporated within the member states I will then explain the various types of EU legislation's in circulation. This is important to define as the various types of methods will involve different enforcement procedures. Finally I will explain how EU law is enforced and the ways EU law will effect the member state and individual businesses. I will summarise my findings at the end of the essay, this will give details of all the key ideas I have ut across.
The Schuman proposal began various European countries setting up the European Coal and Steal Community (ECSC), this was signed in 1951 by six countries. The countries that initially set up the ECSC were France, Germany, Italy, Luxembourg, Belgium and the Netherlands. The idea behind the ECSC was the first serious institutional committee in Europe and was the start of integration, the aim was to provide a common market of coal and steel trade. This meant that each of the states would be able to have access to the various qualities of coal and steel that the members had with no tariff of importing and exporting to the various countries. This let the countries concentrate on their more efficient areas leading to specialisation. The ECSC began the beginning of supranational power because the "High Authority could adopt binding decisions" (1) as elements of decision making were carried out by ECSC committees. A supranational power is where the member state has to abide by the decisions made of the community, as they have power above the national level.
When the EC makes a law it is up to the individual state to implement the legislation. An example of EU law which has been passed which has been adopted in the UK is that of the directive 75/117 which states that men and women should receive equal pay. The UK government adopted this directive with the 1975 Sex discrimination Act.
There are a number of methods EU legislation is formed for instance regulations, directives and decisions are three different types of EU legislation. I am going to briefly explain these three as the way they will be enforced are different.
Regulations have general application that means that all the member states have to adopt the regulation; the member state is expected to adopt the whole regulation. Regulations are directly applicable which means that the "individuals have rights that they can enforce in their own name through national courts"(2).
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Regulations have immediate effect in national law.
Directives are binding to the member state that the directive is about. The EU will give an outline of the directive and will let the member state enforce the directive in the way they see fit. The member state may have a similar law already in its national law and therefore only has to introduce the segments of the directives and create new laws which are not written in national law. This allows the member states to react to legislation in accordance to the way countries would be carried out.
Decisions are totally binding to whomever the decision has been made against. This normally occurs in the European Court of Justice (ECJ) when member states are being investigated the conclusions of the ECJ will come in the form of decisions whereby the member state will have to follow the decision when it is made. The decision becomes effected when the decision has been made.
Community law has supremacy over the national law as it was a condition that had to be agreed before membership of the European union. Supremacy is whereby the European Community law will take superiority if there is a dispute between national and EU law. It is up to the state to adopt the EU legislation, if the member state is seen not to be enforcing the law then there are various methods for the EU law to be enforced.
Enforcement takes two approaches which EU law enforcement occurs firstly the commission who has been given certain powers under the EC treaty looks at the member states and companies and makes sure that the EC law is being enforced and if not then the commission follows various procedures to enforce the law. Secondarily enforcement can occur with the use of direct and indirect effect. These are two different processes of enforcement that I will now go onto explain.
In Article 211 the commission roles of enforcement are stated; within this article the commission has to ensure that there is "proper functioning and development of the common market"(7). The commission if they see that a member state is in breech of European community law then the commission will follow certain procedures. Firstly the commission will discover that the member state they are in breach of their obligation and will inform the state about. The commission can be known as "the guardian of the treaty" (3) this means that once the proposals have been introduced the commission is the body that will insure implementation by the member states. Article 169 from the EC treaty it states that the commission is responsible for monitoring "the manner in which the member states meet their obligations under community law." (4)
In the case of the Commission versus Italy (1973), the commission saw that a series of regulations that were introduced concerning "premiums for slaughtering cows and withholding milk products from the market." (5) The commission concluded that Italy was not following the regulations which the community law stated therefore brought Infringement proceedings towards Italy as the commission saw that the member state was "in breech of community law" (6)
When the European community law creates a directive, it will also set a period of time in which the directive will have to be implemented in the member states national courts. If the state does not comply then article 226 will become inforced.
Article 226 states that if the commission considers the member states has failed to implement community law then the commission will follow a four stage procedure, firstly the pre-contentious stage this is where the commission will give the state the chance to explain the reasoning for not implementing, if the state still does not enforce the EU law with this informal measure then the commission will go to the second stage which is formal notification. This is where the commission will inform the offending state and give them a time frame where the European law should be enforced. If the Member state still does not enforce the law then the commission will use the third stage which is reasoned opinion. This is where the commission will restate the EU law that has to be enforced and will give a final deadline for the state to implement the legislation. Finally if there is still no resolution the final stage will begin which is referral. This is when the commission will pass on the complaint to the European Court of Justice. Where the state will be "named and shamed" and, as stated in Article 228 of the treaty of the EU, the member state may "impose a lump sum or penalty payment" for not enforcing the law.
This procedure of enforcement is an effected way to enforce law, but there are some setbacks, for instance the commission does not have enough resources to investigate each EC legislation and make sure all member states are enforcing them
Direct effect is where EC laws are able to enforced the in national courts. This is able to occur because the laws were passed as being directly applicable. EU regulations are a form of directly applicable legislation this means that the EU law is creating rights for the people and the member states must abide by the regulations.
There are two types of direct effect, horizontal and vertical. Vertical effect means that the individuals of the member state will be able to take their state to domestic court, as a way of making their state take on a particular EC law. Horizontal direct effect means that an individual is able to take another individual of the member state to national court as a method of getting the individual to implement the legislation.
Direct effect is concerned with the impact of the rights of the individual, and mainly interested in the relationship between the different member states. Individuals are able to force the member states by taking them to court to change certain acts that will result in their national courts obliged to implement the act.
For the enforcement to become direct effect then there are certain requirement that the EU law should have firstly the law must be clear and concise so no misunderstandings may occur and the law can be applied without trouble; secondly the EU law must be unconditional. The law has to be unconditional so that the law can be implemented without "dependence of discretion on the part of an official authority" (8) this factor backs up the first condition because it implies that the law has to be able to "stand on its own". Finally for a law to be directly enforced the law in question is that the law must not be dependant for future action to be taken by either the member state or the EC. (these conditions taken and adapted from European union law)
There are a number of types of legislation that cannot become directly effected they are directives, decisions and articles within treaties. The reason the previous sections are not directly effected is that they would require "national or community legislative action to implement them (9)
Indirect effect is where national courts have to take into account EC law when interpreting national law and has to be sympathetic to the law. This means that when national judges are making decisions then they are obliged to look to see if there is any EC law is applicable in the situation if so then the judges have the obligation to interpret national law in relationship to the EC law. The European Court of Justice encourages the national courts to consider the directives of community law when considering the national laws. Indirect effect usually occurs due to the community not having enough resources to implement all laws. Indirect effect does not require the resources of the communities enforcement recourses to be used
Bibliograghy and references
EU Law: text cases and materials
By P Craig and G De Burca
(1) page 9
(2) page 107
(5) page 176
(6) page 56
European Union Law
(3) page 10
page(7) Article 211 of EC treaty
Introduction to European Union Law
(4) page 106
(8) page 85
(9) page 95
Homewood: EU Law Concentrate 4e
Trace the development of the principles of direct effect, indirect effect, and state liability by the Court of Justice, evaluating their significance for individual claimants.
Your answer should address direct effect, indirect effect, and state liability in turn, ensuring relevant analysis and evaluation as you go along. As all three doctrines were created by the Court of Justice, the case law will feature strongly, as the question itself indicates. You should begin by reference to the doctrine of supremacy, which forms the basis of the three principles.
Supremacy of EU law
- Sovereignty of the European Union (previously Community) legal order: 'The Community constitutes a new legal order in international law, for whose benefits the states have limited their sovereign rights, albeit within limited fields . . .' (Van Gend) '. . . the EEC Treaty has created its own legal system which became an integral part of the legal systems of the Member States . . .' (CostavENEL).
- The corollary of EU sovereignty is the supremacy of EU law: EU law takes precedence over national law (Costa vENEL, Internationale Handelsgesellschaft, Simmenthal, Factortame II).
- Meaning of 'direct effect: set out a definition – if a provision of EU law is directly effective, it can be invoked by individuals in the national court.
- The principle is not contained in the Treaty. Trace its development by the Court of Justice, discussing Treaty articles, regulations, directives.
- Van Gend: Creation of the principle. Treaty articles capable of direct effect. The Treaty is not only an agreement creating obligations between Member States. EU law imposes obligations upon individuals and confers on them legal rights.
- Direct effect of Treaty articles: subject to the conditions first formulated in Van Gend (measure must be sufficiently clear, precise, and unconditional and its implementation must not be dependent upon any implementing measure), then subsequently reworked and loosened, for instance in Defrenne (the measure must be sufficiently clear, precise, and unconditional).
- Van Gend: Treaty articles capable of vertical direct effect (explain) but the question of their horizontal direct effect (explain) was left unresolved.
- Defrenne: Treaty articles can be invoked horizontally.
- Since Van Gend and Defrenne: numerous Treaty articles held to be vertically and horizontally directly effective, including the internal market provisions.
- Significance for individuals: ability to invoke, in the national court, Treaty rights against the state and other individuals.
- Regulations: capable of vertical and horizontal direct effect, subject to the same conditions as are applied to Treaty articles (Politi, Leonesio).
- Article 288 TFEU: directives must be implemented into national law.
- Originally not thought to be capable of direct effect: not intended to operate as law within national systems, since that is the role envisaged for the relevant national implementing measures; addressed to Member States and do not appear to affect individuals directly; seen as giving Member States a broad discretion in implementation, being binding only as to the result to be achieved, and therefore considered to be insufficiently precise to fulfil the Van Gend criteria.
- Van Duyn: directives can be directly effective, provided clear, precise, and unconditional.
- Ratti: additionally, the implementation deadline must have passed. Rationale: it would be unfair to permit a directive to be invoked against a Member State until its obligation to implement had become absolute. By the same token, it would be unfair to allow a Member State to rely on its failure to implement a directive to escape obligations arising under it.
- Van Duyn did not address the possible horizontal direct effect of directives.
- Marshall: directives can only be invoked vertically against the state or a public authority, but not horizontally. Reiterated in Faccini Dori.
- Court of Justice's refusal to permit directives to be invoked horizontally frequently criticized as anomalous and unfair. In the employment context, for instance, individuals employed by the state or a public body can invoke rights under a directive against their employer, whilst those working for private employers cannot.
- In response, Court of Justice refers to the Community (now EU) legal order: rights under directives must be enshrined in national implementing measures, upon which claimants can rely in national courts. Only Member States, not individuals, should be held accountable for a state's failure to implement directives.
- Mitigation of this approach: indirect effect and state liability and broad interpretation of 'public body'.
- Public body: Foster '. . . 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 those which result from the normal rules applicable in relations between individuals'.
- Application of Foster test (Becker, Fratelli Costanzo, Johnston).
- Doctrines of direct effect and supremacy immensely significant. Require national courts to apply EU law at the suit of individuals in priority over any conflicting provisions of national law. National courts must disapply national measures that conflict with directly effective provisions of EU law.
- Direct effect is especially important where a Member State has failed to meet its obligation to implement EU law or where implementation is partial or defective. Direct effect provides a mechanism for the enforcement of individuals' EU rights but also an additional means of supervision of Member States' compliance with EU obligations.
- Especially significant: overcoming the shortcomings of direct effect in 'horizontal' situations or where a provision is not sufficiently clear.
- Von Colson: the principle established. Set out the definition of indirect effect.
- Applies to pre-dating and post-dating legislation – Marleasing, Webb v EMO Air Cargo
- Marleasing: all national law must be interpreted in line with Union law, but only 'so far as possible'. It may not always be possible (Wagner Miret) so the principle has its limitations.
State liability in damages
- A means to overcome the limitations of direct and indirect effect.
- Francovich: damages for loss incurred as a result of a state's failure to implement a directive. Conditions for liability: the directive entails the grant of rights to individuals; it is possible to identify the content of those rights; a causal link between the state's failure and the loss.
- Factortame III: damages for other kinds of breach. Set out the conditions.
- ‘Sufficiently serious breach’ - ‘Manifest and grave disregard of the limits on its discretion’ – factors to be considered (see Para 56 of Factortame III) – clarity, excusable etc.
- Application of Factortame III: legislation infringing EU law (Factortame III); incorrect implementation of a directive (BT); administrative breaches (Hedley Lomas); incorrect interpretation of EU law by a national court of last instance (Köbler).
Direct effect, indirect effect and state liability all play a crucially important role in the protection of individuals' EU law rights in national courts.