![]() Pierre Pascatore said, “The purpose of any legal rule is to achieve some practical aim, and it would be running counter to its essential purpose if one handled it in such a way as to render it practically meaningless.”[1] The intended purpose of Direct Effect (DE) allowed individuals to enforce their rights under EU law, however while this may be applicable to Treaties and Regulations; under Directives, bodies can only enforce their rights against the state. This essay seeks to analyse such, critically discussing the enforcement measures used to cover this gap and will ultimately conclude that while these enforcement measures may aid bodies in brining claims alternatively ultimately achieving horizontal direct effect, they are all still flawed and individuals may fall through the gaps of the incoherent legislation. Since 1951, the European Union(EU) has proposed, implemented, discarded, and amended primary and secondary Acts, case law and soft law. The tools of legislation outlined in Article 288 of the Treaty on the Functioning of the European Union(TFEU) are Treaties, Regulations, Directives and Decisions. Other instruments are Recommendations and Opinions. Supremacy and DE aid in the efficacy of the EU. Article 4(3) Treaty of the European Union (TEU) basically states that if the EU tells a member state to do something, they should do it. This has been entrenched through case law with Van Gend En Loos[2] laying the foundation and Costa v ENEL establishing it[3]. Costa states that EU law prevails over any incompatible law of the member states. These cases elucidate the supremacy of EU law because member states would have yielded their sovereignty when they signed the Treaties. The European Court of Justice(ECJ) in Van Gend En Loos implemented Article 25(ext. 12) EC Treaty[4] which creates rights individuals can rely upon against a member state which has failed its obligation to implement an Article; this established the first method of enforcement, Direct effect(DE). DE can be vertically or horizontally applied; vertical effect is between individuals and the state, and horizontal effect is between private parties. Treaty Articles and Regulations present no issue because they are capable of being relied upon against member states and private parties[5] once they are sufficiently clear and precise, and unconditional.[6] The distinction between horizontal and vertical DE is important because it can become problematic when considering directives. Art 288 TFEU states that a directive “shall be binding as to the result to be achieved upon each member state to which it was addressed, but shall leave to the national authorities the choice of form and methods”[7] Van Duyn[8] established that directives can have direct effect, however a directive can only be directly effective if it has not be implemented yet or if the implementation date has passed[9], if it is partially or incorrectly implemented[10] or if it was correctly implemented and the member states did not apply the directive in a way it was meant to be[11]. The rationale behind directives being capable of DE is to prevent the state from being able to get away with its failure to implement a directive.[12] As seen in the case of Marshall v Southampton & S.W Hampshire A.H.A[13], a directive can only have DE vertically, the reasons given by the AG were due to employers not knowing what the directives were because they weren’t published, and because giving a directive horizontal DE could blur the line between regulations which apply to everyone and directives which don’t. In this case the court looked at the addressee rather than the content of the provision, they concluded that hospital was an emanation of the state and not a private body. This was later confirmed in Dori[14]. Over the years many cases attempted to define who is an emanation of the state trying to bridge the gap so more individuals can apply directives via direct effect; Foster v British Gas PLC[15] introduced the bipartite test[16] and the tripartite test[17]. This was a way of minimizing the inflexibility of the lack of horizontal DE of directives. Foster was suing British Gas which was a nationalized industry at that time, the court attempting to explain what a state was applied the tripartite test, this test questioned whether a body was providing a public service under the state’s control and if they had special powers, it is noted that this test does not require all three elements to be proven.[18] Though the Foster test was widely applied though various cases, a lot of controversial issues followed with regards to the interpretation. There were many opposing views on whether the conditions which the test broke down were cumulative or not, and if they were deemed cumulative, which test should be applied. This arose uncertainties about the precise limits of the test, though the ECJ attempted to clarify these in recent cases, it was still limited.[19] Seen in Marshall[20] and Doughty[21] that though they had similar facts, and essentially sought the same remedy via the Equal Treatment Directive, Marshall was permitted due to the employer being part of the state while Doughty failed because they did not meet the 1st and 3rd criteria of the Foster test, despite shares of Rolls Royce being owned by the state- it was still a public company. The Farrell test[22] elucidated the controversy arisen in Foster. This test established that a body is an emanation of the state if it has conferred a task in the public interest and possess by statute special powers. The introduction of this test allowed for further freedom of individuals to bring claims against individuals or bodies(companies), even those governed by private law, who would have had the performance of a task delegated by a member state and not have acted in accordance with directives with regards to the public interest at large. Albert Sanchez-Graells welcomed Farrell as it ‘can potentially catalyse a higher level of effectiveness of secondary EU law’. In my opinion, the Farrell test is endorsed as it provides much lucidity and one which can theoretically yield a higher level of efficacy of secondary EU legislation; however, the issue of ‘what is special powers’ still exists. In Farrell it was clearly distinguished that the special powers were consisted in statutory powers “to require private entities to become members of the entity considered an emanation of the state and to contribute funds for the performance of the task conferred on it by the member state.”[23] In the future, complex issues may arise in the context of ‘contracted out’ public services as it can have a harmful impact on the community by worsening inequality, wage discrimination and possible disciplinary measures by those in the education sector. It is concluded that the Farrell test still has its flaws regardless of the evolution of the law and its attempts to bridge the gaps. The court’s response to this still apparent flaw of directives not being capable of horizontal effect was by establishing numerous exceptions to prohibition allowing individuals the ability to enforce their rights under EU law. Directives can have incidental horizontal DE if they are unimplemented. CIA Security[24] and Unilever Italia[25] stated that unimplemented Directives can be horizontally invoked to disapply inconsistent national law. This response by the ECJ is very complex and puzzling as the unimplemented directive is uncovering an ‘EU law-compliant national law’ that was hidden by contradictory counterparts, instead of creating new national law. Another enforcement measure is by granting horizontal DE of directives ‘through the back door’, this very controversial principle is known as the ‘General Principle of EU law’. In Mangold[26] and Kücükdeveci[27], German law had breached an unimplemented directive which related to age discrimination, this law had to be set aside regardless of the implementation period not yet expiring. The ECJ contended that national courts were under a duty to disapply national laws which were in clear breach of EU law. This method of enforcement is still a mystery as it has only been applied to age discrimination cases, much uncertainly arises as to whether other directives can also achieve said precedent due to EU supremacy. The more common methods of enforcement are Indirect Effect(IE) and state liability(SL). The case of Von Colson[28] gave birth to IE giving courts the ability to apply the purposive approach to national law, that is, courts should interpret national law in line with EU law to achieve what was intended under the EU directive[29], with discretion. This method permitted indirect horizontal effect of directives with Harz[30]; and now turning to Article 4(3) TFEU which obliged them to ‘take appropriate measures’ to attain the result the EU directive intended. Issues arose as to whether IE can apply where national law was not enacted to implement an EU measure. In Marleasing[31] the court ruled that IE can apply to pre-existing national law, and according to para. 8 in the application of national law, the court is required to interpret ‘as far as possible’ to do so with regards to the intended purpose of the directive, Webb[32]confirmed this. Limitations to this method of enforcement could be distinguished when the scope of the discretion permitted by the court was extended in Wagner Miret[33] where Spanish law excluded something directive 879/1980 prevented and questioned how far is as far as possible. It was stated that IE did not apply when national law unambiguously contradicts EU law. Pupino[34] and Kolpinghuis[35] stated that national courts were not required to interpret their national law ‘contra legem’. Accaro[36] noted that IE cannot impose criminal liability because it would be unfair and retroactive. Additionally, Adeneler[37] stated that IE would only be available after the implementation deadline for directives would have passed. In my opinion the implementation of indirect effect, while may aid some individuals, still does not mend the gap. As noted, while the court seemed to right its wrong by formulating IE to aid individuals who wish to bring claims of horizontal DE of directives, many limits were placed on this option and individuals can still fall through the cracks if the purposive interpretation fails due to the directive contradicting with national law, the implementation deadline not passing yet or if an individual sought to aggravate criminal liability. Additionally, IE uses the purposive approach to interpret national law, if there is no national law to be interpreted in accordance to EU law then IE is impossible to accomplish. The court acknowledging the shortcomings of DE and IE established a third method of enforcement, SL. This was introduced so that the state would be liable for not implementing a directive and thus bodies may have the option of recovering damages from a member state if they have suffered loss due to the member state failing to completely satisfy or not achieving the desired result under its requirements in EU law. Francovich[38] was instrumental in establishing this, he worked at a bank (horizontal DE) and wanted to enforce his rights under directive 897/1980 to be paid wages. Horizontal DE of directives and IE was not possible so he was unable to enforce his rights under EU law. Francovich went around this by suing the Italian state, ECJ allowed the case and Italy was liable to pay compensation. The rationale behind this was Article 4(3) TFEU and because it would have undermined the supremacy of EU law. For the state to be liable the directive must grant individuals rights, the content of the rights on the basis of the directive should be identifiable, and there must be a causal link between the breach and damage or loss suffered by the individual/body.[39] However this was expanded in Brasserie[40]/Factortame III[41] where it established that a state was now liable for any breach of EU law by a member state, irrespective of what organ of state was liable- once the directive intended to confer rights, the breach was sufficiently serious and if there was a causal link with the breach and the loss. As seen in the case of Dillenkofer[42], the Francovich and Brasserie tests are both the same in substance so either can be applied. One of the main issues that arises out of SL is the exact definition of sufficiently serious. However, this distinction is based on the facts of each case and dependant on the court’s decision, this was seen in Brasserie[43] which was found to be sufficiently serious due to the member state completely disregarded their discretional limits; while British Telecommunications[44] was found to not be due to the directive being unclear, other member states made a similar interpretation and other reasons. However, in the case of Hedley[45] it was found to be sufficiently serious, it was noted that a breach would automatically be sufficiently serious where the state had no limited discretion as to how it was supposed to act under the EU measure. Nevertheless, if all the above fails a person can bring an enquiry to the Commission who can enforce EU law due to article 258 and 260 TFEU which gave the commission authority to sue member states for breach of EU law (not implementing directives) and the ability of the commission to fine a member state. A member state may also be forced to implement EU law. For a fine to be imposed, the case must be heard before a judge, similarly to criminal law, member states are innocent until proven guilty. This enforcement of fines can act as a deterrent for states to not breach EU law, additionally, articles 278 and 279 states that if a case takes a long time to go to court, these can act as suspending the law as the case goes through. However, these may not seem as appealing remedies to an individual who has been wronged because through this enforcement, an individual cannot claim for damages, only for the implementation of EU law[46]. Furthermore, the commission has all the authority with regards to decisions, they use their discretion whether to proceed to the judicial stage and in the event of a high influx of cases, bigger breaches may take superiority over minor ones due to the commissions’ lack of resources. Consequently, one may opine that the court should reconsider the decision of Horizontal DE of directives as it simply goes against the preconceived purpose of direct effect. It is unconscionable to have individuals face a myriad of complex enforcement measures to assert their rights which were intended under the directive. Ultimately, while the EU has found many alternatives to compensate for their lack of horizontal DE of directives, many individuals can still fall through the cracks as the other enforcement measures implemented are extremely complex, confusing and flawed. While the Farrell test has provided the most elucidation from the labyrinthic routes of the exceptions it is seen that issues regarding contracted out still exists. Emphasising and concluding, the courts should reassess the application of horizontal DE of directives so individuals can safeguard and defend their rights under directives finally accomplishing the intended purpose of the legislation. [1] Pierre Pescatore, The Doctrine of ‘Direct Effect’: An infant Disease of Community Law (1983) 8 EL Rev 155, p. 177. [2] Van Gend En Loos 1963 [3] Costa v ENEL 1964 [4] Van Gend En Loos Article 25(ext. 12) EC Treaty [5] Defrenne (no.2) 197; Antonio Munoz 1999 [please refer to table of cases for full case names] [6] Ibid 8; Azienda Agricola 2001 [7] Art 288 TFEU [8] Van Duyn v Home Office 1974 [9] Pubblico Ministerio v Ratti 1979 [10] VNO 1977 [11] Marks & Spencer PLC 2005 [12] Ratti 1979 [13] Marshall 1999 [14] Dori 1995 [15] Foster v british gas plc 1990 [16] Para.18 [17] Para. 20 [18] NUT v St Mary’s School 1996 [19] Portgás – Sociedade de Produção e Distribuição de Gás SA v Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território,(2013) C‑425/12 [20] Marshall 1 1999 [21] Doughty v Rolls Royce 1991 [22] Farrell v Whitty & Others 2017 [23] Ibid C 413/15 [24] CIA Security v Signalson [1996] [25] Unilever Italia v Central Food [2000] [26] Mangold 2005 [27] Kücükdeveci 2010 [28] Von Colson 1984 [29] Art 288 TFEU [30] Dorit Harz v Deutsche Tradax GmbH. 1984 [31] MARLEASING SA V LA COMERCIAL INTERNATIONAL DEALIMENTACION 1990 [32] Webb v EMO Air Cargo (UK) Ltd 1994 [33] Wagner Miret 1993 [34] Pupino 2005 [35] R v KOLPINGHUIS NIJMEGEN 1987 [36]R v LUCIANO ARCARO 1996 [37] Adeneler 2006 [38] Francovich 1991 [39] Ibid 39 [40] Brasserie du Pecheur 1996 [41] Factortame 1996 [42] Dillenkofer 1996 [43] Ibid [44] British Tele 1996 [45] Hedley Lomas 1996 [46] Van Gend En Loos 1963
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