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Free 2.1 Law Essay

It is essential to the supremacy and effectiveness of Community law that the law should be capable of being enforced in national courts, as a matter both of principle and of practice. Explain the rights of an individual or a company to rely on a provision of Community law in their national courts

The effectiveness of a system of law depends on the extent to which individuals can rely on its provisions. The ability of an individual to rely on the provisions of Community law has often being called into question, and on this basis the effectiveness and supremacy of EC law has often been undermined. This essay proposes to analyse the obstacles faced by an individual attempting to rely on a Community provision in a national court in an attempt to assess the supremacy and effectiveness of Community law. With this in mind the essay will look at the direct effect of Community measures as regards an individual bringing an action, as it in this area perhaps that the shortcomings of the Community as a legal system are most apparent.

The question of the direct effect of a Treaty article was first raised in Van Gend en Loos v Nederlandse Administratie der Belastingen ((Case 26/62) [1963] ECR 1). The Dutch administrative tribunal, in an Article 234 reference, asked the ECJ:

Whether Article 12 of the EEC Treaty has an internal effect … in other words, whether the nationals of Member States may, on the basis of the Article in question, enforce rights which the judge should protect?

In answer to this the ECJ held that the Article 12 was indeed directly effective. It held that:

…this Treaty is more than an agreement creating only mutual obligations between the contracting parties … Community law … not only imposes obligations on individuals but also confers on them legal rights.

In this case therefore, the principle of direct effect operated to confer rights on Van Gend exercisable against the Dutch custom authorities. The individual, therefore, was allowed to directly rely on the Community provision in his national court. However, to create direct effects it was held that the provision had to be (i) clear, (ii) unconditional and (iii) requiring no further legislation by the Member State.

Moreover, in Defrenne v Sabeena ((Case 43/75) [1976] ECR 445), the ECJ held that Treaty provisions are capable of creating direct effects both vertically between and individual and the State, and also horizontally between individuals. Here Ms Defrenne, an airline stewardess employed by the Belgian airline Sabeena, was paid less and had to retire earlier than male stewards. She claimed that this was in breach of Treaty Article 141. It was held by the ECJ, via an Article 234 reference, that Treaty provisions created direct effects both vertically and horizontally. Again it had to be clear, unconditional and not requiring further action by the Member State.
In the case of Grad v Finanzamt Traunstein ((Case 9/70) [1970] ECR 825), the ECJ held that a decision of the ECJ addressed to a Member State was directly effective and was capable of creating enforceable rights for the individual. It held that the wording of Article 249 does not prevent individuals from relying in the national courts on decisions addressed to Member States. The decisions of the ECJ, therefore, also create rights for the individual.

As regards the direct effect of directives, Article 249 described 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.' Because, however, directives were not described as 'directly applicable' it was thought that they were not capable of direct effects for the individual, not least because they were addressed to the Member States. In another landmark case, however, the ECJ went on to extend the principle of direct effect to directives. In Van Duyn v Home Office ((Case 41/74) [1974] ECR 1337) a Dutch Woman coming to the UK to work for the church of scientology was denied entry. Article 39 guarantees free movement but subject to restrictions under policy and public health. Directive 64/221 held that exceptions to Article 39 must be based exclusively on conduct. The ECJ held that Article 39 was not directly effective as it relied on further legislation by the Member States, but the directive imposed a clear obligation that exceptions could be based solely on conduct, and this was directly effective as long as three conditions were filled: the directive must be (i) clear, precise and unconditional, (ii) not dependent on further legislation/action by the Member State or the Community, and (iii) the date of implementation must have passed.

So far, therefore, it would seem that individuals are certainly able to rely on almost all provisions of Community law in the national courts. As the title suggests, then, Community law can be seen to be both supreme and effective. On the other hand, the case of Marshall v Southampton and South West Hampshire Area Health Authority ((Case 152/84) [1986] ECR 723), exposed some of the limitations of the Community as a legal system. Here the health authority held that women had to retire at 60 whereas men had to retire at 65. Marshall argued that the Equal Treatment Directive had been wrongly implemented. The ECJ held that, because the health authority was a public body and an organ of the state, Marshall could rely on the direct effect of the Directive. However, it held obiter, that directives were only capable of vertical direct effect, but not of horizontal direct effect. In other words, an individual could not rely on the provisions of a directive in a claim against another individual or company that was not an organ of the state. This was made clear in the case of Rolls Royce v Doughty (1992) (no reference available). Here, although Rolls Royce was owned by the state at the time, it had no special powers and did not derive any powers under statute. Therefore, it was held that Doughty could not rely on the directive in the action against Rolls Royce.

Quite clearly this can be seen as a severe limitation on the ability of the individual to rely on the provisions of Community law. Quite clearly, more cases involve claims between individuals than claims by individuals against the State. In the majority of cases, therefore, the individual cannot rely on the provisions of directives in the national courts. The ECJ, therefore, tried its utmost to minimise the impact of these shortcomings. Perhaps the most groundbreaking decision in this respect was made in the case of Van Colson and Kamann v Nordhein - Westfalen ((Case 14/83) [1984] ECR 1891). Here Ms Van Colson and Ms Kamann wanted to work in male prisons in Germany but were turned down despite being qualified, even though German law allowed women to work in male prisons. The German courts awarded them damages for the price of the travel expenses. However, the Equal Treatment Directive held that people who have suffered discrimination must go through the appropriate judicial channels and be granted either a contract of employment or appropriate damages. The directive, however, was in this case incapable of direct effect. What the ECJ did, then, was interpret the German provision, which fell short in substance of the Directive, in line with the Directive, using Article 249 and Article 10 (Member States must take all appropriate measures to ensure fulfilment of the obligations arising from the Treaty or secondary legislation) in order to allow the applicants to rely on the Community provision. This has become known as the doctrine of indirect effect. What this does, then, is allow individuals to rely on Community directives even where these directives are not capable of direct effect, either because they do not fulfil the three requirements laid down in Van Duyn or because the claim is between two individuals or companies (horizontal direct effect).
It is submitted that this went some way in re-establishing the supremacy and the effectiveness of Community law. On the other hand, again, the Van Colson principle of indirect effect is itself not without its shortcomings, the most obvious of which is that there must be a hook in the national legal system. In other words there must be a similar provision in the law of the Member State which the ECJ or the national court can interpret in the light of the Community provision. If there is not then the individual cannot rely on the Community provision. This, it is submitted, makes the law arbitrary and as a result undermines the supremacy and effectiveness of the Community legal system.

In cases, however, where there is no hook in the national law, but where the Member State has quite clearly failed to adopt the necessary provisions within the deadline, another avenue is available to the individual: state liability. It was held in the case of Francovich, Bonifaci and Other v Italy ((Cases C-6 & 9/90) [1991] ECR I-5357) that Member States are obliged to compensate individuals for breaches of EC law for which they are responsible if three conditions are satisfied: (i) the objective of the directive must include the conferring of rights for the benefit of individuals; (ii) the content of the rights must be identifiable from the directive; and (iii) there must be a causal link between the breach and the damage. Although a detailed analysis of this principle is beyond the scope of this essay, one can clearly see that this, to some degree, increases the individual's ability to rely on the provisions of Community law.
All in all, however, one would have to conclude that as a complete and coherent legal system providing protection, security and stability to the individual, the Community legal system leaves a lot to be desired. The situations in which an individual can directly rely on the provisions of Community law are, as far as the individual is concerned, arbitrary. They depend, for example, on the form that the Community provision has taken, on the date at which the claim is brought, on the identity of the defendant and on the existence of a similar provision within the national legal system. Quite clearly a legal system which operates in this manner is incapable of providing adequate protection to the individual. It is submitted that the supremacy and effectiveness of Community law, therefore, is far from being established.

BIBLIOGRAPHY

Cases

• Van Gend en Loos v Nederlandse Administratie der Belastingen ((Case 26/62) [1963] ECR 1)
• Defrenne v Sabeena ((Case 43/75) [1976] ECR 445)
• Grad v Finanzamt Traunstein ((Case 9/70) [1970] ECR 825),
• Van Duyn v Home Office ((Case 41/74) [1974] ECR 1337)
• Pubblico Ministero v Ratti ((Case 148/78) [1979] ECR 1629)
• Marshall v Southampton and South West Hampshire Area Health Authority ((Case 152/84) [1986] ECR 723)
• Rolls Royce v Doughty (1992)
• Van Colson and Kamann v Nordhein - Westfalen ((Case 14/83) [1984] ECR 1891)
• Francovich, Bonifaci and Other v Italy ((Cases C-6 & 9/90) [1991] ECR I-5357)

Books

o Horspool, M. European Union (2002), London: Butterworths.
o Kent, P. European Union Law (2000), London: Sweet & Maxwell.
o Steiner, J and Woods, L. EC Law (2000), London: Blackstone.

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