EU Legislation

When the Noxious Plant Directive was adopted in December 2006, it should have been implemented by all Member States by January 2008, but the United Kingdom government failed to do so within the specified time-frame. This allowed fisal to be planted near enough to affect his crop. The French government, despite being within the time-frame, has also breached community law because of improper implementation. Both Joe and Claude will have redress for their respective situations.

All Member States of the European Union (EU) are required to implement and integrate EU law into their individual systems according to the guidelines illustrated in legislation. EU law is made up of three sources: primary and secondary legislation and case law, which together form the acquis communautaire.[1]

Primary EU Legislation: Treaties

The main sources of primary legislation are treaties, which apply in all Member States and automatically become law without the member state having to do anything.[2]

Despite this, the primary responsibility for the implementation of EU law still lies with the Member State and is lucidly stated in Article 4(3) of the Treaty on European Union (ex Article 10 of the Treaty Establishing the European Community (TEC), which is now the Treaty on the Functioning of the European Union (TFEU):

Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community.

The Member States are bound by the provisions of Community Law, which cannot be overridden by domestic law. In Costa v ENEL[3], the European Court of Justice (ECJ) stated in its ruling that:

The transfer by the states from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it the permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.

Secondary EU Legislation: Regulations and Directives

A regulation is “binding in its entirety and directly applicable in all Member States.”[4] Regulations must be applied even if the Member State has already passed conflicting legislation.[5] They build on provisions in the treaty and come into force in the member country as soon as they are passed by the Council of Ministers.

Directives are not directly applicable because Member States must first incorporate them into law with national legislation. They are broadly phrased so that the Member States can create their own detailed legislation to put the objectives of the directive into practice, within a specified time limit. Technically, citizens of a Member State should not be able to rely on directives until the Member State has brought the directive into law, but the ECJ has consistently refused to follow this, and has made it clear that an individual can rely on the directive, even if it is not properly implemented in the Member State's law.[6]

Doctrine of Direct Effect

In the case of Van Gend en Loos,[7]the judgement by the ECJ established that provisions of the Treaty Establishing the European Economic Community were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the Community's member states. These legal rights are now called the doctrine of Direct Effect.

The doctrine of Direct Effect is an issue of importance to all those concerned with, or affected by the implementation of European Union directives. The doctrine of Direct Effect bestows responsibility for the implementation of directives on individual regulators, even if the Member State itself has not made full arrangements for implementation.

Citizens can rely on a directive in their national courts only against the state or public body due to a failure to meet the time limit or implement the directive properly. The decision in Marshall[8] confirmed that a directive could only be used against a state or a public body - vertically - and not against another private individual or private body - horizontally.

Vertical direct effect is only applicable to clear, precise and unconditional directives.[9] When a Member State fails to do this and it subsequently affects citizens, they have the right to take their cases to the European Court of Justice. The ECJ created this principle to deter Member States from ignoring directives and in the case of Van Duyn[10] it was held that preventing individuals from relying on directives before national courts would weaken its worthwhile effect.

The facts of Van Gend en Loos are as follows:[11]

The company imported a quantity of chemical substance form Germany into the Netherlands. It was charged by Customs and Excise with an import duty, which had allegedly been increased by changing the tariff classification of the substance from one with a lower to a higher tariff-heading, contrary to Article 12 of the EEC Treaty. The duty was paid at the time, but was appealed before the Dutch Tariefcommissie.

The ECJ, delivering its judgment on February 5th 1963, firmly held that Article 12 was capable of creating personal rights for Van Gend en Loos. In its seminal judgment a clear interpretation of the Rome Treaty, and in a broader sense, EU treaties.

The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community.

There is no clear indication as to who is responsible for the growing of fisal near to Joe's farm, but regardless of that fact, his best option would be to challenge the UK government through the Government Research Facility because they are clearly an emanation of state as defined in Foster[12], subject to the authority and control of the State. Individuals can sue the State for not supporting an EU directive, but they cannot use an unimplemented directive to sue other individuals. As directives only have vertical direct effect in claims, domestic law may be the only legal basis for a claim. Joe has only sought redress after the implementation date has passed, which is a requirement highlighted in Ratti,[13] so under this principle of Direct Effect, Joe will be able to take his case to the UK national courts. Following the judgment in Alfons[14], where it was decided that a state can be liable towards an individual for not implementing an EC law once the time limit for implementation has expired, his case will be successful.

The Doctrine of Indirect Effect

According to the law set out in Von Colson[15], when a Directive has not been implemented by a Member State or has been inadequately implemented, an individual can take action against another individual based on the principle of Indirect Effect. In this case, the ECJ ruled that Germany was in breach of an EU directive because the State failed to provide appropriate sanctions against violators of the directive, which is similar to Claude's situation against the private company, Medicom. Medicom cultivates fisal less than the Directive requirement of 2KM from Claude's farm and has subsequently led to severe medical complications. The French government has implemented the Directive, but failed to implement it properly, so while Medicom is compliant with State law, it has still beached Community.

Directives do not impose obligations on private parties, as seen in Marleasing.[16] National courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive. In accordance with Article 4 of the TEU (ex Art 10 TEC), “member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.”

Claude will be able to take Medicom to court based on Marleasing, because this case extended the principle to cover some cases between private individuals.

Incidental Horizontal Direct Effect

This concept was defined in CIA,[17] who had attempted to market a burglar alarm in Belgium that was not compatible with Belgian technical specifications. However, the Belgian government had failed to report these specifications to the EU, as required by a directive in 1983 and it was held that this constituted a substantial degradation of the effectiveness of the directive, which was intended to lower barriers to trade, and that the Belgian government's breach of the directive made the Belgian law inapplicable to individuals.

Although the directives do not impose legal obligations on defendants in cases such as CIA or Panagis Pafidis[18], they remove the protection of national regulation for defendants and exposes them to liability under community law. On the other hand, the Lemmens[19] case does not include the exclusionary effect. Mr Lemmens was charged with driving a vehicle while under the influence of alcohol. The question of whether an individual could rely upon the fact that the national regulation on breath-analysis apparatus which had not been notified to the Commission in accordance with Article 8 of the Directive came into consideration. The ECJ underlined the aim of the Directive as promoting the free movement of goods by the preventive control of unjustified technical obstacles to trade and declared that a failure to notify technical regulations could render such regulations inapplicable inasmuch as they hinder marketing of a product, but it could not render unlawful any use of a product.

Claude has suffered a legal detriment, while Medicom has gained a legal advantage from the terms of an unimplemented Directive because of a failure by the French government to implement the Directive accurately. This will allow Claude to bring a case against Medicom in national courts based on the unimplemented Directive, which is an incidental factor of the French state's negligence.

State Liability

This doctrine implies that Member States may become liable for the loss suffered by individuals as a result of the Member State's failure to comply with their obligations under the EC Treaty, including the obligation to implement directives correctly and with the time limit prescribed.[20]

The landmark decision in Francovich[21] acts as a deterrent to Member States disregarding the importance of Directives and implementing them on time and correctly.

In Francovich, a group of Italian workers were fired without receiving payment because their employer had gone bankrupt and was unable to pay its workers. The group sued the Italian government for non-compliance with Directive 80/987, which provided that Member States were required to set up guarantee funds to cover precisely this type of event. The directive was not unconditional or sufficiently precise so as to be directly effective against the Italian government, but the claimants argued in the alternative that the Member State could be held liable in damages for its failure to implement the directive.

Initially the conditions to make a Member State liable were:

a. the rule of law infringed must be intended to confer individual rights

b. there must be sufficiently serious breach of EU law; and

c. there must be a direct causal link between breach and damage.

These were later modified and reaffirmed in Brasserie du Pêcheur.[22]

Joe will be compensated the law was to confer individual rights in terms of health, there was a breach of law in that the UK government never implemented the Directive and this non-implementation allowed the fisal plants to be planted, which subsequently spread to his land and damage his crops.

Claude will also be compensated because State Liability covers every aspect of breaches, not only unimplementation. The State will have to cover Claude's medical bills because the respiratory discomfort has severely affected him.

(a) The French government has implemented the directive putting a 1 km limit between plants and cultivated land. Claude's garden backs onto land owned by Medicom. A private company who cultivates Fisal. Between the Fisal crop and Claude's garden is a distance of 1.2 km. Claude can no longer spend more than 15 minutes in his garden without suffering respiratory discomfort.


A common law for Europe By Gian Antonio Benacchio, Barbara Pasa

Understanding EU law: objectives, principles and methods of community law By Norbert Reich

EU law: text, cases, and materials By Paul P. Craig, Gráinne De Búrca pg 345

The concept of legislation in European Community law: a comparative perspective By Alexander Türk

Jo Shaw, Law of the European Union, 3rd ed., Palgrave Law Masters, 2000

Labor and employment law in the new EU member and candidate states By Anders Etgen Reitz

Constitutional law of the European Union By Sionaidh Douglas-Scott

Direct Effect of European Law and the Regulation of Dangerous Substances Gordon & Breach Science Publishers Ltd (15 Sep 1995) Christopher J. M. Smith

European Union law: text and materials By Damian Chalmers

Essential European Community Law By Richard Owen

Labor and employment law in the new EU member and candidate states By Anders Etgen Reitz

EU law: text, cases, and materials By Paul P. Craig, Gráinne De Búrca

[1] G. A. Benacchio and B. Pasa, A common law for Europe (Central European University Press: 1 Aug 2005), p 20.

[2] For example, S.2(1) European Communities Act 1972.

[3] Case 6/64, Flaminio Costa v E.N.E.L. [1964] ECR 585.

[4] Article 288 TFEU (ex Art 249 TEC)

[5] Case 93/71 Leonesio v Italian Ministry of Agriculture [1092] ECR 293

[6] Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration

[7] Ibid.

[8] Case 152/84, Marshall v Southampton and SW Hampshire Area Health Authority (Teaching) [1986]. ECR 723

[9] Case 129/79, Macarthys Ltd v. Smith [1980] 2C.M.L. Rev. 205 at 215

[10] Case 41/74 Van Duyn v Home Office. [1974] ECR 1337

[11] D. Chalmers. European Union law: text and materials. (Cambridge University Press: 4 May 2006), pg. 47

[12] Case 188/89 A. Foster and Others v. British Gas plc [1990] ECR I-3313

[13] Case 148/78) Pubblico Ministerio v Ratti [1979] ECR 1629

[14] Case 48/65 Alfons Lütticke GmbH and Others v. Commission of the European Communities, [1966] ECR 19 at 27

[15] Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891

[16] Case 106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR. 1839

[17] by ECJ in Case 194/94 CIA Security International SA v. Signalson SA and Securitel Sprl ([1996] ECR I-2201

[18] Case 141/93, Panagis Pafidis and others v. Trapeza Kentrikis Ellados A.E. and others, (1996), ECR I-01347

[19] Case 226/97, Lemmens, [1998] ECR I-3711

[20] A. E. Reitz, Labour and employment law in the new EU member and candidate states.

[21] Case 6/90 Andrea Francovich and Danila Bonifaci and others v Italian Republic 1991) ECR 1-5357

[22] Cases C-46 and C-48/93 Brasserie du Pêcheur v Federal Republic of Germany and R v Secretary of State for Transport ex parte Factortame Ltd [1996] ECR I-1029