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Published: Fri, 02 Feb 2018
Constitutional law of the european union
1(A) Can (I) The Residents Generally And (Ii) The Gardeners Specifically, Rely On On The Directive Either Against Fattenam Or The UK Government?
Directives are legislatives acts of the European Union which require member states to achieve a particular result and are binding on the member states addressed. They are not directly applicable and therefore implementation is required, and this allows “member states to choose the form and method of national legislation that will produce the binding result to be achieved”. As a directive is a secondary source of law is it passed under Art 249 EC. Directives are not directly applicable, therefore individuals acquire rights through the national implementing measure, however if the member state fails to implement within the deadline then individuals may acquire rights through direct effect or indirect effect.
(i) The legal issue for the residents would be whether they can rely on the directive even though it has not been implemented. Directives are defined in Art 249, but the Article also states that “they are binding as to the result achieved”. So there is an obligation on the UK government to fulfill the requirement of Directive 2006/2001. One principle which the residents may be able to use is direct effect. Direct effect is a principle of EC law which allows certain pieces of European legislation to be enforceable before the national courts of the member states. The principle of direct effect was established in the case of Van Gend en Loos by the European Court of Justice (ECJ) which concerned Art 25 then (Art 12) where the court held that obligations imposed upon member states by treaties could be enforced by individuals before national courts. The ECJ established three conditions which must be satisfied for direct effect of treaty articles, which are that the treaty “must be clear and unambiguous, unconditional and not dependent on any other legal provisions and it must confer a specific right upon which a citizen can base a claim”. There were two more conditions set out in Van Gend en Loos but which were subsequently deleted by Defrenne v SABENA and Lutticke GmbH. In this case as the UK government has not implemented the directive into national legislation they would be able to rely on the unimplemented directive itself as was found in Van Duyn v Home Office. In the case of Pubblico Ministero v Ratti the question of when directives become directly effective was answered by the ECJ who found that even when the directive has not been implemented it would still be applicable upon the member states as once the time limit for implementation has expired the obligation upon the member states becomes absolute.
The residents should be able to rely on the directive as long as it fulfills the Van Gend criteria, but also as the time limit for induction into national legislation has passed it would be directly effect as the ECJ stated in Ratti.
With regards to the residents claim against fattenem, this would be an issue of horizontal direct effect. The ecj has stated that according to the wording of art 249 horizontal direct effect would not be compliant, they also confirmed this in the case of faccini dori v recreb. Therefore the residents would not be able to use the unimplemented directive as a basis to sue fattenem as they to are an individual/company. Directives lack ‘horizontal direct effect. However if the directive fails to meet the van gend criteria then they may be able to rely on state liability which is where the state has failed to meet its obligations and thus must compensate individuals for damage they may have suffered. In the case of francovich, the ecj set three conditions which must be met for state liability to arise they are “the rule of law infringed must be intended to confer rights on individuals, the breach must be sufficiently serious and that there is a causal link between the state’s failure to implement and the damage suffered by the individual.”. If the ecj believe that the directive meets these conditions then the residents may be successful under state liability.
(ii)with regards to the gardeners, i can only assume that they too are a collection of individuals wishing to rely on the directive. With regards to their claim against fattenem, they would not be able to rely on the directive, as the ecj stated that horizontal direct effect of directives was not possible according to the wording of art 249 ec. This was confirmed in the facini dori case.
Another possibility for the gardeners could be to rely on the directive through indirect effect. This means that national law must be interpreted in a way which is fulfilling the objectives the community act in question. The case of Marleasing may be used as this involved a dispute regarding an unimplemented directive between two private parties. In this case the court said that the obligation of interpretation applied even with pre-existing national law. So if there is any pre-existing law regarding this area, then the court will have to interpret it ‘as far as possible’ to fit the purpose of the directive.
However if interpretation is not possible for e.g. There is no pre-existing national law then the principles of state liability may be applicable. As the gardeners have suffered illness due to the directive not being implemented, the best option would be for state liability as they would receive compensation. If they can prove the three conditions regarding state liability then they will be able to receive damages. They may have problems with proving the condition of ‘the rule of law must be intended to confer rights on individuals’ as the directive in question does not confer rights, it only places sanctions regarding the chemical xyz. However their case may still be strong for state liability as the gardeners still fulfill the last two conditions of ‘there must be a causal link between states failure to implement and damage suffered by the individual’ and ‘breach must be sufficiently serious’. The causal link between the failure to implement and damage is that as the uk did not fulfill their obligation regarding the directive, they did not place a sanction regarding the chemical on fattenem which in turn caused the chemical to stream into local ponds. They suffered ill health due to this failure. Also the ecj has stated that failure to implement a directive is a serious breach, so their case against the uk government on state liability may be successful.
(B) The Uk Government Has Implemented The Directive But Has Left Certain Portions Of It Voluntary For Fattenem To Comply, Advise The Lawyers As To Whether The Residents And/Or The Gardeners Could Rely On The Directive In A Claim Against The Uk Government
The legal issue here would be whether the residents and/or gardeners can rely on the Directive even though it has been partially implemented. Art 10 (5) EC states that national courts “shall take all appropriate measures…to ensure fulfillment of the obligations arising out of this treaty”. This means that national courts must fulfill their community obligations and if necessary must interpret their national legislation so that it fits and is cohesive with community law. This comes under the branch of indirect effect also known as the principle of harmonious interpretation.
The case of of Von Colson is particularly important and set a precedent regarding indirect effect. In Von Colson, pre-existing German law contradicted with a directive and the ECJ gave their ruling in accordance with Art 10. Therefore national courts when interpreting national law must do so in a way which fulfills the objectives of the directive itself. Under the Von Colson principle “EC law is not applied directly to the case, but indirectly by means of interpretation of domestic law in accordance with EC law.”. Relying on the directives indirectly should not be a problem as both Pickstone and Lister showed that where domestic law has been introduced to implement a directive, then all courts must interpret the domestic law in a way that it complies with the directive.
Therefore both residents and the gardeners can rely on the national courts to use indirect effect and interpret the incorrect national law to be the same as the directive.
If for any reason the residents and gardeners are unable to rely on the directive through indirect effect then they may have to rely on state liability. In the case of Wagner Miret the Spanish court were unable to interpret their law in accordance with EC law this proved that there is a limit to indirect effect. In response they said that where interpretation is not possible, then the principles of state liability may be applicable to the state. State liability can be defined as where due to a breach of EU law by a member state, an EU citizen suffers a loss as a result. “The effect of state liability is that damages may be recoverable in respect of the loss suffered”. If the three conditions can be met then the residents are gardeners can claim for compensation against the state. However they may fail on the first condition of the directive giving rights, as the directive in question does not give rights, it only places sanctions on chemicals, therefore their best chance would be to rely on the directive through indirect effect.
2. Advise The UK Government About Their Chances Of Success Under A Possible Judicial Review Action Under Article 230 EC Treaty AND Advise The SFA On Their Chances Of Establishing Standing To Challenge The Decision
art 230 states “the court of justice shall review the legality of acts adopted…and…acts…intended to produce legal effects”. the article allows the ecj to review the legality of certain acts brought to its attention, and art 231 states that if the action in question is well founded then the court will declare the act to be void and null.
Under Art 230 there are four grounds of judicial review which are ‘lack of competence (ultra vires), infringement of an essential procedural requirement, infringement of the treaty or of any rule of law relating to its application and misuse of powers’. The UK government may be able to bring an action under the ground of ‘infringement of an essential procedural requirement’ as they believe that another Treaty article which requires unanimity should have been used instead of qualified majority voting (QMV).Also it must bring about a challenge within two months of the publication of the decision or its notification to the government.
To bring an action the petitioner must have standing, the action must be against an institution which the Court has jurisdiction over and thirdly must show that the provision falls within one of the defined grounds for annulment. Applicants/petitioners can be divided into three groups – those with automatic locus standi and those who have to prove sufficient interest. They are categorised as the following; privileged applicants as defined in Art 230 para 2 (Member States, institutions of the EU), semi privileged applicants as defined in Art 230 para 3 (European Central Bank and the Court of Auditors) and non privileged applicants – Art 230 para 4 (natural and legal persons – limited locus standi). As the UK is a member state it is a privileged applicant therefore does not have to prove its standing and can go straight to the ECJ to challenge the decision. The case of Roquette Frères v Council is very important as the Council had omitted a crucial stage in the legislative procedure by not waiting for a reply from Parliament regarding its opinion on the measure, due to this the measure was annulled. This shows that omitting a stage in the legislative procedure can also be grounds for annulment, and in this case by not using the correct voting method a legislative error has occurred, so the UK government should be successful to annul the decision under Art 231.
Sheep Farmers Association (Sfa)
Art 230 provides that any natural person may bring an action where he is the addressee of a decision, the individual would be a non privileged applicant so would therefore have to bring their action to the Court of First Instance (CFI). As the decision is addressed to the UK and not the SFA directly then they can only challenge the decision through individual concern. This is where the act in question is a decision addressed to another, however SFA would also need to show in conjunction that he is directly and individually concerned by the decision. They would also need to show that they have a legal interest in having the decision annulled.
As the SFA is a trade organisation, the CFI has identified three situations where an association would be granted locus standi which are ‘the association has been expressly granted procedural rights, it represents the individuals or undertakings which themselves have standing, or the association itself is affected’. As the SFA represents the individuals concerned, they would be granted locus standi on this basis.
Individual concern is one criteria which the SFA must prove and the case of Plaumann v Commission proved just that. In this case a group of clementine importers complained regarding a decision addressed to the German government. The court held that as Plaumann was only a member of a general class, he was not individually concerned regarding the decision “persons other than those to whom a decision is addressed may only claim to be individually concerned if the decision affects them…..which are peculiar to them” this is now known as the Plaumann Test. Due to this Plaumann lacked the locus standi to bring an action. Due to this the SFA would have no locus standi to bring an action however the case of UPA v Council shows that associations who cannot show individual concern may still be able to bring an action. In this case the association were unable to show individual concern so their application was dismissed by the CFI however on appeal the ECJ’s. A-G Jacobs said that “it should be accepted that a person is..individually concerned by a..measure….where…the measure …is liable to have a substantial adverse effect on his interests”. However the ECJ rejected the position of the AG arguing that it is not for them to reform the conditions for locus standi but rather a matter for legislation. Therefore Plaumann is still the leading authority in this field, and thus unfortunately it will be very hard for the SFA to be grated standing. However they may still be able to challenge the decision under Art 234 EC where they can challenge the validity of the decision, although this will be done through the national courts it will be useful as individuals who have no locus standi can still challenge community measures.
Craig, P & De Búrca, G., 2008. EU Law Text, Cases & Materials. 4th ed. Oxford: Oxford University Press
Cuthbert, M., 2007. European Union Law 2007-2008. 6th ed. London: Routledge-Cavendish
Davies, K., 2003. Understanding European Union Law. 2nd ed. London: Cavendish Publishing Limited
Mathijsen, P.S.R.F., 1999. A Guide to European Union Law. 7th ed. London: Sweet & Maxwell
C-25/62 Plaumann v Commission  ECR 95
Case 57/65 Alfons Lutticke GmbH  ECR 205
Case 41/74 Van Duyn v Home Office  ECR 1337
Case 43/75 Defrenne v SABENA No.2  ECR 455
Case 148/78 Pubblico Ministero v Ratti  ECR 1629
C-138/79 Roquette Frères SA v Council  ECR 3333
14/83 Von Colson and Kamann v Land Nordrhein-Westfalen  ECR 1891,  2 CMLR 430
Pickstone v Freemans plc  2 All ER 803
Lister v Forth Dry Dock  1 All ER 1134
C-106/89 Marleasing SA v La Comercial International ECR I-4135
Francovich v Italy  ECJ
C-334/92 Wagner Miret v Fondo di Garantia Salarial  ECR I-6911,  2 CMLR 49
Facini Dori v Recreb  ECJ
C-50/00 Unión de Pequeños Agricultores (UPA) v Council  ECR I-6677
Meehan, M., 2008. Lecture Notes – Constitutional Law of the EU, 4,5,8. London Metropolitan University
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