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Implementing directives from European Community law

1. In the case of Directives, Member States are left to implement them in order that they achieve the principle that is trying to be enforced or implemented by the Council in the best way available and are thus only binding to the effect to be achieved. In the UK this is done by Statutory Instrument which achieves incorporation of the directive into National Law. In this instance the directive is not directly applicable (Art. 249 EC Treaty), yet under Article 10 of the Treaty the Directive must be addressed and national legislation must be incorporated by a certain time limit, in this case 1 October 2004.

In this instance, the UK government has not implemented the directive however, it will be capable of direct effect if the directive meets the following three criteria: it is sufficiently clear and precise, unconditional and has left no room for the exercise of discretion as to implementation by a Community Institution or Member State.[1] Further to these three criteria, it is critical that the date of implementation has passed[2] in order that vertical direct effect is in operation, which will allow the individual to rely upon the directive only against a Member State or an Emanation of the State[3]. Vertical direct effect makes the directive reliable to the individual to be effective and enforceable against the Member State in order to insure that public companies and citizens operating legal businesses are not punished for the lack of incentive felt by the Member State to introduce the directive into National Law by the date of implementation.

In order to equate to an emanation of the State at least one of the three Foster Criteria[4], must be met as individuals should be able to use the directive to their advantage against companies that may not necessarily be a direct derivative of the governance of the Member State. The criterions are summarized as follows: an institution or body must be under a duty to provide a public service, or the employer must be under the control of the State, finally, the employer must have special powers; for example be a monopoly or of a governmental nature. The judges in the case of Kampelmann[5] deemed that even if only one of the Foster Criterion is met, the body would be considered as an emanation of the State. The decision in the Foster case held that pre-privatised British Gas was an emanation of the State but it did not provide strict interpretation as to how to define what was meant by “an employer with special powers.” It has purposefully been left quite vague as to whether bodies will be held to be emanations merely because of their contributions or affiliations with the State in order that each instance can be reviewed on its facts. From the wider EU perspective the definition of special powers will vary from one Member State to the next as will the definition of what is to be considered an emanation of the State. Further difficulties in determining clear cut and precise definitions became apparent in the case of Doughty v Rolls Royce Plc.[6], when the Court of Appeal held Rolls Royce to be free from responsibility to the claimant because they were not a emanation of the State as they had provided a service to the State not to the Public and it remained irrelevant that the company was under the control of the State whilst it was providing a service to it.

Considering what has been discussed above, it is deduced that prima facie the clothing manufacturer is unlikely to be held responsible for failure to comply with the provisions of a non-implemented directive and Dilshad will not be able to rely on Directive 30/02 in UK courts to fight his claim to age discrimination until the directive has been properly implemented by the State and deemed to hold horizontal as well as vertical direct effect. A time limit will apply, however, as the directive is presently before Parliament it is likely to be implemented sooner rather than later and Dilshad should be able to bring his case forward relatively soon.

Prima facie it would appear that Charles would be able to bring successful action against the council as they are a direct and unquestionable emanation of the state. This is because the council is quite clearly a local government and thus, Charles could bring action in his national courts in order to redress the age discrimination within his workplace because the directive has vertical effect. In support of his case Charles can rely on precedent from the case of Marshall[7] and its handling of the age issue within the workplace and the reliance on a directive against an emanation against the State.

2 a)

A regulation is directly applicable[8] and capable of direct effect if the following conditions are met: it must be clear and sufficiently precise, unconditional and leave no room for the exercise of discretion as to the implementation by a Community institution or Member State.[9] These conditions are also known as the Van Gend Criteria and if satisfied a regulation will be capable of both vertical and horizontal effect.[10] This allows the regulation to be used to support a claim against the State and Private bodies within the State which is what the Medical Council would be considered as in this case. Automatic conferral of rights of enforcement to an individual are not always the case in regards to regulations however, regulations take priority over conflicting national law in most instances. In this case the Regulation would take precedence notwithstanding deferring contexts even though the ECJ does not attempt to translate or interpret national law, therefore if the right to transfer the pension does not arise within the regulations of the EC the ECJ will not be able to comment on the national laws preventing the transfer of Ahmed’s pension as this does not fall within their jurisdiction.

As a rule of thumb, the UK courts or any body capable of making a decision must give priority to directly effective EC law under and in cohesion with the principle of supremacy. Priority to the regulation or any other EC Law is given wherever the EC Law conflicts with domestic law or with Member State’s constitutions and should be applied without delay.[11] Assuming that there is the possibility that Ahmed can raise his dispute in another national court it will not be mandatory on the Council to refer the case. If the Medical Council decides to seek clarification upon whether the regulation is valid it is on its own discretion.

The Council has not made a reference making it very feasible that they have reason to believe one of the following reasons exists in their favour making a reference unnecessary as outlined under the CILFIT[12] criteria. Firstly, the question of interpretation would be irrelevant to the outcome, or the question is materially similar to a previous question referred to the ECJ or the correct application of the regulation is obvious.[13] However, as the action proposed by Ahmed depends on whether or not EC Law is valid, the Council should base a reference under Article 234 requesting clarification and in regards to the question of validity of the EC regulation and its enforcement in the UK.

Therefore, Prima facie Ahmed could pursue this action in another court therefore; the Medical Council will not have to make a reference under Article 234.

b)

The ECJ is given the power to rule on the validity of the acts of the Member States under Article 234(1) as an alternative to the process of judicial review which is permitted within the superior courts of England. Clarification on the legality of a Member State’s actions can be clarified by the Court of Appeal who is also capable of making a referral to the ECJ asking to clarify the legality of the charges levied. No English court is obliged to make a reference under Article 234 regardless that both parties involved in the action request it. Unless there is no other judicial remedy available to the parties under national law against the decision of the court[14] the Court is quite right in refusing to make the referral. Under Article 230 there are no restrictions as to grounds on which the validity of acts of Member States may be questioned, however, it is worth reiterating that the ECJ is only permitted to rule on the legitimacy of Regulations, Directives, Decisions, Recommendations and Opinions, however, prima facie Article 234 deals with review of acts committed by the Community only.

Considering the facts at hand in this instance it appears prima facie that the legislation does not extend to EC legislation therefore, an Article 234 reference is not an available option to either party regardless if it will resolve the dispute. The court is under no mandatory obligation to make a referral; instead it is a discretionary power. Article 234(2) is considered to be the last possibility to insure errors in law within the Community can be amended and the validity of the legislation in question can be made to take on a consistent meaning and application across the entire Community.

c)

As leave is refused to appeal to the House of Lords then the Court of Appeal has become the court of last instance and thus, no further action can be taken in another court or tribunal, this is also known as the concrete theory.[15] The facts of Chiron Corporation[16] allowed the Court of Appeal to make clear that even if leave to appeal has been denied it was still possible to appeal directly to the House of Lords against any refusal to grant leave to appeal thus judicial remedy was available and Article 234(3) does not apply to Court of Appeal cases. In this instance, it is still not mandatory for the Court of Appeal to make a reference to the ECJ under Article 234(3) in order to clarify and interpret the EC trade law under dispute as leave to appeal to the House of Lords must first be challenged and if denied than prima facie the Court of Appeal is the court of last instance. By implementing such a stringent safeguard a large body of case law and precedent can not come into effect in any Member State that is based on misguided interpretation or application and incompatible national law with EC law which has been authenticated by any of the lesser courts. The purpose behind Article 234 as a whole is to insure that no court should be given complete authority to interpret EC law on its own.

Within the remit of Article 234(1), the ECJ has jurisdiction and right to interpretation of Community Law through its main contextual and teleological interpretive techniques.

‘Similar questions’ are often referred to the ECJ and the English court is still able to make such a reference if it is in doubt as per a question of law or to clarify interpretation of EC trade law in this instance.[17] Pertinent to all scenarios examined is the aspect of ‘effectiveness’, which is termed as a remedy, namely that national rules must not render the exercise of EC law rights impossible or excessively difficult. No individual should be denied the right to clarification or unbiased interpretation.

3.

Article 230 EC Treaty permits the judicial review of Community instruments. Article 230(4) prima facie empowers BABE, who has been directly named within the particular regulation, to bring an action for annulment of the implementation of the new regulation because it “is of direct and individual concern.” to them. By being directly applicable, the regulation and has conferred upon private persons the right to bring forth an action within their national courts. Supervision and order over the agricultural products within the EU has always been a vital component of the workings of the EU, therefore, entry of a regulation takes place as soon as it is adopted by the Council.

As Piggyfeed is not named, the ECJ will take a very strict approach to consideration of their locus standi, however, grounds for action within the national courts are still feasible. The situation surrounding BABE is of the concept of ‘individual concern’ as illustrated in the case of Plaumann [18] where it was held that the decision or ruling must be addressed to the individual in order for them to have automatic locus standi for an action for annulment. The test to decide if BABE is aligned with the concept of individual concern can be determined after it has been asked if the number and identity of the individuals affected on the date of adoption can be determined. This criterion has been thoroughly met by the naming and numbering of the companies in the appendix written by the Council themselves.

The parties must understand and adhere to the time limit which has been established in Article 230 which stipulates a two month from the date of publication (or date company becomes aware of regulation) as a time limit on challenge. All ways of circumventing the time limit is severely put down by the ECJ.[19] The time limit is short and precise and does not easily bend making it harder for smaller companies to bring forth an action because no secure legal certainty is pertinent to maintain as these limits remain in order that those who are slightly or indirectly affected can adhere to the decision, as it is clear and binding.

The only way the regulation may be challenged by individuals is if it is deemed to be merely a bundle of decisions taken by the Council rather then a ‘real regulation’ as is adhered to and defined in Article 249 and determined by the ECJ who will regard its contents rather than focus on its form.

The long-winded, expense incurred and drawn out repercussions of these actions make them expensive which in turn is a natural deterrent to smaller companies seeking retribution as they do not processes the financial prowess to pursue such an action. Major corporations often have more opportunity to challenge the acts of the Member State as they have larger financial power and reputation to hold them in good stead against the might of the State. As a result many smaller companies are left to implement and ensue the consequences of new impositions from the State and EU. Combined with a very limited timescale for enquiry, most acts by the Member State are validated because realistic adversity to a well balanced argument opposing them are hard to develop under the circumstances and any and argument to withstand the imposition of unfair practice is difficult, especially if the regulation is not a true regulation. BIBLIOGRAPHY

CAIRNS, W. (2002) Introduction to European Union Law 2nd Edition London: Cavendish Publishing Ltd.

CRAIG, P. AND DEBURCA, G. (1996) EC Law Text, Cases & Materials Oxford: Clarendon Press.

PATERSON, J. (2002) Law Basics Student Study Guides: EC Law Edinburgh: Sweet & Maxwell.

PENNER, J. E. (2001) Mozley & Whiteley’s Law Dictionary 12th Edition London: Reed Elsevier (Butterworths).

TILLOTSON, J. (2002) European Union Law: Text, Cases and Materials 3rd Edition London: Cavendish Publishing Ltd.

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1


Footnotes

[1] See C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1

[2] C-148/78 Pubblico Ministero v Ratti [1979] ECR 1629.

[3] C-41/74 Van Duyn v Home Office [1974] ECR1337

[4] C-188/89 Foster v British Gas [1990] 2 CMLR 833

[5] See C-253/96 Kampelmann v Landschaftsverband Westfalen-Lippe [1997] ECR I-6907

[6] [1992] IRLR 126 (CA)

[7] C-1522/84 Marshall v Southampton AHA [1986] ECR 723

[8] See Article 249 EC Treaty

[9] See C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1

[10] C-93/71 Leonesio v Italian Minister of Agriculture [1972] ECR 287

[11] C-106/77 Simmenthal SpA (No2) [1978] ECR 629

[12] C-283/81 CILFIT srl v Ministre della Sanita [1982] ECR 3415

[13] ibid

[14] See Article 234(3) EC Treaty

[15] Paterson, 2002, p.47

[16] Chiron Corporation v Murex Diagnostics [1990] CMLR 416

[17] See C-28-30/62 Da Costa en Schaake NV v Nederlandse Belastingadministratie [1963] ECR 31 as per a seemingly identical question that was asked of the ECJ in the Van Gend en Loos case.

[18] C-25/ 62 Plaumann v Commission [1963] ECR 95

[19] See C-156/77 Commission v Belgium [1978] ECR 1881 at p.1897.


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