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The role of the individual European Citizen in enforcing their rights as had a greater impact on the success of the legal order of the European Community than any institutional reform or development.
Law may be enforced either through a public arm of government, or through actions brought by private individuals, or a mixture of the two. The EU Treaty embodied an express mechanism for public enforcement in Article 226 which allows the Commission to sue Member States before the ECJ for breaches of Community law. However, this mode of enforcement is limited, as the Commission does not have the institutional capacity to prosecute more than a “tiny fraction” of infringements. The remedy provided by Article 226 is therefore weak, and could not be used against private individuals. This essay will briefly consider the context and operation of public law enforcement. It will then go on to consider in detail how individuals have become able to enforce their rights under EU law, and in doing so have had a greater impact on the success of the legal order of the European Community than any institutional reform or development.
The main sources of EU law are the treaties creating the institutions and the subsidiary treaties creating the communities: the EC Treaty, the Euratom Treaty and the Treaty on European Union. These treaties are create the institutions which then legislate for the EU. The Council and the Commission make regulations, issue directives, make decisions and recommendations and deliver opinions under Article 249 EC. These are therefore the ways in which the institutions provide sources of law to be applied throughout the EU.
By joining the EU Member States are signalling that they wish to be subject to these sources of law provided by the EU institutions. Through the process of democracy, those Member States are then able to affect any potential reforms in the law. Furthermore, the institutions will only be able to legislate over areas which the Member States together decide to allow. Development, with so many Member States to consider, is a slow process when it comes to institutional legal development.
When a Member States is in breach of community law, as mentioned, the Commission may bring an action against it. Before doing so, the Commission will provide a reasoned opinion to the Member State on the matter of concern and allow that Member State an opportunity to provide observations on the opinion. The Member State should then comply with the opinion within a specified period, or else the Commission may decide to take the matter further with a hearing in the European Court of Justice.
One of the weaknesses inherent in this enforcement mechanism is that the Commission will not pursue every infringement committed by a Member State. The Commission cannot be compelled to take action, and it is for it alone to decide whether or not to take any action at all, operating within a wide discretion. Many considerations will play a part in the Commission’s decision to proceed to the ECJ including workload, political considerations and policy matters.
As well as not being able to compel the Commission to take action, an individual under this mechanism has no remedy, as no compensation order can be made against a defaulting Member State in favour of an aggrieved individual. This enforcement provision may therefore be said to fail to sufficiently safeguard the rights of individuals.
Fairhurst uses the example of the Working Time Directive 93/104 (OJ 1993 L 307/18) to demonstrate the problems faced by individuals. The directive should have been implemented by all Member States by 23 November 1996, but the UK failed to implement it within this time. The directive provides rights for individual workers so even a short breach could have an enormous impact on an indeterminate number of people. The UK finally implemented the directive almost two years after the required date. In that time the Commission had taken no action against the UK under Art 226, and even if it had have done, provided the UK had then implemented the directive in the time given to it in the reasoned opinion, the UK would not have been brought before the ECJ. In the unlikely event that the UK had been so brought, the Court would not have had any power to award compensation to those workers whose rights had been infringed by the failure to implement.
It is said that the ECJ realised that individual rights were not effectively enforced and, in an attempt to address the problem, developed principles whereby an aggrieved national of a Member State would be afforded rights based upon Community law which could, in certain circumstances, be enforced in the national courts. The principles developed are those of direct effect, indirect effect, and state liability. These principles empower individuals, giving them the ability to enforce their rights and impact upon the development of the EU legal order. This is a role not granted under the EC Treaty itself which may well have come as a surprise to original Member States who believed it was only the Commission which could enforce the law.
The starting point for direct effect is the case of Van Gend en Loos v Nederlandse Administratie der Belastingen. Under Dutch law the claimant was required to pay an increased customs duty on imports. The claimant argued that this was a violation of Art 12 EC which provided that Member States should not increase this type of charge. The national court referred the question of whether an individual before a national court could rely directly on a provision of the EC Treaty to the ECJ.
It was held that the Community constitutes a ‘new legal order’ and for the benefit of that order all Member States had limited their sovereign rights. “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 when expressly granted by the Treaty and also by reason of obligations which the Treaty imposes upon individuals, Member States and the institutions of the Community.
This was a “ground breaking” judgment. The concept of direct effect as the immediate enforceability by individuals of EC provisions in national courts was a new concept for Member States. Yet, the ECJ did not hold that any provision could be directly effective, but only those which were sufficiently precise and unconditional, thereby placing some limit on this new enforcement mechanism.
The reasoning above soon spread to Regulations (Politi SAS v ministero delle Finanze) and Decisions (Grad v Finanzamt Traunstein), again provided that they were sufficiently precise and unconditional.
Yet, doubt remained as to the application of the principle to directives. A directive is not described as having direct applicability in the same way that regulations are. They are directed at Member States rather than the world at large and are always conditional and dependent upon Member States implementing them within the limits of their discretion. This is in contrast to Treaty Articles which are binding upon Member States in their original form.
The case of Van Duyn v Home Office made the position clear. Van Duyn was a Dutch national who had applied to enter the UK. Her intention was to work for the Church of Scientology. The Home Office refused her entry under Article 39. Van Duyn then sought to rely on Directive 64/221 which provided that permission could only be refused on the basis of personal conduct of the applicant. The Court held that an unimplemented Directive, if sufficiently clear and unconditional, could be relied upon by individuals such as Van Duyn.
However, directives are only directly effective vertically, in that they are only enforceable against the state or an emanation of the state. In Foster v British Gas three criteria for determining whether a body is an ‘emanation of the state’ were laid down, and can be summarised as: provision of a public service; under state control; and, having special powers. The individual thus has no remedy against other individuals provided by the concept of direct effect. The development of the EU legal order was thus open to be furthered even more by individuals.
This development was soon provided for in the form of indirect effect. This is the interpretation of national law by national courts in the light of Community law. It can therefore apply where a directive has been improperly transposed into national law and also to recommendations and opinions issued under EU law.
In Von Colson and Kamann v Land Nordrhein-Westfalen the plaintiff relied on the Equal Treatment Directive in their claim of unlawful sex discrimination. It was held that the directive was not sufficiently precise to guarnnte them a specific remedy of appointment to a post, but nevertheless considered what effect the directive’s aims might have on the interpretation of national law. It was held that it is for the national courts to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law. Thus the courts are required to give indirect effect to directives through interpretation of national law.
Furthermore, in Marleasing SA v La Comercial Internacionale de Alimentacion SA it was held that although there can be no horizontal direct effects, horizontal indirect effect is possible whether the national law was adopted before or after the directive.
A problem with this method of enforcement of individual rights can immediately be seen. That is, where there is no national law to be interpreted in light of the EU provision, the courts will not be able to provide for indirect effect. This problem is potentially cured by final principle of individual enforceability to have been developed by the ECJ in response to individual’s attempting to enforce their rights: state liability.
In Francovich and Bonifaci v Republic of Italy the ECJ held that there exists a right of compensation payable by the state to individuals where three conditions are satisfied: the directive involved rights conferred on individuals; the content of those rights could be identified on the basis of the provisions of the directive, and; there was a causal link between the State’s failure and the damage suffered by the persons affected.
These conditions have been slightly changed by the cases of Brasserie du Pecheur v Germany; R v Secretary of State for Transport, ex parte Factortame Ltd and Others where the second condition was replaced by a requirement of sufficiently serious breach. In these joined cases it was held that whenever a breach satisfied the conditions, state liability could be imposed. This is particularly relevant in relation to the problem of incorrectly transposed directives which are incapable of consistent interpretation by national courts, as state liability will apply to them in the same way as it will to directives which a Member State has totally failed to implement. Furthermore, where a total failure to implement has occurred, this will automatically amount to a sufficiently serious breach (Dillenkofer and Others v Federal Republic of Germany). Additionally, if a court fails to interpret national law in such a way as to give effect to Community law through the principle of indirect effect, the state will be liable under the doctrine of state liability for that action (Kobler).
Thus the principle of state liability provides a wide ranging remedy to individuals attempting to enforce their rights. This could hardly have been imagined by Member States on the basis of the EC Treaty alone, and represents a significant development of the EU legal order, all through the response of the ECJ to individuals. Furthermore, it may be seen as a particularly appropriate remedy, as above for example indirect effect, as it directly punishes the party at fault – the Member State.
In conclusion, public law mechanisms of enforcement, acted by the Commission, cannot provide an effective enforcement mechanism for individuals due to the lack of compulsion to bring a case and the lack of remedy. Furthermore, as the Commission acts under a discretion and subject to wider considerations, it is unable alone to hold Member States to account for all breaches of Community law, even those which individuals would consider to be serious. The lack of cases moving through this process has the effect of prohibiting the ECJ from making efficient developments to EU law.
Political law reform is also a slow process, as it relies on a democratic process involving many Member States. The failure of the Constitutional Treaty is a recent case in point.
The lack of institutional legal reform has left the field wide open for individuals to impact upon the success of the legal order through enforcing their rights. In response, the ECJ has developed the principles of direct effect, indirect effect and state liability to meet their needs. However, it must always be borne in mind that an individual may only enforce the rights which are conferred on them by the democratic process of the EU political institutions. The development of the EU legal order by individuals enforcing their rights is therefore subject to this limitation.
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