Podcast: the Fair
Critically consider the means though which the European Union has clarified and developed the status of its laws within the legal systems of its Member States.
Podcast: the Fair
In order to make the impact of EU law clearer, the Court of Justice (ECJ) has developed two important principles which have become known as the ‘Twin Pillars upon which the Community rests’. These principles are known as supremacy and direct effect.(1) Unlike the 'excellent' essay, the introductory paragraph fails to attempt to put the question into context by explaining why it is so important to be clear about the status of EU law on the legal systems of its Member States. It does, however, introduce the principles of supremacy and direct effect, albeit briefly, thereby demonstrating that the central principles necessary to answering the question have been analysed.
In regard to the supremacy of EU law, in Case 26/62, Van Gend en Loos (Van Gend), Mr Van Gendhad imported a quantity of chemicals from Germany into the Netherlands and was required, by Dutch law, to pay customs duty to the Dutch authorities. The importers were unhappy about paying this customs duty and claimed that it went against Art 12 EC, which provided that customs duties levied on goods moving between Member States were prohibited. The Dutch tribunal sent the question to the ECJ under the preliminary reference procedure and the Court explained that Community (now Union) law was a ‘new legal order of international law’.
In Case 6/64, Costa v ENEL the ECJ went further. Italy had nationalized its electric industries and a lawyer named Mr Costa, who owned shares in one of the electricity companies which had been nationalised, claimed that the way in which the company had been nationalised was against EU law and protested by refusing to pay his electric bill. An Italian court referred the case to the European Court of Justice in order to clarify the question and the European Court of Justice explained that EU law must take precedence over national law, even where the national law had been enacted after the conflicting EU law. This ruled out the possibility of later national law taking precedence over European law under the concept of ‘implied repeal’ (i.e., a process recognised under UK law whereby later law will always be presumed to have automatically repealed any conflicting earlier enacted law). (2) The second and third paragraphs demonstrate the student's knowledge and understanding of the doctrine of supremacy. The information provided is, however, far more descriptive than that provided in the 'excellent' essay, relying a little too heavily on the relatively irrelevant facts of the cases, rather than providing evaluative discussion of principle and its development by the Court of Justice.
With regard to the principle of direct effect, the ECJ stated the principle in the case of Van Gend en Loos. As explained above, Mr Van Gendhad imported goods from Germany into the Netherlands and was required by Dutch law to pay customs duty. In order to arrive at its decision in Van Gend, the Court looked at the wording of the EEC Treaty and also considered what the EEC had set out to do. It came to the conclusion that EU law ‘conferred both rights and obligations on individuals, as well as on Member States’. The European Court also said that national courts could decide cases that were based on European law. In other words, the ECJ provided that EU law has direct effect, meaning that it gives rights and obligations to individuals as well as states and that such rights and obligations should be enforced in the national courts of the Member States. However, it also stated that EU law will only have direct effect if it can comply with certain criteria known as the Van Gend criteria. The criteria are that EU law must be (i) sufficiently clear and precise, (ii) unconditional (iii) not subject to any further implementing measures. (3) The fourth paragraph demonstrates the student's knowledge and understanding of the doctrine of direct effect, but again is far more descriptive than that provided in the 'excellent' essay.
However, things were not as straightforward as they may seem. In Case 43/75, Defrenne v Sabena, a stewardess named Gabrielle Defrenne worked for an airline called Sabena. The airline paid her less than the male stewards who did the same work as she did. Ms Defrenne complained that this was against EU law, in particular, the rule that says that men and women must get equal pay for equal work. In Van Gend the law contained in the EC Treaty had been enforced against the Dutch state but as Sabena was not part of the State but a private company, this meant that the ECJ had to consider whether EU law could also be enforced against a private party. The ECJ said that EU law could be enforced against both a Member State, which is called vertical direct effect, and also against a private party, which is called horizontal direct effect.
Next the ECJ had to decide whether only Treaties have direct effect or whether other sources of European law, such as regulations and directives, could also have direct effect. In Case 9/70, Franz Grad, the Court provided that regulations could have direct effect provided that they are able to fulfil the Van Gend criteria. The Court also said that regulations can be enforced both against the Member States, that is, vertical direct effect, and against private individuals, that is, horizontal direct effect.
The issue of whether directives can have direct effect is far more complicated. This is because directives need to be implemented into national law by a state’s legislative body before taking effect and so should not need direct effect. However, sometimes Member States forget to implement directives or implement them incorrectly into national law, and the question then is whether or not the directive can be used to give rights and obligations. In Franz Grad and Van Duyn the ECJ said that directives may, indeed, give rise to direct effect. Again the Van Gend criteria have to be satisfied - but there is an extra criterion to be satisfied before a directive can be enforced under direct effect, that is the date on which the directive was meant to have taken effect must have past. This rule was set out by the ECJ in Case 148/78, Pubblico Ministero v Ratti.
This was not the final issue that the ECJ had to settle. In Case 152/84, Marshall the ECJ were asked to consider whether a directive could be enforced against a private individual. In the Marshall case, Miss Marshall wished to enforce rights emanating from the Equal Treatment Directive (Council Directive (76/207/EEC)) against her employer, Southampton and South West Hampshire Area Health Authority. She attempted to do this in the national court or the employment tribunal. The employment tribunal again made a preliminary reference to the ECJ asking whether she could rely on the directive. The Court replied that she could do so, as her employers were a state body (vertical direct effect). They explained that if she had been employed by a private body, she would not have been able to enforce her rights.
This last requirement had the unfortunate effect of discriminating between individuals who wish to enforce rights against a state, as compared to those wishing to pursue the same rights against an individual. The Court attempted to mitigate such discriminatory effects by providing a wide interpretation of ‘state’ and in Case C-188/89, Foster v British Gas, and provided guidance by explaining that a directive may be relied upon against ‘state emanations’, that is, organisations or bodies that have been made responsible for providing a public service, and/or are subject to the authority or control of the State, and/or have special powers beyond those which result from the normal rules applicable to relations between individuals. (4) Paragraphs five and nine are pleasing in that they clearly show understanding of how the principle of direct effect has been developed and expanded through further judgements of the ECJ. The use of legal authority gives the essay weight and provides the reader with confidence in the discussion given by the writer.
Because directives can only be enforced against a Member State, this means that sometimes directives are unenforceable. In Case 14/83, Von Colson, the European Court of Justice tried to put this right by developing another principle. This principle is known as indirect effect and provides that a national court is under an obligation to interpret national law in line with the directive in an attempt to give the directive effect through the national law.
In Cases C-6 and 9/90, Francovich and Bonifaci v Italy, the Italian government had failed to properly implement a directive. The directive required the Italian government to set up a fund to compensate workers in the event of the insolvency of their employers. The Italian government failed to do this and when Mr Francovich’s employers became insolvent, he was unable to recover the wages due to him. The ECJ held that the Italian government had not complied with its EC obligations, and was liable to pay damages to Mr Francovich because of this. Consequently, it is now held that should a Member State fail to incorporate a directive into national law, an individual who suffers damage as a result may claim compensation from that state. In Case C-46 & 48/93, Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport ex p Factortame Ltd, the Court went further providing that damages may also be available in situations where a Member State had failed to fulfil obligations derived from other sources of Union law, although certain criteria must be fulfilled before damages will be available, namely (i) the rule must confer rights on individuals, (ii) the breach must be sufficiently serious, and (iii) there must be a direct causal link between the breach and the damage caused. (5) Paragraphs ten to twelve demonstrate that the student is aware that the ECJ has developed further principles that remedy some of the 'gaps' found in direct effect.
The EU Treaty gives relatively little guidance as to the relationship between national and Union law. Fortunately the Court of Justice was prepared both to explain that European Union law is supreme and has direct effect and also to develop the principles of indirect effect and state damages. (6) The final paragraph makes a reasonable attempt at bringing together the various threads found in the main body of the answer although it is not quite as focused towards the specific question set as the 'excellent' essay. As is appropriate in a conclusion, it doesn't attempt to introduce any new information. (7) This essay demonstrates the requirements of a competent piece of work. It shows that the writer has thought about the topic, has understood the issues and has a sound grasp of those most relevant to the question set. It is generally coherent and well written, with an appropriate structure, namely an introduction, discussion of relevant principles and conclusion. It contains an accurate account of the law and is supported by legislation and case-law. Overall, it is less sophisticated than the 'excellent' essay in that it has less supporting authority, uses less formal language and provides unnecessary description to the detriment of evaluative discussion.
Bibliography
A bibliography, appropriately structured and referenced should be provided.