2. Article 249: gives the EU the power to issue
directives.
Directives are binding on Member States: These
are binding as to the result to be achieved, so
Member States should implement them within a
strict time limit. When they are implemented an
individual may rely on the principle of Direct
Effect because they have become national law.
Usual method for implementing directives in the
UK is through delegated legislation.
3. When a MS has failed to implement a directive
the ECJ relied on 2 Types of Direct effect:
Horizontal Direct Vertical Direct effect:
effect: The principle Is the obligation on the
of European law is state to give effect to
enforceable by one that provision so an
citizen against individual employed by
another citizen. the state may enforce
it.
4. Arm of a state: as an arm of the state it
would be possible to use the concept of
vertical direct effect to enforce rights
conferred for an unimplemented
directive (e.g in cases involving a local
authority or a hospital etc.
5. Marshall v Southampton ECJ held: Once the
AHA 1986: Marshall alleged implementation
discrimination. The UK had date had passed,
not implemented the the Directive
Directive and the became directly
implementation date had effective and
passed. Marshall could rely
on it. But the Court
imposed a
limitation that they
would have only
vertical direct
effect.
6. Gibson v East Riding of Yorkshire Council
1999: The Working Time Directive has direct
application in the employment by an
emanation of the state - a local authority,
and an hourly paid part timer was entitled to
four weeks paid holiday by the direct effect
application of the Directive, and irrespective
of any ambiguity or deficit in the regulations.
7. R (Westminster City Council) v Mayor of
London (2002): Westminster Council attempted
to rely on a directive to challenge the
introduction of the congestion charge, its claim
failed, because the directive did not confer
rights upon emanations of the State. Held: An
emanation of the state cannot rely on a
directive against another emanation of the
state. They only give rights to individuals.
8. Connected to the State: A privatised company
may be regarded as an arm of the state where
the state controlled the business recently and
therefore it is still connected to the state. The
courts would consider whether the privatised
company should be regarded as an “emanation
of the state”.
9. Foster v British Gas: An emanation of the state
is “a body, whatever its legal form which has
been made responsible, pursuant to a measure
adopted by the State, for providing a purpose
special powers beyond these which result from
the normal rules applicable in relations
between individuals.”
10. A Private Company: is not connected to the
state and an unimplemented directive does not
have horizontal direct effect; therefore an
individual could not take action to enforce the
law (e.g a circus or a car manufacturer). There
would be the possibility of suing the member
state for compensation.
11. Duke v GEC Reliance 1998: a private employer
retired Mrs. Duke when she reached 60,
whereas men were not retired until 65. Mrs
Duke was not able to rely on an equal
treatment directive because her employer was
a private company.
12. Frankovich v Italy 1992: as a decision of the ECJ
which established that MSs could be liable to pay
compensation to individuals who suffered a loss
by reason of the member state's failure to
implement a directive into national law.
Claimants must prove:
i. That the directive conferred specific rights on
them
ii. Identifiable in its wording
iii. And that there is a causal link between the
state's failure to implement the directive and the
loss suffered.
13. Indirect effect: This is meant to try and bridge
the gap between horizontal and vertical direct
effect, and give citizens more rights! Domestic
courts must always interpret the domestic law
to give effect to directives even if they haven’t
been implemented yet. This means that they
are still acknowledging that the domestic law is
binding, but are reading it in such a way as to
enable the directive to fall within it.
14. SO….
National courts must interpret laws in
accordance with relevant directives
whether they have been implemented
badly or not at all.
15. Von Colson v Land
Nordrhein-Westfalen
(1984): Revolved around
separate claims for equal
treatment based on
reimbursement of expenses
Held: When considering a
badly implemented directive
“national courts are bound
to interpret national law in
light of the wording and
purpose of the directive”
16. Marleasing (1990): When considering an
unimplemented directive national courts are
bound to interpret national law in light of the
wording and purpose of the directive.
