Direct Effect of European Community Regulations

1) The matter at issue include: (a) direct effect of European Community (EC) regulations; (b) direct effect of EC directives; and (b) the principle of state liability. (a) Direct Effect of Regulations Article 249 of the Treaty Establishing the European Community (TEC) state: ‘…a regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’. Thus, a regulation does not have to be implemented by Member States through national legislation for it to be applicable in those states. However, citizens of Member States would be able to directly enforce a regulation in national courts if it satisfies certain conditions, namely, it must be sufficiently precise and unconditional, leaving no room for discretion in implementation[1]. It has been established that citizens of Member States may bring an action against a state or an emanation of a state[2] in national court if that public authority is in breach of such a regulation[3]. This is known as vertical direct effect. Additionally, citizens could bring an action against private individuals in national courts for breach of a regulation[4]. This is known a horizontal direct effect. Considering the facts of the case it seems that the (imaginary) Regulation is directly applicable in the UK courts because it is a Community regulation. Furthermore, it is directly effective in the UK courts because the implementation of the amount of damages recoverable by occupiers of commercial premises who have been physically injured due to mercury contamination of their land does not depend on any conditions; and the rules for determining the amount of damages are sufficiently precise because it would be based on the rules that govern other personal injury claims in the UK. Thus, Martin could bring an action against his local authority. However, such an action is unlikely to succeed because there does not seem to be any breach of the Regulation by any local authority. But Martin could bring an action against Acme Chemicals. Since Martin suffered physically injury from mercury poisoning as a result of mercury leaking from the land of Acme Chemical, there seems to be a breach of the Regulation and thus he would be quite likely to succeed if he brought the action. Thus, it is submitted that Martin would not be likely to succeed if he brings an action against his local authority but he would be likely to succeed if he brings an action against Acme Chemicals Ltd. (b) Vertical Direct Effect of Directives Article 249 of the TEC state that directives are “binding…upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods.” The fact that directives are not described as directly applicable does not mean that are incapable of such effects and it has been held that directives could be capable of direct effect[5]. A directive would be directly applicable if it satisfies the criteria for direct effect: it must be sufficiently precise and unconditional, leaving no room for discretion in implementation[6]. As long as a directive limits the discretionary powers conferred on member states, it would be deemed to be sufficiently clear[7]. And the obligations imposed by that directive would become unconditional, i.e., absolute, once the time limit for its implementation has expired[8]. Thus, if a directive is directly effective then a citizen could bring an action against a public authority for breach of its Community obligations[9]. Moreover, it has been established that an individual cannot enforce a directive against an individual (corporate or otherwise) in the national courts because directive do not have horizontal direct effect.[10] Considering the facts of the case it seems that Martin would be able to enforce the imaginary Directive in the UK courts because it limits the power of the UK by postulating a stipulated amount of damages and by providing strict liability against those who cause injuries due to mercury leaking from their land; and because the Directive had not been implemented by 25 March 2006. Thus, it is submitted that Martin is could bring an action against a public authority for breach of its obligations under the imaginary Directive. However, Martin would be unlikely to succeed because there does not seem to be a breach of any obligation under the Directive by any public authority. Moreover, Martin would not be able to bring an action against Acme Chemicals Ltd because it is a private entity. (b) State Liability The ECJ has established that where a state failed to implement an EC directive it would be obliged to compensate individuals for damages suffered as a result of its failure to implement the directive if: (i) the directive involved conferred rights on individuals; (ii) there was a sufficiently serious breach; and (iii) there was a casual link between the State’s failure to implement the directive and the damage suffered by the persons affected[11]. The ‘decisive test’ or whether a breach is sufficiently serious is whether the institution has ‘manifestly and gravely exceeded the limits of its discretion’[12]. The factors a courts should take into account in assessing this include: the clarity and the precision of the rules breached, the measure of discretion left by the rule to the national or Community authorities, whether the infringement and the damage caused was intentional or voluntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law’[13]. The critical element in this list seems to be the clarity and the precision of the rule breached[14]. Furthermore, it seems that in the context of the transposition of directives, ‘a restrictive approach to State liability is justified to ensure that the exercise of legislative function is not hindered by the prospect of actions for damages whenever the general interest requires the institutions or Member States to adopt measures which may adversely affect individual interests’[15]. However, it should be noted that the ECJ’s approach is not consistent and in some cases a clear breach of community law would be sufficiently serious to establish state liability[16]. Considering the facts of the case it seems that Martin could bring an action against the UK for failing to implement the imaginary directive because:

1. The directive conferred upon individuals who suffered injuries from mercury poisoning the right to bring an action in tort on strict liability theory against those persons from whose land the mercury escaped.
2. There seems to be a sufficient serious breach because the failure of the UK government to implement the directive manifestly exceeds the limits of its discretion. The directive clearly imposes strict liability on individuals if mercury leaks from their land and injuries someone, and states a minimum level of compensation (150,000 Euro). Even though the UK law is identical to the rule in the directive, the courts may find that there was a serious breach because the UK law does not provide a minimum level of compensation. The restrictive approach of state liability may not be applicable here because the UK has not adopted any measure that could provide a minimum level of compensation for injured parties. Additionally, the courts may find the UK responsible on the ground that they had failed to implement Community legislation.
3. However, there does not seem to be any direct causal link between Martin’s physical injuries and the UK Government’s failure to implement the Directive because the Directive could not have prevented Martin’s injuries. Nevertheless, Martin could argue that if the directive had been implemented Acme Chemicals would have been more careful about mercury leakages which could have prevented his injury. However, it is submitted that the courts would be unlikely to accept this line of reasoning.

In conclusion it is submitted that it is quite unlikely that Martin would be able to succeed if he brings an action for damages against the state for failing to implement the Directive because there does not seem to be a causal link between the breach and the injury suffered by Martin. However, Martin would still be able to bring an action against Acme Chemicals under English tort law. 2) The matter at issue includes grounds for direct action for annulment. Action for Annulment The framework for direct action for annulment is set out in Article 230 of the TEC. This Article grants jurisdiction to the ECJ to review the legality of all measures taken by the institutions designed to have legal effect, whatever their form or nature[17]. Thus, a decision made by the Commission is capable of annulment under to Article 230. Furthermore, Article 230 states that a natural or legal person would only have locus standi to challenge a decision addressed to himself or herself. However, the decision has to be challenged within two months of its publication or notification to the plaintiff. If the two month time-limit expires a claimant cannot seek to challenge a measure by the back door, either by invoking Article 241[18] or by alleging a failure to act when the institution concerned refuses to take requested action. Once the courts have decided that the claim is admissible, the case will be decided on he merits. The grounds for annulment are delineated in Article 230. These are: (i) lack of competence; (ii) infringement of an essential procedural requirement; (iii) infringement of the Treaty or any rule of law relating to its applications; and (iii) misuse of powers. A claim based on lack of competence may be brought before the ECJ if the institution responsible for adopting the measure in question did not have the legal authority to do so. A claim based on infringement of procedural requirement would arise if the binding measure was not enacted according to the correct procedure. The correct procedures may be stated in the TEC or secondary legislation. For example, Article 253 of the TEC requires that all secondary legislation must state the reasons on which it is based; and must refer to proposals and opinions which were required to be obtained. It has been established that these reasons must not be too vague or inconsistent; they must be coherent; they must mention the figures and essential facts on which they rely. These reasons must be adequate to indicate the conscientiousness of the decision; and detailed enough to be scrutinised by the court[19]. The purpose of this requirement is to enable the affected parties to defend their rights and to enable the Court to exercise its supervisory jurisdiction. An action for annulment could also arise if the measure is in breach of general principles of law approved by the ECJ (e.g. equality, proportionality), any principle common to the constitution of Member States[20], and principles of international treaties in the field of human rights on which Member States have collaborated[21]. Finally, a measure could be annulled for misuse of power, i.e., use of a power for purposes other those for which it was granted. But a measure will not be annulled for misuse of power if the improper use had no effect on its substance; or it the authorities acted from mixed motives, proper and improper, as long the proper purpose is dominant[22]. Considering the facts of the case, and assuming that the two month time-limit has not expired, it seems that Mediflair would be able to make a direct action for annulment because it was specifically mentioned in the decision. Thus, a claim for an action for annulment would be admissible to the Court. It seems that the Commission may not have exceeded its legal competence because the Commission has the legal authority to make decisions which affect the European market. Since working hours and employment law issues are important aspects of any economy the Decision to reduce doctor’s working hours would be within its legal competence. Additionally, the decision does not seem to be in breach of any rule of law because it seems to be consistent with general principles of law, and international human rights law. Finally, it does not seem to be a misuse of power because there does not seem to be any evidence of improper motives. However, the decision could be challenged on the grounds of procedural impropriety because the Commission did not provide a detailed and thorough reasoning for the decision to reduce the working hours for doctors in private companies from fifty hours to forty hours. Since the Commission did not submit any facts or figures in support of its decision, it would be considered vague; and thus make it impossible for Mediflair to defend its rights. Therefore, it is submitted that Mediflair would be able to challenge the decision and bring proceedings for annulment on the grounds of infringement of essential procedural requirements. In conclusion, it is submitted that Mediflair would most likely be able to bring an action for annulment of the decision to decrease the working hours of doctors in the private sector and would be very likely to succeed. Bibliography Conventions Treaty of the European Community Cases Brasserie du PAªcheur SA v Germany (Cases C-46 & 48/93) [1996] I-1029 Commission v Belgium (Case 156/77) Commission v Council (Re Europe Raod Transport Agreement) (Case 22/70) Courage Ltd v Crehan (C453/99) [2001] E.C.R. I-6297 (Westlaw) Foster and Others v. British Gas Plc (Cases 188-89). Francovich and Bonifaci v Italy (Cases C-6 & 9/90) [1991] ECR I-5357 Germany v Commission (Re Tariff Quotas on Wine) (Case 24/62) Internationale Handelsgesellschaft mbH (Case 11/70) J Nold KG v Commission (Case 4/73) Marshall v Southampton and South West Hampshire AHA (C271/91) [1993] ECR I-4367 (Westlaw). Publico Ministero v Tullio Ratti (Case 148/78) ECR 1269 R v Her Majesty’s Treasury, ex parte British Telecommunications plc (Cases C-392/93) R v Minister of Agriculture, Fisheries and Food, ex parte Hendley Lomas (Ireland) Ltd (Case C-5/94) Van Duyn v Home Office (Case 41/74) [1974] ECR 1337 1

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Footnotes

[1] See Publico Ministero v Tullio Ratti (Case 148/78) ECR 1269 para 23. [2] Emanation of a State includes a body which is 'under the control of the State’: reports to a minister who may give it directions as to its management and activities, has general control over its finances and may require it to pay over to him any of the body's revenue which appears to him to be surplus to its requirements. See Foster and Others v. British Gas Plc (Cases 188-89). [3] See Marshall v Southampton and South West Hampshire AHA (C271/91) [1993] ECR I-4367 (Westlaw). [4] See Courage Ltd v Crehan (C453/99) [2001] E.C.R. I-6297 (Westlaw). [5] See Van Duyn v Home Office (Case 41/74) [1974] ECR 1337, para 12. [6] See Publico Ministero v Tullio Ratti, supra note1, para 23. [7] See Van Duyn v Home Office, supra note 5. [8] See Publico Ministero v Tullio Ratti, supra note 1 at para 43. [9] See Foster v British Gas, supra note 2. [10] See Marshall v. Southampton and South West Hampshire AHA supra note 3. [11] See Brasserie du PAªcheur SA v Germany (Cases C-46 & 48/93) [1996] I-1029 para 50 and 51, see also Francovich and Bonifaci v Italy (Cases C-6 & 9/90) [1991] ECR I-5357 para 40. [12] Ibid. at para 55. [13] Ibid. at para 56. [14] See for example, R v Her Majesty’s Treasury, ex parte British Telecommunications plc (Cases C-392/93). [15] Ibid. at para 40. [16] See R v Minister of Agriculture, Fisheries and Food, ex parte Hendley Lomas (Ireland) Ltd (Case C-5/94). [17] Commission v Council (Re Europe Raod Transport Agreement) (Case 22/70). [18] See Commission v Belgium (Case 156/77). [19] See Germany v Commission (Re Tariff Quotas on Wine) (Case 24/62). [20] See Internationale Handelsgesellschaft mbH (Case 11/70). [21] See J Nold KG v Commission (Case 4/73). [22] See Federation CharbonniA¨re de Belgique v High Authority (Case 8/55).

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