Analytical Essay on Protecting Rights of Individuals: Role of Direct Effect EU Law

Union Law is built upon several key legal principles, which can be relied upon by individuals to protect against breaches of their fundamental rights by a public body within the Union. In this essay I will discuss these principles and consider how effective they are in safeguarding rights of the individual.

Consistent Interpretation

Arguably the most common principle is that of consistent interpretation. For situations concerning a conflict between a Union and national provision, this doctrine is intended to be the first resort for those seeking resolution and was set out by the European Court of Justice (ECJ) in the cases of Adeneler and Marleasing . This principle attempts to avoid any conflict arising between a national provision and the EU by interpreting national law, as far as possible, with conformity to the EU provision in question. However, the ECJ has recognised that there are limits to the principle of consistent interpretation, namely that it cannot in itself rewrite a national law that does not abide by Union law. Whilst the national provision may be open to different interpretations and one may comply with EU law, the Courts cannot make a Member State adopt a contra legem interpretation of their domestic law in order to comply.

Furthermore, this principle is also limited by general principles of Union law, such as non-retroactivity of criminal obligations, which can be seen in the case of Berlusconi , where it was held that even though Italy was in breach of its Treaty obligations by not making corporate fraud illegal, it could not use this duty to criminalise Berlusconi retroactively.

Finally, in the context of civil law cases between two individuals, Betlem highlights in his article that questions arise as to whose legal certainty should prevail when a directive has not been transposed properly into national law. He points out that when consistent interpretation denies the possibility of an imposition of obligations onto an individual the rights of the other will be affected, and went on to discuss that there would be an imbalance of treatment for those in countries where directives have or have not been transposed . This inequality is indicative that there is not a complete protection of individuals rights.

Direct Effect

Where consistent interpretation is not possible, national court should ask whether Union law is cognisable as a source of law within the national legal system, and if so, the relevant Union act should take priority over conflicting provisions of domestic law. This is known as the principle of direct effect and was confirmed in the case of van Gend en Loos , and allows for enforcement of Union law by an individual through the national courts of a Member State.

For a provision of EU law to have direct effect it has to be clear, precise and unconditional and if there is a deadline for transposition, this must have expired. As seen in the Reyners case, a failure to act by the Member State in implementing a provision does not prevent individuals from enjoying rights that they would have been entitled to, had the provision been passed in time. To an extent, the principle of direct effect can alleviate the earlier issue discussed of disparity between citizens in states where a provision is or is not implemented. Provided that the rest of the provision is clear and precise, it is still able to have direct effect over national law and as such can protect the rights of individuals regardless of their states’ failure to act.

However, direct effect is not always recognised, even in cases where it appears to be similar to a previous case as can be seen in the case of Wiisenbeek . Instead, all provisions have to be considered in the wider context of the law and while it may look like direct effect is appropriate, in practice direct effect will be denied because otherwise it would achieve an irrational or improper result within the wider regulatory context. However, whilst this may appear to go against the idea of an effective system of protection for individuals, in the long-term it provides for a more coherent legal system by refusing to apply a law that would create irrationality.

Moreover, there is clear correlation between direct effect and the creation and enforcement of individuals rights. For example, it is possible to seek judicial review even if your own rights might not be affected by a directive, but you are recognised as having a public or collective interest as seen in the case of Kraajjeveld . The courts held that a provision that is not meant to protect you as an individual can be relied upon, and if an interested party brought an action for judicial review, then the courts should hear it. This is particularly prevalent in Environmental law cases, which is in place to protect everyone.

Nevertheless, there are exceptions as to when direct effect may be relied upon, specifically in relation to who, and this depends on the type of measure of EU law in question. With treaty provisions, they are interpreted on a case-by-case basis by the CJEU, in relation to its individual objectives and effectiveness as can be seen in the distinction between Defrenne v Sabena and Sapod Audic v EcoEmballages – based on the wording of each Article in question, Article 157 TFEU and Article 34 TFEU respectively, one extended to include private bodies and the other did not.

With regards to general principles of Union law and the Charter of Fundamental Rights (CFR) the ECJ has made the controversial decision that direct effect can be relied upon in disputes between private individuals as seen in the case of Mangold . Even though the transition period for implementation for the Directive had not expired, the CJEU held that a claim for equal treatment is available to citizens on a horizontal basis and therefore is unnecessary for the directive to have been implemented. Whilst this has been a controversial development, it can be argued that there is still State involvement. The complaint is about the State’s legislation which governs the relationship between the two individuals and so is not challenging the legality of the other individual but instead of the Member State. The issue here is that it is the other individual that faces the consequences of the ruling and not the Member State. As such, this can be seen to go against the idea of the protection of rights and adversely affects private bodies who otherwise would not be held accountable. On the other hand, it allows for individuals to pursue breaches of their rights even where there is no direct State involvement and allows for a broader protection of their rights in relation to this.

Another example of this can be seen in the case of Bauer , where the challenge was solely related to the conduct of the private company. The decision in this case runs counter to the long-standing assumption that the general principles are only directed towards Member States and raises questions as to whether this applies to all provisions in the CFR or purely in relation to employment and consumer rights. It is unclear whether these are exceptions or whether this is the start of a wider development, and this legal uncertainty creates an unclear environment for individuals.

In Union law directives set out the objectives or principles that the Member States are meant to achieve, leaving it to the discretion of each state how they achieve these. They have a deadline set, within which to achieve them and during this time there is no possibility of direct effect. However, if once the deadline has expired and the State has not taken sufficient steps to implement or has done it badly, there is an estoppel principle which allows individuals to rely on the directive once the deadline has passed. An example of this is the Van Duyn case, where the courts held that the UK could not take advantage of its own wrongdoing of not implementing the directive within the timeframe. This is a clear example of Union principles protecting the rights of the individual, so that they can enjoy the rights that they were intended to.

However, there are issues that arise even after the deadline has expired. As seen in the case of Faccini Dori , even though the court held that the provisions of the directive satisfied all other criteria for direct effect, the fact Italy had not implemented the directive meant that it could not be enforced against a private party. This has led to criticisms of the Court, namely that it undermines the principles of effectiveness and uniformity of Union Law. In Member States where directives are implemented on time, citizens are able to enjoy rights that they are intended to have. Whereas, those states where directives are improperly implemented or not at all, deny their citizens the enjoyment of these rights and instead prove advantageous to private businesses who are not held to these obligations. In the Court’s defence, directives have to be implemented by the Member State and so they should be the ones who should have to address this, however this does not fit with wider case law, such as in Bauer where although addressed to the Member State it still applied to private parties. The Court has been inconsistent with regards to this, which suggests that the system of protection of rights is not fully comprehensive and requires intervention to fix this issue.

Moreover, depending on whether an individual lives in a centralised or de-centralised country adds another layer of arbitrariness as to who can rely on a directive. In decentralised countries where many services are privately owned, individuals may be less able to rely on direct effect as many of the bodies that they wish to challenge are owned by the private sector and therefore cannot have a directive enforced against them.

Whilst for the most part, individuals are unable to impose directives against other individuals there are other means to mitigate this. For example, where a directive is found to merely embody obligations contained in primary Union law as in Brunnhofer , it is possible to impose obligations on a private party. Furthermore, in some cases it is possible to claim damages from a Member State through inability to rely on the unimplemented directive against a private party from Francovich . However, as Marson proves in his article, the first stage of the test is problematic in that it can be unclear what constitutes a ‘sufficiently serious breach’. It was believed that non-transposition was sufficient to amount to a sufficiently serious breach, however in Brinkmann Tabakfabriken GmbH v Shatteministeriet , this was disproved hence showing it isn’t as clear-cut as it would initially appear.

Ultimately, in cases of individuals against a private party or cases where the implementation period is still present, individuals have no protection of rights. It seems unjust that private bodies are able to escape consequence against unimplemented directives and that as a result, the individual suffers. This is indicative that the system is not fully comprehensive in its protection of rights.

Supremacy

If the test for direct effect is passed, the principle of supremacy is required to disapply the conflicting national rules as shown in Factortame . Here, the courts clarified that supremacy does not invalidate national rules, but instead disapplies the rules for individual claimants. The ECJ only requires non-application of the inconsistent national rule , meaning that the rule may continue to be applied to cases where it is not inconsistent. This idea of disapplication is not only expected from the national courts but also national administrative authorities as in Fratelli Costanzo , who are expected to pre-empt the requirement of disapplication so that it does not need to be dealt with by the courts.

There are, however, instances where the Union may authorise a breach of supremacy, or where a State unilaterally decides to ignore supremacy. The former can be seen in Defrenne v Sabena, where a novel interpretation could harm an individual through excessive uncertainty. In decisions such as this, rights of individuals are still being protected, but generally on a larger scale, so while it may seem that the individual is disadvantaged with this decision, it provides a greater protection for a wider group of people.

The issues come from the concept of res judicata, if a court delivers judgement and the individual either does not appeal or runs out of appeal options, this judgement becomes final and can never called into question even if it is wrong in law. The other is that of limitation periods, a time period within which you can complain if your right has been infringed. They are problematic because if an individual does not act quick enough Union law will not be enforced and this could lead to some national laws effectively becoming immune as a result. They effectively extinguish EU right and therefore citizens’ rights to pursue against the specific rights, further highlighting issues faced in the protection of rights.

In conclusion, while the principles set out clear ways of protecting rights of individuals, they are not without fault. The principle of direct effect does not sufficiently protect rights of those who wish to bring action against private parties as discussed and this is something that needs to be rectified if the Union wishes to achieve a complete protection of individuals rights. For example, with regards to direct effect, Betlem argues that because in practice, courts can reach the same result through both direct effect and consistent interpretation that they could instead be applied parallel with one another. This would reduce complexity in the application of the two and thus enhance legal certainty for individuals with regards to conflicts between Union and national law.