Direct Effect EU Law: The Case Of Jake And Luke, The Case Of Van Duyn V Home Office

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When considering the implications which are affecting Jake and Luke, in must be take into account that both cases involve the application of direct effect and indirect effect and the involvement of state liability if necessary.

The definition of Direct effect is referred to as a “principle of EU Law which holds community law directly effective” which subsequently means that EU nationals are entitled to duties and rights which are enforceable in national courts. This was first established in the case of Van Gend En Loos to provide enforcement, such as stated in Article 258 TFEU, so the Comission could bring actions against MS who had breached EU Law.

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Reviewing the facts stated in the case of Jake and Luke, it shows that The UK government chose to enofore the Labototy Safety Act 2002 instead of the EU directive (2016/567). It is clear to see that in both circumstances National Law seemed to be insufficient in providing enough support for a claim in comparison to if EU law was used instead. A Directive is binding on a MS and The UK failed to implement the Directive into national law. As the national law of this MS does not cover conditions of the directive, both Jake and Luke may be able to argue that direct effect should be considered as it is their right as an EU Citizen.

To do so the case of Van Duyn v Home Office has to be taken into account as it states that Directives are capable of Direct effect if it achieves the appropriate conditions. In order to satisfy the first condition both Jake and Luke must prove that Directive 2016/567 is able to provide “clear identifiable rights to the induviduals” as stated in Defrenne v SABENA. This Directive would qualify as it does provide the criteria for both Jake and Luke. In the case of Jake it allows him to be paid accordingly for his overtime, meaning he receives no less than three times the normal hourly rate. Next in the case of Luke it would prevent any further health complications as the appropriate speciality training would be provided. The second condition which needs to be accomplished involves a timeframe which is described in the case of Pubblico Ministero v Ratti stating “direct effect is only permissible once a directive has surpassed its transposition date” . The deadline give for Jake and Luke was 31st December 2017. As the MS inists on using legislation from 2002, it can be inferred that the deadline for implication has passed, meaning that the second condition is also met. The Final condition questions whether the Directive can be “enforce only against the state” which is discussed in the case of Marshall v Southampton & SW Hampshire AHA stating “a directive may not of itself impose obligations on an individual”. Meaning that directives are only vertically directly effective and weakens the argument that directives can’t have horizontal direct effect. This also displayed it the case of Kamplemann 1997 it which said “[46]..a directive…may…be relied on against organisations and bodies which are subject to the authority or control of the state”. This is encapsulated in a test developed during the case of Foster v Gas , in which an individual was suing Gas who were at that time deemed a nationalised industry. The ECJ in the case, tried to provide an explanation to what an emancipation of the state was. The three-part test questioned whether: “it provided a public service, if so was it doing so under state control? and if they were given any special powers” .

Jake works for the NHS, which is considered a Public Service, and is run by the government which make it state run and also is regarded to have special powers beyond those which result from normal rules and can be applied to relations between individuals. As Jake is able to fulfil all the stages discussed it means he is able to prove Direct Effect. Jake will be able to invoke The Directive against the NHS, his employer, in national court. The court must the use the necessary measure to apply the provisions displayed by the Directive and remove the previous provisions put in place by the Laboratory Safety Act 2002.

On the other hand, Luke works for ScienceLab Plc, which does qualify as being a public service as it is a public limited company and has offered shares to the general public. This was also agreed in the Vassallo Case C-180/04 in which it was a governed Italian hospital who had PLC funding was deemed by the court to be part of the state. However, it does not achieve the second part of the test as it is not state run as it is a publicly held company whose “ownership is dispersed among the general public” . It also doesn’t qualify to contain any special powers, meaning that he fails the test presented in Foster and proves his claim is not vertically directly effective. In turns this means he has failed to meet the final condition set in Marshall and can’t further claim that the directive has a horizontal direct effect.

Luke may be able to enforce his rights under the directive by virtue of the principle of indirect effect. In the case of von Colson v Land Nordrhein- Westfalen it establishes that in the case of horizontal effect not being established that a member state should instead interpret the appropriate national law in accordance with the necessary EU Law. Allowing Jake to enforce an EU Law against his employer in national court. However it could be argued that Luke may be unable to rely solely on a provision of EU Law as direct effect was not established. The CJEU in this case stated that the “courts of member states should consider the requirements presented in the directive when applying to national law”, meaning that the effect of the directive should still be considered even if it is not directly effective. EU Law is supreme to that of national law so if national courts fails in doing so the cases of Marleasing (C-106/89) and Koplinghuis (80/86) should be applied. These reimplement and state the general obligations that all members states took under Arts 4(3) TEU and 288 TFEU to act in accordance and comply with EU Law. In Marleasing, it was when analysing the principle of indirect effect that it was court made the judgement that it would still apply regardless of “whether the national provision pre-dates the EU Provision” . This would be useful in supporting Luke’s case as the indirect effect cant still be applicable as the national legislation being used by the MS has not be changed and predates the release of the Directive. Meaning that indirect effect could be argued in place of direct effect as even though the Act predates the Directive is inconsequential. However, in Marleasing, it was also stated the duty required by the national courts of consistent interpretation may not always be applicable, depending on the circumstances. This is displayed in the case of Wagner Miret where it was said “harmonious interpretation may not always be possible” . This goes in turn with the case of Pupino, in which The CJEU used the term “Contra Legem”. Meaning ‘contrary to the law’, this helped to get a better legal understanding on how far the national courts were willing to go in order to integrate EU Law without going against their national legislation. When applying ‘Contra Legem’ to Luke’s Case it is difficult to know whether the national court will interpret the EU law of the Directive within the national law residing in the Act. Since there is little knowledge on the current legislation within the Act, however it would be very likely that the national court would have no difficulty in being more specific in regard to health and safety training. As it would be easy to add compulsory training in developed handling techniques for toxic substances. In conclusion, this means that Luke could rely on indirect effect to establish a claim against his employer regarding the health and safety provisions included within the Directive.


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