EU Law: Direct Effect, Indirect Effect And State Lability (Case Study)

downloadDownload
  • Words 2089
  • Pages 5
Download PDF

There are three main principles under EU law that may assist Gunilla in gaining access to ‘free language lessons’ for her daughter Malin in line with (Imaginary) Directive 2018/124. Those principles are as follows: direct effect, indirect effect and state liability, when taken in combination all seek to ensure “individuals are given the greatest possible level of protection before their national courts”. A directive is: “a legislative act that sets out a goal that all EU countries must achieve. However… the individual countries… devise their own laws on how to reach these goals”. For example, in the case at hand, the UK felt that the National Curriculum was enough to encompass the requirements of the (Imaginary) Directive and so did not enact anything further. According to Article 288 TFEU, a directive is, “binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.” The element of discretion given to Member States allows for leeway in implementation. However, Member States are under obligation to guarantee that the directive is achieved as the EU intended it to be. When a Member State wrongly implements or fails to implement a directive; the Member State or emanations of that Member State may be liable for legal action, “If national authorities fail to properly implement EU laws, the Commission may launch a formal infringement procedure against the country in question.” in line with this “formal infringement procedure” the penalty imposed upon the Member State may be a financial one.

Concerning the present scenario, it is evident that the UK failed to implement the (Imaginary) Directive 2018/124 within the time prescribed by the EU; as in the case of Ratti. The UK “believes the national curriculum… is more than sufficient to encompass the requirements of the Directive”. Though the national curriculum may indeed meet the standards required by the directive, it can be seen that there are two fundamental flaws at this point of failed implementation. The first being that the national curriculum is only applicable to state schools in England and as such the likes of Scotland and Wales do not have to follow what is set out within the remit of the national curriculum and as a consequence have more freedom over their teaching content. Secondly and more poignantly, academies although they “receive funding from central government, rather than a local authority” are “independent schools”, as a result they have “more freedom… and can opt out of the national curriculum” on the condition the lessons are “broad and balanced”, this new type of school was introduced by the Learning and Skills Act 2000. It may be argued that due to Malin being enrolled at the ‘Haringay Hotspur Community School’ (an academy) she may not receive that same quality or content of English lessons as an eleven year old enrolled in a traditional state school in England which follows the national curriculum.

Click to get a unique essay

Our writers can write you a new plagiarism-free essay on any topic

As academies are “directly accountable to the Secretary of State for Education” and so can be seen as falling under the sphere of ‘state educational system’ had the directive been properly implemented, Malin should have received extra English lessons for free and not at a rate of £25 per hour as suggested by her school.

It may be argued that direct effect is one of the most important principles within the EU, being described previously as one “the essential characteristics of the Community legal order’, which expresses the priority of protecting the rights of the individual within the EU. The principle of direct effect is not set out within any treat but contained within the case of Van Gend. In order for something to be directly effective the criteria of Van Gend must be satisfied. The EU provision must be clear and precise, be unconditional and not dependent on any national implementation measures. In the scenario at hand, it can be argued that the (Imaginary) Directive 2018/124 is clear in the rights to which it seeks to impose on individuals, that right being ‘free language lessons’ and precise as to whom those rights will apply. The directive may not be seen as being unconditional as there is room for discretion upon national implementation of the part of the Member State. Therefore it is likely that the case at hand would not satisfy the Van Gend criteria.

Although Article 288 TFEU states that only regulations shall be “directly applicable in all Member States” the case of Grad, contradicts this provision as the CJ found that a directive can be directly effective. There are two types of direct effect available to Gunilla, those are vertical and horizontal. Stemming from this principle, the case of Ratti sets out that obligations from directives will only arise after the time for implementation has passed. As a result a directive will only have the ability to be directly effective after this date.

The use of vertical direct effect and directives is demonstrated in the case of Van Dyun and is applicable where there is a relationship between EU Law and national law, in this case the (Imaginary) Directive. In line with the ruling of the case of Foster, the action must be taken against an “emanation of the state”. Applying this notion to the scenario it could be argued that ‘Haringay Hotspur Community School’ satisfies the criteria even though it is an academy, it will receive funding from central government and as such can be seen as a public body, and as previously outlined is directly accountable to the secretary of state for education, therefore any action in this capacity would be against the Department for Education and not the school itself. However as the directive has not actually been implemented by the UK it is more likely than not that Gunilla will not be able to rely upon direct effect in this way, despite meeting other criteria.

The other branch is horizontal direct effect, this usually concerns the relationship between individuals, including companies. Usually directes are not capable of being horizontally directly effective, due to there being no requirement for directives to be published, horizontal direct effect in this capacity is widely regarded as being unfair. If Gunilla intended to bring a claim against ‘Haringay Hotspur Community School’ under the (Imaginary) Directive 2018/124, due to the lack of implementation into national law, it is unlikely they would know Mailin is entitled to free tuition under EU law. The case of Marshall states “that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person”. When applying this to the scenario at hand, it can be seen that in this instance, horizontal direct effect cannot be relied upon by Gunilla.

All Member States of the EU are required to interpret national law in such a way that is compatible with provisions of EU law. Where a Member State either incorrectly implements or entirely fails to implement a directive into national law the principle of indirect effect will be applicable. In the scenario, iIndirect effect is set out in Von Colson and available where courts are interpreting national law that conflicts with a directive in the same area. In this instance, the national curriculum is in conflict with the (Imaginary) Directive 2018/124. Where a Member State either incorrectly implements or entirely fails to implement a directive into national law the principle of indirect effect will be available. The overall scope of indirect effect was considered in Marleasing, providing that national courts must “as far as possible” interpret the law in light of the intention of the directive. In the present scenario, a national court would likely, by way of indirect effect, find that Malin should be in receipt of free additional English tuition as the (Imaginary) Directive provides:

‘children of citizens of the European Union, who work in a Member State other than that of which they are nationals, receive free language lessons in the language of the host Member State’

As Sweden signed the Accession Treaty and joined the EU in 1995, it meets the definition of a Member State, therefore Malin should be receiving free English lessons, in line with the (Imaginary) Directive; regardless of whether she is struggling with the language or not. The case of Webb demonstrates the UK response to indirect effect and found that the meaning of national law cannot be twisted. Gunilla’s fears that her present levels of English may have a ‘detrimental effect upon Malin’s education’ should not be a factor in whether Malin receives free tuition. By applying the principle of indirect effect as set out above it is more likely than not that a national court would rule in favour of Gunilla as the national curriculum (present national legislation) aims to provide that “Pupils should be taught to speak clearly and convey ideas confidently using Standard English”. For the national court to rule in favour of the (Imaginary) Directive, it would not be distorting the current legislation.

The supremacy of EU law is accepted in both principle and practice. The introduction of the European Communities Act 1972 which allowed for European law to take precedence over national law, without any further implementation being required. The case of Costa advances the notion of European Union supremacy as when Member States sign the treaties they give up a certain amount of their sovereignty to the EU, “created its own order which was integrated with the national order of the member-States the moment the Treaty came into force; as such, it is binding upon them”. As a consequence where national law conflicts with EU law, the EU law will take priority over the two. Within the context of the scenario this aspect is highlighted where the Court of Justice has ruled the ‘UK were in violation of the Treaties in failing to implement the (Imaginary) Directive’. As a direct result of the UK being in violation, the EU has the ability to enforce penalties on the UK for failing to implement the (Imaginary) Directive.

Although it has been argued state liability is made explicit within Article 4(3) TEU, the doctrine of has been developed by the European Court of Justice. State Liability seeks to provide a remedy where neither direct or indirect effect can be used in order to take action against the state for a particular failing or non-compliance with supreme EU law. This doctrine has developed over time from the case of Francovich which held the State may be sued where there has been “a breach of EU law… attributable to the Member State… which causes damage to an individual”. Applying this principle to the scenario, it is clear that where the UK failed to implement the (Imaginary) Directive, has breached EU law by not meeting the standard required. As it was the fault of the UK and no other Member State responsible for the non-implementation, therefore is attributable to the UK. Finally damage has been caused to both Malin and Gunilla – so far as Gunilla has been expected to finance her daughters’ English lessons at a rate of ‘£25 per hour’, moreover Malin has suffered in an educational capacity i.e. not up to the standard of English she should be. Arguably as all three elements of the Francovich principle have been satisfied Gunilla should be able to claim compensation from the state before a national court. Furthermore, as the doctrine of state liability can also apply in instances where a directive has been incorrectly implemented, it is likely that Gunilla would have more chance of success by pursuing a claim through state liability than any other channel. The later case of Brasserie du Pêcheur further extended the context of state liability to any breach of EU law that was classified as “sufficiently serious”. The seemingly wide approach taken by the courts can be argued as demonstrating the willingness for errors of the state to be remedied in this manner.

Overall, it has been demonstrated that out of the three possible paths available to Gunilla, the two most likely to have success would be indirect effect or state liability. Although there could be a successful claim through the use of vertical direct effect, it is likely to fall at the last hurdle, as directives, require implementation by each Member State. As previously demonstrated the principle of horizontal direct effect cannot be used under these circumstances and it is likely a court would find an academy to be an “emanation of the state”.

image

We use cookies to give you the best experience possible. By continuing we’ll assume you board with our cookie policy.