Article 249: gives the EU the power to issuedirectives.Directives are binding on Member States: Theseare binding as to the result to be achieved, soMember States should implement them within astrict time limit. When they are implemented anindividual may rely on the principle of DirectEffect because they have become national law.Usual method for implementing directives in theUK is through delegated legislation.
When a MS has failed to implement a directivethe ECJ relied on 2 Types of Direct effect:Horizontal Direct Vertical Direct effect:effect: The principle Is the obligation on theof European law is state to give effect toenforceable by one that provision so ancitizen against individual employed byanother citizen. the state may enforce it.
Arm of a state: as an arm of the state itwould be possible to use the concept ofvertical direct effect to enforce rightsconferred for an unimplementeddirective (e.g in cases involving a localauthority or a hospital etc.
Marshall v Southampton ECJ held: Once theAHA 1986: Marshall alleged implementationdiscrimination. The UK had date had passed,not implemented the the DirectiveDirective and the became directlyimplementation date had effective andpassed. Marshall could rely on it. But the Court imposed a limitation that they would have only vertical direct effect.
Gibson v East Riding of Yorkshire Council1999: The Working Time Directive has directapplication in the employment by anemanation of the state - a local authority,and an hourly paid part timer was entitled tofour weeks paid holiday by the direct effectapplication of the Directive, and irrespectiveof any ambiguity or deficit in the regulations.
R (Westminster City Council) v Mayor ofLondon (2002): Westminster Council attemptedto rely on a directive to challenge theintroduction of the congestion charge, its claimfailed, because the directive did not conferrights upon emanations of the State. Held: Anemanation of the state cannot rely on adirective against another emanation of thestate. They only give rights to individuals.
Connected to the State: A privatised companymay be regarded as an arm of the state wherethe state controlled the business recently andtherefore it is still connected to the state. Thecourts would consider whether the privatisedcompany should be regarded as an “emanationof the state”.
Foster v British Gas: An emanation of the stateis “a body, whatever its legal form which hasbeen made responsible, pursuant to a measureadopted by the State, for providing a purposespecial powers beyond these which result fromthe normal rules applicable in relationsbetween individuals.”
A Private Company: is not connected to thestate and an unimplemented directive does nothave horizontal direct effect; therefore anindividual could not take action to enforce thelaw (e.g a circus or a car manufacturer). Therewould be the possibility of suing the memberstate for compensation.
Duke v GEC Reliance 1998: a private employerretired Mrs. Duke when she reached 60,whereas men were not retired until 65. MrsDuke was not able to rely on an equaltreatment directive because her employer wasa private company.
Frankovich v Italy 1992: as a decision of the ECJwhich established that MSs could be liable to paycompensation to individuals who suffered a lossby reason of the member states failure toimplement a directive into national law.Claimants must prove:i. That the directive conferred specific rights onthemii. Identifiable in its wordingiii. And that there is a causal link between thestates failure to implement the directive and theloss suffered.
Indirect effect: This is meant to try and bridgethe gap between horizontal and vertical directeffect, and give citizens more rights! Domesticcourts must always interpret the domestic lawto give effect to directives even if they haven’tbeen implemented yet. This means that theyare still acknowledging that the domestic law isbinding, but are reading it in such a way as toenable the directive to fall within it.
SO….National courts must interpret laws inaccordance with relevant directiveswhether they have been implementedbadly or not at all.
Von Colson v LandNordrhein-Westfalen(1984): Revolved aroundseparate claims for equaltreatment based onreimbursement of expensesHeld: When considering abadly implemented directive“national courts are boundto interpret national law inlight of the wording andpurpose of the directive”
Marleasing (1990): When considering anunimplemented directive national courts arebound to interpret national law in light of thewording and purpose of the directive.