Wednesday, 12 October 2011
The Treaties are "Primary Legislation" - and under them secondary legislation may be made. Article 288 defines the different types of secondary legislation.
"To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be 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.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force."
Rights arising in Euroean Union Law may be enforceable in the national courts. For this to happen they must be capable of "Direct Effect" (not to be confused with Directly Applicable - an attribute of Regulations, which means that no further national legislative action is needed to bring the regulation into national law. Directives, of course, need to be implemented). The Van Gend criteria applies to all types of legislation - the right must be clear, precise and unconditional. Directives require two additional tests to be passed
* the date for implementation must have passed
* the body the right is being claimed against must be "an emanation of the State". The Foster v British Gas case sets out the principles for identifying what an emanation of the State is.
If a right can't be enforced because it fails the criteria for Direct Effect - "indirect effect" may be of help. This principles obliges the national court to seek to interpret the national legislation to give effect to the EU right. Of course sometimes that is not possible - it would do 'violence to the language' of the national legislation to read in the word "not" or change a number (for example the number of months a person must have worked for an employer before he can rely on the right).
If a right can be enforced using Direct Effect or Indirect Effect, it may be possible to sue the national government (in Direct & Indirect Effect cases the person or body whose immediate action has harmed the Claimant - the employer who hasn't given the employer what EU law says they are entitled to - equal pay for work of equal value, for example - is the person sued). The Francovich Principle applies.