Enforcing Rights

There are many criticisms of Britain's membership of the European Union (many unwarranted - some close to hysterical! for an expose of some of the myths press here - for some of the benefits press here).

Normally an International Treaty creates rights for individuals which are unenforceable. In the UK, Parliament would have to pass legislation to turn the "right" into reality. If it fails to do that the 'right' is merely an illusion - only other signatories (that is the other governments who have signed the Treaty) can bring legal action to enforce the right.

Early in the history of the EU (or the European Economic Community) the ECJ recognised a concept known as "Direct Effect". Rights arising from EU law may be enforceable IN THE NATIONAL COURTS if they meet certain criteria.

The first criteria, which apply whether the right arose in a Treaty Article; a Regulation or a Directive has become known, after the case which first established them, as the 'Van Gend Criteria'. Essentially the right must be "Clear, Precise and Unconditional" - not too difficult to show if a particular claimed right meets these requirements.

Directives (and ONLY directives) have two additional requirements, which must be met if the right can be relied upon in the national court

• the date set for the implementation of the directive must have passed (again easy to establish)
• the body being claimed against (the individual or corporate body whose actions have affected the claimant) is "an emanation of the state". In the Foster v British Gas case a claimant would have to show that the body is one "whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals"

If a body fails to meet the criteria there may be two further avenues to pursue

1. Indirect Effect - in the action against the body whose actions have affected the claimant (in the National Court, as above) - the Court may attempt to read the national law to give effect to the right. This interpretation approach can only go so far - it obviously doesn't apply if there is no national law to interpret - or if it would require doing "violence to the language" actually in the national legislation
   
2. State Liability Action. Instead of bringing an action against the body who has directly affected the claimant - an action is brought - again in the national court, against the State. Sometimes this is referred to as the Francovich principle. It is necessary to show

• the rule of law infringed must be intended to confer rights on individuals;
• the breach must be sufficiently serious;
• and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties

Getting remedies in the British courts

Britain's membership of the European Union gives rights which apply to individuals. Normally any 'rights' arising from a treaty are only enforceable by individuals if Parliament legislates to allow the specific right to be actionable.

Early in the development of the EU, the European Court of Justice - in the leading case of Van Gend en Loos (1963), the Court laid down the principle of direct effect. In later cases the court provided further avenues for enforcing rights, should the criteria required for direct effect not be met.

So, when faced with the issue of whether an individual can enforce a right arising in EU Law in the national court - the following steps should be followed-

1. Consider if the right claimed is "clear, precise and unconditional" in the European legislation (Primary legislation - the Treaties; Secondary legislation - Regulations; Directives & Decisions).


2. If the right arises in a Treaty Article or a Regulation - and the answer is yes. There is direct effect.


3. If the right arises in a directive two further criteria must be met:-


4. Consider if the date for the implementation of the directive has passed - a straightforward question. If it hasn't there can be no direct effect.


5. If it has, then you must consider if the body being claimed against is an "emanation of the State". That term is defined in Foster v British Gas - "a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals"


6. If all the criteria are met - then there can be direct effect. If not, then it will be necessary to rely upon


7. Indirect Effect - the national court will try to read (interpret) the national legislation to give effect to the right. That may be possible, without doing violence to the language of the national legislation.


8. Direct and Indirect Effect can be used when the body or person being sued is the body or individual who failed to give effect to the right. If neither can be used, only one option remains. The Government can be sued for "State Liability". This right first arose in the Francovich case.


9. The criteria for State Liability (amended from Francovich) are
   (1) It must be an infringement of a rule of law intended to confer rights on individuals
   (2) There must be a "Sufficiently serious breach" In Dillenkoffer - failure to implement the directive within the deadline set out in that directive would of itself be a sufficiently serious breach. Otherwise the breach must be ‘manifest and grave’ – relevant considerations include

i. clarity and precision of the rule breached
ii. measure of discretion left by that rule to national authorities
iii. whether infringement or damage was intentional or involuntary
iv. whether any error of law excusable or not
v. possible contributory position of EC institutions
vi. adoption or retention of measures contrary to Community law

(3) There must be a causal link between the State's failure and the loss to the claimant