EU Law

European Union Law is - [by virtue of Parliament's will expressed in the European Communities Act 1972 (note especially s2(1); s3(1)) - which of course, should any future Parliament so resolve - be rescinded] - as much a part of English Law as any Statute, Statutory Instrument, or precedent.

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.

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