SEMINAR 9

ENFORCEMENT OF EU LAW: DIRECT EFFECT AND INDIRECT EFFECT

Learning Objectives

After preparing for and participating in this seminar, students should be able to: • explain the concepts of direct and indirect effect and the development of

relevant case law;• apply these concepts to a given factual situation;• compare the influence of Union and national law as the award of a remedy;• analyse legal and factual information in terms of relevance and importance;

and• structure ideas in an argument and reason logically.

Questions

1. Explain the difference between direct and indirect effect.Direct effect is where provisions of union law are directly applicable on citizens of the EU and which the courts are bound to enforce, even if the state in question hasn’t applied national laws to enforce their provisions.Indirect effect is when the courts have to interpret national law based on badly or unimplemented directives from the EU, see the case of Von Colson and Kamann v Land Nordrhein-Westfalen, where the ECJ ruled that national courts should interpret national law in line with the directive, "in so far as it is given discretion to do so under national law".

2. Explain the difference between vertical and horizontal direct effect.Vertical direct effect is a legal doctrine developed by the ECJ allowing individuals to rely on treaty provisions and directives in actions against the state while horizontal is as above but to allow individuals claims against other individuals in national courts.

3. David works for Pennine Tunnel PLC, a company created to build an underground road/rail link between Manchester and Leeds. It has a compulsory purchase power to acquire land along the route of the tunnel and a licence under Section 1 of the (fictitious) Private Sector Transport & Tunnels Act 1998 to build and operate the proposed tunnel.

(Fictitious) Directive 06/06 provides that any tunnel worker required to work for more than five hours in a tunnel site in any day must be paid three times his normal rate for any time worked beyond this. The Directive also provides that tunnel operators must make facilities, including toilet and shower facilities, available on-site. The deadline for transposition of the Directive was 31 December 2007.

The Private Sector Transport & Tunnels Act 1998 provides that:-(1) employers must provide appropriate hygiene and rest facilities for use by employees engaged in tunnel construction; . . .(5) employees engaged in work in tunnels shall be entitled to be paid twice their normal rate in respect of any time worked by them in tunnels in excess of seven hours per day”.

David was frequently required to work more than five hours per day in the tunnel but Pennine Tunnel only paid him at his normal rate up to seven hours per day and at double time for every additional hour. He has now developed

a serious skin condition which has made him unfit to work and which the company admits was due to the lack of on-site washing facilities.

a) Advise David as to whether he can enforce the Directive against Pennine Tunnel PLC.Clear and precise – YesDeadline for Member State implementation has passed - YesEnforceable ONLY against the State or emanation of the State = “vertical direct effect” - NoSo no he can’t enforce against Pennine as they are not an emanation of the state.

b) Would it make any difference to your answer to a) if the company did not have the powers and licence referred to above but was wholly owned by HM Government?Yes, it would then be the state, and thus enforceable.

Essential Reading

Lecture notesHorspool & Humphreys, 2012, European Union Law, Oxford, OUP, Chapter 7, Parts I, 7.1-7.24 on direct and indirect effect, and 7.94-7.110 on remediesCraig & De Búrca, 2011, EU Law: Text, Cases and Materials, Oxford, OUP, Chapter Chapter 7Marleasing v La Comercial Internacional de Alimentacion 106/89 [1990] ECR 4135Wagner Miret v Fondo de Garantia Salarial 334/92 [1990] ECR 4135

Additional readingVan Duyn v Home Office 41/74 [1974] ECR 1337Foster v British Gas plc 188/89 [1990] ECR I-3313