Deadlines for implementation

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Date added: 17-06-26

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Question 1 (a) This question concerns the UK’s failure to implement Directive 2006/2001 by the deadline for implementation, which was 31 July 2008. The Directive would have limited the amount of chemical ABC in local groundwater. (i) Local residents have complained of a bad small and seek redress. (ii) Local gardeners have become ill due to high levels of chemical ABC and also seek redress. This question raises the issue of whether a Member State can be held liable for failure to implement a Directive on time. The case of Ven Gend en Loos[1] established that Community law takes supremacy over national law. This was repeated in Costa v ENEL.[2] Therefore, the terms of the Directive cannot “be overridden by domestic legislation, however framed.”[3] Article 249 EC states that Directives are, “binding as to the result to be achieved, upon each Member State.” Therefore, in Van Duyn, the ECJ held that Directives could have direct effect and could be relied upon directly by individuals in litigation.[4] In Ratti the ECJ held that “a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the Directive entails.”[5] The reasoning here is quite simple. The ECJ first found that Directives took precedence over national law. It then held that they were binding on Member States and could have Direct Effect. The effect of this is that the residents will be able to hold the terms of the Directive against the Government, who failed to implement it on time.[6] However, they will not be able to hold the terms of the Directive against Fattenem. This is because Fattenem has simply been operating as best it could under the UK law of the time. This is because of the reasoning applied by the ECJ in Marshall, where it stated “the binding nature of a Directive exists only” against Member States. The Directive was addressed to the UK Government, not to Fattenem, and therefore creates no legal obligations on Fattenem. However, according to Von Colson[7] UK courts would look at the case, and at national law, in light of the Directive. This is known as the indirect effect of Directives.[8] If national law could be interpreted in a manner that would cause it to comply with the Directives, using the accepted methods of statutory interpretation available to UK courts, then the courts are under an obligation to give the national legislation such an interpretation. However, it is suggested here that the residents and gardeners are far more likely to be successful using the Directive directly against the Government rather than seeking to use it indirectly against Fattenem. Relying on the Directive against the Government, the residents and gardeners will be able to seek financial compensation from the Government. In Francovich[9] the ECJ held that “the full effectiveness of Community rules” requires that litigants be able to seek compensation from a Member State in situations where they have suffered a loss as a result of a failure to implement a Directive.[10] When seeking compensation from the Government however, it may well be the case that the gardeners and the other residents are not in exactly the same boat. As we have seen, the gardeners have suffered illness due to the Government’s failure to implement the Directive, whereas the other residents have only been subjected to a bad smell. As the ECJ stated in Francovich, “the result prescribed by the directive should entail the grant of rights to individuals…[and] it should be possible to identify the content of those rights.” After such rights have been identified, “the existence of a causal link between the breach of the State’s obligations and the harm suffered by the injured parties” must be established. The harm suffered by the gardeners is clear and quantifiable. It would also be fairly easy to establish that the Directive was intended to grant a right to the protection of health from the chemicals concerned. However, a right not to smell the chemicals might be more difficult to establish. It also is not certain that compliance with the Directive would have removed the smell of the chemicals, or merely removed their ability to endanger health. Therefore, in conclusion, I would advise that the gardeners stand a good chance of seeking compensation from the UK Government for its failure to implement the relevant Directive, based on the direct effect of the Directive. I would not advise them to seek compensation from Fattenem based on the indirect effect of the Directive. Furthermore, I would warn the wider residents, who did not become ill from the chemical, that they would find it difficult to establish a right not to smell chemicals, in the Directive, and furthermore, they might find it difficult to establish a causal link between the smell and the Government’s failure to implement the Directive. Question 1 (b) The second part of the question relates to a Directive that the UK Government has implemented but has implemented inadequately. This is because, while the Directive calls for compulsory controls on chemical XYZ, the Government has established voluntary controls. The residents and gardeners are now saying that this voluntary regime has caused them to suffer from poisoning from XYZ. The situation here is very similar to that described above. As Article 249 EC states, Directives are binding “as to the result to be achieved.” Directives do not prescribe actions or methods of regulation to Member States, they only prescribe results. Article 249 goes on to state that Directives “leave to the national authorities the choice of form and methods.” It is not therefore by taking measures that a Member State complies with a Directive, it is by achieving results. We have seen in this case study however, that Directive 2002/2006 does specify that a compulsory testing regime must be put into place by each Member State by the deadline for implementation. The UK has not done this. Therefore, just as in the scenario above, it has failed to properly implement the Directive. The residents and gardeners will be able to bring an action against the UK Government for its failure to implement the Directive completely. In this case it will be even more important that the issue of causation is looked at properly. It will be necessary to show that Fattenem is in fact abusing the voluntary regime and that it would have acted differently had the Government adopted the compulsory testing regime. This type of investigation would for example, take into account the effectiveness of a compulsory testing regime and it might well be the case that under the compulsory testing, it would still take time for Fattenem and similar operators to reduce their output of XYZ. It will also be necessary for the residents and gardeners to show that the ill effects they are suffering are in fact due to chemical XYZ and are not due to chemical ABC or some other cause. The other area where it will be difficult to hold the Government to account is the statement from the Francovich case[11] in which the Court held that “the result prescribed by the directive should entail the grant of rights to individuals,” and furthermore, that “it should be possible to identify the content of those rights.” The question is sure to arise of whether or not a the establishment of a compulsory testing regime for chemicals is designed to grant rights on individuals. It appears as if individuals have nothing to do with such an arrangement and are merely an indirect beneficiary of the result of such compulsory testing. It is questionable in this case therefore, whether Directive 2002/2006 creates legally enforceable rights which the residents and gardeners of the town will be able to enforce. However, their position is still quite strong since they are clearly being affected by the failure of the company to monitor its output of XYZ. Arguments similar to those put forward below in relation to standing and individual concern would be put forward and the discussion below will be of use in this respect. Question 2 This question relates to the ability of the UK Government to challenge a Community act under Article 230 EC. It also concerns the ability of the Sheep Farmer’s Association (SFA) to challenge a Community act on the ground that they are individually effected by the act. Article 230 allows the ECJ to rule on the “legality of acts adopted” by the European Community which are “intended to have legal effect”. The Court can strike down any law that it believes does not comply with the requirements of the Treaties. Under Article 230(2) EC, the UK is a privileged applicant and can therefore challenge any act of the EU Institutions. Decisions are specifically permitted to be challenged. The grounds on which the Court might annul the decision above, as set out in Article 230 are that the Community lacked competence to legislate, that the Community breached an essential procedural requirement when making the decision, or that the decision breached the fundamental principles of community law or was an abuse of power. The ground on which the UK Government will be challenging this Decision is on procedural grounds. The Community adopted a procedure that required Qualified Majority Voting (QMV). However, the UK is of the belief that the correct procedure would have required unanimity. The Court would look at this claim from the UK and decide if the Community made the Decision based on the correct Treaty provisions and used the correct legislative procedure. The SFA is not a privileged applicant under Article 230(2). However, it may still bring an action under Article 230(4) if it can show that the Decision “is of direct and individual concern” to them. The cases of Plaumann[12] and Cordorniu[13] set a very difficult test for individual applicants, such as SFA, to show that they have been directly and individually concerned by a Decision. Plaumann was similar to the present situation in that the Decision was addressed to Germany, but a sole operator tried to challenge it. The Court held that to show individual concern the operator had to show that the Decision, “affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually…”.[14] This is notoriously difficult to show because the applicant will be blocked from making a challenge if others are put in the same position as they are. In Plaumann, the court ruled that anyone could start exporting clementines from Germany and would be affected in the same way as the applicant. This was the case whether or not there actually were other clementine exporters. The cases which have successfully shown individual concern are very specific to their facts and do not create general situations in which applicants will be successful. For example, in Toepfer[15] the applicant was successful because the decision related only to operators who applied for licenses on a particular day and Toepfer was the only one. No one could join this group as the day had passed. Similarly, in Bock[16] the Court ruled that, “A decision is of individual concern to a person when the factual situation created by the decision differentiates him from all other persons and distinguishes him individually just as in the case of the person addressed.” The full difficulty is shown by Spijker Kwasten,[17] where it was shown that “a decision addressed to certain Member States… is not of individual concern to the only importer of the products in question established in the member states to which the decision is addressed since it concerns the importer merely by virtue of his objective status as an importer in the same manner as any other trader who is, or might be in the future, in the same situation.” The applicant in Codorniu was successful in his challenge because even though many operators in the relevant field could be caught be the provision, he was set out from the crowd because he had a registered trade mark that was affected. However, while this case was hoped to mark a new approach by the ECJ in the field of individual concern, subsequent case law has shown that the Plaumann test is still being used to block challenges to decisions which might potentially have more than one person affected.[18] There has been a lot of scholarly criticism of this state of affairs and many have even argued that the Court’s approach to individual concern is arbitrary and unjust.[19] However, in the absence of legislative action to change the law, it appears as if the Court is unwilling to step in here and make it simpler for applicants who have not been addressed by a decision to challenge that decision. This was concerned in the case of Greenpeace,[20] which came after Codorniu and showed that there had been no significant change in the Court’s position. One problem that has been identified with the strictness of Article 230(4) is that the Treaties supposedly establish “a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions,” and the Court’s approach to Article 230(4) goes against this goal.[21] To conclude therefore, the UK Government will be able to challenge the Decision on the ground that, firstly, they are the addressee of the Decision, and secondly, that they are a privileged applicant under Article 230. However, the SFA will find it very difficult to challenge the decision on the basis of the test for individual concern. The Decision has not been addressed to them. While they represent a few thousand sheep farmers, there are over 250,000 in the UK and the vast majority are not members of SFA. Also, not only sheep farmers but all livestock farmers will be equally affected by the Decision. Therefore, there is no way for the SFA to differentiate their position from that of all the other livestock farmers in the UK and therefore, they will not be able to show that they have been individually concerned by the Decision and will accordingly not be granted locus standi before the ECJ. Bibliography Biernat, E., The Locus Standi of Private Applicants under article 230(4) EC and the Principle of Judicial Protection in the European Community, Jean Monnet Working Paper 12/03, New York, 2003 Chalmers, P., Hadjiemmanuil, C., Monti, G., & Tomkins, A., European Union Law, Text and Materials, (2006) Cambridge: Cambridge University Press Craig, P. & De Burca, G., EU Law, Text, Cases and Materials, 3rd ed., (2002) Oxford: Oxford University Press Liisberg, J., Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? (2001) 38 CMLRev. 1171 Mancini & Keeling, Democracy and the European Court of Justice, 57 (1994) MLR 175 Rasmussen, H., Why is article 173 interpreted against private plaintiffs? (1980) 5 ELRev 462 Usher, J., Direct and Individual Concern – an effective remedy o a conventional solution, (2003) 23 ELRev 342 Case 26/62, N.V. Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen [1965] ECR 1 Case 41/74, Van Duyn v. Home Office [1974] ECR 1337 Case 148/78, Pubblico Ministero v. Tullio Ratti [1979] ECR 1629 Case 14/83, Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891 Case 25/62 Plaumann v. Commission [1963] ECR 95 Case C-309/89 Codorniu SA v. Commission, [1994] ECR I-1853 Cases 106-107/63 Toepfer v. Commission [1965] ECR 405 Case 62/70 Bock v. Commission [1971] ECR 897 Case 231/82 Spijker Kwasten v. Commission [1983] ECR 2559 Case T-585/93 Stichting Greenpeace Council (Greenpeace International) v. Commission, [1995] ECR II-220537 Case 6/64, Flaminio Costa v. ENEL [1964] ECR 585 Case C-6 & 9/90, Francovich and Bonifaci v Italy [1991] ECR I-5357

Footnotes

[1] Case 26/62, N.V. Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen [1965] ECR 1 [2] Case 6/64, Flaminio Costa v. ENEL [1964] ECR 585 [3] ibid. p. 593 [4] Case 41/74, Van Duyn v. Home Office [1974] ECR 1337 [5] Case 148/78, Pubblico Ministero v. Tullio Ratti [1979] ECR 1629 [6] Craig, P. & De Burca, G., EU Law, Text, Cases and Materials, 3rd ed., (2002) Oxford: Oxford University Press [7] Case 14/83, Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891 [8] Liisberg, J., Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? (2001) 38 CMLRev. 1171 [9] Case C-6 & 9/90, Francovich and Bonifaci v Italy [1991] ECR I-5357 [10] Chalmers, P., Hadjiemmanuil, C., Monti, G., & Tomkins, A., European Union Law, Text and Materials, (2006) Cambridge: Cambridge University Press [11] supra. note 9 [12] Case 25/62 Plaumann v. Commission [1963] ECR 95 [13] Case C-309/89 Codorniu SA v. Commission, [1994] ECR I-1853 [14] supra. note 12, para. 107 [15] Cases 106-107/63 Toepfer v. Commission [1965] ECR 405 [16] Case 62/70 Bock v. Commission [1971] ECR 897 [17] Case 231/82 Spijker Kwasten v. Commission [1983] ECR 2559 [18] Mancini & Keeling, Democracy and the European Court of Justice, 57 (1994) MLR 175 [19] Usher, J., Direct and Individual Concern – an effective remedy o a conventional solution, (2003) 23 ELRev 342; Rasmussen, H., Why is article 173 interpreted against private plaintiffs? (1980) 5 ELRev 462 [20] Case T-585/93 Stichting Greenpeace Council (Greenpeace International) v. Commission, [1995] ECR II-220537 [21] Biernat, E., The Locus Standi of Private Applicants under article 230(4) EC and the Principle of Judicial Protection in the European Community, Jean Monnet Working Paper 12/03, New York, 2003
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