Direct effect of European Community regulations

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1) The matter at issue include: (a) direct effect of European Community (EC) regulations; (b) direct effect of EC directives; and (b) the principle of state liability. (a) Direct Effect of Regulations Article 249 of the Treaty Establishing the European Community (TEC) state: ‘…a regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’.

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Thus, a regulation does not have to be implemented by Member States through national legislation for it to be applicable in those states. However, citizens of Member States would be able to directly enforce a regulation in national courts if it satisfies certain conditions, namely, it must be sufficiently precise and unconditional, leaving no room for discretion in implementation[1]. It has been established that citizens of Member States may bring an action against a state or an emanation of a state[2] in national court if that public authority is in breach of such a regulation[3]. This is known as vertical direct effect. Additionally, citizens could bring an action against private individuals in national courts for breach of a regulation[4]. This is known a horizontal direct effect. Considering the facts of the case it seems that the (imaginary) Regulation is directly applicable in the UK courts because it is a Community regulation. Furthermore, it is directly effective in the UK courts because the implementation of the amount of damages recoverable by occupiers of commercial premises who have been physically injured due to mercury contamination of their land does not depend on any conditions; and the rules for determining the amount of damages are sufficiently precise because it would be based on the rules that govern other personal injury claims in the UK. Thus, Martin could bring an action against his local authority. However, such an action is unlikely to succeed because there does not seem to be any breach of the Regulation by any local authority. But Martin could bring an action against Acme Chemicals. Since Martin suffered physically injury from mercury poisoning as a result of mercury leaking from the land of Acme Chemical, there seems to be a breach of the Regulation and thus he would be quite likely to succeed if he brought the action. Thus, it is submitted that Martin would not be likely to succeed if he brings an action against his local authority but he would be likely to succeed if he brings an action against Acme Chemicals Ltd. (b) Vertical Direct Effect of Directives Article 249 of the TEC state that directives are “binding…upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods.” The fact that directives are not described as directly applicable does not mean that are incapable of such effects and it has been held that directives could be capable of direct effect[5].

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