Authors: Nigel Roberts BSc CEng FBCS DipEngLaw and Andy Lane BSc CEng FBCS (law student, Nottingham-Trent U.)
This article is a work-in-progress.
It will provide background information and more detail about the relationship of EC law and English/Scottish Law within the United Kingdom, and the British Isles.
Note: It is not directly relevant to Roberts v Media Logistics (Times 28th December 2005) since that case was not defended -- therefore no examination of the Regulations or the Directive took place, but it will collect together a number of useful facts and will probably be moved elsewhere in due course. Suggestions for improvement welcome - please email jan2006@spamlegalaction.co.uk.
Target audience: A level or first year university
Claimants and defendants may rely on any directly effective provision of Community Law before a court of a Member State. A directly effective provision is one which is clear and unambiguous ), and is designed to give rights to individuals (including both natural and legal persons) (Van Gend en Loos v Dutch Tax Administration
Treaty provisions and Regulations have direct effect in the Member States. This is known as horizontal direct effect. They are binding upon individuals and state bodies without further ado.
Directives are address to the Member State and are binding as to the effect to be achieved. (Art. 249) It is left up to the State to determine how to implement the Directive. This could be by legislation, or any other method (e.g. collective bargaining agreement) so long as the purpose of the Directive is given national effect or 'transposed'.
Where the Member State has not implemented a provision of a Directive, then if is designed to give rights to individuals, is clear and unambigous, AND if the deadline for implementation has passed
However, it may ONLY be directly relied upon whether the othr party is a state body or otherwise regarded as an 'emanation of the State' (see Marshall v Southampton AHA, Foster v British Gas).
National legislation (ncluding any legislation transposing a Directive into the national law of a Member State) must be interpreted in a purposive manner (see Litser v Forth Dry Dock) in such a way as to give effect to the provisions of the Directive. However, where this is not possible, and the other party is not an emanation of the State, EC law cannot have direct effect (see Duke v GEC Reliance, Faccini Dori v RECREB).
Where a party suffers loss becuase a provision of a Directive has not been implemented and the other party is not an emanatio of the State, the State itself is liable for the loss. (Francovich v Italy).