Either a treaty or a regulation can be used as a piece of law in a member state court against the state or another individual. Confusingly, directives are not directly effective, as they cannot be used in court until they have been enacted by national legislation.
If a state fails to implement a directive within the time given by the EU then an individual can take the state to court for non-implementation. One must, however, refrain from seeing this as an entirely one sided process of the EU passing legislation over member states. For a directive to have direct effect, there is a further requirement that the time limit for implementation by member states has expired.
Direct effect is related to, but different from, the concept of direct applicability. See also Indirect effect. Simply put, the exception— articulated in CIA Security v Signalson [] and Unilever Italia v Central Food [] — holds that an unimplemented Directive typically of a regulatory nature can be invoked in a horizontal case to have conflicting national law disapplied, thereby leaving a lacuna into which an earlier piece of national law that complies with the unimplemented Directive can step.
The unimplemented Directive is thus not creating new national law; rather, it is unearthing an EU law-compliant national law that has been buried by its conflicting counterpart. In both cases, the ECJ restated the Prohibition and argued that the Directive in question merely gave expression to the General Principle, such the national court was under a duty to disapply any provision of national legislation breaching it.
Furthermore, this line of case law remains somewhat of an enigma: it has only been applied in relation to age discrimination, thus creating a cloud of uncertainty over whether this will apply to other General Principles, and what the criteria are for doing so.
In this way, it utilises the availability of Vertical Direct Effect to allow the citizen to enforce their rights against a wide range of bodies. Indeed, in Foster v British Gas [] — which involved a citizen suing a company in what was, at the time, a nationalised industry — the ECJ held that:. 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 relation between individuals, is included However, because of the slight discrepancy between these two sections of the judgment, it has been debated by academics as to what the exact conditions needed to engage the exception are — usually focusing on whether the body needs to be providing a public service — and the extent to which they are cumulative or not.
In , Elaine Farrell the claimant was injured in a road accident involving a van driven by Alan Whitty the defendant. Compensation therefore needed to come from elsewhere. Initially, the claimant had sought compensation from MIBI but had been denied it. It therefore needed to provide the claimant with compensation. Specifically, it asked:. The ECJ held that MIBI was liable to provide the claimant with compensation, on the grounds that the conditions it has articulated in Foster v British Gas [] were not cumulative or exhaustive; it was therefore sufficient for an entity to have been delegated the performance of a task in the public interest by the Member State and to possess for that purpose special powers.
It also noted that state control was not necessary, thereby allowing private entities to fall under the exception. It was also quick to highlight the potential breadth of the exception, noting that the bodies falling under the 'Emanation of the State' exception:. Accordingly, a body or an organisation — even one governed by private law — to which a Member State has delegated the performance of a task in the public interest and which possesses for that purpose special powers beyond those which result from the normal rules applicable to relations between individuals is one against which the provisions of an unimplemented Directive may be relied upon.
In many ways, this is true: as he points out, the ECJ has now clearly established that a body is an Emanation of the State if it meets just one of three criteria:. Though this seems a major expansion of the extension, it is arguably mitigated by the fact that bodies that meet one limb will tend to meet at least one other.
However, problems remain from a legal certainty perspective: the required degree of Member State control or authority remains unclear while what exactly constitutes public interest might also be debated. This may expose certain private companies to liability they cannot anticipate.
Such a result would further highlight another key flaw with the Emanation of the State exception that Farrell [] does little to address: its application unfairly leaves bodies open to liability that they may have no power to mitigate against.
The extent to which the newly interpreted version of the exception from Foster v British Gas [] has been satisfactorily clarified by Farrell [] is arguably besides the point. Quick search. Use quotation marks to search for an "exact phrase".
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The direct effect of European law The principle of direct effect enables individuals to immediately invoke a European provision before a national or European court. Horizontal and vertical direct effect There are two aspects to direct effect: a vertical aspect and a horizontal aspect.
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