Applicability of European Law
- EU law is not generally directly enforceable against private bodies or individuals.
- EU law can, however, be directly enforceable against public bodies and emanations of the state.
- UK courts are required to take a “purposive” approach to the interpretation of EU legislation
EU law is not generally directly enforceable against private bodies or individuals. Private bodies and individuals are, of course, required to comply with national legislation, and in many instances the UK government will have implemented EU law within the UK through the body of national legislation.
EU law can, however, be directly enforceable against public bodies and emanations of the state. Such institutions, therefore, must be alert to obligations to which they might be subject under EU measures in addition to their obligations under national law.
UK courts are required to take a “purposive” approach to the interpretation of EU legislation and must ensure that UK laws are construed as consistently as possible with EU law. This approach is referred to as “indirect effect”. If it is not possible for the UK court to interpret national law in a way that is consistent with EU law then national law will prevail.
What is EU Law?
The establishment of the European Union in 1972 was formally recorded in the Treaty on European Union, which has been consolidated and amended over the years since it was originally written. The most recent version, which includes amendments introduced by the Treaty of Lisbon, came into effect on 1 December 2009. Article 13 of this Treaty establishes the creation of a number of institutions to "advance the objectives" of the members, which includes the Court of Justice of the European Union, or CJEU (which, prior to the Treaty of Lisbon, was known as the European Court of Justice or ECJ).
More detailed provisions dealing with (amongst other things) the free movement of people and the powers of the CJEU are recorded in another treaty, which has also been amended and consolidated over the years – The Treaty on the Functioning of the European Union (previously known as the Treaty of Rome) – which also came into force on 1 December 2009.
The European Council (which is the overall governing body for the European Union) has the power to make 3 different types of measure, each of which apply to member states in different ways:
Regulations are binding rules pronounced by the European Council which do not need to be implemented into national legislation by individual member states, but are of themselves binding across all member states simultaneously.
A directive sets out a series of principles to which each member state must adhere, but rather than being binding of itself (like Regulations), a directive requires that each member state implements national legislation to meet its principles. Usually, the provisions of the directive itself are expressed in fairly broad terms, leaving member states with a degree of autonomy as to the details when it comes to implementation.
A recommendation consists of a series of principles which the European Council sets out formally as good practice which it encourages each member state to follow, but there is no formally binding obligation on a member state to do so. It is sometimes said that they carry political, but not legal, weight.
What does the CJEU do?
The CJEU was set up to ensure that EU law is observed by member states, as well as to review the legality of the acts of the institutions of the European Union itself. The CJEU is the body which ensures that each member state complies with obligations under the Treaties, under Regulations and under Directives; it also interprets EU law at the request of the national courts and tribunals. Over the years, it has built up its own body of case law which supplements the legislative provisions.
What is direct effect?
Even though directives were not originally thought to be binding before they were implemented by member states, the CJEU has developed the doctrine of direct effect where unimplemented or badly implemented directives can actually have direct legal force by individuals.
The principle of direct effect was first established by the CJEU in Van Gend en Loos v. Nederlandse Administratie der Belastingen (Case 26/62);  ECR 1;  CMLR 1. In this case, the CJEU laid down certain criteria which were required in order to establish direct effect (referred to as the Van Gend criteria). At the time, the CJEU took the view that the principle of direct effect applied only to EU regulations, and that the specific provision which the applicant was seeking to be enforced had to:
- Be clear
- Constitute a negative obligation (not a positive one)
- Be unconditional
- Contain no right of reservation on the part of the member state, and
- Not be dependent on any implementation by national measure
Provided all of these criteria were satisfied (which was a question which had to be determined as a matter of EU law by the CJEU), then the relevant obligations would have to be enforced by the national courts.
In the Van Gend case, the applicant (a citizen of the Netherlands) was seeking to enforce rights against the state, and therefore did not consider the question of whether or not the principle could be used by a citizen to enforce EU rights against another citizen.
This question was subsequently considered by the CJEU in Defrenne v. SABENA (Case 2/74)  ECR 631. In this case, the CJEU decided that there were two types of direct effect:
- vertical direct effect – which concerns the relationship between EU law and national law, and more specifically, a state's obligation to ensure that its national laws observe and are compatible with EU laws
- horizontal direct effect – which concerns the relationship between citizens (whether individuals or companies), and more specifically, a citizen's ability to enforce certain provisions of EU law in an action against another citizen.
Directives are usually incapable of being horizontally directly effective. However, certain provisions of the treaties and legislative acts such as regulations are capable of being directly enforced horizontally.
In Pubblico Ministero v. Ratti (Case 148/78)  ECR 1629, the CJEU held that the principle of direct effect can only apply once the time limit given for the implementation of the directive has expired.
What is an emanation of the state?
In Foster v. British Gas plc 1990 C-188/89,  2 AC 306,  3 All ER 897, the CJEU concluded that that an entity will fall within the definition of a public body, and so will be subject to vertical direct effect, if it is:
“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 relations between individuals."
This broad definition is now commonly incorporated within the term "emanation of the state".
Examples of entities which will be emanations of the state for these purposes are local authorities, NHS Trusts and utilities companies.
Application of direct effect
Direct effect (both vertically and horizontally) is applicable to treaty articles where the particular provision relied on fulfils the Van Gend criteria.
The CJEU has confirmed in the case of Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd  ECR I-7289 that Regulations are also subject to direct effect, which can be both vertical and horizontal. The CJEU relied on Article 288 of the Treaty on the Functioning of the European Union, which explicitly provides that regulations shall be binding in their entirety and directly applicable.
Directives are vertically directly effective (as established by the CJEU in the case of Van Duyn v Home Office (C-41/74)  Ch. 358), but they are not horizontally directly effective (as confirmed by the CJEU in the case of M. H. Marshall v Southampton & South-West Hampshire Area Health Authority (Case 152/84)).
Indirect horizontal effect
Notwithstanding the principles espoused by the Marshall decision, the CJEU has shown in other decisions that it is willing to extend the scope of the principle of direct effect where possible. Commentators have at times described the combined jurisprudence of these decisions as the establishment of a form of indirect horizontal effect.
One way in which it has achieved this has been to extend the ambit of which bodies fall within the definition of "public bodies" and therefore which fall within the principle of vertical direct effect. A good illustration of this ingenuity can be seen in the case of Foster v British Gas (see above). In this case, the CJEU concluded that any government organisation, nationalised company or company working in the public sector can be considered as a public body for the purpose of implementing vertical direct effect.
In the case of Von Colson & Kamann v Land Nordrhein-Westfalen Case 14/83  ECR 1891, the CJEU established the practice of 'reading in' a directive into existing national law to achieve the directive's effect – in other words, it established an obligation on the part of the courts in EU Member States to interpret their national laws wherever possible in a manner which is consistent and harmonious with EU law. If it is not possible to interpret national law in a way that is consistent with EU law, then national law will still prevail.
This was developed further in the case of Marleasing SA v La Comercial Internacional de Alimentacion  EUECJ C-106/89, where the CJEU held that national courts must consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive. It is only if the provisions of national law cannot be interpreted purposively, and are therefore totally incompatible with the directive, that national law can be allowed to take precedence.
Similarly, in Francovich v Italy (1990) C-6/90, the CJEU decided that action could be taken against a state by an individual for its failure to implement a directive, and that the member state could be liable to pay damages to individuals and companies who had been adversely affected by the non-implementation of a directive.
How is the purposive approach applied in practice?
In applying a purposive approach, courts and tribunals in the UK are not restricted to the actual wording of the national legislation. It is presumed that, when implementing EU law, Parliament intended it to comply with the relevant directive. Therefore, the judiciary can add words to give effect to this presumption, even if this means changing the natural meaning of the words used in the legislation, provided it does not alter its underlying thrust or purpose. An example of this can be seen in the case of EBR Attridge LLP and another v Coleman  IRLR 10, where the EAT read into the Disability Discrimination Act 1995 words to give effect to "associative" discrimination in order to implement a previous ruling by the CJEU that this concept was covered by the Equal Treatment Framework Directive (the concept has since been encapuslated in legislation, with the introduction of the Equality Act 2010 and its wider definition of direct discrimination – section 13).
In the well-publicised holiday pay case of Bear Scotland Ltd v Fulton and others  UKEAT 0047_13_0411, the EAT (Langstaff P sitting alone) held that Article 7 of the Working Time Directive should be interpreted so as to include payments for overtime which a worker is required to work but which an employer is not obliged to offer as being within the concept of "normal remuneration". Further, he took the view the national legislation (the Working Time Regulations 1998) could be interpreted so as to fall within that interpretation by reading additional words into regulation 16(3)(d).