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Legal Analysis and Implications of EU Directives

  • 03 Pages
  • Published On: 9-12-2023

From: [your name]

To: Nicola Denton

Subject: Paul Atkins – meeting attendance note

Date: 11.03.2021

Dear Nicole,

There are two types of legislations in the European Union (EU) namely, primary and secondary. The Primary Legislation consists of the Treaty on the Functioning of the European Union (TFEU) and Treaty on European Union (TEU) while the secondary legislation is formed under the powers given to it by Article 288 of the TFEU. According the said Article, when a Member States joins the European Union, it agrees to be bound by both of its primary and secondary laws. Article 4(3) of TEU imposes a general duty on all the Member States to ensure that they fulfil all obligations under the Treaty. As the UK legal system is dualist, Article 4(3) of TEU generated a problem when UK constitutional system joined EU in 1972.

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The doctrine of the supremacy is to determine if the EU law can be depended upon and invoked by the persons in a national court. The principle of supremacy of the EU law comes into existence where there is a difference between EU law and the national law. The former prevails over the second and has the priority over it in such cases. Therefore, the national legislation is not acceptable in the area where the EU law has adapted completely. This doctrine was evolved in the Italian Case Costa v. Enel in July 1974. The question was whether the court of justice should be referred to by the national court. It was decided that both the courts may arrive at different conclusions but the European Court of justice shall be superior to the national court.

The National authorities has the freedom choose the form and methods of the execution of the directive. The Court of Justice has laid down the doctrines of direct and indirect effect of EU directives that ought to solve the trouble of securing the principle of effet utile of the EU law in the Member States.

  1. StuDocu, ‘Direct Effect Principle”, https://www.studocu.com/en-gb/document/anglia-ruskin-university/eu-law/lecture-notes/direct-effect-principle/1742688/view accessed on 11th March, 2021
  2. Ibid
  3. Berski, A. (2016)Which doctrine has had the bigger impact on EU law, direct effect or supremacy? Report prepared for School of Languages, Law and Social Sciences, Dublin Institute of Technology, 2016
  4. Cuyvers, A. (2017). The Scope, Nature and Effect of EU Law. In Cuyvers A., Ugirashebuja E., Ruhangisa J., & Ottervanger T. (Eds.), East African Community Law: Institutional, Substantive and Comparative EU Aspects (pp. 161-181). LEIDEN; BOSTON: Brill. Retrieved March 11, 2021, from http://www.jstor.org/stable/10.1163/j.ctt1w76vj2.12

Paul cannot rely upon the direct effect of the of the Keep Education Staff Fit Directive adopted by the European Union to sue St. Ebbe’s School for failing to permit him to attend yoga classes during working hours. Primary European provision can be invoked before a nation or European Court by the individuals in the directly. This concept was first evolved by the European Court of Justice in Van Gend en Loos. It was further spread out by the Court and it became effective over directives, regulations, decisions and Treaty Articles. Otherwise stated, the concept came to be known as vertical direct effect where the individuals could assert the four forms of European Court law in national courts against the member states.

For the application of the direct effect, three conditions must be satisfied from the case of Van Gen den Loos that is the provision must be precise, clear, unconditional and not to require any implementation by the Member States.

In relation to the first condition, the law is sufficiently clear and precise. It bestows the specific right on Member States to take measures and ensure that employees working in school are entitled to attend ten yoga classes each school term during working hours. It also included head teachers, teachers and classroom assistants as employees working in school. This clearly explains that Paul is entitled to yoga sessions during working hours.

However, the law is not unconditional. The implementation date for the Directive was 31st December last year and the School Staff Fitness Act enacted by the national government came into force on 15th December last year. In Pubblico v Ministero v Ratti [1979] it was held that the time limit for the Member States to implement the Directive must have passed so that it can become directly effective. Nevertheless, in Mangold v. Helm, an exception to this rule was given which stated that where directive could be enforceable in advance of its implementation deadline as the directive gave effect to the “general principle of equal treatment, in particular in respect of age.” Paul’s age is nowhere mentioned.

  1. Aistė Samuilytė-Mamontovė, “PRINCIPLE OF LEGAL CERTAINTY AND (IN)DIRECT EFFECT OF DIRECTIVES” http://stics.mruni.eu/wp-content/uploads/2014/08/STICS_2014_2_57-68.pdf accessed on 11th March, 2021
  2. Carla A. Varner, “The Effectiveness of European Community Law with Specific Regard to Directives: The Critical Step Not Taken by the European Court of Justic”e, 22 Mich. J. Int'l L. 457 (2001).
  3. StuDocu, ‘Direct Effect Principle”, https://www.studocu.com/en-gb/document/anglia-ruskin-university/eu-law/lecture-notes/direct-effect-principle/1742688/view accessed on 11th March, 2021

The third condition is also not fulfilled as there is a horizontal direct effect since the other party is St Ebbe’s which is a private school. In Marshall v. Southampton [1986] it was held that the Directive can be implemented only against the State (vertical direct effect).

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Although, Paul can rely upon the indirect effect of the Directive to sue St Ebbe’s School as a legal remedy as it is a private school and the law is ambiguous. In the case of Von Colson v. Nordrhein-Westfalen (1984) the European Court of Justice developed the von Colson principle. It stated that as national court form a part of the State, an individual can enforce the European Union law against another individual in the national Court itself. In the case Marleasing (1990) the scope of indirect effect broadened. It wanted all national legislation to be interpreted considering EU law. It also strengthened the interpretive duty of the national courts. In the case of Dominguez (2012) there was further expansion in the indirect effect. The European Courts of Justice held that if it is for the national court to determine, take whole of the domestic law into account and applying the interpretative means recognised by domestic law with a view to safeguarding that the Directive is fully operative and achieve an outcome consistent with the objective followed by it.

Paul can sue the National Government for failing to implement the Directive correctly. It left ambiguity in the law where it stated that the School Staff Act’s purpose is to implement the Directive which got implemented on 31st December last year that is 16 days after the Act got implemented. The ambiguity in the Act must be removed.

Regards,

[Your Name]

  1. Life with LLB Law, “ Direct and Indirect Effect”, < http://uklawdegree-kinika.blogspot.com/2014/07/eu-law-exam-summary-note-on-direct.html> accessed on 11th March, 2021
  2. StuDocu, ‘Direct Effect Principle”, https://www.studocu.com/en-gb/document/anglia-ruskin-university/eu-law/lecture-notes/direct-effect-principle/1742688/view accessed on 11th March, 2021
  3. Ibid

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