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Spanish and French Governments' Responsibilities and Green Life's Role

Introduction

This essay discusses the liability of the Spanish and French governments under the EU law as well as the liability of Green Life related to Directive 20018/12 (a fictitious Directive) to control levels of pollution in seawater and on beaches. The liability of these parties is discussed as per the doctrines of direct effect, indirect effect, and state liability. The Directive 20018/12 seeks to control levels of pollution in seawater and on beaches in order to prevent sewage and other associated waste products polluting the sea and washing up on beaches. Chemicals in sewage and waste products can cause severe gastroenteritis if people come into contact with it. The deadline for implementation of the Directive was 31st January 2020. The Directive also requires that states introduce a system for monitoring pollution in seawater and on beaches. Establishment of a system for compensating citizens who have suffered gastroenteritis is also one of the obligations of the states. The issues in this situation arise from the lack of implementation of the directive in the case of Spain and the improper implementation of the directive by the French government.

Liability of Spanish government

The first issue is whether the lawyers representing clients in Spain will be able to bring actions on behalf of their clients against the Spanish Government. The doctrine of direct effect is applied here to discuss the liability of the Spanish government.

TFEU, Article 4(3) provides that the EU law shall be fully implemented; and this has been held to mean that EU law should be implemented in the member states and if not fully implemented then the individuals can claim the liability of the state for not implementing its obligations. Furthermore, TFEU, Article 288 provides that “a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.” This means that while the directives of the EU are binding, it is left to the states to devise the manner in which to implement the directives.

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In Van Gend en Loos v Nederlandse Administratie der Belastingen, the Court of Justice of European Union (CJEU) held that direct effect of EU law relates to the capacity of a provision of the EU law to be invoked before the national courts. Individuals can rely on the doctrine of direct effect to invoke provisions in EU treaty and secondary legislation before national courts to seek enforcement of certain rights that are provided under the EU law. In Van Duyn v Home Office, the CJEU allowed an individual to invoke EU Directive to enforce a right provided in the directive. Therefore, in the context of EU directives, the CJEU has applied the doctrine of doctrine of direct effect and has noted in one case that the EU directives would exclude any inconsistent national laws.

Where EU directives are to be implemented by the member states by a specified date and the state fails to implement the directive within the time period, the individual can invoke the directive before the courts. This was provided in Pubblico Ministero v Ratti, wherein the ECJ held that once the time for implementing the directive has lapsed, the directive becomes applicable and the individual can invoke it before national courts.

In Factortame III, a question before the CJEU as to the conditions under which a member state may incur liability for damage caused to individuals by breaches of EU law. The CJEU held that even in situations where the EU law may not have direct effect, the right of reparation existed for damage caused to the individuals by the breach of community right. The court also explained the scope of this liability by explaining that if a member state commits a serious breach of EU law, which contained a rule of law that intended to confer rights on individuals and a direct causal link can be traced between the breach of the law and the damage sustained by the injured party, the state is liable. Therefore, the three conditions that have to established for invoking the liability of the state are that there should be a law that gives rights to the individual; such law should be seriously breached by the state, and the individual should have suffered some damage with is directly linked to the breach.

The failure of the state to implement EU directives can lead to state liability for compensation to the individual. The Francovich test is applicable in such cases, and the test provides three conditions that are to be satisfied for the application of state liability, which are that there should be an EU directive granting rights to individuals; that rights are identified on the basis of the directive; and a causal link is established between the breach of the State's obligation and the damage to the individual. The responsibility of ensuring that the EU law is implemented fully is considered to be that of the national courts and the CJEU has held that it is for the national courts to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective.

In this situation, individuals can bring actions against the Spanish Government Spanish Government because it has not implemented the Directive at all. Therefore, there is a failure to implement the EU directive. At the same time, the directive does provide some rights of the individuals, which are seriously breached by not implementing the directive. This breach has also led to the harm done to the individuals as they have been diagnosed with severe gastroenteritis which is attributed to the sea pollution that they have come into contact with. As per the principles of direct effect and state liability doctrine, the individuals have a case against the Spanish government.

Liability of Green Life

The second issue is whether the lawyers representing clients in Spain will be able to bring actions on behalf of their clients against Green Life. Green Life is a company to whom the Spanish Government has awarded the contract for the running of sewage works. As an organisation, Green Life is considered to be at arm’s length from the Spanish Government as it has been granted special powers to run and maintain sewage works and that effectively remains under the control of the Spanish government.

The doctrine of direct effect has been applied generally in the vertical sense, which means that the doctrine is applicable to invoke liability of the state and not private parties. The case of Defrenne v Sabena is relevant to this point as the CJEU held in this case that direct effect can be vertical or horizontal, based on the party against whom the right was enforced with vertical effect referring to EU measures that confer rights on individuals against the State. Horizontal direct effect is applicable to obligations of private persons with respect to rights of individuals under the EU law. Although the Marshall doctrine has been used by the CJEU to restrict the use of direct effect to states, there are cases where the CJEU has itself allowed the use of direct effect as against private parties. An important case in this context is Foster v British Gas, where the CJEU adopted what can be termed as a liberal and instrumentalist conception of what the term ‘Member State’ may mean under Article 288 of the TFEU. The Court held that direct effect of the EU direct can be extended to situations where a body has been made responsible for providing some public service and such service is under the control of the state and the body also has been granted some special powers with respect to the performance of the service, then such body can be made subject to obligations under an unimplemented EU Directive. As per this decision of the CJEU, the direct effect doctrine can also be applied to establish liability of bodies that are not state, but are involved in the provision of some public service under the control of the state and for that purpose enjoy some special powers that other individuals or private persons do not have.

Even in cases where a private party is concerned, the doctrine of state liability can be used by an individual to claim the liability of the state even where horizontal direct effect is not applicable, where remedy can be claimed against the state for not applying the EU directive. State liability doctrine allows individuals to enforce an EU directive even if horizontal direct effect is not allowed, where the claim is not made against the private party but the state for not applying the EU directive. For state liability to be established, the Francovich test is applied with the court considering three questions before applying state liability doctrine: is there an EU directive that grants rights to individuals?; are the contents of rights identified on the basis of such directive?; is there a causal link between the breach of the State's obligation and the damage suffered by the individual?. If these conditions are met, the individual can claim damages against the state. This is applicable where horizontal direct effect is not permitted. However, in this case, based on the principle laid down in Foster v British Gas, claims can be made directly against Green Life based on the instrumentality conceptualisation of the term ‘member state’ because the body is under state control and has been given special powers.

Liability of French government

The third issue is whether the lawyers representing clients in France will be able to bring actions on their behalf against the French Government. The French Government has introduced legislation to implement the EU Directive. However, it has not introduced the monitoring system that is required under the Directive and it has also not established the system for compensating citizens who have suffered gastroenteritis due to contact with sea pollution.

As mentioned before, TFEU Art 288 allows the Member States to decide on the manner in which they will implement the EU directives, which means that states have a certain degree of discretion as to the manner in which they will implement directives. However, where a member state does not implement the directive fully or properly, question may be raised in whether the result of the directive can be reached if the directive is not enforced fully or properly. In this context, failure of the state to implement may also include improper implementation of the directive. A member state can be held responsible if it has implemented a directive within the time period, but did so improperly. In Queen v H. M. Treasury, ex parte British Telecommunications plc, the CJEU held that if the directive itself was not clear, then its improper implementation will not lead to damages to be paid by the state; conversely it can be argued that improper implementation of an otherwise clear directive can lead to damages to be paid by the state for its failure. Incorrect transposition of the EU law contained in the directives can lead to state liability if there is a sufficiently serious breach of EU law.

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In the event that the matter comes before the national courts in France, one of the considerations for the court may be to give indirect effect of the provisions that are not as yet implemented by the French government because in interpreting the French law with the EU law, the court will be required to do harmonious interpretation between national laws and EU Directive. This is the doctrine of indirect effect. Where a directive is implemented but there may be parts of it that are not implemented, the national courts are still required to give effect to the directive by interpreting the legislation implementing in a way that is compatible with the directive.Moreover, the courts when in doubt as to the interpretation of the EU law, may be required to make a referral to the CJEU. State liability can also be invoked for the improper implementation of the EU law in the directive. This is because while EU law (TFEU, Article 288) gives the power to the states to determine the conditions in which the law must be implemented in the national jurisdictions, the member states are still liable to comply with the rules of community law for the purpose of implementation of the community law. In the present situation, France has implemented the directive but has not provided for the monitoring system that is required under the directive and it has also not established the system for compensating citizens. The monitoring and compensation systems fall within the remit of the Department for the Environment in France however, the consultants at Hospitals on the French coast are reporting rising number of cases of patients with gastroenteritis as a result of contact with sewage and other associated waste products in the sea and on local beaches. This can be said to be a defective implementation of the directive. As per the principles discussed here, lawyers will still be able to get compensation for their clients because of the doctrine of indirect effect and state liability.

Conclusion

To conclude, individuals can claim compensation from the Spanish and French governments. They can also claim compensation from Green Life. The principles of direct effect, indirect effect, and state liability can be used here to claim liability of the said governments.

Cases

Brasserie du Pêcheur v Germany and R (Factortame) v SS for Transport (No 3) [1996] ECR I-1029.

Defrenne v Sabena [1976] ECR 455.

Foster and others v British Gas plc [1990] ECR I-3313.

Francovich and Bonifaci v Republic of Italy EU:C:1991:428.

Mau [2003] ECR I- 4791.

Marks and Spencer plc v. Commissioners of Customs and Excise [2002] ECR I-6325..

Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723.

Océano Grupo Editorial SA v Roció Murciano Quintero [2000] ECR 1-4941.

Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (2005) C-397/01- 403/01.

Pubblico Ministero v Ratti [1979] ECR 1629.

Queen v H. M. Treasury, ex parte British Telecommunications plc EU:C:1996:131.

Van Duyn v Home Office (1974) ECR 1137.

Van Gend en Loos v Nederlandse Administratie der Belastingen, [1963] ECR 1.

Books

Chalmers D, Davies G, and Monti G, European Union law: Cases and materials (Cambridge University Press 2010).

Craig P and De Búrca G, EU law: text, cases, and materials (Oxford University Press 2011).


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