Questions Based on the Constitutional Law of the EU

A Directive by the European Union council is a binding legislative act addressed to a specific member state or states requiring them to achieve a certain goal. Once a member state adopts a directive there is a clear timetable that guides its implementation and the expected results.

In this case two Directives 2008/01 and 2008/02 were issued to all member states including the UK. Usually a directive does not dictate how the said objective will be arrived at but rather leaves room for the member state to figure out how to arrive at the expected result within the dates set by the European Union council. In this case both Directives were to have been implemented by the 31^st of July 2011but the UK government has failed to implement the Directive 2008/01.

On the other hand, a fertiliser manufacturer, Fattenem, has been violating directive 2008/01. Residents and gardeners in the area wish to seek redress of the harm emanating from the violation. Unfortunately since the Directive 2008/01 has not been implemented by the UK government there is no National law that they can use against either Fattenem or the government. However since the UK is a member state of the EU they can seek redress under the EU law by applying the principle of direct effect. Unfortunately for the residents and gardeners, under the EU law it would not be possible for them to build a case against Fattenem since the principle of direct effect cannot be applied against an individual. In the case of Marshall V Southampton and South West Hampshire Area Health Authority (Teaching) [1986] it was ruled that:

An individual may not rely on an unimplemented or incorrectly implemented directive against another individual as a directive which is not implemented “may not of itself impose obligations on an individual and [a] provision of a directive may not be relied upon as such against such a person.”

In order to seek redress from the UK government under the EU law there should be a direct link between the harm and the violation of the unimplemented directive. The residents would have to prove that the smell indeed is as a result of the high level of chemical ABC in the wastewater from Fattenem. For the gardeners a doctor has already pointed out that their stomach upsets are as a result of the presence of high levels of ABC in their home-grown vegetables.

Armed with this information the residents and the gardeners will be in a position to show that failure by the government to implement the directive 2008/01 has had adverse effects on their lives. Had the directive 2008/01 been implemented then there would have been a testing regime put in place to monitor the maximum amount of ABC in parts per million (ppm) that could be allowed into waste water from Fattenem.

That would mean that the government must take full responsibility of the breach of the community law. This is supported by the fact that unlike Fattenem the state had an obligation to pass the required legislation correctly and in time in order to comply with the directive. According to Article 288, Paragraph 3 of the Treaty on the Functioning of the European Union (TFEU).

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 (Art 288, Para 3 TFEU).

In a landmark ruling in the case Francovich v. Italy the European court pointed out that individuals from member states that had failed to implement directives in the time required could seek reparation from the state for any loss or damage arising from that failure. Indeed the court noted that:

The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain reparation when their rights are infringed by a breach of Community law for which a Member State can be held responsible.

The court went further and concluded the following:

It is a principle of Community law that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.

In the case against the UK government the residents and the gardeners would be able to argue that the deadline of the implementation of the directive passed without the state carrying out its obligation hence the state could be held responsible for the breach of community law by Fattenem. In addition the directive 2008/01 is precise and without conditions and therefore the residents and gardeners should be allowed to rely on the directive against the state.

In the second case, though the government of UK implemented the directive 2008/02 within the time limit, however the legislation does not provide for the establishment of a compulsory testing regime as required in the directive.

In this case the directive 2008/02 included a requirement for a compulsory testing regime to be put in place by each Member State to monitor compliance with the maximum limit. It can then be concluded that the government of the UK did not adequately implement the directive since it did not set up the compulsory testing regime as per the EU council directive.

According to the Article 189 of the treaty when a member state fails to meet all its obligations in respect to undertaking all the measures necessary in order to achieve a set objective of a directive, then that member state is required by the community law to meet the reparation costs if three conditions are met. The first condition requires there should exist the grant of the rights infringed by the act in which case the rights of the residents and the gardeners have automatically been extended to them through their member states.

The second condition that must be satisfied is that of the content of the rights in question being provided for by the specific directive that was badly implemented. In this case the directive 2008/02 covered the regulation of the maximum amount of chemical XYZ that should be allowed into waste water from factory. In fact the directive maps directly on to the issue of complaint. The residents and the gardeners are suffering as a result of high level of chemical XYZ being allowed into waste water from Fattenem which is the exact problem that the directive was seeking to address.

The third condition is the direct connection of the state obligation and the loss and damage suffered by the complainants.¹⁰ In this case the residents and the gardeners’ complaint s are directly connected to the states failure to establish a compulsory testing regime that was meant to monitor the maximum level of chemical XYZ in waste water. The failure by the government to fully implement directive 2008/02 left room for manufacturers like Fattenem to release high levels of chemical XYZ into the ground water. This chemical was taken up by home grown vegetables that caused the gardeners to experience stomach upsets. The same chemical XYZ was responsible for the bad smell the residents were complaining about. If the government had not abdicated its duty then there would have been a testing regime in place to keep manufacturers in check thereby safeguarding the rights of innocent residents and gardeners.

In the case of Marshall v Southampton p. 422 it was ruled that:

A member state which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.

My advice is that the lawyers should seek both redress and reparation which are catered for in the community law since its clear the government failed in its mandate and should therefore make good loss and damage suffered due to its failure.

For one to be able to arrive at a reliable decision on the matter of seeking to appeal a decision of the EU council and parliament it is important to examine the legal impact of the decision as a regulatory act of the EU. The definition and scope of an EU decision is captured as “A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only upon them” (Art 288, Para 4 TFEU). In addition to this, the article goes further to exert that “that regulations, directives and decisions are ‘binding’ and are therefore legally enforceable”. (Art 288, Para 5 TFEU).

This captures the kind of dilemma that the UK find itself in with respect to obeying the EU council and parliament adopted decision. However owing to the Lisbon treaty there is a way out. Under the review of the EU acts Art 263 TFEU allows the challenging of the commissions decisions under the charter through the national courts or through extended access

Specifically the article states that:

The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties. (Art 263, Para 1 TFEU).

With the above provision the UK gets an opportunity to access the desired judicial review through the court of Justice of the European Union. In addition to the above provision the article goes on to specify that:

It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.

The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives. (Art 263, Para 2 TFEU).

This provision will be instrumental in addressing the concern of the UK government that the Decision is potentially unlawful since in the Government’s view, another Treaty article requiring unanimity should have been used instead of qualified majority voting (QMV) in the adoption of this EU Decision. With this platform the government would then present its case and seek judicial review on the same.

Under the same article the sheep farmers’ association (SFA) would be in a position to seek judicial review of the decision considering the fact that it is composed of sheep farmers and therefore are directly affected by the decision for their sheep to slaughtered and their movement restricted. The article that supports their concern provides that:

Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. (Art 263, Para 3 TFEU).

This article however raises some issues that need to be addressed so as to arrive at the correct interpretation of its provisions. The issues arise due to the presence of the two words namely “regulatory act” and “direct concern” since they are not explicitly defined in the Lisbon treaty. However going by the general definition provided in the treaties before, “regulatory” act covers both legislative acts as well as non legislative acts. On the other hand “direct concern” would arise in the case where the authority expected to implement a decision or directive is not given a free hand like in this case where the UK is left with little choice than to order the slaughter of the animals in question and therefore the SFA are left with only the chance of seeking judicial review since the decision directly affects them.

Previously, before the Lisbon treaty which came into effect in December 2009, it was almost impossible to get judicial review following a decision by the council. In fact many people were forced to break the law in order to seek implementation of an act by the authorities. The cases of UPA v council and that of Jégo-Quéré v Commission between the years 2002-2004 generated a lot of public debate since they both involved challenging the community regulation where no implementing measures whatsoever had been officially adopted. These two cases made the court to review the requirement that individual concern had to be established before seeking judicial review on community regulations by private individuals.

Relying on these decisions by the court and their subsequent capture in the Lisbon treaty SFA would be a better place to plead their case against the decision of the council to have their animals slaughtered and restricted in terms of movement. Equally the government of the UK can also be able to challenge the decision and show that the unanimity provision of the treaty should have been applied in the decision making process instead of qualified majority voting (QVM).

Bibliography

Cases C-6 and 9/90 Francovich and Bonifaci v Republic of Italy [1991] ECR I-5375

Case C-152/84 Marshall v Southampton and South West. Hampshire Area Health Authority [1986] ECR 723

Case C-50/00P (UP A) v Council [2002] ECR 1-6677 422

Case T-177/01 Jégo-Quéré et Cie SA v Commission [2002] ECR II–2365

European commission, ‘Council voting procedure’ 2011. Web.

European commission, ‘Application of the EU law’. 2011

European commission, ‘The Union’s decision making procedures’. 2011. Web.

Steiner, Josephine, Woods, Lorna, Twigg-Flesner, Christian, 2006, EU Law, 9th edn, Oxford University Press, Oxford.

Treaty of the European Union [TEU], opened for signature7 1992, (entered into force 1993)

Treaty on the Functioning of the European Union [TFEU], opened for signature 2007.