Directives: Rights and Remedies in English and Community Law

Richard Brent

• Publisher: Informa Law from Routledge
• Year: 2020
• ISBN:
  9781000341386
• Edition: 1
• Topic: Derecho
• Subtopic: Arbitraje, negociación y mediación en el derecho

Directives: Rights and Remedies in English and Community Law analyses the impact of EC Directives on national law, which has long been a problem and continues to be so - both in terms of interpretation and implementation. This book from barrister Richard Brent provides the reader with practical and invaluable insights on the legislative processes involved, the legal basis for adoption of Directives, the transposition and implementation of Directives.

CHAPTER 1

GENERAL INTRODUCTION

SUBJECT-MATTER AND SCOPE OF THIS BOOK

1.01 A directive is a creature of the EC Treaty. It is a form of Community subordinate legislation. It is indeed one of the most popular forms of subordinate legislation. Almost all of the Community’s single market legislation, for example, takes the form of a directive. It is likely that its popularity will, if anything, grow as the balance shifts in the relationship between the Member States and the Community’s institutions.

This is because of the unique legal characteristics of the directive. It operates at the frontier between Community law and domestic law. On the one hand it is a legal instrument addressed to Member States which imposes on them an obligation to achieve the result specified in it, but grants them a discretion as to the means to achieve this. It is in this respect like any other international law instrument: it takes effect in the United Kingdom’s internal legal order only insofar as it is implemented therein by domestic measures. But on the other hand it reflects the peculiar legal order that the EC Treaty is intended to create, that is to say, one in which individuals, as well as Member States, have rights and obligations. As a consequence, in certain circumstances, where a Member State has failed to fulfil its international law obligation, an individual may rely on the rights that the directive is intended to create. This may be principally either so as to enforce them against the state, or to sue the state in damages where it is in breach of its international obligation.

1.02 A lawyer may come across a directive in a number of different ways. He may be asked about the meaning of domestic legislation that is intended to implement the directive. He may be asked whether in fact that domestic law implements the directive, and if not, what can be done about it. He may be asked whether a public authority is complying with its obligations under a directive. He may be asked what a directive means. He may be confronted with a directive that his client doesn’t like and be asked what can be done about it.

The purpose of this book is to provide answers to these questions. Part I is concerned with the conditions that have to be satisfied for a directive to be able to create valid legal obligations. Part II is concerned with the types of obligations that a directive may create. Part III is concerned with the meaning of directives and the domestic law that implements them.

In Part I is set out the basis of the Community’s competence to adopt directives, the legislative processes that have to be followed for their adoption, the legal formalities with which they have to comply and the substantive legal principles that they have to observe. There follows an account of the procedures that have to be followed, and the conditions that have to be satisfied, if the validity of a directive is to be challenged either directly, before the European Court of Justice, or indirectly, via a national court. Finally the requirements are set out that have to be satisfied for an individual to obtain compensation from the Community if he has suffered damage as a result of an invalidly adopted directive.

Part II is concerned with the legal effects of directives. It sets out the persons on whom, the period for which, and the territories over which directives create obligations. It then considers exactly what is entailed by the obligations imposed on Member States to transpose the directive into national law and to achieve the result specified in them; and in what circumstances Member States can excuse their non-performance. Finally it describes what remedies exist in the event that a Member State fails to implement a directive, either at all or in part. In particular it describes the way in which the Community itself enforces obligations on Member States and the remedies that individuals may invoke as a result of breaches of those obligations: the remedy of “direct effect”; damages claims against the state; restitution, injunctions and declarations.

Part III is concerned with how directives and the domestic legislation which implements them are to be interpreted. The rules of interpretation as they have been evolved by the Court of Justice and applied by the English courts are set out. So is the obligation imposed on domestic courts to interpret implementing legislation as far as possible in conformity with the purpose of the directive that it is designed to implement. Finally the procedures whereby individuals may obtain interpretations of domestic law, and the underlying directive, are described.

1.03 The law relating to directives is comparatively novel. The obligation to interpret domestic law in the same field as a directive in accordance with it, irrespective of whether the domestic legislation came into effect before or after the adoption of the directive, was not finally established until 1990. The right to damages against a state for failing to implement a directive was first established in 1991. The law continues to evolve, both at a domestic and at a Community level. Further, because a directive is as much a political as a legal instrument, the issues raised are as much concerned with policy, and in particular the relations between the Community and the domestic legal order, as pure law. As a consequence there is scope for speculation both as to the future development of the law and as to the correctness of that law as it presently stands. The law relating to directives has not yet reached the nirvana of a stationary state. The purpose of this book is not only to state the law as it is, but also to describe the principal debates on where it is going.

PART I

VALIDITY OF DIRECTIVES

CHAPTER 2

THE LEGISLATIVE COMPETENCE OF THE COMMUNITY

BACKGROUND

2.01 The Community does not have any general or inherent competence to legislate. This is expressly acknowledged by Article 5 EC, as inserted by the Treaty on European Union (1992), which states that “The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it herein”. This principle is variously known as “the principle of conferred powers”¹ or “the principle of the attribution of powers”.² It has expressly been recognised by the English courts.³ Article 5 proceeds to impose two constraints on the exercise of the legislative competence which the Community does possess. First, it provides that in areas that do not fall within its exclusive competence, the Community shall only take action “in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States”. Secondly, it provides that “action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty”. This is a particular formulation of the Community law general principle of proportionality.

The principle of conferred powers as enshrined in Article 5, however, does not mean that the power of the Community to legislate is limited. It has a wide range of powers, both express and implied.⁴ In particular, Article 308 EC provides a residual power to legislate to attain a Community objective where the EC Treaty “has not provided the necessary powers”; and the Court of Justice has developed a doctrine of implied powers or “parallel competence” to enable the Community to act in external matters where it has been given an express power under the EC Treaty to act in a corresponding internal matter. Indeed, the existence of these powers has led to an academic debate about the extent to which the Community’s powers to act are in fact “limitless”.⁵

2.02 But the principle of conferred powers does mean that before the Community can legislate on any particular matter, it first has to identify the particular legal basis for the legislation, i.e. the Treaty Article which grants the Community the particular power. The significance of this, from both a practical and a constitutional point of view, is that assessing whether the Community has properly identified the legal basis of any particular legislative measure and, if so, whether that measure was adopted in accordance with the requirements of the particular legal basis will in turn principally determine the validity of the measure in question.

This is because the relevant Treaty Article on the basis of which the measure has been purportedly adopted will determine whether the matter is within the exclusive competence of the Community (and so whether it is subject to the principle of subsidiarity in accordance with Article 5 EC); the form of legislation to be adopted (i.e. whether it may be a regulation, directive, decision or recommendation); the scope or purpose of the measure adopted (be it an approximation,⁶ harmonisation,⁷ co-ordination⁸ or liberalisation⁹ measure or otherwise); and the legislative process to be followed, of which there are a bewildering number.¹⁰ Thus a measure may be proposed by the Commission¹¹ or occasionally follow a Commission¹² or European Central Bank¹³ recommendation. The Council may be required to consult the European Parliament¹⁴ or to adopt the measure jointly with the European Parliament¹⁵; it may be required to consult another advisory body such as the Economic and Social Committee.¹⁶ The Council may be able to act by a qualified majority¹⁷ or may be obliged to act unanimously.¹⁸

2.03 The purpose of Part I is to provide a guide to both the requirements for the validity of a directive and to how a directive may be challenged on the ground of its invalidity. In particular, it considers:

• the basis on which the Community may exercise its discretion (where it has a discretion) to legislate in the form of a directive;

• the procedural requirements for adoption, i.e. the legislative processes;

• the choice of legal basis;

• legal formalities; and

• the substantive legal requirements which it has to satisfy.

It also sets out the procedural ways in which the validity of any particular directive may be challenged through the courts, both European and national, and discusses the possibility of seeking damages direct from the Community under Article 288 EC.

2.04 However, it is important to note when considering these constitutional requirements that the constitution of the Community is dynamic. It has already undergone considerable change since its formation in 1957, and in particular there has been a fundamental shift in power from the Commission to the European Parliament. So far as procedures for law-making are concerned, this may be seen in the introduction of the co-decision procedure by the Treaty on European Union and the expansion in its application brought about by the Amsterdam Treaty. But the changes have not simply been procedural or institutional. They have also resulted in the introduction of additional substantive legal requirements for Community legislation. The most notable of these is that the Community must now legislate in areas of concurrent competence with the Member States in accordance with the principle of subsidiarity. This itself is an evolving legal concept. There will be further constitutional changes as a result of enlargement. Although the conditions which a directive has to satisfy for it to...