Directives synchronize the laws within Member States. They are of direct effect vertically and said to be hard law. Parameters of time exist in which directives must be implemented. It is the role of the state to implement directives, if an individual suffers damages due to failure to implement, the state maybe liable to the individual. Francovich v Italy (1991) (10) demonstrates this. The ECJ developed the concept of direct effect, (Francovich principle), where Member States had not implemented directives in time.
Adversely effected individuals by failure to implement directives only have rights against the state. This is due to vertical and horizontal effect. Vertical direct effect gives the right to use a European law against the state or an arm of the state. This is substantiated in the case of Marshall v South West Hampshire Health Authority (1986) (11). Horizontal direct effect means that an individual can use European law against another individual. Directives which have not been implemented do not give an individual any rights against other people.
In Duke v GEC Reliance Ltd (1988), Mrs Duke was unable to rely on Equal Treatment Directive as her employer was a private company. Directives can not produce direct effect before the implementation deadline had expired and they do not acknowledge horizontal direct effect. This signifies possible limitations on the effectiveness of directives. The ECJ endeavoured to conquer this by enforcing national courts under an obligation to interpret national legislation in the light of directives.
This obligation is referred to as 'indirect effect principle' and was laid down for the first time in the Von Colson decision. (12). The conflicting doctrine of vertical and horizontal effect, giving rights to some individuals in some cases and not in others, is categorically unjust. The ECJ developed another approach, making it possible to take action to claim damages against the Member State that has failed to implement the European directive. As mentioned above, this was first brought about in the Francovich case and was accentuated in Paula Faccini Dori v Recreb Srl.
(1995), (13). The Francovich principle has been enhanced. The ECJ has verified that compensation is due from a State, not only on failure of implementation but, also when directives have negligently been implemented. Nevertheless, a number of criteria must be met in order to receive compensation: the Community rule in question must have the object of conferring rights on individuals; the infringement must be adequately serious and there must be direct causation between the infringement of the Member State and the damage experienced by the individual.
English courts originally used a 'literal approach' when interpreting legislation, meaning the words in a law were taken exactly as they appeared, however ridiculous the effect. The purposive approach to interpretation, paying more attention to the spirit of the legislation, is the one favoured by most European Countries and is the approach undertaken by the ECJ in interpreting European law. Lord Denning believed that when interpreting European law, English courts should take the same approach as the European Court would.
Consequently, rather than using the literal rule, the Courts should apply a broadly-interpreted mischief rule. EU guidelines say that 'the wording of an Act should be clear, simple, concise and unambiguous; unnecessary abbreviations, "community jargon" and excessively long sentences should be avoided'. Given that English courts take into account the intention behind an Act, the purpose clause would be an extremely useful way for the drafter to give guidance for future disputes.
The purpose clause would give a clear explanation of what a law should achieve, overriding any interpretation of its contents that appeared to contradict this aim. The purpose clause would also help the drafter, as a writer who starts with a clear outline of his message is far more likely to write that message clearly. As judges must use the purposive approach for European law they are more accustomed to it. Therefore they are more likely to use it when applying English law as was illustrated in the case of Pepper v Hart, (1993).
(14). It is apparent that all Member States, including Britain, have transferred sovereignty to a Community created by them. Principles of the ToR indicate that no Member State may question the status of Community law as a system of consistently and generally applicable law throughout the Community. Therefore Community law, enacted in accordance with the power laid down by the Treaties, has precedence over conflicting law of any Member States.
This is noticeably demonstrated with cases, such as the Marshall case, which brought about changes in statute law. To conclude, as with all things, there are advantages and disadvantages to being part of the EU. Some advantages are: it provides legal rather than military disputes; it allows all EU citizens protection throughout the EU and no dissenting judgements mean no judge can be seen to be bias in favour of nationality of any party.
Disadvantages include: the time factors involved before a ruling is made could cause injustice in an urgent case, (it can take eighteen months to get a ruling); the overloading of the ECJ, which leads to more delays and the expense involved could restrict some individuals. Effects of UK membership have been extensive and practical. For example, preventing unlawful restrictions on imports of certain goods, discriminatory taxation on wine and the requirement to fir tachographs to lorries. In the future we can expect the EU to have a considerable impact on English law. Britain can not afford to be insular in its approach.