Treaty of Rome

Article 249 (ex 189) of the Treaty of Rome 1957 stipulates that directives are binding as to the result to be achieved, but that each individual Member State can use its discretion on how to implement it. Consequently, the UK is obliged by law to implement the directive. The European Court of Justice stated in Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/82) [1963] ECR 1 that the EC constitutes a new legal order, binding on its members, and which therefore must take precedence over domestic laws if a conflict should arise, so that international obligations are fulfilled.

Directives confer obligations on the State, and cannot be used by individuals in pursuit of a claim against another individual. If the factory was part a public body (such as a gas works, which was defined as such in Foster v British Gas plc (case C-188/89) [1990] ECR I-3313), Mary may be able to sue them as in Marshall v Southampton Area Health Authority (No 1) (case 152/84) [1986] ECR 723, it was decided that the State should not be allowed to benefit from its own failure to implement EC law properly.

However, if the factory not a State body, Mary would not be able to sue it for polluting the water, since it would not be bound by the directive. However, the government is in breach of its Treaty obligations in not passing the directive into national law within the time limit prescribed in the directive. In Francovich and Others v Italian State (Cases 6/90 and C-9/90 [1991] ECR I-5357, the Italian government had failed to implement a directive in accordance with the aims of the EC. The ECJ came to the conclusion that the State could indeed be found liable for breaching EC law in this way.

It set conditions which should be met in order for compensation to be awarded: the directive should grant rights to individuals which are identifiable from the wording of the directive, and there should be evidence of a causal link between the breach of the State's obligation and the loss or damage suffered by the individual. Although there is no provision for state liability in the Treaty of Rome, the court felt that failure to provide an adequate remedy would diminish the effectiveness of EC law and that the State should make good any losses caused to individuals by their failure or breach.

In the joint cases of Brasserie du Pecheur SA v. Federal Republic of Germany and Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. (No. 4) (Cases C-46 and 48/93) [1996] Q. B. 404, 500 the court confirmed that damages payable should be assessed according to the seriousness of the breach in question. In doing this, the national court responsible for quantifying the amount of damages due should apply the national norm, without any discrimination.

Also, in R v HM Treasury, ex parte British Telecommunications (Case C-392/93) [1996] ECR I-1631 the ECJ further ruled that the courts could take into account the serious ness of the breach in question and any other legal disputes relating to the government's policy and the attitude of the Commission, etc. Even for breaches of EC law, an individual can never take a case to the ECJ, so Mary should begin her case in the UK courts, who may then refer to the ECJ under Article 234 (ex 177) of the Treaty of Rome for a preliminary ruling, if they feel that there is a point of EC law which needs to be interpreted before they can give judgment.

Mary can specifically request that a preliminary ruling is sought, but this is not binding on the court. However, it does appear that Mary has a case against the UK government for not implementing a directive which would have prevented harm being done to her by the chemical effluent. Her loss and suffering should be assessed, in accordance with national practice, and the court should take into account how serious the government's breach of EC law was. c) If this incident had occurred in May 2001, before the deadline of 30 June had passed, then Mary would not be able to take action against the State, whether or not the factory was State run.

This is because during the timescale for implementation, it is not committing anything illegal in the eyes of the EC. Until the deadline has passed, the UK is under no obligation to have the implementing law in place, it is only after that date that the directive must be in force as part of national law. For this reason, she would only have a claim if the incident occurred after 30 June, as is the case above. As seen in Question 1 above, it is the duty of the State to ensure that directives from the EC are correctly implemented and integrated as part of national law.

Denmark purports to have correctly implemented the directive, however it has included some exceptions, which had led to the damage of a number of Carl's fish. However, the textile-weaving works are managed by a company set up by the local authority. In Marshall v Southampton Area Health Authority (No 1) (case 152/84) [1986] ECR 723, the ECJ stated that a State should not be allowed to benefit from its own breach of EC law. In that case a health authority was held liable as part of the government, for the legislation's breach of EC law.

In Foster v British Gas plc (case C-188/89) [1990] ECR I-3313, the ECJ decided that British Gas constituted a public body because it had special powers which allowed it to provide its service to the public, under State supervision. The local authority does count as a State body, but it is a matter for the ECJ to decide whether the company set up by it to run the textile-weaving works constitutes a State body, or if it is too distant. This would probably depend on how much input the local authority has in its running and whether it has any special privileges or responsibilities beyond what another organisation in its position would have.

Should Carl take this case to his national court, they may refer the question to the European Court of Justice for an interpretation of the wording of the directive as well as clarification the State's degree of liability. If the textile-weaving works company is found to be a State body, then they could be ordered to make good the loss which Carl has suffered as a result of their not implementing the directive properly, as they should not be permitted to benefit from their own actions.

Even if it is not a State body, they could still be liable if it is found that Carl's case fulfils the conditions established in Francovich and Others v Italian State (Cases 6/90 and C-9/90 [1991] ECR I-5357. For this he would have to show that the directive would have conferred rights on him as an individual, that those rights are easily discernable from the wording of the directive, that breach of the EC law contained in the directive was serious enough and that it resulted in his loss. Even if these conditions are met however, the State still may not be liable for damages if their breach is not found to be serious enough.

It would not be possible to argue that the State could not be found liable for its own legislation, as both the UK and Germany did in the cases of Brasserie du Pecheur SA v. Federal Republic of Germany and Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. (No. 4) (Cases C-46 and 48/93) [1996] Q. B. 404, 500. The ECJ rejected this argument, saying that a member state cannot escape liability by relying upon its constitutional orgainisation and he independence of its legislative breach. The ECJ may find that the wording of the directive is clear, specific, and with little or no room for national discretion.

Or they may find, as they did in R v HM Treasury, ex parte British Telecommunications (Case C-392/93) [1996] ECR I-1631, that the relevant EC law was vague and subject to alternative (legitimate) interpretation by national governments from that which was intended – particularly as other governments have made the same mistake, as stated here. The Danish government would have a good case for arguing that they were not exceeding the limit on their powers to legislate in this area, because no limits were specified in the directive, and there was no exclusion of the provisions on which they had legislated.

So their exemption of business with fewer than 20 employees does not breach EC law, because the EC law had no provision on the matter. If the ECJ do declare the law to be a breach of EC law (whether a serious breach or not), the exemption of businesses with fewer than 20 employees will no longer be applicable. Although Carl legally uses water from the local river, which is polluted and which kills his fish, it is possible that the breach will not be found to be sufficiently serious to warrant damages in EC law since it would be difficult to show that the Danish government had intended to subvert EC law.

If Carl was successful in his claim, however, his national courts should award him damages in accordance with national practice and procedure. Article 220 (ex 164) of the Treaty of Rome 1957, charges the European Court of Justice with the responsibility of ensuring that the Treaty and ensuing laws are interpreted and applied correctly. Under Article 234 (ex 177), the ECJ is authorised to give preliminary rulings on the interpretation of EC law. The ECJ can interpret not only the Treaty articles themselves, but other acts of the Community institutions as well.

It is the only EC institution with the power to do this. This article specifically states that any court or tribunal of a Member State may request a ruling to clarify a piece of EC law in order to be able to give its judgment. It is not compulsory for a court or tribunal to request a ruling in a case, unless it is the final court, with no judicial remedy after it. In the UK, this means that where a question arises on a piece of law in a case in the House of Lords, the House of Lords must refer that case to the ECJ for a preliminary ruling if they feel that the interpretation is necessary for their judgment.

Any other court in the UK can decide for itself whether to make a reference to the ECJ, even if a preliminary ruling could be regarded as necessary. In deciding whether a preliminary ruling is necessary, the court should consider whether the interpretation of the point of EC law will be relevant to the conclusion of the case, whether the point of law is sufficiently clear as to not be doubted, or whether a ruling on similar questions has already been given in relation to a different case – possibly one referred by a different Member State.

In this instance there is a right of appeal from the court, so the court should decide for itself whether a preliminary ruling is necessary to its judgment or not, and if it is necessary, whether to make the application. Even if it does request a preliminary ruling, the final judgment will be its own, based on the facts of the case. The preliminary ruling from the ECJ simply answers the questions of interpretation: judgment is reserved for the national court at whatever level.