Interpret ‘so far as possible’ in the light of the aims and purposes of the

relevant European law. This is a vague obligation replete with escape

routes (see Maltby, 1993). It could be suggested that, in as much as it

applies to laws passed before the relevant directive comes into effect,

the Marleasing rule violates rule of law values of settled expectations

and non-retrospectivity. On the other hand, given that old cases cannot

be reopened, a revised interpretation of an earlier law seems to be

no different in principle from the commonplace case of an amendment

to a statute. Indeed as we shall see the Human Rights Act 1998 uses a

similar device. Moreover Marleasing would not presumably apply to

events that took place before the case was decided.

9.5.4 State liability

Even where a Directive does not have direct effect, an individual may

be able to sue the government for damages for failing to implement it.

This was established by the ECJ in Francovich v. Italy (1992) where a

Directive which required employees’ pay to be guaranteed against the

insolvency of the employer was too vague to have direct effect. Never-

theless the court held that damages could be awarded against the

Italian government in an Italian court. The court’s reasoning was based

203

The European Union

upon the principle of giving full effect to EC rights. This is a powerful

and far-reaching notion. In order to obtain damages: (i) the Direc-

tive must confer rights for the benefit of individuals; (ii) the content of

those rights must be determined from the provisions of the Directive

(a certain degree of certainty is therefore needed); (iii) there must be a

causal link between breach of the Directive and the damage suffered

(see also R. v. Secretary of State for Transport ex parte Factortame

no. 4 (1996); R. v. Minister of Agriculture ex parte Hedley Lomas (1996)).

In English law, in the absence of bad faith, damages cannot normally

be obtained against the government for misusing its statutory powers

and duties (Barnett v. Enfield BC (1999)). The Francovich principle,

which was subsequently accepted by the House of Lords (Kirklees

MBC v. Wickes Building Supplies (1992)), is therefore of great signifi-

cance. Francovich leaves the procedures for recovering damages to

national courts, but any conditions must not make recovery impossible

or excessively difficult. There may also be a developing principle that

legal remedies must be equally effective in each member state (below).

The Francovich principle also avoids the ‘vertical’ enforcement rule

(above). Failure to implement a Directive against a private person

would entitle the plaintiff to sue the government.

9.5.5 Effective remedies

There is also an obligation to give effective remedies to protect rights

in EC law. The courts originally took the view that this second obli-

gation merely required that the remedies available in European cases

should be no worse than in equivalent domestic cases. However, it now

appears that the courts must sometimes provide better remedies in

relation to European rights than would be available domestically.

In Factortame (No. 2) (1991), the House of Lords accepted a judge-

ment of the European Court of Justice that required the court to

issue an interim (temporary) injunction against the Crown in order

to suspend the operation of a statute, which, contrary to a Euro-

pean Directive, prohibited the applicants from fishing in UK waters.

At that time, interim relief against the Crown was not possible in UK

law. The government argued that the protection given was the same

as that which domestic law would give in similar circumstances,

i.e. none. The ECJ, however, held that there is an overriding require-

ment that the remedy must be effective to protect the European right

and the court should consider whether in the circumstances an injun-

ction should issue (see also Johnston v. Chief Constable of Royal Ulster

Constabulary (RUC) (1986)).

204 General Principles of Constitutional and Administrative Law

It remains to be seen how much freedom a member state has

in adjusting its remedies to its own circumstances. For example, in

Factortame the court still had a discretion whether to issue the injunc-

tion based upon the justice and convenience of the circumstances. The

English courts are very cautious about issuing interim injunctions and

will do so only as a last resort (see R. v. HM Treasury ex parte British

Telecommunications plc (1996)). The governing principle is that the

remedy must be adequate and effective, but member states can choose

among different possible ways of achieving the object of a directive.

Summary

9.1 The EU and within it the EC exist to integrate key economic and increasingly

social policies of member states with the aim of providing an internal ‘com-

mon market’, of creating a powerful European political unit, and of reducing

the risk of war within Europe. The constitution of the EU is an evolving one

aimed at increasing integration between its member states. The EU has three

main policy areas or ‘pillars’, these being economic development, common

foreign and security policy and co-operation on justice and home affairs. Only

the first pillar, together with immigration matters, is regulated by law, most

laws being made by the EC. EC law raises conflicts between democratic

values and the existing goals of the community, between the independence of

the member states and the integrationist goals of the EU and between the

different legal cultures of the common law and civil law traditions.

9.2 EC law has been incorporated into UK law by the European Communities Act

1972, which makes certain EC laws automatically binding in the UK, requires

other laws to be enacted in UK law either by statute or by regulations made

under the 1972 Act, and obliges UK courts to decide cases consistently with

principles laid down by the European Court of Justice. In some cases ques-

tions of law must be referred to the ECJ. The ECJ has developed the role of

constitutional court and is sometimes regarded as being a driving force for

integrationist policies which enlist national courts in the project of giving

primacy to European law.

9.3 The other main policy and lawmaking bodies are the Council of Ministers

which is the main lawmaking body, the European Council of heads of state

responsible for policy direction, the appointed European Commission which

proposes laws, makes some laws, supervises the implementation of policy,

carries out research and takes enforcement action, and the elected European

Parliament which is mainly a consultative and supervisory body but has

certain powers of veto. Taken together these bodies are meant to balance the

interests of national governments and those of the Union as such, but not to

follow strict separation of power ideas. There is only limited democratic input

into the EC lawmaking process.

9.4 Law and policy-making power are divided between the Council and the

Commission with the balance in favour of the Council. Voting sometimes has

to be unanimous but there is increasing use of qualified majorities where

205

The European Union

voting is weighed in favour of the more populous states. The Parliament does

not initiate laws but has certain powers of veto and can sometimes suggest

amendments.

9.5 Not all Union law is directly binding on member states. ‘Regulations’ are

binding. Other laws including the treaty itself are binding if they satisfy

criteria of ‘direct effectiveness’ created by the European Court. Directives can

have direct effect only against public bodies (vertical direct effect) but not

against private bodies (horizontal direct effect). However, the concept of

‘indirect effect’ which requires domestic law to be interpreted so as to confirm

to EC law may alleviate this. The government may also be liable in damages if

its failure properly to implement an EC law damages an individual in relation

to right created by the EC law in question.

9.6 Membership of the Union may not have fundamentally altered the doctrine of

parliamentary supremacy, but the UK courts have accepted that a statute

which conflicts with a binding EC rule must be ‘disapplied’. There is a general

political principle – perhaps an emerging convention – in favour of the sup-

remacy of Union law.

Further Reading

Arnull, A. (1996) ‘The European Court and judicial objectivity: a reply to Professor

Hartley’, 112 Law Quarterly Review 411.

Bogdanor in Jowell and Oliver, The Changing Constitution.

Craig (1997) ‘Directives: direct effect, indirect effect and the construction of national

legislation’, European Law Review 519.

Craig and De Burca, The Evolution of EU Law, chapters 1, 2, 5, 7, 12.

Harden, I. (1996) ‘Democracy and the European Union’ in Hirst and Khilnani (eds).

Harden, I. (1994) ‘The constitution of the European Union’, Public Law 609.

Hartley, (1996) ‘The European Court, judicial objectivity and the constitution of the

European Union’, 112 Law Quarterly Review XXX.

Michael, J. (1996) ‘Freedom of Information Comes to the European Union’, Public

Law 31.

Munro, C. Studies in Constitutional Law, chapter 6.

Shaw, J., More, G. (eds) New Legal Dynamics of European Union.

Walter, N. (1995) ‘European constitutionalism and European integration’, Public

Law 266.

Ward, A Critical Introduction to European Law, chapters 1, 2.

Weatherill, Law and Integration in the European Union, chapters 1, 2, 4, 6.

Weiler, J. (1993) ‘Journey to an unknown destination: a retrospective and prospective

of the European Court of Justice in the arena of political integration’, 31 Journal of

Common Market Studies, 417.

Wincott, in Richards (ed) (1996) ‘The Court of Justice and the European policy

process’.

Exercises

9.1 Explain the constitutional structure of the EU. To what extent is it federal? It is

a requirement of membership of the EU that the member state must have a

democratic form of government, but it has often been remarked that the EU

would not satisfy the conditions for membership of itself. Do you agree?

206 General Principles of Constitutional and Administrative Law

9.2 What powers does the UK Parliament possess in relation to EU policy?

9.3 To what extent are (a) the Council of Ministers and (b) the European

Commission accountable for their decisions?

9.4 Explain the relationship between UK courts and the European Court of

Justice. To what extent is the ECJ a constitutional court?

9.5 (a) What is the purpose of the direct effect doctrine and what are its main

limitations?

(b) An EC Directive requires member states to ensure that compensation is

paid to part-time workers who are made redundant. The compensation

must be paid by the employer. The UK has not implemented the Direc-

tive. Jeff, a part-time employee of Dodgy Burgers plc, is made redundant.

His employer refuses to pay him compensation. Advise Jeff as to his

rights, if any.

Explain the constitutional implications of the Marleasing case.

9.6

9.7 Parliament wishes to put right injustices suffered by women. It passes an Act

which permits women to be paid more than men for the same work. Assume

that a directly effective EU law requires women to be paid the same as men

for the same work and discuss the following:

(a) Gail is paid the same as John for the same work and seeks a remedy (a)

in an English court, (b) in the European court.

(b) Would your answer differ if the Act said that ‘this Act is applicable notwith-

standing any decision of the European Court of Justice, or any powers of

European Union Law or any powers of the European Communities Act 1972’?

9.8 Gervase has suffered lead poisoning. It has been established that this has

been caused by a reaction in a water softener manufactured by Hydros, a

Greek company. The retailer from whom it was purchased has gone into

liquidation, and it was not insured. The reaction was one not generally known

of at the time the water softener was supplied to Gervase, but some six

months earlier an article had appeared in a Japanese scientific magazine

which described reactions of this kind in laboratory tests of the filter material

used in the water softener.

When Gervase sues Hydros under the Purchasers Protection Act 1990

(fictitious), Hydros admit that the water softener was defective, but rely on s.