Chapter 4 Guidance on answering assessment questions

Enforcing EU law rights in national courts

Alf works for Humber plc, a company created to build and operate a railway bridge across the Humber estuary. It is authorized to do so under s. 1 of the (fictitious) Estuary Bridges Act 1990, which also gives it powers to regulate the connecting train service.

(Fictitious) Directive 2010/2010 requires Member States to take all measures necessary to ensure that bridge workers are provided with appropriate safety equipment, including hard hats. The deadline for transposition of the Directive into national law has passed without UK compliance. The Act merely provides that licence holders must ensure that their employees are aware of safety hazards and advised to wear appropriate clothing.

Alf sustained a serious head injury when a cable fell on him during construction of the bridge, and as a result is unfit to work. He claims that his injury was caused by Humber plc’s failure to provide workers with hard hats. Humber plc claims that it had made Alf aware of the risks and had advised him to wear a hard hat, although the company itself did not provide them. It argues that the Act only requires the provision of information and advice.

1. Advise Alf as to how he might enforce his rights under EU law against Humber plc.

Alf clearly has no cause of action under the Act, since Humber plc has fully complied with its provisions, and he has no cause of action under any measure transposing the Directive, since the UK has failed to pass such a measure. His only possible cause of action is therefore under the Directive itself.  If it has direct effect, this means that he will be able to enforce it directly in the national courts (Van Duyn v Home Office Case 41/74 [1974] ECR 1337). The Directive will be directly effective if three conditions are satisfied.  First, the terms of the Directive must be clear and unconditional ((Van Duyn v Home Office). Second, the deadline stated in the Directive for it to be transposed into national law must have passed (Pubblico Ministero v Ratti Case 148/78 [1979] ECR 1629).  Third, Humber plc, as the defendant in the case, must be an emanation of the State (Marshall v Southampton AHA Case 152/84 [1986] ECR 723 ). 

Applying the requirement of clarity to the facts of the case, in Defrenne v SABENA Case 43/75 [1976] ECR 455 the Court of Justice accepted that if part of a measure was sufficiently clear, that part could be directly effective, even if other parts of the measure were too uncertain. Since the Directive specifically states that hard hats must be provided by the licence holder to its employees, it is submitted that it is sufficiently clear and unconditional in respect of these obligations for them to have direct effect if the other conditions are met.

As to the deadline, the question does not specify when this deadline is, and it would be necessary to confirm the date (which will be stated in the Directive).  However, most Directives allow a transposition period of one to two years, and since the Directive is dated 2010 it is likely that the deadline has now passed.  Assuming that the deadline for the Directive has passed, it can have direct effect if the other conditions are satisfied. If, however, the deadline has not passed, the Directive cannot have direct effect. 

The Court of Justice made clear in Marshall v Southampton AHA Case 152/84 [1986] ECR 723 that direct effect may be relied upon only against the State or an emanation of the State. In Foster v British Gas Case C-188/89 [1990] ECR I-3313 the Court held that for an organization to be an emanation of the State, it must be responsible for providing a public service, do so under State control, and have special powers to do so. It is submitted that Humber plc is providing a public service (the railway bridge), under State control (authorized by the Act) and has special powers (regulation of trains).

It is therefore submitted that Alf has a cause of action against Humber plc by relying on the direct effect of his rights under the Directive.

However, in the event that the claim based on direct effect is unsuccessful, Alf may instead seek to rely on the indirect effect of the Directive, that is to say, its effect on the interpretation of relevant national law such as the Estuary Bridges Act. This concept was recognized by the Court of Justice in Von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891. The fact that the Act predates the Directive, and therefore could not originally have been intended to reflect the provisions of Directive, is no obstacle to the application of indirect effect; Marleasing SA v La Comercial International de Alimentatiόn SA Case C-106/89 [1990] ECR I-4135.Applying indirect effect to the facts, ‘appropriate clothing’ could be interpreted as including hard hats, but it is more difficult to construe Humber’s duty to ‘advise’ on appropriate clothing as involving a duty to ‘provide’ such clothing. In Marleasing, the Court of Justice construed Spanish law on the grounds on which a company could be struck off, as not including a particular ground which it did in fact include, in order to bring it into line with the a Directive which did not include that ground.  If such a strained construction were to be used here, Alf would clearly have a remedy. However, Humber might well seek to rely on the comment of the Court of Justice in Marleasing that national legislation need only be construed consistently with a Directive ‘as far as possible’, and its judgment in Wagner Miret v Fondo de Garantía Salarial Case C-334/92 [1993] 2 CMLR 49 that national law which expressly excluded higher management from employment protection could not be interpreted consistently with a Directive which contained no such exclusion, in order to allege that a consistent construction is not possible here, and that therefore the word ‘advised’ in the Act should be given its ordinary, natural meaning.

2. How, if at all would your answer to question 1 differ if Humber plc did not have the power to regulate the train service referred to above but was wholly owned by the State?

As explained above, a Directive can only have direct effect against an emanation of the State. All three elements of the Foster test (see answer to 2.  above) as to what constitutes an emanation of the State must be present. The facts as to the public service element have not changed so this part of the answer is as above.  If Humber plc is wholly owned by the State, this would mean that it operates under State control.  However, now that Humber does not have powers to regulate the train service, it appears that it does not have any special powers. It cannot therefore be an emanation of the State and Alf cannot enforce the Directive directly against it.  The answer given at 1. above in relation to indirect effect is unchanged.

3. If Alf is successful in a claim based on the direct or indirect effect of the Directive, what remedy is he entitled to as a matter of EU law?

Alf clearly wishes to seek damages for the personal injuries which he has suffered.  (There is no need for him to seek disapplication of the Act if he is able to establish that the Directive is directly effective; and if he wishes to rely on its indirect effect, he will need the Act to remain in force).  The remedy to which he is entitled will depend primarily on national law, not EU law, but the Court of Justice has established that it must be equivalent to that available for breaches of EU law (Rewe-Zentralfinanz eG and Rewe-Zentral AG v  Landwirtschaftskammer für das Saarland Case 33/76 [1976] ECR 1989), and must be effective in the sense of not making it ‘virtually impossible or excessively difficult’ to obtain a remedy (see, for example, Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze Case C-231/96 [1998] ECR I-4951).

Note: on the facts of this question, it might be possible for Alf to bring a claim against the UK government for damages (via the principle of State liability: see further Chapter 5). However, you should not discuss this in your answer since you are only asked to advise on the enforcement of his rights against Humber.