Fred is a laboratory technician employed by the Department of Foreign Affairs and Trade in Ireland. He has encountered problems at work and is considering bringing proceedings against his employer.

(Fictitious) Directive 2003/555 ('the Directive') provides that all overtime worked by laboratory technicians must be paid at no less than three times the normal hourly rate. The Directive also provides that laboratory technicians must receive health and safety training. An annex to the Directive sets out the details of the required training, which must include sessions covering all new handling techniques relating to toxic substances. The deadline for implementation of the Directive was 31 December 2015.

The (fictitious) Laboratory Technicians Act 2000 ('the Act') provides that all overtime worked by laboratory technicians must be paid at no less than twice the normal hourly rate. The Act also provides that all laboratory technicians must receive health and safety training but does not specify the content of the training.

Fred occasionally works overtime and, under his contract of employment, receives twice his normal hourly rate of pay. He is dissatisfied with this but when he complained, his employer pointed out that this overtime rate complies with the Act.

Last month, Fred came into contact with a toxic substance at work and, as a result, suffered respiratory problems. Whilst Fred has received health and safety training, he has not received training in recently developed handling techniques for toxic substances. He believes that, had he received such training, he would not have been exposed to the associated health risk.

(a) Advise Fred as to whether he has any cause of action against his employer under EU law.

(b) How would your answer differ (if at all) if Fred was employed not by the Department of Foreign Affairs and Trade but by Fyso (UK) plc ('Fyso')?

[For the purposes of this question, you are NOT required to consider any possible action for damages against the Irish government, but this may be applicable as an alternative remedy in an appropriate case.]

(a) The nature of Fred's complaint and compliance with the Act

• Begin by setting out Fred's two complaints: his overtime pay and his inadequate health and safety training
• His employer, the Department of Foreign Affairs and Trade, appears to have complied with its obligations under the Act: overtime pay at twice the normal hourly rate and health and safety training
• Fred should therefore be advised to consider seeking to invoke the Directive in the national court, since its provisions give him better rights than the Act: overtime pay at three times the normal rate and training in new handling techniques for toxic substances.

Reliance on the Directive in the national court: direct effect

• The principle of direct effect was established by the Court of Justice in Van Gend. If a provision of Union law is directly effective, it gives rise to rights that can be invoked by individuals in the national court. Directives are capable of direct effect (Van Duyn). Thus, Fred will be able to rely on the Directive, provided it is directly effective.
• The conditions attached to direct effect: the measure must be sufficiently clear and precise and unconditional (Van Gend, Defrenne). Further, in relation to directives, the implementation deadline must have passed (Ratti) and the claim must be vertical, against the state, or an 'emanation of the state' (Marshall).
• Your answer should now apply the conditions for direct effect to the facts.
• Consider first whether the Directive is clear, precise and unconditional. These conditions appear to be satisfied, as the Directive sets out precise minimum overtime rates, its annex gives details of the required training, and there is no mention of any conditions attached to the rights.
• The implementation deadline was 31 December 2015, and that date has now passed. (always work with the date of assessment unless the question states otherwise).
• Fred's claim is against the Department of Foreign Affairs and Trade, which is clearly an organ of the state. This is not affected by the fact that the Home Office acts in the capacity of an employer (Marshall). Fred's claim is therefore vertical.
• Fred will be able to invoke the Directive against his employer in the national court, which must apply the provisions of the Directive and disapply the provisions of the Act.

(b) Fyso as the employer: direct effect?

• Fred wishes to bring his claim against his employer, Fyso
• Consider whether the Directive is directly effective in these circumstances.
• The conditions relating to clarity, precision, unconditionality and the implementation deadline are satisfied (refer to the relevant parts of your answer to (a))
• However, the status of Fyso must be explored, as a directive can only be directly effective vertically, against the state, or an 'emanation of the state' (Marshall/Farrell).
• Fyso is clearly not the state, but is it anemanation of the state? Apply the Farrell test: an emanation of the state “... can be distinguished from individuals and must be treated as comparable to the State, either because they are legal persons governed by public law that are part of the State in the broad sense, or because they are subject to the authority or control of a public body, or because they have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, such special powers.” However, as a private company, Fyso is unlikely to satisfy the Farrell test,but it is not impossible.
• Assuming that Fyso is not anemanation of the state, Fred's claim is horizontal and he cannot therefore rely directly on the Directive.

Indirect effect

• Fred may however be able to enforce the rights under the Directive by virtue of the principle of indirect effect.
• This principle was created by the Court of Justice in Von Colson and requires that relevant national law be interpreted in accordance with EU law. This principle is particularly important in situations such as Fred's, where an individual cannot rely directly on a provision of EU law.
• The Court held in Marleasing that the principle applies irrespective of whether the national provisions pre-date the EU provisions, so the fact that the Act pre-dates the Directive is irrelevant.
• However, Marleasing made it clear that the national court's duty of consistent interpretation applies only so far as possible. Harmonious interpretation will not always be possible (Wagner Miret) and, in particular, there is no duty to adopt a contra legem interpretation (Pupino).
• Now consider whether the provisions of the Act can be interpreted in line with the Directive. To interpret 'no less than twice the rate of normal pay' to mean 'no less than three times the normal rate of pay' would entail a contra legem interpretation, and the national court would not be required to adopt such an interpretation. On the other hand, it would be likely that a national court would have no difficulty in interpreting 'health and safety training' to include a requirement for 'sessions covering all new handling techniques relating to toxic substances'.
• In conclusion, Fred is likely to be able to rely on the indirect effect of the health and safety provisions of the Directive, but not its overtime pay provisions.