Describe directives and how they become law in member states.

Directives are used to bring different national laws into line with each other. Directives are commonly used in issues which affect the operation of the single market.

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The European Union is about member states working together to achieve common goals. The EU goals were born out of the aftermath of the Second World War and ambitions to secure long term peace and security and economic well being for Europe. Working together would later mean the free movement of goods and services and the creation of an enlarged 'common market' to bring about a more prosperous Europe. This would entail, among other things, the creation of similar rules and regulations setting common standards across Europe so that individual countries did not obtain an unfair advantage but traded subject to common standards to be found elsewhere in Europe. This was to be achieved by the harmonisation of laws within the member states.

 

Directives are the main way in which harmonisation is achieved. The EU creates directives setting out what is required, in terms of the law, to be introduced. Many see this harmonisation process as 'big brother' telling us what is best but it would be difficult to see how national parliaments could devise a legislative programme which reflected the interests of the EU as a whole.

 

The power to create directives is given under Article 249 of the Treaty of Rome. This is the same Article that enables the EU institutions to issue regulations. The difference with directives is that, whilst they set out what is required, they leave it to the member state to implement the directive by passing laws in the member state. They are addressed to all member states and set out a goal to be achieved by a specified date. It is then up to each member state to draw up legislation in order to conform with the directive by the date specified. For example the working time directive sets out minimum rest periods and a maximum number of working hours, but it was left to each country to implement its own laws on how to apply this. This directive illustrates the European ideals behind the directive system and we can perhaps acknowledge the benefits that harmonisation was intended to bring concerning fairness and consistency on a European basis to safeguard and protect workers.

 

It should be appreciated that the directive is binding upon member states to which it is addressed. The member state has no discretion as to the result to be achieved but it is left up to the individual countries to decide how the result is achieved. This is, as we have seen, consideration of what is required to achieve the harmonisation laws. This objective would be defeated if it were open to individual member states to quibble over the principle and effect of the legislation required.

 

The EU does however recognise that there may be various reasons why the introduction of a new law or measure may cause operational or practical problems in a particular country and this may be do do with the size and population of the country or particular methods of working in an industry. There may be significant costs involved and for these reasons the EU will stipulate a time scale within which the legislation is to be passed.

 

The time limit will be set by the European Commission, generally it is 18 months but can be up to 5 years in some cases. The European Commission monitors the progress of the directives and is in a position to warn a Member State if there is a delay or a fault in the transposition of the directive. The European Judges will be required to act if there are persistent failures to transpose the directives and they may impose daily penalties or a fine or both.

 

Turning to the requirement for directives to be brought into effect, this is normally achieved by delegated or secondary legislation. Directives in the UK are usually implemented by Statutory Instruments but will sometimes be introduced by Orders in Council or an Act of Parliament. The Unfair Terms in Consumer Contracts Regulations 1994 is a UK statutory instrument which brought into effect the EU (then EEC) directive Unfair Consumer Contract Terms Directive 93/13/EEC, a directive intended to provide protection to consumers from unfair terms in consumer contracts.

 

The main thrust of the EU's work to establish liability in respect of defective products was brought into effect eventually by a statute (primary legislation) in the form of the Consumer Protection Act 1987. Bearing in mind the amount of legislation coming out of Europe it is not usual to implement directives by introducing statutes in this way. The Act was notable in that the UK was one of only a few EU member states to implement the directive within the three year deadline and it was the first occasion that the UK government implemented an EC directive through an Act of parliament rather than an Order under the European Communities Act 1972.

 

Directives do not take effect automatically and must be implemented if they are to become part of the member states' national law. Regulations on the other hand are directly applicable and no further action is required in order for them to come into effect. This is different from directives which are implemented by the member state usually within the time scale permitted. Directives are addressed to countries and those national authorities must take some action to put them into effect. Decisions do not necessarily apply to each member state and apply to specific countries or individuals.

 

As a result regulations are said to be the most direct form of EU law. This is because as soon as they are issued they have binding legal force throughout every Member State. Regulations are not in any way less important than national laws and are on a par with national laws. National governments do not have to take action themselves to implement EU regulations and they automatically become law in each member state.

 

It is important to note that regulations are directly applicable. Crucially the law in a member state will change on the issue of a regulation and this change will take effect as prescribed by the regulation. An organisation or individual may acquire legal rights or have existing rights altered by such regulations so it is important to understand the nature of this form of secondary legislation and that they operate without recourse to our own national parliament. This direct applicability is taken from Article 249 of the Treaty of Rome.

 

It is this same Article 249 which enables the EU to make directives but the important distinction is that such directives do not come into effect straight away but some action must be taken by the member state in question. This means that organisations and individuals do not have their rights changed automatically as with regulations. This may be crucial in the event of a potential cause of action arising prior to liability being established.

 

A case which illustrates this 'direct applicability' point very well is the case of Re Tachographs: The Commissioners v United Kingdom (1979). The matter was eventually taken up by the Court of European Justice and concerned the UK government's failure to implement a Council regulation imposing the requirement that mechanical recording devices had to be installed in goods vehicles. The problem was that drivers were driving for considerable periods of time and as a result there was evidence that this was the cause of drivers falling asleep at the wheel or otherwise being responsible for road traffic accidents. The UK government were too slow to comply and were held to account over the matter. In actual fact the government of the day had intended to leave the matter to the proprietors of haulage firms to put the equipment into their vehicles but the EU would have none of it.

 

As we have seen the EU have set out on a course of action to achieve regularity in a number of areas and the concept of uniformity and equality is dependent upon being able to achieve this throughout the EU member states where the EU feel this is appropriate.

 

In the case of directives it is possible that a member state may fail to implement a directive thereby potentially depriving an individual of rights to which they would otherwise have been entitled. The claimant in such situations has to show that the state failed to do what it should have done and whilst directives have direct effect if it is intended to give individuals rights which are clearly set out and provided for, directives do not have horizontal direct effect. This distinction is far from satisfactory as many lay persons would find it difficult to see why compensation may be payable in one case but not in another.

 

The point is well illustrated by the leading cases on the subject Marshall v Southampton and South West Hampshire Area Health Authority (1986) and Duke v GEC Reliance Ltd (1988). The former case brought by Mrs Marshall concerned a claim for discrimination on the basis that she was required to retire earlier than her male fellow workers. Mrs Marshall succeeded in her claim to the European Court of Justice despite the fact that a directive had not been fully implemented in the UK. In this case the directive had vertical direct affect and a claim was allowed. It identified that the applicant was able to use the directive against her employer but only because she was employed by the Health Service which was an 'arm of the state'.

 

Directives do not have horizontal direct effect however and the latter case of Mrs Duke illustrates how this can be said to cause hardship. Mrs Duke was unable to rely upon the same directive that Mrs Marshall had been able to and her claim was disallowed on the basis that her employer was not an 'arm of the state'. As a result she was deemed not to have acquired rights.

 

The difference has now been mitigated to some extent by the case of Francovich v Italian Republic (1991) ensuring all citizens rights are protected regardless of whether they work for a public or private body or whether the claim was brought vertically or horizontally.

 

How it Works Press START to legislate

 

Regulations, Directives and other acts - Europa EU

 

(Word count 1692)

 

 

 

As always the essay lends itself to expansion and additional research using the links provided.

 

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