I would appreciate some help in the field of EU law. One pra question gives me headache...I guess it can be answered in different ways that's why...
Here it is:
In 2009, the EU enacted a directive (fictitious) which required that Member States’ statutory provisions for state benefits be applied to all EU citizens, regardless of which EU state they originated from. The deadline for implementation was January 2010. The UK government, as part of its ‘austerity’ measures, has recently enacted a law which restricts statutory sickness benefits to UK citizens and those with indefinite leave to remain only, in an attempt to cut public spending. Pavol is a Polish citizen, currently residing in the UK. He does not have indefinite leave to remain, as he has only been here for 18 months, but falls ill and is told by his employer, the University of Westchester, that he is unable to claim sickness benefit. He takes the matter to an employment tribunal, but the tribunal dismisses his case on the grounds that UK law does not entitle him to claim.
Pavol has a right of appeal to the county court. Discuss whether, on appeal to the county court, Pavol can enforce his rights under the directive.
I am guessing i need to apply principles of vertical direct effect or indirect effect.
I have problem actually with choosing relevant cases and Acts...
and would u say that this directive is clear, precise and unconditional- what is the requirement of direct effect? and here appears famous case van gend en loos 1963...
Have you got any ideas how this question could be answered???
Many thanks for any guidelines
In what way do you think the question can be answered in different ways?
You need to systematically run through the criteria one by one, and consider in more detail any requirements that are not obviously met
Is it clear and precise? Debatable, think about what is required and whether "applied" is certain (do you have to apply benefits in exactly the same way? Can u use different criteria? etc. etc.) . Probably is certain, but consider...
Time Limit for implementation passed? Yes
--> Directive is capable of having direct effect
Is this a vertical or horizontal situation? You aren't claiming against the state directly but against a (possible) state entity so it isn't obviously vertical so u need to consider case law on this particularly the British Gas case
What is the university is a private uni rather than a state funded one? Then its a case of horizontal d.e., in which case you need to look at the ways in which it might be possible to get around the no horizontal d.e. rule (consistent interpretation possibly? Triangular/indirect effect such as in the Wells case? I have done detailed posts on this in the past, you can find them with a search)
Particularly if horizontal d.e. is a possibility, you need to consider the alternative of a Francovich damages claim against the state.
But i thought that DIRECTIVES are strictly capable of vertical direct effect, not horizontal.....
what about the case of marshall and southampton & SW Hampshire - directive used vertically against public body...?
Directives are not capable of direct horizontal effect. However, you can have Indirect effect (if the principles in Von Colson are satisfied), a possible "triangular effect" under the CIA case or, if the directive embodies a general principle of law (such as non-discrimination - that may be the case here) then the Mangold ruling may apply instead.
If the Directive is implemented before the deadline, then there is no problem because you can rely on national law: there is no need for direct effect or indirect effect or any other kind of effect (except perhaps consistent interpretation as an aid to interpreting national law designed to implement the directive)
(Original post by *Law Student*)
If it doesnt state an implementation date or that the directive has been implemented How would we advise the parties involved??
If the implementation deadline has not passed, there can be no vertical direct effect. The situation with horizontal direct effect is more complicated: whilst there is, strictly speaking, no obligation of consistent interpretation, there is an obligation not to impede the attainment of the objectives of the directive (Inter-Environment Wallonie)