Upon reading Article 288 TFEU, in section 3,

Upon reading Article 288 TFEU, in section 3, the differences
between the regulations and directives are very clear. Under the regulations,
it is stated that ‘regulations are directly applicable in all the Member states
as soon as they enter into force’ and also ‘they do not need to be transposed
into national law’.1
From this, it is clear to understand that once the regulations have binding
legal force through every Member State, whereas, directives lay down certain
results that must be achieved but each Member State is free to decide how to
transpose directives into national laws. 2

Directives are binding, as to the result to be achieved,
upon any or the entire Member States to whom they are addressed, but leave to
the national authorities the choice of form and methods. When laws are adopted
it must oblige with the EU from national to Member States. When these laws are
adopted, citizens are given the necessary rights and are then stricken by the
legal act.

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Under primary law, the EU has only limited powers of
enforcement, as EU law is usually enforced by the Member States. Furthermore,
Article 291(1) TFEU adds that Member States shall adopt all measures of
national law necessary to implement legally binding Union acts. Where uniform
conditions for implementing legally binding Union acts are needed, the
Commission exercises its implementing powers.

‘According to the case law of the
Court (Francovich case), an individual citizen is entitled to seek compensation
from a Member State which is not complying with Union law. This is possible, in
the case of a directive which has not been transposed or which has been
transposed inadequately, where:

·        
the directive is intended to confer rights on
individuals

·        
 the
content of the rights can be identified on the basis of the provisions of the
directive;

·        
there is a causal link between the breach of the
obligation to transpose the directive and the loss and damage suffered by the
injured parties. Fault on the part of the Member State does not then have to be
demonstrated in order to establish liability.’3

‘In terms of treaties and regulations, they are vertically
and horizontally directly effective. Either a treaty or a regulation can be
used as a piece of law in a member state court against the state or another
individual. If a state fails to implement a directive within the time
given by the EU then an individual can take the state to court for
non-implementation. It is important to remember that in situations when the
state has been taken to court, the ECJ has adopted a ‘wide perception’ of the
state, deeming the state to include all areas of government, including schools,
NHS trusts and local authorities.’4

‘The term ‘Direct effect’ is a principle of EU law. It
enables individuals to immediately invoke a European provision before a
national or European court. This principle relates only to European acts. The
term ‘Direct effect’ was first used by the CJEU in a judgement on 5 February
1963 which specified the legal quality of direct effect in the case of NV
Algemene Transporten Expeditie Onderneming Van Gend en Loos V. Nederlandse
Administratie der Belastingen (Case 26/62). In this case, the CJEU indentified
three situations necessary to establish the direct effect of primary EU law.
These are:

·        
The provision must be sufficiently clear and
precisely stated;

·        
It must be unconditional and not dependent on
any other legal provision

·        
It must confer a specific right upon which a
citizen can base a claim

‘If these points are triggered, the provisions of the
treaties can be given the same legal effect as regulations under Article 288 of
the TFEU. However, there is little legislation on employment and industrial
relations to be found other than in primary law and in the regulations on the
free movement on worker.’5

‘There are also other effects such as the ‘horizontal effect’.
The rule of horizontal direct effect remains that directives do not have direct
effect against private individuals. In the case of Faccini Dori 1995, the CJEY
had stated that Miss Dori had a right under the Directive, its provisions were
unconditional and sufficiently precise, but without national implementing law
she coulf not rely on the directive itself in an action against another private
party: this followed TFEU article 288 which also says that Directives are ‘binding
only in relation to “each Member State to which it is addressed”‘. However, the
court would be under a duty to interpret national law, as far as possible in
line with the Directives purpose. Moreover, the state would have to ‘make good
the damage’ caused for failure to implement the law.’6
As mentioned, the horizontal effect is limited to the work sector and
industrial relations but in contrast to this the Charter of Fundamental Rights
of the European Union was added into primary EU law by the Lisbon Treaty. This
charter contains rights and freedoms under six titles which include:

·        
Dignity

·        
Freedoms

·        
Equality

·        
Solidarity

·        
Citizens’ Rights

·        
Justice

This came into force on 1st December 2009, this
inclusion of the charter as mentioned concerns majorly on employment and
industrial relations to help reduce discrimination in any form in this field. A
huge ground-breaking case was also incorporated which was the equal pay for
women and men (Article 157 TFEU). Due to this, this then could provoke the CJEU
to bind direct effect – vertical and horizontal – to provisions of the Charter.

Moreover,
vertical direct effect is majorly concerned with the alignment between EU law
and national law and whether the State’s obligation is to ensure its
legislation is suited to EU law. Citizens can apply it in claims against the
State as defined in the case of Foster v. British Gas, this case was primarily
concerned with the equal treatment for men and women with regards to
employment. ‘7From this, employees in these privatised industries and
services may rely directly on provisions in EU directives, so that a large
proportion of the national workforce can directly enforce rights contained in
the directives.’

In the case of Laval (2008),
it was held by Article 49 of the TFEU to have direct effect, this then
concluded that Member Sates must amend national laws that restrict any freedom
which is incompatible with the Treaty’s principles. ‘Directive 96/71 on posted
workers sets out minimum standards that must apply in the case of workers
posted from one Member State to work in another. Article 3 of the directive
states that Member States should ensure that terms and conditions established
by law, or by any universally applicable collective agreements, apply to posted
workers, in particular in relation to minimum work periods, breaks, annual
holidays and rates of pay.’8 This case is very important especially in terms of the
work sector which is very limited under certain horizontal effects. A key word
of this case was outlined as ‘social dumping’ which is where a practice of
employers to use cheaper labour than is usually available at their site of
production and/or sale. In the latter case, migrant workers are employed; in
the former, production is moved to a low-wage country or area.’9 The entrepreneur would then make a severe profit at
the expense of someone’s well being.

In addition to the Laval case,
the impact of vertical direct effect is substantial in certain areas such as
the idea on equal pay between men and women which has been an on going battle
for centuries. Furthermore on this idea,’ Article 157 TFEU gives an explicit
commitment to equal pay for women and men, stating that equal pay without discrimination
based on sex means:

·        
That pay for the same work as piece rates shall
be calculated on the basis of the same unit of measure

·        
That pay for work at time rates shall be the
same for the same job’10

This has stemmed from the
Council Directive 75/117/EEC of 10 February 1975. Equal pay between both sexes
should not be discriminated and both genders should receive the same pay when
they are both doing the same job. To this day there are still growing issues on
the matter due to ignorance from certain powerful sectors. Furthermore, as
mentioned this is under ‘Article 157 TFEU and was held to have direct effect by
the ECJ in Gabrielle Defrenne v. Sabena . This case has also become the basis
for numerous other claims before national courts and references to the ECJ.’11 Despite the best efforts of the EU and the Member
States it has been made aware that the gender pay gap remains an average of
just 20%. Based from this, although this equal pay directive has been in law
since 1975, it is still not always followed many years later. In addition,
directives should hold more power over Member States as all of the parties must
agree to the legislation before it is enforced but in terms of equal pay it is
not being followed strictly.

The freedom of movement for
workers across Member States is vitally important for certain sectors whom deal
globally. It is very efficient for most people who can follow their perusals whether
that may be working in a country of their choice or country that they have
studied. In the case of Van Duyn v. Home Office in 1974, this was a
breakthrough case for the freedom of workers. ‘This was a vertical direct
effect applied to the body of EU legal measures in the form of directives. The
implications were much greater for the field of employment and industrial
relations. Employment rights contained in directives now became capable of
direct enforcement against the State before national courts.’12

 

 

 

 

1 http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.2.1.pdf

2 http://www.usda-eu.org/eu-basics-questions/difference-between-a-regulation-directive-and-decision/

3 http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.2.1.pdf

4 http://hum.port.ac.uk/europeanstudieshub/learning/module-3-governance-in-a-multi-level-europe/direct-effect-and-direct-applicability/

5 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/direct-effect

6 https://en.wikipedia.org/wiki/Faccini_Dori_v_Recreb_Srl

7 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/direct-effect

8 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/laval-case

9 https://en.wikipedia.org/wiki/Social_dumping

10 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/equal-pay

11 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/equal-pay

12 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/direct-effect

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