SEMINAR 9 ENFORCEMENT OF EU LAW: DIRECT EFFECT AND INDIRECT EFFECT Learning Objectives After preparing for and participating

in this seminar, students should be able to: explain the concepts of direct and indirect effect and the development of relevant case law; apply these concepts to a given factual situation; compare the influence of Union and national law as the award of a remedy; analyse legal and factual information in terms of relevance and importance; and structure ideas in an argument and reason logically. Q esti!ns 1. xplain the difference between direct and indirect effect. !irect effect is where provisions of union law are directly applicable on citi"ens of the U and which the courts are bound to enforce, even if the state in #uestion hasn$t applied national laws to enforce their provisions. %ndirect effect is when the courts have to interpret national law based on badly or unimplemented directives from the U, see the case of Von Colson and Kamann v

Land Nordrhein-Westfalen, where the ECJ ruled that national courts should interpret national law in line with the directive, "in so far as it is given discretion to do so under national law".
&. xplain the difference between vertical and hori"ontal direct effect. 'ertical direct effect is a legal doctrine developed by the () allowing individuals to rely on treaty provisions and directives in actions against the state while hori"ontal is as above but to allow individuals claims against other individuals in national courts. *. !avid wor+s for ,ennine -unnel ,.(, a company created to build an underground road/rail lin+ between 0anchester and .eeds. %t has a compulsory purchase power to ac#uire land along the route of the tunnel and a licence under 1ection 1 of the 2fictitious3 ,rivate 1ector -ransport 4 -unnels Act 1556 to build and operate the proposed tunnel. 27ictitious3 !irective 89/89 provides that any tunnel wor+er re#uired to wor+ for more than five hours in a tunnel site in any day must be paid three times his normal rate for any time wor+ed beyond this. -he !irective also provides that tunnel operators must ma+e facilities, including toilet and shower facilities, available on:site. -he deadline for transposition of the !irective was *1 !ecember &88;. -he ,rivate 1ector -ransport 4 -unnels Act 1556 provides that:: (1) employers must provide appropriate hygiene and rest facilities for use by employees engaged in tunnel construction; . . . (5) employees engaged in work in tunnels shall be entitled to be paid twice their normal rate in respect of any time worked by them in tunnels in excess of seven hours per day.

!avid was fre#uently re#uired to wor+ more than five hours per day in the tunnel but ,ennine -unnel only paid him at his normal rate up to seven hours per day and at double time for every additional hour. <e has now developed a serious s+in condition which has made him unfit to wor+ and which the company admits was due to the lac+ of on:site washing facilities. a3 Advise !avid as to whether he can enforce the !irective against ,ennine -unnel ,.(. (lear and precise = >es !eadline for 0ember 1tate implementation has passed : >es nforceable ONL" against the 1tate or emanation of the 1tate ? @vertica# direct effectA : Bo 1o no he can$t enforce against ,ennine as they are not an emanation of the state. b3 Could it ma+e any difference to your answer to a3 if the company did not have the powers and licence referred to above but was wholly owned by <0 DovernmentE >es, it would then be the state, and thus enforceable. Essentia# Rea$ing .ecture notes <orspool 4 <umphreys, &81&, uropean Union .aw, Fxford, FU,, (hapter ;, ,arts %, ;.1:;.&G on direct and indirect effect, and ;.5G:;.118 on remedies (raig 4 !e HIrca, &811, U .aw: -ext, (ases and 0aterials, Fxford, FU,, (hapter (hapter ; arleasing v !a "omercial #nternacional de $limentacion 189/65 J1558K (L G1*M %agner iret v &ondo de 'arantia (alarial **G/5& J1558K (L G1*M A$$iti!na# rea$ing )an *uyn v +ome ,ffice G1/;G J15;GK (L 1**; &oster v -ritish 'as plc 166/65 J1558K (L %:**1*