Free Law Dissertations - 1. Directives Are Only Binding To The Effect To Be Achieved, And Governments
1.
Directives are only binding to the effect to be achieved, and governments of Member States are left to implement them in order that they achieve the principle that is trying to be enforced by the Council in the best way they deem fit. This is normally done by incorporation of the directive into National Law, which in the UK is done by Statutory Instrument. Therefore the directive is not directly applicable (Art. 249 EC Treaty), however under Article 10 of the Treaty the Directive must be addressed and national legislation incorporated by a certain time limit, in this case 1 October 2004.
The UK has failed to do this and thus the directive will be capable of direct effect if the directive is sufficiently clear and precise, unconditional and has left no room for the exercise of discretion as to implementation by a Community Institution or Member State. Also it is mandatory that the date of implementation has passed in order that the directive is capable of vertical direct effect only, thus allowing the directive to be relied upon against a Member State or an emanation of the State.
As mentioned briefly before, the directive will only have vertical direct effect so as to be effective and enforceable against the Member State. This is to insure that public companies and citizens operating legal businesses are not punished for the lack of impetus felt by the Member State to introduce the directive into National Law.
In order to equate to an emanation of the State at least one of three further criteria, colloquially known as the Foster Criteria, must be met. It was held in Kampelmann that should one of the Foster Criterion be met the body would be deemed an emanation of the State. An institution or body must be under a duty to provide a public service, or the employer must be under the control of the State. The final criteria is that the employer must have special powers; for example be a monopoly or of a governmental nature. The decision in the Foster case held that British Gas (in its pre-privatisation time) was an emanation of the State but it did not provide strict guidelines as to how to determine whether an employer has special powers. Instead it has been left quite vague as to whether bodies will be held to be emanations merely because of their contributions or affiliations with the State. The criteria for determination will also vary from each Member State due to the varying ideas and national concepts of what is part of the State or an emanation. Further difficulties can be illustrated by the case of Doughty v Rolls Royce Plc. When the Court of Appeal held they were not responsible to the claimant because they were not a emanation of the State it was due to the fact that they provided a service to the State not to the Public and it remained irrelevant that the company was under the control of the State.
Prima facie it would appear that Charles would be able to bring successful action against his employer the council.
Dissertations - Free Law Dissertations
