Question:
Directive [imaginary] 2011/32/EU aims to provide protection for the people responsible for the electricity supply in public work places, such as national rail train stations and underground train stations. The Directive provides that “all employers shall take the necessary measures to provide adequate protection of employees who work in power and transport related industries. This shall include provisions taken by the employer to provide and maintain appropriate clothing and equipment to protect workers”.
The date for implementation of the Directive was the 21st October 2013. The UK has, however, passed some legislation that only requires the adoption of general precautionary measures by the employers, and does not oblige them to provide the workers with necessary clothing and equipment.
Matthew is an electrician, working for MetroElectric, a semi-privatized company, that was initially created by the state and has exclusive contracts on public works with electricity. This company is responsible for all relevant electricity works in the tube stations that are currently being modified.
Matthew, who was using his own worn out clothing and other old protective equipment, had an accident at work, which resulted in painful burns to his left leg. He was due to take a holiday but had to cancel it because of his injury; he had not taken out travel insurance. He asks MetroElectric to cover the costs of his holiday, to give him alternative weeks as leave and to issue him with new clothing and other protective equipment, but MetroElectric refuses to agree to any of his requests.
Advise Matthew whether he can rely on the Directive 2011/32/EU in legal proceedings against MetroElectric.
European Union is an organization of treaties along with legislation such as Directives and Regulations and all these have an impact on the laws of member states of the European Union either directly or indirectly. These treaties, directives and Regulations not only impose obligations on the individuals, but rather certain legal rights are also conferred upon them. The composition of the European Union includes three bodies: the European Parliament, the European Commission and the Council. It’s only after a particular legal text has been agreed upon by the Council as well as the Parliament, it is considered as a law. Such a joint judicial effort of the European Union is termed as a directive and then it becomes binding on all it’s member states to implement such directive. In simple words, a directive is a kind of legal tool, which is used by the European institutions for the execution of the European policies. It is versatile because it merely provides the outcome, but method of it’s execution is left on the nations. The directives are not executed directly by the member states at the national level, but for their execution, they have to incorporated by the member states into their national laws.In simple language, they are transposed into the internal laws of the member states.
If at any stage it is found that any member state has been unsuccessful in execution of the directives, judicial proceedings can be initiated by the European Commission against such member state in the European Court of Justice.
Article 288 of the TFEU (Treaty on the Functioning of the European Union) confers a binding nature to the directives of the European Union. As per this Article, a directive will always have a binding effect upon all the member states to which it has been addressed and they are bound to implement the result to be achieved. However the choice of the structure and procedure of achieving that result is left open to the national authorities. Not only this, the binding nature has to be in entirety and hence a directive cannot be executed partially, incompletely or selectively. For a directive to come into force, it is through notification to EU member states or by publication in the Official Journal. As mentioned above, it is then transposed by the nations into their national laws. It is the principle that such a transposition must necessarily take place within the deadline specified by the institutions (which is mostly between 6 months and 2 years). In case, a member state does not execute/ implement the directive within the specified deadline, the Courtof justice can rule it out on the Commission’s recommendation. An individual can approach the court against a member state for the execution of a directive.
For the purpose of ensuring the appropriate execution of the legal obligations of the EU by the member states, Article 258 TFEU provides for a procedure for the initiating the judicial proceedings and for this certail guiding principles have been provided, which fall into three categories:
It means that the European Law creates such rights for the individuals, which makes it binding on the the courts of the member states to enforce it and execute it. Though, an exhaustive list of such rights is not provided anywhere explicitly under the European law. The first case, in which the European court of Justice identified such rights was: Van Gend en Loos v Nederlandse Administratie der Belastingen. A criteria was laid down by the court in this case, for the application of this effect, according to which the provision should be:
In this case, the court provided an individual with the power to enforce his rights against a member state, conferred by the EU law.
Two kinds of direct effect were recognized by the European Court of Justice in Defrenne v. Sabena.
In the case, Foster v British Gas a Foster’s test was formulated to determine if a case is under the heading of the horizontal or vertical. For this, to define a public body as an emanation of the state the following factors were prescribed:
The state in this case was made liable to pay for damages for the individual’s loss.
It means when a member State becomes unsuccessful in implementing the European laws and the direct effect cannot be applied for the reason of either the entity to be a private entity against whom the Directive is to be enforced or the non fulfillment of essential conditions of the direct effect.
It was in the case of Francovich v Italy, universally called as ‘Francovich Principle’, when “State liability” was recognized. Certain minimum standards were laid down in this case by the court for making a member state liable for damage/loss suffered by an individuals because of non compliance with the EU laws by the State:
Thus, in this case the state was made liable to compensate for the loss of individuals on account of its failure to comply with the EU law.
Any individual who has suffered injury or harm because of infringement of any directive or any other European law, has been granted the right to claim for full compensation for the injury or harm caused along with the enforcement of the the execution of the concerned directive.
Here, full compensation means placing the victim in a place where he/she would have been if the Member State had complied with the European Law. The court will consider an actual loss and the actual loss of profit, before calculating the full compensation and will compensate the victim accordingly.
In Sutton v. Secretary of State for Social Security, certain tests were defined by the court to determine and calculate the seriousness of the breach of the European law made by the member State.
1. In the given case, Directive 2011/32/EU provided that the employers should take all the necessary steps required for providing sufficient protection of employees working in industries responsible for supplying the electricity in public work places. It included providing and maintaining suitable clothing and equipment for the protection of workers and 21st October 2013 was the deadline provided for its implementation.
2. As per the above facts, all the member states of EU were supposed to transpose the Directive 2011/32/EU into their national laws till 21st October, 2013. Since, injuries were received by Mathew after the deadline, direct effect may be invoked by him as held in a similar case, Pubblico Ministero v. Ratti. In this case, the court held it is possible to apply the direct effect, only if the deadline specified by EU for the execution of the directive has elapsed. The member States are bound to execute the directive within the time limit given in the Directive. If it elapses and the Member State becomes unsuccessful in executing the law, only then it is possible for an individual to invoke the direct effect.
3. Moreover, as mentioned above under Article 258 TFEU, directive has to be transposed in entirety. Thus, the laws of U.K., which provided for the preventory measures to be taken by employees but did not impose the use of special clothing and equipment as required by the directive is not valid. It implies partial incorporation of EU directive and can be considered as equivalent to breach of the directive.
4. MetroElectric, a semi-privatized company, in which Mathew worked was initially created by the state and had exclusive contracts, responsible for public service of supplying electricity. As per Foster’s test as given above, it can be called as an emanation of state. Thus, the state of U.K. can be made liable for Mathew’s injuries. Reference can be made to a case: Francovich v. Italy, the court held that those companies as well as individuals were cpable of making any member state liable for the payment of damages, who had been adversely affected on account of non-execution of a directive by that member state. Thus, the MetroElectric company, being an emanation of state, the principle of vertical effect can be applied and state can be made liable for Mathew’s injury.
5. The Metro Electric was a semi privatized company and was under the state, thus the state had the wide discretionary powers to make laws in line with the Directive 2011/32/EU of the EU, for the protection of the employees against the dangers in their work of supplying electricity in public places. In s pite of having powers, the state of U.K. falied to implement the directive in its national laws, thus can be made liable for the injuries caused to Mathew due to such failure of the state.
Refernce can be made to the joined case laws: Brasserie du Pêcheur and Factortame III: Held that if there are wide discretionary powers with the national legislature of a member state for making legislation and yet infringes the Community law, the victim has the right to claim for reparation for the injury or harm caused to him and especially where the provision of EU infringed breached was for the protection of individuals.
6. Mathew received injuries because of the ordinary clothes worn by him during the work. If the directive had been complied with by the company, which falls under the state of U.K., Mathew would not have received such injuries and also he had to cancel his holiday due to the injuries received. Thus, on the basis of the principle of full compensation as defined above, he is liable to recive not only damages for his injury but also the holiday coverage by the company with a sick leave and appropriate clothing.
Conclusion:
Mathew can rely on the Directive 2011/32/EU in the legal proceedings against the Metro Electric company and can force the company to pay damages and execute the directive, for the injury received by him along with the coverage of holiday and the leave.
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