Legal protection of individuals under EU directives

It is quite often that EU Member States, motivated by a variety of organisational or political considerations, stop short of fully implementing EU directives within their national legal systems. The practical result may be that a directive is not implemented in a given country within the applicable deadline, or that such implementation is somehow defective, leaving the objective of the given legislative instrument unfulfilled. Even in such a situation, however, individuals will not be left without legal recourse – they will still benefit from legal tools for safeguarding their rights. 

The state will pay 

Given that directives are addressed to Member States and that defective implementation of a directive by such Member State is tantamount to violation of the Treaty on the Functioning of the European Union, incomplete transposition of EU law constitutes grounds (on authority of art 258 of the Treaty on the Functioning of the European Union) for initiation by the European Commission of proceedings before the European Court of Justice, charging the Member State in question with failure to fulfil its treaty obligations. Similar proceedings before the ECJ may also be brought by any Member State (art. 259 of the Treaty).

Having considered such a complaint, the ECJ may issue a decision enjoining the Member State in question to duly implement the directive. If the Member State does not comply with such a decision, the European Commission may request that the ECJ applies a flat penalty (i.e. a one-time fine) or a periodic penalty (a penalty accruing on a day-by-day basis until compliance with the Treaty obligation has been achieved). Liability on this count is not subject to any caps, and it arises only as between Member States and governing bodies of the European Union. In the specific case of Poland, for example, the lowest possible flat penalty is EUR 3.61 million. These provisions, however, do not have direct bearing upon the legal situation of individuals.

… and redress the damage 

An individual who has suffered harm as a result of defective implementation of a directive may, however, bring a claim against the offending Member State, seeking damages for breach of that Member State’s duty to achieve complete, timely implementation. Beginning with the cases of Francovich (ref C-6/90 and C-9/90) and Factortame III (ref. C-46 and C-48/93), ECJ authority bases such liability in art 10 of the EC Treaty, applying it to delayed implementation of directives as well as to defective implementation which fails to produce the result envisages in adopting the directive. The legal prerequisites of such liability have been defined by the ECJ in its Factortame III decision as comprising:

– Violation by a Member State of an EU law standard which extends rights to individuals;

– Existence of a casual link between the breach and the damage suffered; 

– Materiality / significance of the violation of EU law (with respect to incomplete implementation of a directive). 

If, then, an individual has suffered harm as a result of defective implementation of a directive by a Member State (particularly due to unjustified failure to accord a right within the national legal system as mandated by an applicable directive, or incomplete according of such right), then such harm is subject to redress in connection with violation of EU law. The liability of a Member State offending in this way shall be analogous to liability for unlawful action, or unlawful failure to act, by a public authority under art 417 of the Polish Civil Code. This is an effective instrument ensuring that EU law remains operative at the national level based on the premise that a Member State which does not perform its obligations under EU law is acting unlawfully.

The rights of an individual 

Without prejudice to the above, the European Court of Justice has also cultivated a line of authority to the effect that, in vertical relations between the individual and the state, EU directives exert a direct influence. Application of this legal principle provides individuals with direct recourse to EU law, “skipping over” national laws which fail to duly take the applicable EU law into account. This aspect of the direct effectiveness of EU law was first aired by the ECJ in the case of Van Duyn (ref 41/74), in which the ECJ found that an individual may base his rights vis a vis a Member State upon a directive and rely on such a directive in claiming legal protection. At the same time, the European Court of Justice formulated the following preconditions for such direct recourse to EU directives:

Failure to implement the given directive within the applicable deadline, or defective implementation; 
Citing by the individual concerned of a clear, specifically defined right vis a vis the state or a demand that the state fulfils a specific duty imposed upon the state by a directive; 
The provisions of a directive must be capable of direct application, i.e. they are not conditional / contingent in character and do not require elaboration at national level. 

If a Member State – specifically, Poland – does not honour the rights of an individual and the above prerequisites are met, liability may also arise under arts 417 et post of the Polish Civil Code. This applies, in particular, to the realms of tax law, environmental protection law, labour law, consumer law, bankruptcy law, energy law, and equity markets law.

As much has been confirmed in Polish judicature – please see the rulings of the Chief Administrative Court in Warsaw from 24 September 2008 (case ref FSK 922/08) and of the Polish Supreme Court from 18 December 2006 (case ref II PK 17/06).

Duties of the national court 

European Union law also provides for another type of individual right which, as a point of difference from direct application of directives as discussed above, operates not only vertically, but also horizontally, i.e. as between individuals. This is the principle of pro-EU interpretation of national laws.

In its rulings in the cases of von Colson (ref 14/83), Marleasing (ref C-106/89), and Pfeiffer (combined cases refs C-397/01 through C-403/01), the European Court of Justice held that, when applying national laws, a court must, within the bounds of its authority, interpret national laws – to the extent possible – in accordance with the text and the objective of applicable EU directives.

This means that, as long as the interpretation does not yield a result contrary to the linguistic import of the regulation, national laws should be interpreted so as to mirror EU directives as closely as possible. If a Member State incorrectly interprets a directive and, as a result, an individual is deprived of her/his right to pursue a claim, and interpretation of the national law so as to achieve the goals of the directive is possible, then the aggrieved individual may cite EU law and its interpretation. The net result may be that, in practice, Polish laws end up exerting an effect not originally envisaged by the Polish legislature but required in light of EU law, opening a new basis for civil liability.