This question involves the application of the direct effect. It contains all the relevant laws and theories to obtain a high first. All that is needed is for you to substitute my facts with the facts of your problem question. It is the perfect template to obtain a high grade.
This question involves the application of direct effect. Direct effect allows European citizens
to rely on their European law rights rather than having to go through the EU institutions. The
European court of justice has therefore implemented this process which developed through
case law such as Van Gen den Loos 1963 and transformed the EU into a “vertically
integrated legal regime”. Marshall 1986 signified that directives can only be vertically
effective, therefore they can only be enforced by a state or authority.
Anthony requires advice on whether or not he can rely on the directive provided and enforce
his EU rights in national courts. Anthony main concern whether he directive should have
been implemented by direct effect and therefore be protected by it.
Laland has chosen to implement their own act, Parents Right ACT 2002 which provides, ‘All
employers shall grant a period of parental leave to employees of no less than 10 weeks
following the birth of their child. However, it fails to follow the provisions in the directive
which extents the protection to adoption. The directive also is different as the time period sets
a limit of “at least 10 weeks, whereas the Act sets the amount for maximum of 10 weeks.
Therefore, Anthony should rely on the directive rather than domestic law because it is more
generous.
In order for Anothony to rely on the directive, Anthony must invoke the principle of direct
effect which has been established in Van Gen en Loos 1963. Despite direct effect being
criticised previously, case law has confirmed that directives can be directly effective if they
satisfy certain requirements set out in Van Duyn 1974.
The directive must be sufficiently clear, precise and unconditional. In this scenario, the
directive seems to be clear. The wording of “all necessary measures” could be argued to
suggest some type of discrepancy, however this blanket statement also covers all situations
that may arise. The Directive is precise in the it sets out a time period of “at least 10 weeks”
and even states it must be continuous. The directive states that this is “subject to the birth or
adoption of their child”, which sets out the requirements needed to be protected by this
directive. Therefore, it could be argued that this test has been satisfied as it leaves little room
for ambiguity.
Furthermore, Ratti 1979 established that the deadline for implication must have passed. In
this scenario, the deadline was 1 December 2019 and therefore if it is assumed that this date
has passed, it would satisfy this requirement.
Lastly following Marshall 1986, directives can only be vertically directly effective, signifying
the requirement that they can only be enforced against a state or public authority. In this case,
Anthony works for the local council. The case of Marshall further established that it does not
matter if it is in the relationship of an employer. Therefore, this requirement is satisfied.
Furthermore, in order to enforce direct effect, it must be established under the test in Foster v
British gas that the Lakewood city council satisfies the test for a a public body. This was
further affirmed in Farrel in which 3 test was established 1) it is governed by public law,
(2) it is subject to the authority or control of a public body, or (3) it performs a public
interest task on the basis of special powers. Following this, as Lakewood City Council is
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