MANUAL OF ENVIRONMENTAL POLICY: THE EU AND BRITAIN

A corollary of the principle of supremacy of Community law is that certain provisions are ‘directly effective’, that is, they give individuals rights which they can rely upon before a national court. In order to have this effect, provisions must be sufficiently clear and precise, unconditional, and leave no discretion to Member States in their implementation (Van Gend en Loos case 26/62). This will almost certainly be the case for Treaty articles and Regulations. Where such provisions are directly effective, they will confer rights which can be relied upon both against the State and against other individuals or companies.

The question of direct effect of a Directive is more problematic and only arises where the Member State has failed to implement it properly or at all by the deadline given. Because Directives are binding only as to the result to be achieved it might appear that the third condition above could never be satisfied. However, in order to avoid a situation whereby a Member State may profit from its failure to implement, it was held in Pubblico Ministero v Ratti case 148/78, that once the time limit for implementation has expired the Member State no longer has a discretion, so that a Directive is capable of having direct effect.

Few cases have arisen before the ECJ in which the question of direct effect of environmental directives has been considered. In Comitato di Coordinamento per la Difesa della Cava v Regione Lombardia case C–236/92 the ECJ held that the waste framework Directive of 1975 (see Section 5.3) was incapable of direct effect since it set out objectives to be aimed at in the disposal of waste and, as such, was insufficiently precise and unconditional. In the case of Luciano Arcaro C–168/95 the Italian court referred questions arising in the course of a prosecution for unauthorized cadmium discharges. The relevant Directives had not been implemented in relation to existing plants. The ECJ declined to rule on the question of direct effect. The Advocate-General, however, considered whether the Directives were unconditional and sufficiently precise to have direct effect. He concluded they were not, principally because:

A limitation on the doctrine is that Directives can be relied upon only against the State or ‘emanations of the State’ (Foster v British Gas case C–188/89) and cannot impose obligation upon individuals until the Directive has been implemented. In other words they only have ‘vertical’ but not ‘horizontal’ direct effect (Marshall v Southampton Area Health Authority case 152/84.) This is because they are addressed to, and therefore bind only, the Member State. In Arcaro the ECJ ruled that the relevant Directive, since it had not been implemented, was incapable of imposing obligations on an individual such as the defendant, least of all to aggravate his criminal liability. The status of a body may therefore become important in this context. In the English case of Griffin and others v South West Water Services Ltd (High Court 25 August 1994) it was held that a privatized water company was an ‘emanation of the State’ for the purposes of an unimplemented Directive on consultation of workers for redundancy. This decision could equally well apply to environmental Directives.