Directives are a form of legal measure enacted by the EU institutions, and are widely used in various areas. Article 288 TFEU provides: ‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.’
Most of the EU law on employment and industrial relations is contained in EU directives. Member States are obliged to achieve the aims contained within a directive by a stipulated date. Failure to implement a directive or implementation in part only or incorrect implementation often leads to a complaint by the Commission to the European Court of Justice (Article 258 TFEU).
Additionally, invoking the need to achieve effectiveness of EU law (effet utile), the European Court has decided that individuals may make claims in national courts for rights provided in directives under certain conditions: where the individual rights specified in the directive are clear, precise and unconditional, and the right is being violated by the state or an emanation of the state (vertical direct effect). Directives in the field of employment and industrial relations, therefore, may confer directly enforceable rights on employees of the State. However, the Court has refused to extend the direct effect of directives to allow for claims by individuals against other private individuals, including private employers (horizontal direct effect).
Public employees in EU labour law thus retain the considerable advantage of being able to rely directly on provisions in EU directives as well as on national legislation. The scope of the definition of the state has the result that a considerable proportion of the national workforce is in this fortunate position. The potential scope of the definition of ‘emanations of the state’ in EU law may include privatised industries or services. The legal form of the body is irrelevant, so long as it is responsible for providing a public service under the control of the state and has, for that purpose, special powers.
Despite this, the legal force of directives conferring rights on individuals remains limited by the exclusion of ‘horizontal direct effect’, and the insistence of the European Court on the exclusively ‘vertical’ responsibility of the state for implementation of EU directives, even where EU law imposes responsibilities on private employers. The effet utile rationale for direct effect may support a legal remedy also where private employers fail to respect provisions of EU directives, which should be effective.
The discrepancy between employees of the state and employees of private employers in terms of their ability to claim rights under directives according to the doctrine of ‘vertical’ direct effect has been partly remedied by other legal doctrines developed by the European Court of Justice.
The European Court’s doctrine of indirect effect achieves indirectly, through the technique of judicial interpretation of domestic law, the result obtainable through the doctrine of direct effect: national courts are required to interpret their national law so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result required by the directive (Von Colson and Kamann v. Land Nordhein-Westfalen, Case 14/83, (1984) ECR 1891). However, this result is obtainable as far as the national law is not wholly inconsistent with Community law.
The principle of state responsibility has potentially far-reaching implications for the enforcement of EU labour law. If an individual has a definable interest protected by the directive, failure by the state to act to protect that interest may lead to state liability, where the individual suffers damage, provided causation can be demonstrated. The Directives on health and safety at work, on equal treatment of women and men, and an increasing number of Directives regulating individual and collective interests of workers are cases where non-compliance with EU law may lead to state liability.
Collective agreements are a mechanism for implementing EU Directives in the field of employment and industrial relations. Compared to administrative officials or judges, the social partners are much less remote from the site of enforcement of labour law. Their proximity means that they have the potential to be effective guarantors of the application of the rules. Recognition of the role of collective agreements in implementing directives was established in the case law of the European Court of Justice.