UMKC How to Analyse a Directive

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UMKC - How to Analyse a Directive

• Dermot Cahill
• UCD

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How to analyse a Directive

• 1. Look at preamble
• .tells us the objective of the directive
• not legally binding or detailed

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the implementation time limit?

• usually at end of directive
• States with particular implementation
  difficulties given extra time. (Art 22)

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Next step...

• Has a domestic implementation measure been
  adopted?
• .Act of Oireachtas (good!)
• .Statutory Instrument (oh dear!)

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S.I. 33 of 1994

• .implemented on time?
• .effective implementation of the directive?

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Effective implementation of... Article 2?

• What does the S.I. provide.?
• Art 2 is effectively implemented by Reg 2

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Effective implementation of... Article 3?

• .duties of a commercial agent
• .implemented by the S.I.?

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Effective implementation of... Article 13(1)?

• .no reference to it or its terms in the
  directive.has it been implemented?

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Effective implementation of... Article 7?

• Agents commissionart 7(2)implemented?
• What if Reg 4 did not appear in the SI?

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Effective implementation of... Article 17?

• .implemented?
• .why not?
• see SI 31 of 1997 opting for the compensation
  option

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Improper implementation of a directive

• Possible remedies
• .Direct Effect
• .Damages (against State)

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.Direct Effect

• can the Article of the Directive (that your
  client is concerned with) be the source of
  legally invocable rights notwithstanding the
  failed implementation?
• in other words, is the directive capable of
  being legally effective notwithstanding the
  failed implementation?

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\Direct Effect

• ...vertical direct effect possible?
  
  (You v State / Emanation of State Def.)
• .horizontal direct effect possible?
  (You v non-State/Emanation Def.)

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State Liability

• State liable in damages where no domestic
  implementation (Francovich, 1991)
• was aim of directive the creation of rights?
• was the content of those rts ascertainable?
• was there a causal link?

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\.State liability

• State liable in damages where attempted
  implementation where the breach is a
  sufficiently serious breach
• was State acting in good faith when it
  implemented the directive in the way that it did
  (British Telecom 1996)