eSignature Lawfulness for Employee Incident Report in European Union

How to eSign a document: eSignature lawfulness for Employee Incident Report in European Union

welcome back everybody to the law of the European Union in this video we're moving away from the concept of direct effect and focusing on this idea of indirect effect this is sort of as a way of being able to plug in the gaps if you will between the issues of direct effect as they do not apply horizontally in the case of EU directives in the previous lessons what we did was spend some time examining the nature of Direct effects of both EU legislation from the perspective of Primary Law I.E the treaties themselves and the secondary law the the the regulations directives and decisions that are made this video is going to introduce the subject of indirect effect of EU legislation so let's just do a quick recap then a quick recap of the principle of direct effect what does the principle of direct effect tell us uh how do we apply it and what are its limitations more importantly well remembering back to the previous videos we noted that direct effect will apply vertically I.E between a state and a private individual or organization like a private company when it comes to the treaties when it comes to the regulations and when it comes to EU directives now there are obviously conditions that are applied onto that so the the conditions is of course the idea of it being um uh enshrining obligations there not needing to be any further implementation of the provisions in order to actually um be directly effective as also it has to be clear and unambiguous um so those are also just sort of kept as a as a as a requirement in addition to the fact that they can be applied vertically to um treaties regulations and directives when it comes to horizontal direct effect a direct effect between two private individuals or private organizations this would only apply to that of a treaty and a regulation horizontal direct effect does not apply and cannot apply to directives partially o to the fact that the definition of a directive itself as defined by article 288 of the treaty on the functioning of the European Union tells us that it is that it is an EU directive not only is um applicable as to the result to be achieved but onto the member state to which it is addressed so it specifically addresses a member State a gap therefore is left when it comes to the horizontal direct effect of directives what if I wanted to to apply a direct effect an EU directive horizontally I can't rely on Direct Effect what can I rely on what can I do well this is what indirect effect seeks to regulate indirect effect will apply in circumstances where conflicts may exist between the law of the European Union and that of the member State okay the principle of indirect effect tells us that where possible where it is possible to do so a member state must interpret the provisions of their national law in ance of that of the law of the European Union in order to ensure compatibility so whereas direct effect tells us that we have provisions of EU law where it's whether it be treaties whether it be regulations or even whether it be directives in the vertical case that we can directly apply to the member states okay we directly apply and it is um it penetrates the legal system of the member State and is directly applicable indirect effect is a little bit different it tells us that well if there is a clash between the two then you must interpret as a Judiciary of a of of a member states interprets the member states national law Provisions in ance with that of the law of the European Union so if there's two interpretations of a particular provision of legislation one is in ance with the EU law one is not then indirect effect tells us that you must interpret it in ance with the law of the European Union in 1984 we get an example of this in the Von Coulson case this case involved a number of women who had sought to work in various different prisons in and around Germany so it was like multitud of different cases coming together this was actually in contravention of a basic rule of prison policy that women would not uh sorry that women would be denied work in prisons okay as as a result of the policy at the time as such they were only compensated for their time in traveling to the job interview and they wouldn't get the jobs fundamentally they brought an action on the basis that this basic idea this basic understanding ba uh violated the equal treatment directive directive 76207 now this was an example of private citizens bringing an action against um U against another private organization I.E the various different prisons okay on the basis of there being a contravention of an EU directive against another private IND organization so fundamentally we have to think well this would not be allowed under the principle of direct effect it is an EU directive and it is being applied horizontally it would mean that direct indirect sorry that direct effect has no basis here so it was held that while the directive did not include a specific remedy the claimants were still entitled to more than just travel expenses as to as part of their compensation the requirement of a member state to achieve the result of the directive is binding on to all authorities in the member states this also includes the Judiciary of the member states and as such and as an extension of this basic principle in ance with the directive the courts of the member states are required to interpret the national law in ance with that directive this is what gets us this principle of indirect effect because the directive is binding onto all authorities in the member States including the Judiciary the Judiciary has a an obligation on the part of um applying the EU directive then it must interpret the national law in ance with that directive which means that we get uh that what arises out of this principle is this idea of indirect effect the idea of interpreting a national law in ance with that of the law of the member State uh or the other way around at least the interpreting the law of the member state in ance with that of the national uh of the of the EU law of the directive in order to achieve some kind of harmonization of that particular um part of EU legislation welcome back everybody to the law of the European Union in this video we're going to continue talking about the principle of indirect effect in a little bit more detail so we've so far been exploring the concept of the application of European Union law in the National Judicial Systems of the member states we focused some time on the idea of direct effect the idea that there are certain Provisions if certain conditions are established that uh are directly effective in the territory of the member states we noted that there was a distinction between what is described as direct effect that is vertical that exists to establish the relationship between the citizen and the member State and we also noted that there is a distinction between that and and direct effect which is horizontal a a a type of direct effect which exists between private citizens we then also spent some time talking about where direct effect cannot apply how it cannot apply horizontally to uh Provisions which are part of directives EU directives this lesson is going to continue talking a little bit more about the next major issue the idea of indirect effect the idea that while direct effect may not be applicable in certain circumstances I.E if it was not um if it is um trying to apply to a horizontal case um that involves the application of a directive or if it does not meet the required conditions for direct effect we could then go to looking at indirect effect which is where we essentially ought to interpret the law of the member state in such a way as is to be in ance with the that of EU law we're going to be talking about this in more detail with reference to case law in this video so we explained that D indirect effect refers to an obligation on the part of national courts to as I've just said interpret national law in ance with that of the European Union law um this is obviously in circumstances where there exists clashes between the two when we think about how it applies it applies horizontally and it can also apply to that of EU directives so it Bridges the gap between the the the gaps that was essentially left with direct effect and it essentially tries to fill in those gaps with indirect effect an example that illustrates this point is the case of mar of maring should I say um versus laeral um from 1990 this was a case which gave the concept that directives may have horizontal indirect effect a certain amount of validity it was a case which involved a company that brought proceedings against that of a different company so it is horizontal in nature okay given the fact that we have two private citizens private private corporations in this instance um this means that it is therefore horizontal the defendant company was alleged to have existed only to defraud that of a number of creditors uh the claimant sought to have the articles of Association of the defend company cleared declared void as a result of its intended purpose the legal process that concerned this in relation to EU law was directive 68151 so this is the situation we have a directive that is being sought to apply in this particular case and it is a case that involves a horizontal proceeding proceedings between two private corporations so we can't really apply direct effect to this circumstance we have to to think about other ways in which um the application of EU law may be um applicable essentially the court of justice held that the direct uh that the directive did have the ability to have not direct effect but it had the ability to have indirect effect horizontally national law must therefore be interpreted in ance with that of directive 68151 it also then that this um led to the C to the court finding in faor of the defendant since it was directive 68151 that did not explicitly allow for quote lack of cause as a ground for nullity I.E for declaring the articles of Association void um the directive did not actually allow for at least explicitly allow for lack of cause being one of the justifications to allow for an articles of Association to be declared void so in fact the courts found in favor of the defendant another case that exists is the casee of Fifer from 2004 this was a case which concerns a number of claimants who were members and employees of the Red Cross in Germany and there was a request made that these workers um work more than 48 hours per week now for those of you who have studied employment law um you would know that working more than 48 hours a week would actually be in contravention of the European Union's work working time directive which is directive 20388 in response to this there was an argument that National legislation implemented in Germany gave an exception to this working time limit allowing longer working times fundamentally it was held by the court of justice that the national law must be interpreted in conjunction with that of the appropriate provisions of the working time directive and so therefore indirect effect applied they held that the work time directive itself did have the ability to be applied through direct effect as well so the the the previously um uh studied area of law that the idea of direct effect the working time directive did also have the ability to be applied directly but only vertically it could not be applied horizontally um because of course it is a directive and we know that directives are not applied horizontally through direct effect so we have this idea here where we have direct effect being applied vertically uh it being applied vertically through direct effect but also through indirect effect it has to be interpreted in such a way as to be in ance with the working time directive and they say the following thing at uh paragraph 15 they say quote although the principle that national law must be interpreted in Conformity with Community Law concerns chiefly domestic Provisions enacted in order to implement the directive in question it does not entail that an interpretation merely of those Provisions but requires the national Court to consider national law as a whole in order to assess to what extent it may be applied so as to not produce a result contrary to that sought by the directive this part of the case judgment gives us an indication of how indirect effect is able to be applied in circumstances so when I say uh all all indirect effect means is that we have to read the national law in ance with that of EU law well what does that actually mean well it means the this it means fundamentally that it does not necessarily entail an interpretation merely of those Provisions um but also requires that a national Court take a more holistic approach talk about and consider the national law as a whole the legal of sorry the body of legal principles that is enshrined in the law of the member states in order to assess to what extent it may be applied so as to not produce a result which is contrary to the resort that is sought by the directive in question welcome back everybody to the law on the European Union this is in fact the second time I've recorded this lesson on incidental effect the first time there was no sound and I didn't know of this until somebody uh very kindly made a comment um to to to inform me of that the reason for that is I uploaded the video and then it was Friday and uh finished for the weekend so that video was up for the whole weekend without any sound so I'm sure you all were very very intrigued to know what I was saying when talking about incidental effects which is why I'm re-recording this lesson for you for for everybody who wants to know uh what the deal is about incidental effect what what it was that I was saying so this is a lesson that is going to be finishing off the various different elements of the conversation relating to direct effect indirect effect and then find the incidental effect we will still touch on these different issues when we get on to talking about State liability because fundamentally State liability is the final straw fundamentally where indirect fails where direct effect fails where incidental effect May Fail um there is State liability for the failure of an implementation of a measure so these are all the various different ways in which we can protect the rights of EU citizens in the member states in question H and so this is what incidental effect will tell us incidental effect is a very interesting um Quirk if will of the law on the European Union which sort of allows for the implementation of and the direct effectiveness of a directive in a horizontal setting but only in a certain context and only in a certain way um because this sort of does strike at the heart of the nature of EU law being um being or at least quite an interesting loophole in the nature of EU law um interestingly um covered essentially so we'll spend some some time talking about the concept of incidental effect um it is not always expressly covered in European Union law textbooks tend to spend a little bit of time talking about it and that's because it isn't particularly common it doesn't happen very often um there are only really a few cases where we can see an element of incidental effect taking place but it does give us an indication of how incidental effect works so what is incidental effect well incidental effect is an area that where it seems to lessen the impact of strict rulings on horizontal direct effect of EU directives if you remember from previous lessons EU directives have vertical direct effect so long as they fulfill the certain criteria that are established for having direct effect uh but they don't have horizontal direct effect owing to the fact that directives apply to States um to which they are addressed and they and it is the result to be achieved that is applied and so their nature um essentially rules out the idea of there being a horizontal d direct Effectiveness in relation to their implementation so they'll have direct effect vertically they won't have horizontal direct effect but then there's also this idea of them having um indirect effect where the where the member states have to interpret their National laws in ance with that of the directive and we've seen some cases where that can take place well the idea here is that they actually may have horizontal direct effect when there is a certain instance um of their legal obligation so essentially if they are not applying a legal obligation directly onto that of the parties if their legal obligations if the application of their legal obligations is being um applied to member states vertically then their effect they could have an incidental effect on private parties such that a horizontal claim it looks like there's a horizontal claim that has happened but in reality all that has happened is that we have a vertical direct effect take place on in relation to the EU directive which is perfectly valid and the impact of that vertical direct effect ruling um has some kind of KnockOn effect knock on incidental effect on a private dispute that takes place it does muddy the water when it comes to the sort of strict application of the of the legal rules um but it is very very interesting now if you don't understand this yet let me just go through the cases the two main cases that are often cited in relation to this particular area of the law and and I find that uh the cases actually illustrate the point a lot better than just a basic explanation okay so the first case involves uh the CIA Security International versus signon um which is a case from 1996 and it concerned a dispute between two private parties okay so this was a horizontal dispute where it was argued um that the alarm system that was implemented by CIA security was lacking approval so signon came out and said this security system had lacked approval and in response um CIA security said no it does have approval uh we're suing you for liable you you've done a false truth there um an untruth there is a there is a falsification of the things that you were saying about us that is damaging to our reputation therefore we are going to sue you for defamation so while it was the case that under Belgian law it had lacked approval so technically singon was right in the sense that under Belgian law it had lacked approval the CIA security however were actually acting under the impression that Belgian law was not in Conformity with an EU directive so they were suggesting that in fact the EU directive um was um not in was was actually not being followed and strictly adhered to by Belgian law the directive itself was directive 8389 the technical standards and regulations directive uh and essentially what it would have done was required the Belgian state to notify the commission of this of this particular incident uh the claimant won the case on the basis that Belgian law did represent a technical regulation which was not in Conformity with the technical standards and regulations of directive 831 189 so Belgian law actually did not um was not acting in Conformity with directive 831 189 and it should have done and so what essentially happened here was that the court of justice held that the directive met the requirements for vertical direct effect and so applied direct effect to Belgian law okay and so therefore um it it meant that the Belgian um Belgian law were were essentially required the Belgian state were required to imp to implement and enforce directive 8389 the result of this the result of this owing to nature of the obligation meant that there was an incidental effect that was had on the private dispute between CIA sec in signals remember this was a dispute relating to liel okay about whether or not CIA security their alarm system had Implement had been um had lacked approval or not that case ruled and was hinged on whether or not there was vertical direct effect for directive 831 189 owing to the fact that there was vertical direct effect in in 83889 meant that the ruling of that case was was was handed down in the way that it was so so while the direct effect wasn't directly applied to the two private citizens so it was not a or two private companies in this case so it was not an example of of horizontal direct act um with a directive which is of course not allowed uh it was still a type of direct effect that had an incidental effect over the private dispute and that is why it had what we call here incidental direct effect or incidental effect another similar example can be seen in the unil Italia case from 2000 um this case simply confirms the principle that incidental effect is something that is valid and exists okay um the claimant in this case had delivered olive oil to the defendants but ing to national uh legislation there was a lack of compliance with a number of labeling regulations okay now when the defendants refus to pay on the basis that they were not complying with this National law on labeling regulations the claimant sought a breach of contract now the claimants argued that while they were not complying with the national law the national law wasn't complying with article 9 of the directive on technical standards and regulations 8389 the previously aformentioned spoken about um EU directive so they said we're not complying with national law because the national law is not complying with this EU directive and so the courts actually held in favor of the claimants suggesting that the national law was in breach of the directive and therefore this had a knock on effect into the private dispute between these parties that therefore meant that um they ruled in a particular way essentially there um the claimants um were successful in their suing for breach of contract and they were only successful on the legal argument that the directive had not been followed so it was directly effective vertically directly effective and and the nature of this vertical direct effect had a KnockOn incidental effect on the private Pary dispute namely the one that concerned the breach of contract