Francovich and others v Italy [1991]

European Law

Francovich and others v Italy [1991]
‘Azov Steel Mill’ by Konstantin Shurupov

The adoption of EU Directives is a prerequisite for all Member States, and so an when ignorance of the duty to transpose those obligations into the fabric of national and Community law remained unaddressed, the perfect vehicle emerged with which to underline it.

The importance of employee rights is one frequently contested in all forms of commerce, and so when Italy failed to adopt Directive 80/987/EEC, it was the joint action of a group of factory workers that directed the European Community’s attention towards the heart of industry and the anger of those being abused within the market system.

After serving as a loyal employee for an electronics firm, the claimant found himself redundant through the process of liquidation and yet left unpaid for work undertaken and uncompensated for his loss of earnings, and so in a conjoined hearing, Danila Bonifaci and thirty-three other employees (case C-9/90) sought recompense within the same matter.

In the first instance the Pretore di Vicenza and Pretore di Bassano del Grappa both sought a preliminary hearing under art.177 EC, and so the first approach taken by the European Court of Justice was to determine if the respondent’s failure to adjust their domestic laws in line with Directive 80/987/EEC had rendered itself liable to individual enforcement of accountability for payment of lost earnings, or whether the pecuniary losses sustained by the claimants were sufficient enough to award damages based upon state avoidance.

Through an examination of the qualifying criteria for ‘direct effect’ claims, the Court established that this particular case satisfied those terms, and yet noted how the respondent’s non-adoption had failed to fulfil a key element of the Directive requiring proper identification of the companies subscribed to those duties, which left the Commission unable to determine who the two employers were, and how they would be obliged to provide payment or legally defer the onus to the Italian government. 

However the Court also noted how in Simmenthal SpA v Italian Minister of Finance they had held that:

“[D]irectly applicable Community provisions must, notwithstanding any internal rule or practice whatsoever of the Member States, have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals…”

Which showed that the inability to reflect EU laws will be used as an example when serving the interests of the Community, thus the Court unanimously held that all Member State national courts were held to a duty to redress the inequity of failed transposition, thus full state funded compensation was now due, while reminding the parties that:

“[W]herever the provisions of Directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the Directive or in so far as the provisions define rights which individuals are able to assert against the State.”

Wagner Miret v Fondo de Garantía Salarial [1993]

European Law

Wagner Miret v Fondo de Garantía Salarial
‘Coastal Fort, Catalonia’ by Alan Page Smith

Directive 80/987/EEC was drafted to protect the lost earnings of employees subject to the liquidation of their employers, however when a higher management employee was later made redundant through company dissolution he was subsequently denied lost earnings under Spanish law on grounds that when adopting the effects of the Directive the government had chosen to exclude domestic servants from the guarantees afforded them, and yet applied that caveat when deciding his case in the Juzgado de lo Social (Social Courts).

Having challenged the judgment in the Tribunal Superior de Justice (Superior Court of Justice) it was argued that when applying the terms of Directive 80/987/EEC the legislature had relied upon Royal Decree No.1382/85 to deliberately deny higher management the rights afforded other employees through the pay guarantee fund, as established under art.33 of Law No 8/80 (‘The Employees’ Statute’).

This left the Court unable to fully address the claim without reference to the European Court of Justice for a preliminary ruling under art.177 EC, and so three questions asked:

1. Whether the terms of Directive 80/987/EEC included all employees of the Member States?

2. Whether the failure of the Spanish government to encompass higher management staff within the annexe excluding domestic servants, provided for prevention of a claim?

3. If the answer to question 1. was yes, should the payment should come from the guarantee fund or State compensation?

With consideration of the historic debate surrounding this contentious matter the Court held that when transposing the terms of the Directive the Member States should determine what constitutes employment under the meaning of national law, and where agreed those employees were to be protected under the effects of art.1(2) of the Directive.

In relation to the exclusion of higher management it was agreed that unless expressly contained in the annexe to Directive 87/987/EEC (later amended to Directive 87/164/EEC) those occupying such roles were entitled to received compensatory payment, while with regard to the source of payment the Court clarified that in similar instances it was the role of the Member State to devolve payment to the fund created, or if no such fund existed the compensation was due from the Member State itself, before reminding the parties that:

“[I]n so far as national law classifies members of the higher management staff as employees, a Member State cannot exclude that category of employee from the scope of application of Directive 80/987/EEC, as amended by Directive 87/164/EEC, if it is not included in the Annex to that directive.”

Von Colson and Kamann v Land Nordrhein-Westfalen [1984]

European Law

 

Von Colson and Kamann v Land Nordrhein-Westfalen
‘The Prisoner’ by Jean-Leon Gerome

Sexual discrimination and the right to enforce Directive 76/207/EEC when applying for a position was unprecedented within the European Community, and so when two well-qualified female social workers applied for similar posts at the Land Nordrhein-Westfalen (a male populated prison) and were refused employment on grounds of their gender, the Arbeitsgericht Hamm (German Labour Court) referred a number of questions to the European Court of Justice under art.177 EC. 

Having referred to the principles of Directive 76/207/EEC governing equal access to employment, training, promotion and working conditions, the claimants contended that denial of this particular post was tantamount to a breach of Member State obligations and that legal remedy should constitute either six months full pay or the creation of another position within the offer of employment. 

However German law had been amended to incorporate the Directive measures with a degree of discretion, inasmuch as proof of sexual discrimination within the recruitment process only provided resulting sanctions as one incurring travel costs and not those allowing compensatory damages or the employment provision sought. 

This led to the formulation of five interrelated questions, and which asked:

1. Whether under breach of the anti-discrimination Directive, was the employer liable to provide for, and offer, employment to those parties affected? 

2. If so, was it on grounds that the claimant could provide evidence of greater qualification than those required for the position applied for?

3. Was equal competence acceptable as grounds for the provision of additional employment, or was the claimant entitled to employment irrespective of qualifying ability? 

4. Did Directive 76/207/EEC provide clear instruction as to the form of remedy awarded where discrimination occurred, but no employment was required? 

5. Could the terms of the Directive be relied upon by an individual when the discrimination was between private individuals?

When examining the exactness of the Directive it was held by the European Court of Justice that while the effects of Community law and transposition of those Directives must observe and follow the principles expressed, where discriminatory acts are proven, the Commission did not intend that an employer was imposed with any obligation to create positions beyond those advertised. 

Thus in terms of legal clarity, the Court held that further national debate was needed in order to amend the legislation in line with a fair and balanced level of compensation, while it was also held that the terms of the Directive were too ambiguous as to offer individual powers to enforce against another party where such provisions were not already in place, before reminding the parties that:

“[D]irective No.76/207 does not require discrimination on grounds of sex regarding access to employment to be made the subject of a sanction by way of an obligation imposed upon the employer who is the author of the discrimination to conclude a contract of employment with the candidate discriminated against.”

Criminal Law Terminology

Insight | February 2017

Criminal Law Terminology
Image: ‘Empty Kingdom’ by Sean Phillips

A crime can be defined both as any wrongful act causing harm to another person, or damage to another’s property, and any act that contravenes those proscribed by common law or statute. Similarly, criminal acts are actions requiring either rehabilitation of the offender and compensation for damages to property, or the victim’s psychological state,  which can also include incarceration in more serious cases (this can also be observed from a moral perspective inasmuch as actions that violate the rights and duties owed to the community), while the perception of criminal behaviour is also subject to various political and social factors, therefore can vary across nations.

A criminal definition is necessary in order to help distinguish a moral wrong from a civil wrong, and so criminal activity tends to be associated with some element of punishment when bought to trial, whereas a civil wrong is not considered an act of deviance, but a conflict of perspectives or contractual obligations.

The purpose of criminal law is to distinguish between the two previously mentioned wrongs, in order to help protect the public and the State from acts of aggression, or violent rebuttal; while the objectives of criminal sentencing are to allow an individual the opportunity to reflect upon any criminal act undertaken, and to help the public observe justice being done when miscarriages occur. In addition, the larger aim of sentencing is to maintain public order and minimise anxiety that could adversely affect productivity, and to help reduce crime through deviant punishment and protection of the public. Shown below are some common phrases used within criminal law:

Thin Skull Rule

This phrase means that despite any unforeseen vulnerabilities in a victim being bought to light during trial (or at case preparation stage), the amount of punishment or (tortious) compensation would remain as full as it would be should, or had, the victims been ‘normal’. An excellent case for this is R v Hayward, where the victim to a brutal domestic beating died of natural causes, yet the offender was held criminally liable.

Act of God (or Naturally Occurring Interventions)

These would constitute naturally occurring disasters such as floods, storms, bolts of lightening etc. that prevent criminal liability being placed upon a person.

Third-Party Interventions

Typically a lawsuit procedure, where the court allows a third person not originally part of the case, to become involved through joining either the plaintiff or defendant.

Medical Interventions

A phrase used to describe a medical procedure serving as an intervening act, which could break the chain of causality when establishing the cause of a victim’s death or serious injury. A case reference for this would be R v Smith, which involved the dropping of an injured solider on the way to hospital, an act alleged to have contributed to his death.

Breaking the Chain of Causation

A process whereby the manifestation of a victim’s actions or moral beliefs, exacerbate the wounding (and in some cases instigation of a death). A useful case for this is R v Blaue, where a Jehova’s witness refused a blood transfusion after being stabbed, thereby legally dying as a result of blood loss, instead of knife inflicted wounds.

Defendants Conduct Culpable

A term used where a defendant engages in set of behaviours or actions, that in and of themselves, bring harm to them, without the actions or inactions of another. In this scenario, a person or defendant cannot readily portray themselves as a victim, rather lacking mental capacity or sound mind and judgment. A case example would be R v Williams, where the victim was killed by stepping in front of a moving vehicle driven by an uninsured and unqualified driver, resulting in their criminal liability.

Actus Reus

The part of a crime that is concerned with identifying the conduct that criminal law deems harmful. It also describes what the defendant must be proven to have done (or failed to do) in circumstances that produce consequences attributable to moral guilt. The case of R v Miller provides that when waking up drunk to find his lit cigarette had started a fire in the home in which he was staying, the defendant simply moved rooms, rather than attempting to extinguish the fire; translating that his actions resulted in an act of arson.

Mens Rea

A term used to describe the element in a criminal offence relating to the defendant’s mental state. Examples of mens rea include intention, recklessness, negligence, dishonesty or knowledge. This legal principle plays a crucial role in ensuring that only blameworthy defendants are punished for their crimes, however, mens rea is not equivalent to moral guilt. A useful case example is Collins v Wilcockwhere it was found that when attempting to question a member of the public, a police officer grabbed their arm with the aim of physically restraining and harming them, as opposed to getting their attention.

Intention

How a defendant determines a consequence of his actions when he acts with the aim, or purpose, of producing that consequence. The case of R v Haigh showed that while the appeal jury had clear evidence a mother had intended to smother her child, a lack of mens rea reduced the verdict from murder to manslaughter.

Recklessness

When a defendant was aware of a risk attached to their conduct, and that the risk was an unreasonable one to take. A useful case for this is R v G, where the judges held that a minor was not capable of possessing the reasoning ability of an adult.

Negligence

When a defendant has behaved in way a reasonable person would not (see also recklessness). A perhaps extreme example of this is R v Adomako, where an anaesthetist failed to observe an oxygen supply disconnection that resulted in his patient’s death.

Novus Actus Interveniens 

A term used to describe a break in the chain of causation bought about by a new action, that alters the effect of injury (or death) of a person in such a way that alters the identity of the person culpable; or a free and voluntary act of a third party, that renders the original act a substantial and operating cause of injury or death. An example of this would be R v Jordan, where a stabbing victim had a fatal allergic reaction to a hospital administered drug, therefore altering the cause of injury and subsequent death; and in R v Kennedy, where the supply of heroin did not constitute liability for a users death.