Kolpinghuis Nijmegen BV

European Law

Kolpinghuis Nijmegen BV
Image: ’21st Century Still Life’ by Jose A Hinojos

The definition of a Directive relies upon its effect upon a Member State as opposed to individuals unless so designed, and yet on this occasion, the criminal acts of a café were punished under the powers of an as yet transposed Directive, thus prompting the District Court to seek a preliminary ruling.

In July 1980, the European Council passed Directive 80/777/EEC in relation to the sourcing and sale of mineral water, which explained that:

“[O]nly waters extracted from the ground of a Member State and recognized by the responsible authority of that Member State as natural mineral waters satisfying the provisions of Annex I, Section I, of the Directive may be marketed as natural mineral waters.”

While the transposition period was four years from the date of the Directive implementation, the Member State in question failed to adopt it into their national laws.

On 7 August of 1984, the defendant Kolpinghuis Nijmegen BV was found stocking and selling mineral water that in fact consisted of nothing more than tap water and carbon dioxide. Indicted by the Keuringsdienst van Waren (Goods Inspectorate) the defendant was charged under art.2 of the Keuringsverodening (Inspection Regulation) for the sale of goods of unsound composition, and levied a fine of HFL 501.

With consideration of the fact that the Directive was not implemented into national law until 8 August 1985, the Officer van Justitie was of the opinion that the Directive was already legally enforceable, however the District Court sought a preliminary ruling under art.177 of the EC Treaty in order to establish whether:

(i) A Member State could rely upon the powers of a Directive as yet unadopted into national law.

(ii) Where a Directive has not yet been transposed, a national court could give direct effect to its provisions despite the individual standing to gain no benefit from such an act.

(iii) Where a national court has the option to follow national law, it should follow instead, the powers of an applicable Directive.

(iv) Any weight needed to be given to the first three points when the adoption threshold for the Directive was still open.

Referring to a number of similar cases such as Marshall v Southampton and South West Hampshire Area Health Authority and Von Colson and Kamann v Land Nordrhein-Westfalen, the Court relied upon Pretore di Salo v X to illustrate how:

“[A] Directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggra­vating the liability in criminal law of persons who act in contravention of the provisions of that Directive.”

This translated that while the powers contained within a Directive can indirectly assist in the enforcement of both national and local laws, it could not serve as direct source of adjudication when determining individual liability, while the Court also noted that the date upon which hearing had occurred bore no relevance to the issues in questions 1-3, as the transposition window had yet to close.

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health

English Medical Law

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health
Image: ‘Arthritic Hands’ by Tim Benson

Note: To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ at Amazon, Waterstones or Barnes & Noble (or go here for a full list of international outlets)


Finally decided within the European Court Of Justice (COJ), this protracted and game-changing case determines well the principle of unreasonableness, whether individually or in this instance, as exercised through the actions (or inactions) of the National Health System of Great Britain (NHS).

When diagnosed as having severe osteoarthritis in both hips, an elderly lady was duly assigned a slot in a typically lengthy waiting list, on the provision that her operation would at least begin inside a twelve-month period, but that no other adjustments could be made under the existing policy framework.

Clearly distressed and left in constant pain, the patient took it upon herself to request a permission form that could enable her to seek medical treatment in another EU Member State at cost to herself, before claiming back those costs under the umbrella of art.49 of the EC. When authorisation for her application was refused on the grounds that the inherently free infrastructure of the NHS prevented such claims as a matter of course, the applicant went ahead and secured an operation in France regardless.

During the period between the successful operation and her application for authorisation, the patient’s condition worsened to the degree that her consultant elevated her need for surgery, an action that reduced the waiting time from twelve months to three to four months. Unfortunately, this still left her unable the receive the care (and ultimately adequate pain relief) she needed, and so her paid surgery went ahead two months before any provisional opening was made available to her in the UK.

When pursuing the right to seek judicial review in order to recoup her costs under her individual EU rights, the High Court dismissed her claim under constitutional grounds, while her subsequent appeal against such immediate objection escalated matters to the Appeal Court, who themselves referred it to the COJ. There, after much scrutiny and comparison with similar EU cases, it was held that any refund issued in respect of treatment sought in another Member State, did not contravene s.152(5) of the EC which provides:

“Community action in the field of public health shall fully respect the responsibilities of the member states for the organisation and delivery of health services and medical care.”

And furthermore, that any excuse offered with regard to waiting times and the limitations of such healthcare provision, failed to satisfy the individual rights offered under art.49 of the EC.

Birth of the Human Rights Act 1998

Insight | February 2017

Birth of the Human Rights Act 1998
Image: ‘Against Forgetting’ by Marcia Bushnell

The Human Rights Act was brought into being as a consequence of the European Convention on Human Rights (ECHR), which was first formulated by the Council of Europe in 1950.

Founded upon the Universal Declaration of Human Rights (as used by the United Nations), ten countries first rallied for its formation, including Belgium, Denmark, France, Ireland Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. The Convention took effect in September 1953, with the primary directive of protecting specific fundamental rights among Member States of the Council of Europe, while the core values of the UK constitution enjoyed presumptions of liberty, representative government and the rule of law.

Before the ECHR became intrinsic to domestic law, Ministers often found themselves abusing discretionary powers, which amounted to a constitution largely beyond reproach, relying instead upon collective political norms for enforcement. This protracted period of neglect gave rise to an increase in administrative jurisdiction, and during the 1980s the courts began to adopt a more concrete conception of the rule of law, preferring instead to propagate such values as ‘freedom of expression’ ‘equality’ and ‘freedom from destitution’. However, presumptions followed that common law infringement upon these values would deem statute intervention unlawful, and it soon became conventional thinking; particularly in the well known R v Secretary of State for the Home Department ex parte Brind, where the domestic courts held that as the ECHR was not part of English law, the government was able to restrict media coverage of Irish extremist groups, despite clear encroachment upon the right to freedom of expression, and a sadly failed appeal by the journalists fiercely defending that right.

In fact, it wasn’t until 1998 that the British constitution accepted that using convention as a means of entrusting civil liberties could no longer be tolerated, and so on 9 November 1998, the Human Rights Act 1998 was enacted by Royal assent. From 2 October 2000 onward, all rights and freedoms previously safeguard by the ECHR were now directly enforceable though UK common law, and the sovereignty of Parliament was agreed.

This upheaval in institutional law was particularly significant, in that for the first time English judicial authority was awarded greater scope for case interpretation, where historically such matters were determined through ministerial debate. This was however, a change that was not without its detractors, nor ignorant of an entrenched inclination to overlook common law in lieu of political fervour.