The Transposition and Efficacy of EU Rights: Indirect Effect and a Coming-of-Age of State Liability?

Abstract

Throughout the duration of the UK’s membership of the European Union (EU), non-implementation and incorrect transposition of Directives has been commonplace. Coupled with the Court of Justice of the European Union’s refusal to extend the direct effect of Directives to horizontal relationships, and historic difficulties in holding States liable in damages, it has often fallen to the national courts to give effect to EU laws through purposive statutory interpretation. Recent cases involving the collective redundancy of workers in the UK, and the High Court’s assessment of State Liability in the insurance sector (approved by the Court of Appeal), raise questions as to the efficacy of the current system of enforcement of EU law domestically. Despite the problems of access to EU rights experienced by workers in the UK, there appears to be hope that the judiciary is becoming more attuned to the relationship between EU and domestic laws, and are willing to take control of granting access to remedies without necessarily waiting for EU institutions to provide express permission or instruction. 2015 has thus far been a particularly important year in this regard. However, a systematic review of the UK’s transposition of EU law and the impact on individuals of the current suite of enforcement mechanisms is required if private enforcement of EU law is to provide the protection workers need and to which they are entitled.