EU Law Assignment: Memorandum Regarding Mr. Perrin and Directive 2018

This memorandum addresses the case of Mr. Perrin and his employment dispute in relation to Directive 2018/108/EU. The analysis begins by assessing whether the directive has any direct effect on Sunshine Desserts, concluding that it does not due to Sunshine Desserts not being a public body. It then examines the indirect effect, concluding that Mr. Perrin can take the indirect horizontal effect of the Directive 2018 against Sunshine Dessert. The memorandum also explores whether Leinster Rail can be compelled to issue a certificate of delay under Article 28 of the Directive. Finally, the report discusses state liability as a potential recourse if indirect effect is unsuccessful, outlining the necessary conditions for a successful claim. The recommendation is that Mr. Perrin should seek the indirect effect of the directive against Sunshine Dessert, request a certificate from Leinster Rail, and, as a last resort, consider state liability.

Running Head: EU LAW
EU LAW
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MEMORANDUM-1
To: EU Division (Trainees)
From: Alison McBeal
Re: Mr. Perrin and Directive 2018/108/EU
Date: 14 April 2020
The first issue to be determined is whether the Directive 2018 have any direct effect on
Sunshine Desserts or not. It to be said that directives are implemented by a high-level official
or member states and its rule must be clear, unconditional and binding1. An important factor
to obtain the direct effect of a directive it must have to cross the transposition period for an
individual to rely upon its effect2.
The first thing to be determined is whether any defense is available to Mr. Perrin against his
employer’s disciplinary action that is to be taken against him under the directive for his
tardiness. Article 4 of the Directive provides defenses to an employee by prohibiting the
employer from taking any disciplinary action if the employee can show that the reason for
such disciplinary action by the employer against the employee is not due to the fault of him
or her. However, the article does not specify actions related to what kind of misconduct is
protected under this rule but it can be interpreted more broadly by focusing on the word 'any
disciplinary action' includes tardiness.
To obtain a direct vertical effect of a directive the organization in issue has to be a public
body who has some special power to do certain public service3. Therefore, the direct effect of
the directive is not applicable in this case, as Sunshine Dessert is not a public body.
1 Case 41/74, Van Duyn v Home Office [1974] ECR 1337
2 Case 148/78, Ratti [1979] ECR 1629
3 Case C-188/89, Foster v British Gas [1990] ECR I-3313

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Indirect effect:
An indirect effect is said to be applicable when domestic rules are interpreted in the light of
EU Law or Directives. In the case of Von Colson4, it has been held that to obtain the indirect
effect, a Directive does not have to meet the general unconditional and sufficiently precise
obligation regarding sanctions and therefore, it has been concluded that the directive in issue
in the case has a vertical indirect effect. An indirect effect of a Directive can be obtained in
cases involving private parties, which are referred as the horizontal indirect effect of
directive5. Therefore, it can be said that Mr. Perrin can take the indirect horizontal effect of
the Directive 2018 against Sunshine Dessert.
On the question of compelling Leinster Rail to issue a certificate of delay, it can be said that
Article 28 of the Directive entitles Perrin to obtain the delayed certificate from any public
transport as evidence that can be used in employment issues. Therefore, Leinster Rail is
bound to issue a certificate being a public body to Perrin.
State liability
If Mr. Perrin is unsuccessful in getting relief under indirect effect, he can institute a claim
against the State issuing Directive by the principle of State liability by stating that the State.
However, the requisite is that Perrin has to prove that the State has failed to give effect to the
Directive which has affected the rights of Perrin. Further, the breach on the part of the state is
grave enough6 and there is a proximate relationship between the breach of the obligation of
the State and the loss suffered7. In this case, if Sunshine Desserts rejects Perrin's application
by stating that there is no mention of Tardiness as a defense in the Article 4 of the Directive
and also The Railways (Penalty Fares) Regulations 1994 does not mention anything about
4 Case 14/83, Von Colson [1984] ECR 1891.
5 Case C-106/89, Marleasing v La Comercial [1990] ECR I-4135
6 cases 83 and 94/76, 4, 15 and 40/77, HNL and others v Council and Commission [1978] ECR 1209
7 Cases 6 & 9/90, Francovich [1991] ECR I-5357

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issuing delay certificate to a passenger as evidence for employment dispute, Perrin can show
the failure of the State to implement the provisions of the Directive and ask for State liability.
Recommendation:
Perrin can ask for the indirect effect of the directive against Sunshine Dessert and also ask for
a certificate from Leinster Rail by taking the help of the provision of Article 28 of the
Directive or on the last resort can ask for State liability.

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Bibliography:
Case studies:
Case 14/83, Von Colson [1984] ECR 1891.
Case 148/78, Ratti [1979] ECR 1629
Case 41/74, Van Duyn v Home Office [1974] ECR 1337
Case C-106/89, Marleasing v La Comercial [1990] ECR I-4135
Case C-188/89, Foster v British Gas [1990] ECR I-3313
Cases 6 & 9/90, Francovich [1991] ECR I-5357
Cases 83 and 94/76, 4, 15 and 40/77, HNL and others v Council and Commission [1978]
ECR 1209