EU Law LAW008-2: Analysis of Direct, Indirect Effects & Liability

This report delves into the principles of direct effect, indirect effect, and state liability within the framework of EU law, particularly in the context of European Parliament Directive No 2015/224 concerning the accommodation of asylum-seeking minors. It examines how UK courts interpret and apply EU law, focusing on the enforceability of EU directives in national courts and the obligations of member states. The report discusses key cases such as Pubblico Ministero v Ratti, Van Gend en Loos v Nederlandse Administratie der Belastingen, and Foster v British Gas, to illustrate the complexities of direct and indirect effects. It further explores the responsibilities of member states to ensure national laws align with EU directives and the remedies available when these obligations are not met, including the potential for state liability. The analysis considers both vertical and horizontal direct effects, and the limitations and challenges associated with implementing EU directives at the national level.

Running head: INTERNATONAL LAW
International Law
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Author Note

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Part A
A UK court is required to determine whether the legal provisions of EU law have direct
effect. If it has a direct effect, it can be relied upon directly by or against the party, thus,
prevailing over any inconsistent national law. In the given case scenario, the European
Parliament created Directive Non 2015/224 that required the Member states to undertake
reasonable measures for accommodating minors seeking for asylums. UK being a member state
was supposed to bring the directive into force within 1 October 2017.
In order to implement this directive, the UK passed a new statutory instrument SI
57/2017. Here, as per the EU law, ‘minor’ refers to every human being below the age of 18
years and an ‘unaccompanied minor’ is a person under 18 years old and is separated from both
parents. On the contrary, under the SI passed by UK, minors under 14 years are entitled to
additional safeguards such as they shall not be detained and placed into adult facilities, should be
entitled to guardianship and should be reunited with their families.
The issue that arises under the given scenario is whether the directive issued by the EU
law is binding upon UK. On the facts here, Rina being 15 years old has been seeing asylum in
UK and has been identified as unaccompanied minor who has been brought to an adult facility.
Despite the definition provided under the EU directive that any person below 18 is a minor who
is entitled to additional safeguards as per UK SI, the UK Home Office have rejected such
requests. Rina has been denied the additional safeguards on the ground that she is not below 14
and as per the UK SI, children below 14 only are entitled to guardianship and are not held in
adult facilities.
Direct Effect of EU law

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As mentioned earlier, if a relevant piece of EU law has direct effect it will override any
national law that is inconsistent with the national law. However, a piece of EU Law has a direct
effect if such law is:
 clear and precise; does not give the member states any substantial discretion; or unconditional;
The UK courts are entitled to seek for guidance before the European Court of Justice (ECJ)
in the event of any issue pertaining to EU Laws. The Citizens of the Member States may also
rely on the EU law under circumstances where the national law contradicts with the EU law.
Now, Directives are not enforceable in member states directly but have a binding effect after
they are enforced by the member states. The member states are provided with instructions and a
stipulated period within which such EU Directives are to be implemented. However, the method
in which member states can implement the Directives is upon the states as this way, EU law shall
be in harmonization with the EU Law. In Pubblico Ministero v Ratti [1979]1, it was held that a
Directive had a direct effect and shall be implemented after the expiry date of implementation.
Although Directives were not originally considered to be binding before the member states
implemented them, however, the emergence of the doctrine of direct effect by the CJEU has
developed the direct binding effect of the directives on the individuals of the Member states. The
directives shall be directly enforceable upon the individuals under circumstances where such
directives have been badly implemented or have not been implemented within the stipulated
time. The direct effect of the EU directives has been established in the landmark case decided by
1Pubblico Ministero v Ratti [1979] Case 148/78

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the European Court of Justice (CJEU) in Van Gend en Loos v Nederlandse Administratie der
Belastingen [1963]; [1970]2. In Defrenne bv Sabena [1974]3, CJEU decided there were two
types of direct effect:
Vertical direct effect- this is concerned about the relationship between national law and EU law
in particular, an obligation of a state to ensure that the national laws complies with and are
consistent with the EU laws.
Horizontal direct effect- this deals with the relationship between the citizens and in particular,
the ability of the citizen to enforce some of the EU legal provisions in any legal proceeding
brought against another citizen.
Directives issued by the EU law are usually horizontally directly effective as was mentioned
in the CJEU case of M.H. Marshall v Southampton & South-West Hampshire Area Health
Authority4. Further, in another CJEU case Van Duyn v Home Office [1975]5 it was established
that directives are not effective horizontally.
In order for national courts to implement EU Law, it is important that the legal provisions of
EU law be construed in a manner it achieves the desired result and is not inconsistent with EU
law. The national courts are entitled to seek guidance from the European Court of Justice so
that it provides a ruling with respect to the fact if the secondary legislation is valid. The doctrine
of ‘direct effect’ is perceived as a judicial development of the European Court of Justice. This
doctrine is fundamental as it ensures enforcement and application of EU Law in the national
2 Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1[1970] CMLR 1
3 Defrenne bv Sabena (Case 2/74) [1974] ECR 631
4 M.H. Marshall v Southampton & South-West Hampshire Area Health Authority (Case 152/84)
5 Van Duyn v Home Office (C-41/74) [1975] Ch.358

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courts. A direct effect is a remedy through which one can assess whether a law is enforceable by
and applicable to citizens.
However, Directives have obstacles that impede the implementation of the Directives; they
are not considered as precise and clear to be directly effective. In the landmark case of Van
Duyn v The Home Office, the EC held that a Directive could be directly effective against the
state provided the obligations stipulated under Directive were clear enough for it to be justifiable
if implemented by the Member States. As mentioned earlier that EU laws are not directly
enforceable against private individuals or bodies, the UK Courts are required to adopt a
‘purposive’ approach while interpreting the EU legislation and must ensure that UK laws are
consistent with the EU laws6.
In other words, while applying the ‘purposive approach’ to interpret the EU legislation, it is
presumed that UK Parliament intends to comply with such legislations with the relevant
directive. Although the judiciary is at liberty to bring this presumption to effect even if it implies
change in the natural meaning of the words but it must not change the purpose of the legislation.
Indirect Effect of EU law
Indirect effect of EU law is more than a duty. In Adeneler [2006]7, it was established that
his duty is applicable during the implementation of the Directive or the transposition period,
which prevents Member States from undertaking measures, that is inconsistent with the Directive
during such period8. It also prevents nations from construing existing national law in accordance
with the directive that has not been implemented. Since the Directives are set of instructions,
6 Wilding, Jo. "Unaccompanied children seeking asylum in the UK: from centres of concentration to a better holding
environment." International Journal of Refugee Law 29.2 (2017): 270-291.
7 Adeneler [2006] (Case C-212/04)
8 Lazaridis, Gabriella. Security, insecurity and migration in Europe. Routledge, 2016.

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they cannot be said to be enforceable by one citizen against the other citizens. However, there are
bodies that though are private organizations but are subjected under the control of the state and
operate certain special powers.
In Foster v British Gas9, the court ruled the criteria that were used to determine whether
a body was sufficiently under the control of a state to be allowed to use vertical direct effect as a
remedy against it. In order to compensate for the lack of horizontal effect, the criteria stipulated
in the Foster case expanded the scope of the word ‘State’ for permitting a state to use vertical
direct effect as a remedy against it. Further, in Von Colson’s case the court laid down the
principle that national law is construed as close as consistent with the EU law.
The principle laid down in the said case served two purposes. Firstly, the application of
this rule would demonstrate the intended result, which the Directive wanted to achieve.
Secondly, it would give the courts the opportunity to determine whether the date of
implementation of the EU Directive passed or whether the directive should be effective in the
horizontally direct way10. This is known as the ‘indirect effect’. It mainly refers to the concept
that if a Member State has failed to develop laws within the state that demonstrates the intention
of the Directive or is consistent with the purpose of the EU Directive, then a remedy is
applicable. Every Member State is obligated to ensure that every author including courts are
obliged and bound by the rules set out in the Directive11. Even the domestic courts must ensure to
construe laws in a manner that demonstrates the intention of the EU Directives.
9 Foster v British Gas plc (1990) C-188/89
10 Oppedal, Brit, and Thormod Idsoe. "The role of social support in the acculturation and mental health of
unaccompanied minor asylum seekers." Scandinavian journal of psychology56.2 (2015): 203-211.
11 Nelson, Deborah, Elizabeth Price, and Joanna Zubrzycki. "Critical social work with unaccompanied asylum-
seeking young people: Restoring hope, agency and meaning for the client and worker." International social work
60.3 (2017): 601-613.

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The horizontal direct effect of the EU Directives can be achieved through the non-
application of the national law. This measure is evident from the case of CIA Security CIA
Security v Signalson and Securitel (1996)12 where A Belgian legislation that did not comply or
was inconsistent with the EU Directives was disallowed and was not relied on which ultimately
led to the application of the EU Directive through Horizontal direct effect.
Where any unaccompanied child makes an asylum application, the tribunal must consider
the best interests of the child. The decision should be made based on the presumption that the
child is a minor. In Rahimi v Greece13, the minor arrived alone seeking for asylum and was held
in detention who was being subjected to inadequate care. The ECtHR appointed a guardian to
the minor applicant.
Further, in R (Sudanese) v Secretary of State for the Home Department [2017]14,
entered into UK in 2014 that was an unaccompanied minor seeking for asylum in the country. He
claimed to be 17 years old but an uncertain date of birth placed him to be of 18 years of old. He
was held in detention later. On release from detention, fresh directions were passed and he was
further detained. After the age, assessment of the applicant conducted by a local authority who
concluded that the applicant was about 16 years old, hence an unaccompanied minor. The judge
concluded stating that such detention was illegal as he was an unaccompanied minor.
In Rewe [1976]15, the issue involved was whether the EU provisions were binding and
were directly effective. It further dealt with the issue how such effectiveness of the EU directives
was to be enforced in national courts. In the EU decision, it was held that where the EU law on
12CIA Security v Signalson and Securitel (1996) C-194/94
13 Rahimi v Greece (Application No. 8687/08)
14 R (Sudanese) v Secretary of State for the Home Department [2017] EWCA Civ 138
15 Rewe [1976] (Case 33/76)

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individuals confers rights, the national courts are obligated to safeguard such rights of the
individuals. Member States must have remedies available to be enforceable under EU law, as
national law is enforceable.
State liability
Although directives passed under EU law usually have horizontal effect between private
parties but if any party suffers a loss due to non-compliance of the Member States with the EU
law, which also includes non-implementation of the EU Directives, the Member States shall be
liable for such loss under the principle of state liability. This principle was established for the
first time in the case of Francovich v Italy (1991)16.
In the given case, the Directive passed by the EU was clear about the definition of a minor
and an unaccompanied minor. The Directive stated that any person who is below 18 years of age
is a minor whereas any person who is below 18 years of age and is separated from both the
parents shall be termed as unaccompanied minor.
Here, the transposition period of the EU Directive was about to expire after 1 October 2017.
As mentioned above, the EU directives are vertically directly effective and not horizontally. In
order to implement the EU directive, the UK (Member states) passed a statutory instrument (SI)
where children below 14 years seeking for asylum in UK shall be entitled to guardianship and
not entitled to detention.
Rina has been accepted as an unaccompanied asylum seeking minor but has been held in
adult facility. Despite several applications and requests to transfer her to youth accommodation
and appoint a guardian to support vulnerability and needs, the applications has been rejected. The
16 Francovich v Italy (1991) C-6/90

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Home Office argued that she is above 14 years and as per the SI, children below 14 should be
entitle to guardianship and not held in detention.
Here, it can be said that if a relevant piece of EU law has direct effect it will override any
national law that does not comply with the national law. Further, In Pubblico Ministero v Ratti
[1979], it was held that a Directive shall be implemented after the expiry date of implementation.
In Van Gend Loos case the criteria to the direct effectiveness of the EU Directive was stated. In
this case, the Directive passed by EU was clear and precise about the definition of a minor which
was any person who is below the age of 18 years. The EU directive was neither conditional nor it
subjected the Member State or UK to any obligation.
The stipulation period of the EU Directive to be implemented was 1 October 2017, and Rina
applied for asylum as an unaccompanied minor on 10 November before which the SI was passed
by UK. This implies that the EU directive was implemented and required its Member State (UK)
to construe the provisions in a manner that achieves the desired result intended by the EU
Directive. The UK Courts are required to adopt a ‘purposive’ approach while interpreting the
EU legislation and must ensure that UK laws are consistent with the EU laws.
If the courts apply the ‘purposive approach’ to interpret the EU legislation, it is presumed
that UK Parliament intends to comply with such legislations with the relevant directive17. The
judiciary is at liberty to bring this presumption to effect even if it implies change in the natural
meaning of the words provided it does not change the purpose of the legislation.
Here, the EU Directive stipulated that children below 18 are considered minors and persons
below 18 years old who are separated from both the parents are unaccompanied minors. The UK
17 Sauer, Pieter JJ, Alf Nicholson, and David Neubauer. "Age determination in asylum seekers: physicians should
not be implicated." (2016): 299-303.

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SI complies with the EU Directive and accepts Rina who was 15 years old and arrived at UK
alone seeking asylum as an unaccompanied minor. This implies that the purpose of the
legislation, which is to determine whether a person arriving in the Member states are minors or
unaccompanied minors and undertake adequate measures to serve their needs. Since the judiciary
is at liberty to change the natural meaning of the EU Directive it provided additional safeguards
for minors below 14 years only which implies that other minors below the age of 18 shall be
entitled to additional safeguards thus, depriving other minors like Rina of the additional
safeguards. This implies that the UK SI has altered the intention of the EU Directive.
Since, the SI UK was passed to implement the EU Directive, it can be said that the Directive
57/2017 was implemented but inaccurately. This makes the Directive directly effective in the
Member states. Therefore, it can be stated that Rina may rely on the EU Directive and bring a
legal action before UK court or tribunal on the grounds of state liability as was established in
Francovich [1991] for detaining her in adult facilities and depriving her of the additional
safeguards that are being granted to minors below 14 years old.
PART B
 The Common European Asylum established by the European Union (EU) includes the
right to asylum and prohibits refoulement as is safeguarded by the 1951 Geneva
Convention relating to the Status of Refugees and its 1967 Protocol as well as by the
Charter of Fundamental Rights18. Both these instruments have a binding effect upon its
Member States that are obligated to comply with the case laws of European Court of
Human Rights [ECHR].
18 Protocol Relating to the Status of Refugees 1967

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 Unaccompanied minors under the EU law are defined as third country or stateless
persons who are below the age of 18 years. These persons arrive in the territories of the
Member states without any adult responsible for them until the time they are put under
the care of any adult person.
 In 2013, Dublin III regulation was adopted when there was awareness regarding the
ambiguity with respect to the disposition of the minors prevailing at the European level.
In regards to the unaccompanied minors, Article 8(4) of Dublin III Regulation stipulates
that the Member State in which the minor seeks asylum protection, such state shall be
responsible for the best interest of the minor in the absence of the family, relative or any
sibling of such unaccompanied minor19. However, this disposition was subjected to
criticisms regarding the legal certainty with respect to the responsibility of the Member
state for assessing the application of the unaccompanied minor.
 In compliance with the Declaration of the European Parliament and of the Council
associated with the Council Regulation, the European Commission presented an
amending proposal that aimed at redressing the present uncertainty regarding the
responsibility of the Member State20. The responsibility of the Member states with respect
to the unaccompanied minors who do not have family, siblings or relatives within the
territory where the minor applied for asylum.
 The EU Members must consider the best interests of the unaccompanied asylum seeking
minors in accordance with the Charter of Fundamental Rights of the European Union as
well as that of the 1989 United Nations Convention on the Rights of the Child21;
19 Dublin Regulation (Regulation No. 604/2013) Article 8(4)
20Jensen, Tine K., et al. "Stressful life experiences and mental health problems among unaccompanied asylum-
seeking children." Clinical child psychology and psychiatry 20.1 (2015): 106-116.
21 United Nations Convention on the Rights of the Child 1989

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 When the unaccompanied minors reach the borders of the EU countries, the fingerprints
of the every minor is stored and taken in the fingerprint database that is established by the
Eurodac Regulation.
 Directive 2011/95/EU govern the applications for international protection. The
unaccompanied minors who have been recognized as refugees are entitled to bring their
family members into the host country. The Council Directive 2003/86/EC on the Rights
to Family Reunification allows the entry and residence of the family members of the
unaccompanied minors22. The entry and residence of the guardians of the minors are also
authorized when the relatives of the unaccompanied minors cannot be traced or there are
no relatives of such unaccompanied minors.
22 Pradella, Francesco, Vilma Pinchi, and Giulia Vitale. "EU POLICIES RELATED TO UNACCOMPANIED
MINOR ASYLUM SEEKERS'AGE ESTIMATION PROCEDURES: NEW ISSUES." FORENSIC SCIENCE
INTERNATIONAL. Vol. 277. ELSEVIER HOUSE, BROOKVALE PLAZA, EAST PARK SHANNON, CO,
CLARE, 00000, IRELAND: ELSEVIER IRELAND LTD, 2017.

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References
1951 Geneva Convention relating to the Status of Refugees
Adeneler [2006] (Case C-212/04)
CIA Security v Signalson and Securitel (1996) C-194/94
Defrenne bv Sabena (Case 2/74) [1974] ECR 631
Dublin Regulation (Regulation No. 604/2013) Article 8(4)
Duyn v The Home Office (1974) C-41/74
Foster v British Gas plc (1990) C-188/89
Francovich v Italy (1991) C-6/90
Jensen, Tine K., et al. "Stressful life experiences and mental health problems among
unaccompanied asylum-seeking children." Clinical child psychology and psychiatry 20.1 (2015):
106-116.
Lazaridis, Gabriella. Security, insecurity and migration in Europe. Routledge, 2016.
M.H. Marshall v Southampton & South-West Hampshire Area Health Authority (Case 152/84)
Nelson, Deborah, Elizabeth Price, and Joanna Zubrzycki. "Critical social work with
unaccompanied asylum-seeking young people: Restoring hope, agency and meaning for the
client and worker." International social work 60.3 (2017): 601-613.

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Oppedal, Brit, and Thormod Idsoe. "The role of social support in the acculturation and mental
health of unaccompanied minor asylum seekers." Scandinavian journal of psychology56.2
(2015): 203-211.
Pradella, Francesco, Vilma Pinchi, and Giulia Vitale. "EU POLICIES RELATED TO
UNACCOMPANIED MINOR ASYLUM SEEKERS'AGE ESTIMATION PROCEDURES:
NEW ISSUES." FORENSIC SCIENCE INTERNATIONAL. Vol. 277. ELSEVIER HOUSE,
BROOKVALE PLAZA, EAST PARK SHANNON, CO, CLARE, 00000, IRELAND:
ELSEVIER IRELAND LTD, 2017.
Protocol Relating to the Status of Refugees 1967
Pubblico Ministero v Ratti [1979] Case 148/78
R (Sudanese) v Secretary of State for the Home Department [2017] EWCA Civ 138
Rahimi v Greece (Application No. 8687/08)
Rewe [1976] (Case 33/76)
Sauer, Pieter JJ, Alf Nicholson, and David Neubauer. "Age determination in asylum seekers:
physicians should not be implicated." (2016): 299-303.
United Nations Convention on the Rights of the Child 1989
Van Duyn v Home Office (C-41/74) [1975] Ch.358
Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR
1[1970] CMLR 1

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Wilding, Jo. "Unaccompanied children seeking asylum in the UK: from centres of concentration
to a better holding environment." International Journal of Refugee Law 29.2 (2017): 270-291.