The whole area of the direct effect of Directives is both complex and controversial but I think basically an individual can rely directly on the terms of a directive only where it has not been properly implemented into national law (or not implemented at all) and where the individual seeks reliance on the Directive against departments, organisations or other bodies that are part of the State itself. As pointed out by Adam, Francovich established that in these cases individuals may be entitled to compensation if he/she suffers damage as a result.
But surely the point here is not inadequate implementation. What most people have reservations about is the apparently extremely narrow interpretation by the Court of Appeal of key definitions in the Act/Directive and the very narrow approach (the “purposive” approach) adopted in trying to give effect to the perceived purposes of the Directive.
Another significant problem with Durant (and the Johnson case also, I think) is that the water was dreadfully muddied by the fact that the SAR procedures appeared to be being used for purposes for which they were not really intended. Such situations often make for bad decisions by courts. Bad decisions can take a long time to correct.
In the words of one thing I’ve read:
“…I feel as if the court had tried to cure a nasty cold with open heart surgery,.."
(Eduardo Ustaran of Berwin Laighton Paisner, quoted in Privacy And Data Protection, March 2004, PDP 4, 4(1)
Laurence
>>> "Warren, Adam" <[log in to unmask]> 18/03/04 21:22:15 >>>
In this respect, I believe the Francovich case (1991?) was significant, holding that Member States are liable to pay damages where loss is sustained by 'failure to transpose a directive in whole or in part'.
I also would be interested in any details on the Eur Commission investigation of Uk for infringement based on Durant.
Rgds
Adam
---------------
Dr Adam Warren
ESRC Data sharing and privacy project
http://ess.ntu.ac.uk/dsp/
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