In English law there are three main methods of statutory interpretation: the literal approach, the golden rule, and the mischief rule. The literal approach requires that the word of a statute be given its ordinary, literal meaning, even if this will lead to absurdity in the law; while the golden rule requires that statutes be read in as literal a manner as possible, but avoiding any interpretation that would lead to absurdity.
The Von Colson principle, also known as the principle of indirect effect, is in many ways a counterpart to the mischief rule in that while the mischief rule depends on identifying the 'mischief' a given piece of legislation was intended to put a stop to, the Von Colson principle depends on understanding the purpose the legislation was meant to achieve and interpreting the terms of the legislation in light of this purpose. It is, however, limited to statues dealing with European law.
The Von Colson Principle
In general, European law gives a person rights which may be exercised against public bodies or bodies exercising public functions, known as vertical effect, but not other private individuals; known as horizontal effect. The Von Colson Principle establishes that in certain circumstances, horizontal effect can be established indirectly and thus individuals may be able to sue other individuals for breaches of rights granted through European law.
The principle comes from the decision of the European Court of Justice in Von Colson and Kamann v. Land Nordrhein-Westfallen [1984], in which the court determined that “relevant portions” of Directive 76/207/EEC on Equal Treatment could only be relied on where they satisfied the acte clair portions of the Van Gend criteria. The case itself revolved around a claim for equal treatment based on reimbursement of expenses.
The Doctrine of Acte Clair and Van Gend Criteria
The doctrine of acte clair comes originally from French law and now forms part of the criteria for determining whether cases must be referred to the European Court of Justice for a decision on a point of European Union law prior to the national court ruling on the case before it. The doctrine requires that legislation be clear and free from doubt; which forms part of the Van Gend Criteria on which the Von Colson principle operates.
For the Von Colson principle to operate, the statute in question must satisfy the criteria laid out in Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963]; i.e. that the legislation must be “clear, precise and unconditional”. If all three criteria are satisfied, the courts may take the provisions into account where necessary in order to give effect to their purpose.
Limitations on Indirect Effect in English Law
In Litster v. Forth Dry Dock and Engineering Co. Ltd [1989], the House of Lords determined that a Statutory Instrument (a form of UK legislation created by a body authorised by Parliament - such as a Government Minister - to legislate in delegated areas) which was passed specifically to implement an EC directive into UK law would be subject to the Von Colson principle and may therefore grant rights actionable against private individuals.
Litster is notable because it goes against the decision in Duke v. GEC Reliance Ltd [1988], where the House of Lords stated that to apply the Von Colson principle would be “unfair” on the defendant. The suggestion is therefore that where legislation is passed specifically to give effect to EC Directives or to bring UK law into line with that of the EC, the courts are more likely to accept the Von Colson principle.
Further limitations on the effect of the principle were established in Luciano Arcaro [1996], when the European Court of Justice ruled that the principle could not be used to impose criminal liability on a private individual where the Member State in which the case is brought has not given effect to the Directive on which the claimant is relying. The decision in Duke is therefore a re-stating of Article 6 of the European Convention on Human Rights; paragraph 2 of which states that anyone “charged with a criminal offence is innocent until proven guilty according to the law”.
The Von Colson principle allows an individual to sue for violation of rights granted by an EC Directive in certain circumstances, even where that Directive would not normally have a direct effect. The principle cannot be effective where the legislation is not clear, precise and unconditional, or where giving it effect would render criminal liability. In cases where it is effective however, it allows for remedies to injustice where such remedies would otherwise be unavailable.
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