European Union (EU) law is another source of rights for the nationals of EU Member States. European Union law is an independent legal system that precedes the national law of Member States. It is mainly composed of primary legislation (treaties), and secondary legislation (regulations and directives). Regulations directly bind Member States and do not require codification in national laws to be effective. Directives are legally binding as well, but Member States are responsible for implementing the directives using the appropriate process under national law by a certain date. Article 189 of the European Economic Community (EEC) Treaty states: "A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."

Because Directives require implementation, the European Court of Justice (ECJ) has recognized that individuals have the right to enforce their Directive rights, even when Member States have failed to meet the required deadline. Further, individuals may enforce those rights against Member States in domestic courts. Van Gend en Loos v. Nederlandse Administratie der Belastingen (Case 26/62) established that European Community law not only creates obligations for Member States, but also establishes rights for individuals. The right of the European Commission and Member States to bring other States before the ECJ does not preclude the right of individuals to bring a complaint against their own States before national courts. The ECJ ruled that Article 12 of the EEC [link] produces "direct effects and creates individual rights which national courts must protect." Therefore, individuals have a right to enforce European Directive rights in national courts. This "direct effect" holding of the court enables individuals to advocate for human rights through litigation.

If the provisions of the Directive giving rise to the individual rights are unconditional and sufficiently precise, the individual is entitled to rely on those provisions of the Directive against the applicable national law. (Becker v. Finanzamt Munster-Innenstadt Case 8/81). The ECJ in Francovich elaborated a three-part test to determine whether the provisions of the Directive were unconditional and sufficiently precise as to the creation of an individual right. The Court must examine the identity of the persons entitled to the provisions of the guarantee, the content of the guarantee and the identity of the person liable. Directives may not be enforced against private actors, but only against the State, whether as an employer or public authority (Marshall).

Francovich also established the right to seek damages in national courts when a Member State has failed to implement the Directive. The ECJ found that the full effectiveness of European law and the protection of rights would be impaired if individuals were unable to obtain compensation. This is particularly important in the case of Directives, which require State implementation. For a state to be liable, Francovich elaborated a three-part test. First, the purpose of the directive must be to grant rights to individuals. Second, it should be possible to identify the content of those rights from the Directive. Third, there must be a causal link between the breach of the State's obligation and the harm suffered by the individuals. While Member States have discretion to determine the procedural and substantive conditions for compensation, those conditions may not be any less favorable than those for similar internal claims.

In cases where national legislation has been implemented, but is inconsistent with a Directive, the ECJ has again found a right to compensation. The ECJ stated in Brasserie du Pêcheur v. Germany (Case 48/93) that there must be a "sufficiently serious breach" to find state liability:

"[T]he decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law. On any view, a breach of Community law will be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case law of the Court on the matter from which it is clear that the conduct in question constituted an infringement."

Furthermore, the ECJ has found that Member States will be held liable for violations by their political sub-units (Konle v. Austria, Case C-302/97), but could discharge that liability by adopting a national law providing for damages from the responsible political sub-unit.

Examples of E.U. Directives that have been found to give rise to individual rights are Directive 76/207 on equal treatment for men and women, Directive 75/117 on equal pay for men and women and Directive 79/7 on equal treatment of men and women in social security. Directive 2002/73/EEC, which amends Directive 76/207, was adopted on 23 September 2002 and must be implemented by Member States by 5 October 2005.

Cases addressing Directive 76/207 have followed the standards set forth by other Directive rules. In Marshall v. Southampton and South-West Hampshire Area Health Authority, the ECJ addressed the question of whether Directive 76/207 could be relied on by the complainant in national courts notwithstanding the inconsistency between the directive and the UK's Sex Discrimination Act. The ECJ held that Article 5 was sufficiently precise and unconditional for an individual to rely on against the incompatible national law. Notably, the language of Article 3(2) of Directive 2002/73 closely resembles that of Article 5 of Directive 76/207, which suggests that future litigation will likely establish that particular provision of Directive 2002/73 is sufficiently precise and unconditional to give rise to individual rights. Article 3(2) states:

"To that end Member States shall take the necessary measures to ensure that: (a) any laws, regulation and administrative provisions contrary to the principle of equal treatment are abolished; (b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers' and employers' organizations shall be, or may be declared, null and void or are amended."

Article 5 of Directive 76/207 states:

"1. Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex. 2. To this end, Member States shall take the measures necessary to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished; (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended; (c) those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised ; and that where similar provisions are included in collective agreements labour and management shall be requested to undertake the desired revision."

Thus, if EU Member States do not adequately implement Directive 2002/73, Member State nationals may have the right to seek compensation for this failure. For more information on Directive 2002/73, please see the European Union section of Sexual Harassment Law and Policy.