Direct Effect:
Definition:
Direct effect: The Capacity of a provision of EU law to confer rights on individuals that they may
enforce before national courts.
Applicable articles:
Art 288 TFEU:
“To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions,
recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly
applicable in all Member States.
Note: Since regulations are directly applicable → They ALWAYS have direct effect.
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.
Note: A directive may also have direct effect as long as its provision(s) are clear & unconditional. A
directive can also only have vertical direct effect.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed
shall be binding only on them.
Recommendations and opinions shall have no binding force.”
Applicable Case Law:
Direct effect of treaty provisions (or in general):
● Van Gend & Loos
○ Community law has an authority which can be invoked by their nationals before those
courts & tribunals.
○ Subjects comprise not only member states but also their nationals → hence
community law not only imposes obligations on individuals but is also intended to
confer upon them rights.
Rules established:
○ Wording of the treaty provision must be clear & unconditional in order to produce
direct effect.
■ Unconditional? → does not contain any reservation on the part of states
which would make its implementation conditional upon national law/ does
not require any legislative intervention on the part of the states.
Direct effect of regulations:
● Leonesio
Establishes the direct effect of regulations & the consequences of it.
Rules established:
○ Direct effect of regulations arises as a logical consequence of their direct
applicability (as seen in art 288 TFEU).
, ○ Rights for individuals arise when the conditions set pur in the regulation are complied
with and it is not possible for member states to render the exercise of these rights
subject to other implementing provisions.
Direct effect of Directives:
I. Horizontal Direct effect:
A. Horizontal direct effect of treaty provisions:
● Defrenne II:
In Defrenne II, the ECJ established that a treaty provision may impose obligations on an individual
(i.e. Horizontal direct effect).
● Rules established
○ The prohibition on discrimination between men & women applies not only to the
action of public authorties but also extends to all agreements which are intended to
regulate paid labour collectively, as well as contracts between individuals.
B. Horizontal direct effect of directives:
● Marshall:
Rules established:
○ Conditional
○ Sufficiently precise
○ State fails to implement the directive in national law by the end of the period
prescribed OR where it fails to implement the directive correctly
Note: Directives do not have horizontal direct effect.
Direct effect of the Charter of Fundamental Rights:
Indirect Effect:
Definition: The principle in which all courts of member states are required to interpret ALL national
law (particularly any that implement directives) in light of & in conformity with EU law
(EU-Consistent interpretation).
● failure of a member state to implement a directive either correctly or at all but also where
direct effect cannot apply because the party against whom a directive is sought to be enforced
is a private entity or otherwise fails to meet the conditions which would give the directive
direct effect.
● In practice → Indirect effect is evaluated first.
3 limits set out by ECJ:
● Interpretative methods must be recognized by national law
● Compliance with general principles of EU law
● No Contra Legem (contrary to the law) interpretation
→ Indirect effect is always possible within these 3 limits - IF it is impossible to do so, then the
national authority is faced with a conflict between national law and Union law.
Definition:
Direct effect: The Capacity of a provision of EU law to confer rights on individuals that they may
enforce before national courts.
Applicable articles:
Art 288 TFEU:
“To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions,
recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly
applicable in all Member States.
Note: Since regulations are directly applicable → They ALWAYS have direct effect.
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.
Note: A directive may also have direct effect as long as its provision(s) are clear & unconditional. A
directive can also only have vertical direct effect.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed
shall be binding only on them.
Recommendations and opinions shall have no binding force.”
Applicable Case Law:
Direct effect of treaty provisions (or in general):
● Van Gend & Loos
○ Community law has an authority which can be invoked by their nationals before those
courts & tribunals.
○ Subjects comprise not only member states but also their nationals → hence
community law not only imposes obligations on individuals but is also intended to
confer upon them rights.
Rules established:
○ Wording of the treaty provision must be clear & unconditional in order to produce
direct effect.
■ Unconditional? → does not contain any reservation on the part of states
which would make its implementation conditional upon national law/ does
not require any legislative intervention on the part of the states.
Direct effect of regulations:
● Leonesio
Establishes the direct effect of regulations & the consequences of it.
Rules established:
○ Direct effect of regulations arises as a logical consequence of their direct
applicability (as seen in art 288 TFEU).
, ○ Rights for individuals arise when the conditions set pur in the regulation are complied
with and it is not possible for member states to render the exercise of these rights
subject to other implementing provisions.
Direct effect of Directives:
I. Horizontal Direct effect:
A. Horizontal direct effect of treaty provisions:
● Defrenne II:
In Defrenne II, the ECJ established that a treaty provision may impose obligations on an individual
(i.e. Horizontal direct effect).
● Rules established
○ The prohibition on discrimination between men & women applies not only to the
action of public authorties but also extends to all agreements which are intended to
regulate paid labour collectively, as well as contracts between individuals.
B. Horizontal direct effect of directives:
● Marshall:
Rules established:
○ Conditional
○ Sufficiently precise
○ State fails to implement the directive in national law by the end of the period
prescribed OR where it fails to implement the directive correctly
Note: Directives do not have horizontal direct effect.
Direct effect of the Charter of Fundamental Rights:
Indirect Effect:
Definition: The principle in which all courts of member states are required to interpret ALL national
law (particularly any that implement directives) in light of & in conformity with EU law
(EU-Consistent interpretation).
● failure of a member state to implement a directive either correctly or at all but also where
direct effect cannot apply because the party against whom a directive is sought to be enforced
is a private entity or otherwise fails to meet the conditions which would give the directive
direct effect.
● In practice → Indirect effect is evaluated first.
3 limits set out by ECJ:
● Interpretative methods must be recognized by national law
● Compliance with general principles of EU law
● No Contra Legem (contrary to the law) interpretation
→ Indirect effect is always possible within these 3 limits - IF it is impossible to do so, then the
national authority is faced with a conflict between national law and Union law.
