Direct Effect
Direct Effect = a principle of EU law whereby individuals are able to invoke a European provision
before a national or European court.
The extent of this direct effect depends on the type of provision adopted by the EU –
distinguished by Article 288 TFEU.
- A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all Member 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.
- 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.
Article 258 TFEU – express mechanisms to allow the Commission to enforce EU law against MS,
however there was no private enforcement.
1. Treaty Articles:
Treaty provisions have direct effect in national law – i.e., they can be relied upon by
individuals in national courts.
C-26/62 Van Gend en Loos –
“The community constitutes a new legal order of international law
for the benefit of which the states have limited their sovereign rights,
albeit within limited fields, and the subjects of which comprises not
only member states but also their nationals.”
Conditions for DE = measure must be sufficiently clear and precise, and
unconditional.
Van Gend en Loos
Can have vertical direct effect – Van Gend en Loos.
Can have horizontal direct effect – C-43/75 Defrenne v Sabena
Treaty provisions can be exercised against private parties by private parties.
The fact that certain provisions of the Treaty are formally addressed to the
MS does not prevent rights from being conferred at the same time on any
individual who has an interest in the performance of the duties thus laid
down.
2. Regulations:
Regulations can be directly effective.
Poiiti, Leonesio
Conditions for DE = measure must be sufficiently clear and precise, and
unconditional.
Can have vertical and horizontal direct effect.
3. Directives:
Directives can have direct effect in national law.
C-41/74 Van Duyn –
Where the EU authorities have, by directive, imposed on MS the
obligation to pursue a particular course of conduct, the useful effect
of such an act would be weakened if individuals were prevented from
relying on it before their national courts and if the latter were
prevented from taking it into consideration as an element of EU law.
Conditions for DE:
The measure must be sufficiently clear and precise, and unconditional.
Van Duyn
The implementation deadline must have passed.
C-148/78 Ratti
, Introduced the concept of estoppel – a MS that fails to
transpose a directive within the prescribed period can not
plead its own wrongdoing against individuals to avoid
liability.
After the expiration of the implementation period of a
directive, national provisions are void regardless of whether
the directive is implemented or not.
ONLY vertical direct effect – no horizontal.
C-152/84 Marshall
A person may rely on a directive as against the state.
BUT – the scope of direct effect of directives was limited by
the fact that under Article 288 TFEU, directives are only
binding upon those to whom it is addressed.
Confirmed in C-91/92 Faccini Dori –
“The effect of extending that case-law to the sphere of
relations between individuals would be to recognise a power
in the Community to enact obligations for individuals with
immediate effect, whereas it has competence to do so only
where it is empowered to adopt regulations.”
a. Do we want direct effect of directives (in general)? – Solanke:
Yes –
o Would shift enforcement from Commission to individuals – thus
reducing burden on Commission.
o Would encourage individuals to monitor national transposition and could
therefore in the long-term ensure these were implemented further.
National systems more likely to listen to pressures from own
citizens rather than the EU?
No –
o Overlooks the formal distinction in the Treaty between regulations and
directives and intruded upon the discretion given to MS on
implementation.
o In the scheme of the Treaty, individuals were to gain rights from national
acts transposing the obligations in a directive, not the directive itself.
Introducing this possibility blurred the lines between a regulation
and a directive.
This arguably would have a negative impact on legal certainty,
even more so because directives were not immediately activated
but usually had a delay (implementation period) of 2 years.
o Argument is that it essentially skips over the responsibility on MS to
implement.
Ratti – rectifies this by requiring that the claimant wait until the
implementation period is over.
b. Do we want horizontal direct effect of directives? – Solanke:
Yes –
o Need to protect the uniform application and effectiveness of EU law.
Reliance on national authorities undermines compliance with EU
law.
Non-implementation, lack of application and non-compliance
damages the economic integration that is crucial for the future of
Western Europe.
o Craig – the continued failure to comply with EU law undermines the
credibility of the EU legal system as a whole – allowing private actions
would protect the system.
Direct Effect = a principle of EU law whereby individuals are able to invoke a European provision
before a national or European court.
The extent of this direct effect depends on the type of provision adopted by the EU –
distinguished by Article 288 TFEU.
- A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all Member 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.
- 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.
Article 258 TFEU – express mechanisms to allow the Commission to enforce EU law against MS,
however there was no private enforcement.
1. Treaty Articles:
Treaty provisions have direct effect in national law – i.e., they can be relied upon by
individuals in national courts.
C-26/62 Van Gend en Loos –
“The community constitutes a new legal order of international law
for the benefit of which the states have limited their sovereign rights,
albeit within limited fields, and the subjects of which comprises not
only member states but also their nationals.”
Conditions for DE = measure must be sufficiently clear and precise, and
unconditional.
Van Gend en Loos
Can have vertical direct effect – Van Gend en Loos.
Can have horizontal direct effect – C-43/75 Defrenne v Sabena
Treaty provisions can be exercised against private parties by private parties.
The fact that certain provisions of the Treaty are formally addressed to the
MS does not prevent rights from being conferred at the same time on any
individual who has an interest in the performance of the duties thus laid
down.
2. Regulations:
Regulations can be directly effective.
Poiiti, Leonesio
Conditions for DE = measure must be sufficiently clear and precise, and
unconditional.
Can have vertical and horizontal direct effect.
3. Directives:
Directives can have direct effect in national law.
C-41/74 Van Duyn –
Where the EU authorities have, by directive, imposed on MS the
obligation to pursue a particular course of conduct, the useful effect
of such an act would be weakened if individuals were prevented from
relying on it before their national courts and if the latter were
prevented from taking it into consideration as an element of EU law.
Conditions for DE:
The measure must be sufficiently clear and precise, and unconditional.
Van Duyn
The implementation deadline must have passed.
C-148/78 Ratti
, Introduced the concept of estoppel – a MS that fails to
transpose a directive within the prescribed period can not
plead its own wrongdoing against individuals to avoid
liability.
After the expiration of the implementation period of a
directive, national provisions are void regardless of whether
the directive is implemented or not.
ONLY vertical direct effect – no horizontal.
C-152/84 Marshall
A person may rely on a directive as against the state.
BUT – the scope of direct effect of directives was limited by
the fact that under Article 288 TFEU, directives are only
binding upon those to whom it is addressed.
Confirmed in C-91/92 Faccini Dori –
“The effect of extending that case-law to the sphere of
relations between individuals would be to recognise a power
in the Community to enact obligations for individuals with
immediate effect, whereas it has competence to do so only
where it is empowered to adopt regulations.”
a. Do we want direct effect of directives (in general)? – Solanke:
Yes –
o Would shift enforcement from Commission to individuals – thus
reducing burden on Commission.
o Would encourage individuals to monitor national transposition and could
therefore in the long-term ensure these were implemented further.
National systems more likely to listen to pressures from own
citizens rather than the EU?
No –
o Overlooks the formal distinction in the Treaty between regulations and
directives and intruded upon the discretion given to MS on
implementation.
o In the scheme of the Treaty, individuals were to gain rights from national
acts transposing the obligations in a directive, not the directive itself.
Introducing this possibility blurred the lines between a regulation
and a directive.
This arguably would have a negative impact on legal certainty,
even more so because directives were not immediately activated
but usually had a delay (implementation period) of 2 years.
o Argument is that it essentially skips over the responsibility on MS to
implement.
Ratti – rectifies this by requiring that the claimant wait until the
implementation period is over.
b. Do we want horizontal direct effect of directives? – Solanke:
Yes –
o Need to protect the uniform application and effectiveness of EU law.
Reliance on national authorities undermines compliance with EU
law.
Non-implementation, lack of application and non-compliance
damages the economic integration that is crucial for the future of
Western Europe.
o Craig – the continued failure to comply with EU law undermines the
credibility of the EU legal system as a whole – allowing private actions
would protect the system.
