QUESTION:‘Recent case law has left the doctrine of direct effect with uncertain boundaries and dubious justifications with regards to where those boundaries should lie. The European Court of Justice has failed to establish a principled means to determine when and why Directives may exert an impact on the position of private parties in litigation before national courts.’ Discuss.
A key feature of the European Integration project is the perceived remoteness and aloofness of the EU institutions by the European citizenry. This alleged democratic deficit of the EU is caused by a few factors include the wholly appointed and largely unaccountable nature of the officials making decisions and the absurdity of some of the publicized EU decisions in the past.
However, the development of the doctrine of Direct Effect was an early endearing position for the EU project. Direct Effect simply put; means the capacity of any EU citizen to enforce rights conferred on him/her by a provision of European Law. This doctrine was substantively developed from the 1963 Van Gend en Loos decision, (Case 26/62); although the issues surrounding the concept have been flagged since 1956 relating to the ECSC Treaty. In the Van Gend case, the court held that:
“The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislation measure enacted under national law. They are very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects.”
The main contention in this case was whether Article 12 of EC Treaty was directly effective. There are two types of Direct effects. First is the Vertical Direct Effect, which relates to relationship between a citizen and an EU member state (or agents of the state). That is; an EU law is vertically effective, if it is enforceable against the state. Secondly there is the Horizontal Direct Effect with relates to EU laws that are enforceable against private individuals (corporations and individuals).
The direct effects doctrine hinges on the principle of the supremacy of EU law over national law. As such; this principle will make no sense unless citizens can enforce EU laws in national courts. This enforceability of EU legal rights in national law is the basis of the doctrine of Direct effect.
In Van Gend en Loos, the European Court of Justice (ECJ), held that Van Gend could enforce Article 30 (formerly Article 12, then 25) against the Dutch government based on three main criteria:
- That the Article was a clear and unconditional
- That it imposes duty on the EU State without discretion or exception given
- That it produced direct effects between citizens and EU member States.
However, UE laws come in four main instruments. These are:
- Treaty Articles – These can be both vertically and horizontally effective.
- Regulations – These can be both vertically and horizontally effective.
- Directives and – These are vertically directive only.
- Decisions – These are addressed to particular parties, so they are enforceable against those to home it is addressed.
A large part of EU laws comes in form of Directives. Directives are instructions to a EU state to introduce a law nationally. Hence why they are only vertically effective. The European Court of Justice (ECJ) in Van Gend case held that Directives have only vertical effects. This position many believed was due to the ECJ taking account of potential reaction from the EU Member states; who were not keen on the direct effects doctrine in the first place. But as years go by, it became unsustainable to maintain this position where the largest legal instrument the EU has (Directives), cannot be enforced against private individuals or companies. Hence the ECJ began expanding the original narrow scope of the direct effects application.
Over the years after the Van Gend case, the ECJ has through cases adjudicated upon clarified the key requirements for a Directive to become directly effective. In Case 43/75 Defrenne v Sabena (No. 2), the ECJ posited that Directives must give Clear and Identifiable rights to individual EU citizens. Then, in Case 148/78, Ratti. the ECJ stated that the time limit for an EU State to implement a Directive must have passed, before it can become directly effective. And finally the ECJ decided that Directives can be enforced only against the State and not individuals in Case 152/84 Marshall.
With pressure mounting on the ECJ to change its position on the non-horizontal direct effectiveness of Directives, more cases emerged that showed the court trimming on the edges of its agreed position. For instance to increase the scope of the effects of Directives; the ECJ expanded the definition of what a “State” is. Originally State simply mean an EU Member government. But in Case 188/89 Foster v British Gas  ECR I-3313; the ECJ said a body will be classed as a State if:
- It is subject to the control of the State
- It has special powers given to it by the State.
Later in the case NUT v Governing Body of St Mary’s Church of England (Aided) Junior School  3 CMLR 630; the court held that the definition of “the State” should be a “Broad one”; thus extending the direct effects to schools and educational establishments. Spectacularly, in Case 14/83, Von Colson and Kaman; the court also decided that national courts are part of the “State”; hence they are under obligation to interpret national law in line with EU law. This could mean that individuals could enforce through national courts EU Directives against other individuals.
This development appears to resolve the difficulty created by the earlier limits of direct effects of Directives; hence this is known as the doctrine of Indirect effects. It is however important that national law exists that National courts can interpret in the first place; as noted by the court in Case 106/89 Marleasing. The UK court affirmed this position in Litster v Forth Dry Dock  2 WLR 634.
It is also now possible for a State to be sued for non implementation of a EU Directive or law. This principle of State Liability was established firmly in Case C-6&9/90 Francovich v Italy  ECR I-5357. As customary, the ECJ again imposed three conditions that must be met for state liability to be established. These are that:
- A Directive gives rights to individual citizens
- These rights are clearly stated in the words of the Directive
- A causal link is established between the state’s failure to implement a Directive and the damage for which a redress is sought.
This principle has now been applied to all forms of EU law in sufficiently serious cases as noted in Case C-46/93 Brasserie du Pecheur v Germany. Several difficulties have arisen in the past when States have failed to implement Directives, causing individuals not being able to get remedies. This incongruity is the reason why the split created by the court between public and private sectors on the vertical effects of Directives look unfair. This is due to the fact that those in the public sector can claim to be suing “an emanation” of the State as established by the Foster v British Gas case; but those who may want to enforce Directives against the private sector cannot do so. In post Lisbon, the European Commission can push for a fine to be imposed the first time a State is brought to the ECJ for non-compliance with EU Law.
So from the foregoing; it is clear that the ECJ has failed to establish a principled means for Directives to have Horizontal effects. There are several ways the court have tried to mitigate the effect of this anomaly; either through Indirect effects or State Liability principles. These make the EU legal framework unnecessarily complex and unfair in this area. There are many that believe some of the above scenario stems from the ECJ unwillingness to reverse itself after the Van Gend case. Regardless, I am hopeful that clarity and certainty will be put in place in the near future.
- Case 26/62 Van Gend en Loos.
- Case 11/70 Internationale Handelsgesellschaft GmbH.
- Case 106/77 Simmenthal SpA.
- Case 27/67 Firma Fink-Frucht GmbH.
- Case 148/78, Ratti.
- Case 152/84, Marshal.
- Case 14/83, Von Colson and Kaman.
- Case C-106/89, Marleasing.
- CRAIG, Paul & DE BÚRCA, Gráinne, EU LAW. Text, Cases, and materials. Oxford University Press, 2003, Third Edition
- HARTLEY, Trevor C., The Foundations of European Community Law, Oxford University Press, 1998, Fourth Fdition
- ARNULL, Anthony, The European Union and Its Court of Justice, Oxford University EC Law Library, 2006, Second Edition
- PRECHAL, S., Does Direct Effect Still Matter?, 37 CML Rev. 1047-1069, 2000
- WINTER, Direct Applicability and Direct Effect-Two Distinct and Different Concepts in Community Law, (1972), CMLR 425
- CRAIG, Paul, Directives: Direct Effect, Indirect Effect and the Construction of National Legislation, 22 EUR. L. REV. 519, 519 (1997)
- CURTIN, Directives: the Effectiveness of Judicial Protection of Individual Rights, (1990), 27 CMLR,
- OJANEN,t., The Changing Concept of Direct Effect of European Community Law, ERPL/REDP, vol.12, no.4, winter/hiver 2000
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Tagged as EU LAW
With reference to the case law on direct effect, critically discuss the extent to which this concept (direct effect) is an effective means of protecting an individual’s European Union Law rights.
rodrigo | January 12, 2017
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Direct effect seeks to ensure that the rights of individuals are being protected under EU Law. This is not always achievable since EU Law is generally only directly effective against national authorities. As such, individuals cannot usually invoke EU Law against other individuals unless the EU Law provisions are horizontally directly effective. This suggests that the concept of direct effect is not that effective in protecting an individual’s European Union Law rights. In light of recent case law, the courts are now using vertical direct effect as a way of invoking EU Law by demonstrating that the provisions give effect to general principles of EU law. This essay will critically discuss the extent to which individual rights are being protected by reviewing the case law in this area.
European Union Law
Parliamentary sovereignty renders Parliament the most supreme legal authority in the UK. The courts are unable to overrule any decisions made by Parliament and no Parliament is capable of passing laws that future Parliaments will be unable to change. Since the UK’s entry into the European Union (EU) in 1972 and the implementation of the Human Rights Act 1998, the sovereignty of parliament has been significantly weakened. This is primarily due to the fact that EU Law has direct effect under the European Communities Act 1972. EU Law can be used to dis-apply acts of parliament and overturn previous decisions. This protects individual rights by allowing them to use the direct effect principle to invoke EU Law. The principle of direct effect confers rights on individuals which all Member States must recognise and enforce and although the principle is not explicitly provided for under any of the Treaties of the EU, it has been recognised through various case law such as Van Gend en Loos v Netherlands Inland Revenue Administration. Here, it was made clear that in the event of a confliction between EU Law and national legislation, EU Law will always prevail. This decision recognised for the first time that the supremacy of the EU would always be upheld through the principle of direct effect.
The decision in Van Gend en Loos focused upon the rights of individuals against the state and not against other individuals. This issue was subsequently addressed in Defrenne v SABENA when it was noted that there exists two different types of direct effect; vertical and horizontal. The distinction between the two would depend upon the person or entity the right was being enforced against. Vertical direct effect is concerned with the relationship between EU Law and national law, whilst horizontal direct effect is concerned with the relationship between individuals. It was identified in the case that if a particular provision of EU Law is horizontally directly effective, then individuals will be able to rely upon that provision to enforce EU Law against another individual. Although this is necessary in ensuring that the rights of individuals are being protected by all, there are only limited EU Law provisions that are horizontally directly effective. The rights of individuals may still be violated by other individuals and companies. This shows that the principle of direct effect may not always be an effective means of protecting an individual’s EU Law rights. Consequently, the principle is only effective when it comes to EU regulations and is not that effective when trying to enforce directives. This is due to the fact that directives are not generally given horizontal direct effect.
The lack of directives that have horizontal direct effect was identified by AG Jacobs in Nicole Vaneetveld v Le Foyer SAwhen he argued that there would exist greater legal certainty and a more coherent system “if the provisions of a Directive were held in appropriate circumstances to be directly enforceable against individuals”. Arguably, because directives do not always have horizontal direct effect, it cannot be said that the rights of individuals are being fully protected under EU law as violations can still occur. In Van Duyn v Home Office the courts made it clear that vertical direct effect would apply to Directives if “individuals were prevented from taking it into consideration as an element of Community law”. In addition, it is declared under Article 249 EC (now Art 288 of the Treaty on the Functioning of the European Union) that Directives should be binding upon Member States, though the decision is left for the courts to decide based upon the particular facts and circumstances of the case. Individuals thus have the ability to invoke Directives before the courts, yet their rights cannot always be guaranteed. Furthermore, if the Directive is “sufficiently clear and precise, unconditional, leaving no room for discretion in implementation” it is unlikely that the courts will be able to make a decision by weighing up the particular circumstances of the case. Only if a Directive is not sufficiently precise and deemed unworkable by the court, will national authorities be able to intervene.
Essentially, it is evident that direct effect will not always apply to directives and as asserted by Tovey; “some policy decisions needed to be developed and articulated for Directives to be accorded direct effect”. In Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching)it was held that a Directive cannot be directly enforceable against individuals, however in Grad v Finanzamt Traunstein it was signified that because Directives imposed obligations which were to achieve a desired result, they could be directly effective. Moreover, in Pubblico Ministero v Ratt it was stated that Directives would not have direct effect if Member States had not implemented the Directive within the time allowed for its implementation. The conflicting case law decisions in this area are likely to cause confusion as to whether directives are capable of having direct effect, though it seems as though the decision will be made on a case by case basis. Whether this limits the protections under EU Law is likely as the provisions will not always be able to be invoked. Recent case law surrounding the direct effect of EU Law has prompted even more confusion. This is because, whilst the courts have made many attempts to reject extending horizontal direct effect to directives (Faccini Dori v Recreb Srl), it is now questionable whether this is still the case since the decisions of Mangold v Helm and Kücükdeveci v Swedex GmbH & Co KG.
Individuals EU Law Rights
In Mangold the court held that national courts were under a duty to adopt the provisions of a Directive and set aside conflicting national law even if the time limit for transposition had not yet expired. It seemed that a new principle was being established by the court as Directives were originally only capable of having direct effect after the transposition date. In Kücükdeveci it was held that although Directives did not have horizontal direct effect, they were not prepared to apply national legislation as this would infringe the individuals rights under EU Law. Instead, it was found that the principle of non-discrimination was a general principle of EU Law and that the national court was therefore under a duty to dis-apply national legislation that violated this principle. This case seemed to suggest that even when a directive is not horizontally directive effective, an individual can still invoke EU Law against another individual by applying the general principles of EU Law. The court in Re Honeywell questioned whether the Mangold decision was ultra vires, yet because age discrimination fell within the competencies of EU Law, it was found that no new competencies had been created. Consequently, whilst it generally depends upon the nature of the case as to whether direct effect will be applicable, it is capable of being used as an effective means of protecting an individual’s rights whether this be via horizontal or vertical direct effect. The case law in this area suggests that if a Directive gives effect to general principles of EU law, national legislation which conflicts with the Directive must be dis-applied by national courts.
In light of recent case law decisions, the protection that is being afforded to individuals under EU Law is now more effective through the principle of direct effect than it ever was. Previously, if an EU Law provision did not have horizontal direct effect, individuals could not invoke EU Law against another individual such as their employer. This resulted in discriminatory treatment and prevented individuals from relying upon their rights under EU Law. Since Mangold and Kücükdeveci, individuals will be capable of invoking Directives that give effect to general principles of EU law against other individuals.
Alina Kaczorowska, European Union Law (Routledge 2013).
John Fairhurst, Law of the European Union (Pearson Education, 2010).
Lorna Woods and Phillipa Watson, Textbook on EU Law, (12th Edn, Oxford University Press, 2014).
Nigel Foster, Foster on EU Law (OUP Oxford 2011) 219.
Online Journal Articles
Gwyn Tovey, ‘European Union Law’ (2011) EU Law and National Law, <http://www.topnotes.org/EU-3-1-Direct%20Effect-2010-2011.pdf> accessed 02 December 2014.
Parliament, ‘Parliamentary Sovereignty’ (UK Parliament) <http://www.parliament.uk/about/how/sovereignty/> accessed 01 December 2014
Defrenne v SABENA Case 2/74  ECR 631
Grad v Finanzamt Traunstein Case 9/70,  ECR 825
Faccini Dori v Recreb Srl Case 91/92  All ER (EC) 1
Kücükdeveci v Swedex GmbH & Co KG  All ER (EC) 867)
Mangold v Helm  All ER (EC) 383
Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching)  ECR 723
Nicole Vaneetveld v Le Foyer SA Case 316/93,  ECR 1-793 290
Pubblico Ministero v Ratt Case 148/78,  ECR 1629
Re Honeywell  1 CMLR 1067
Van Gend en Loos v Netherlands Inland Revenue Administration  ECR 1
Tags: case law, direct effect, EU Law
Category: Essay & Dissertation Samples, Law