European Law Essay - Direct Effect of Directives

European Law Essay - Direct effect of directives

The principle of direct effect, that is allowing European citizens to rely directly on their EU law rights rather than having to seek enforcement through the EU institutions w as a major development of EU legal order . While horizontal direct effect is generally prohibited as regards directives, the European Court of Justice developed a number of other principles through its jurisprudence, which changed the relationship between EU and national legal orders and transform the EU into a "vertically integrated legal regime".

The doctrine of direct effect was first introduced by the ECJ in Van Gend en Loos where it held that Community Law imposes rights and obligations on individuals and thus should be enforceable directly to the national court. This method of enforcement was to be in addition to the then accepted methods of Commission-issued infraction procedures. Direct effect makes considerable logical sense and the doctrine's development is an example of the ECJ's pragmatic and dynamic approach to law making (Doug, 2007) . The importance of direct effect lies in its power given to individuals to enforce European law, so as to ensure a more uniform national application of it, despite the Commission acting solely as the guardian of the treaties.

The ECJ recognizes the criteria which the provisions have to meet in order to be directly effective. The provision must be clear and unambiguous and its operation must not depend on further Member State action. In other words, the legal provision in question must be one that is precise and unconditional. A distinction was also made between vertical and horizontal direct effect - the former relating to a relationship between individuals and state institutions, and the latter to a relationship existing between two individuals.

The question of whether provisions could also be horizontally directly effective was not answered until the case of Defrenne v Sabena (No.2) in which an air stewardess brought a claim against her employer. The ECJ's judgment clarifies that European law provisions are enforceable by individuals against other individuals, a position which has since been confirmed in cases such as Walrave v Koch , Theieffry v Paris Bar Association or Brasserie de Haecht .

While the direct effect of directly applicable EU law such as treaty articles and regulations has been relatively uncontroversial, the application of the doctrine to directives has been more problematic. The requirement for the provision to be unconditional (in the scope of direct effect) does not seem to apply to directives. Directives rely on Member State implementation and only the objective or result of them is binding. However, in the case Van Duyn , the ECJ considered the possibility of directly effective Directives and concluded that the usefulness of Directives as a legal measure would be considerably weakened if individuals were denied the opportunity to rely on them before their national courts. In order to be sufficiently precise, directives must identify those entitled to the right, those responsible for providing the right and ascertain the contents of the right (Francovich). In addition, the date set for implementation must have passed (Ratti ). The ECJ has further held that Directives can only be vertically directly effective and will not be enforceable against individuals (Marshall v Southampton Health Authority ).

While the creation of direct effect doctrine is a major step in enforcing national application of European law, it also has its limitations. First, the criteria can be difficult to be applied in practice, thus makes it difficult to determine whether or not a particular provision has direct effect. For example, in Van Duyn, the provision relating to public policy and public security were held to be sufficiently precise even though the scope of those terms would need interpretation by the courts. Similarly, in Defrenne v Sabena (No.2) 'equal pay for equal work' was regarded as sufficiently clear. However, there is no guarantee that the ECJ will always take this generous approach. In other words, it can be said that ECJ is free to change its interpretation of what is clear and precise. Therefore, there is no certain way of determining whether or not a provision is directly effective, unless a case, which concerns that particular provision, comes before the ECJ.

A further limitation, as mentioned above, is that EU citizens are unable to enforce their rights again other individuals who breach their obligations. Since directives do not have horizontal direct effect. This further limits the scope of application of the direct effect doctrine.

The ECJ has attempted to overcome the weakness of the direct effect doctrine and the lack of horizontal direct effect by several ways.

First, the ECJ applied a wide definition of what constitutes 'the state' for the purposes of vertical direct effect. In Foster v British Gas , it concluded that a body was an emanation of the state and thus capable of forming a vertical relationship if it provided a public service, was under state control and had special powers which went beyond those normally associated with individuals.