Direct effect of European Union law

In European Union law, direct effect is the principle that Union law may, if appropriately framed, confer rights on individuals which the courts of member states of the European Union are bound to recognise and enforce.

Direct effect is not explicitly stated in any of the EU Treaties. The principle of direct effect was first established by the European Court of Justice (ECJ) in Van Gend en Loos v. Nederlandse Administratie der Belastingen.^[1] Direct effect has subsequently been loosened in its application to treaty articles and the ECJ has expanded the principle, holding that it is capable of applying to virtually all of the possible forms of EU legislation, the most important of which are regulations, and in certain circumstances to directives.

The ECJ first articulated the doctrine of direct effect in the case of Van Gend en Loos,^[1] the European Court of Justice laid down the criteria (commonly referred to as the "Van Gend criteria") for establishing direct effect. The EU article provision had to be:

clear,
negative (a negative rather than a positive obligation)
unconditional,
containing no reservation on the part of the member state, and
not dependent on any national implementing measure.^[2]

If these criteria were satisfied, then the right or rights in question could be enforced before national courts. Of course whether or not any particular measure satisfies the criteria is a matter of EU law to be determined by the EU Courts.

Varieties of direct effect

In Van Gend en Loos^[1] it was decided that a citizen was able to enforce a right granted by European Community legislation against the state – the question of whether rights could be enforced against another citizen was not addressed. In Defrenne v. SABENA (No. 2),^[3] the European Court of Justice decided that there were two varieties of direct effect: vertical direct effect and horizontal direct effect, the distinction drawn being based on the person or entity against whom the right is to be enforced.

Vertical direct effect concerns the relationship between EU law and national law – specifically, the state's obligation to ensure its observance and its compatibility with EU law, thereby enabling citizens to rely on it in actions against the state or against public bodies; an "emanation of the state" as defined in Foster v. British Gas plc.^[4]

Horizontal direct effect concerns the relationship between individuals (including companies). If a certain provision of EU law is horizontally directly effective, then citizens are able to rely on it in actions against each other. Directives are usually incapable of being horizontally directly effective. Certain provisions of the treaties and legislative acts such as regulations are capable of being directly enforced horizontally.

Application of direct effect

Treaty Articles

Direct effect is applicable when the particular provision relied on fulfils the Van Gend en Loos criteria. It is therefore applicable in the case of treaty articles (Van Gend en Loos was a claim based on a treaty article), in which case it can be both vertically and horizontally directly effective.

Regulations

Regulations are also subject to direct effect. As Article 288 TFEU (ex Art 249 TEC) explicitly provides that regulations "Shall be binding in its entirety and directly applicable in all Member States" the ECJ has confirmed that they are therefore in principle directly effective stating that "Owing to their very nature and their place in the system of sources of Union law, regulations operate to confer rights on individuals which the national courts have a duty to protect"^[5] If a specific right is conferred therefore a regulation can be both vertically and horizontally directly effective. All regulations are directly effective.^[6]

Decisions

Decisions are directly effective against whomever they are addressed to, as under Article 288 TFEU (ex Article 249 TEC), they are "binding in its entirety... to whom [they are] addressed".

Directives

Leading case law for the direct effect of Directives is Van Duyn v Home Office which established vertical direct effect of Directives and Marshall v Southampton Health Authority which established that there is no horizontal direct effect of Directives.

The horizontal direct effect of Directives is a contentious issue among law makers of the European Community. Numerous Advocates General have supported the case for establishing horizontal direct effect, however it is still currently unable to confer such rights. In a number of cases the ECJ has established means for avoiding this limitation to a Directive's application, and to attain efficacy have interpreted cases broadly to give effect to the measures.

The case of Foster v British Gas demonstrates the court's willingness to confer the rights of a directive unto individuals, for the purpose of this case the court purported that any government organisation, nationalised company or company working in the public sector can be considered as a public body for the purpose of implementing vertical direct effect when a more narrow reading of the case might infer that horizontal direct effect would need to required for application. This is demonstrated in the case of Van Colson where the court established the practice of 'reading in' a directive into existing national law to realise the directive's effect – despite it not actually being a part of the legislation. Further case law to demonstrate this practice is Francovich v Italy where action could be taken against the government by an individual for their failure to implement a directive and the subsequent loss of rights suffered in court.

In Grad v Finanzamt Traunstein,^[7] a case involving VAT, the ECJ ruled that a directive could be directly effective, as they imposed an obligation to achieve a required result. As the ECJ held in Becker, another case involving VAT, "wherever the provisions of a directive appear...to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or insofar as the provisions define rights which individuals are able to assert against the State."

In Pubblico Ministero v. Ratti,^[8] however, it was held that if the time limit given for the implementation of the directive has not expired, it cannot have direct effect. Directives were directly effective only if the prescribed date, by which the Member State should have implemented it, had passed. Additionally, in instances where the Member State has introduced the required legislation, but has done so defectively, the directive may still be directly effective, as in the Verbond van Nederlandse Ondernemingen (VNO) case.

Unlike Treaty provisions and regulations, directives cannot have horizontal effect (against another private individual or company), as this is adjudged contrary to the principles of equality (see Marshall v Southampton and South West Hampshire AHA (1986)). As such, Directives are currently only vertically directly effective (i.e. against the state, a concept interpreted broadly by the ECJ, including state schools and other "emanations of the state"). However, the obligation of EU Member States to interpret national law in a consistent and harmonious manner with EU law has been said to have produced an indirect horizontal effect regarding conventions.

Direct effect on procedural law

In Comet v. Produktschap,^[9] the European Court of Justice established that the procedural rules of each member state generally apply to cases of EU law. However, two basic principles must be adhered to: "equivalence" (the procedure for EU cases must be equivalent to the procedure for domestic cases) and "effectiveness" (the procedure cannot render the law functionally ineffective).

Footnotes

1 2 3 (Case 26/62); [1963] ECR 1; [1970] CMLR 1
↑ Craig, Paul; de Burca, Grainne (2008). "8". EU Law, Texts, Cases and Materials (4th ed.). OUP. p. 275.
↑ (Case 2/74) [1974] ECR 631
↑ (Case C-188/89) [1990] (ECR I-3313).
↑ Case C-253/00 Munoz [20002] ECR I-7289 para.27
↑ "EUR-Lex - l14547 - EN - EUR-Lex".
↑ (Case 9/70) [1970] ECR 825
↑ (Case 148/78) [1979] ECR 1629
↑ (Case 45/76) [1976] ECR 2043

External links

The direct effect of European law – an overview at Eur-lex
Analysis of Current Legal Trends in the Area of Direct Effect
Dr.Jur. Eric Engle on Direct Effect

Judiciary and law of the European Union
Judiciary	Court of Justice of the European Union European Court of Justice (members) General Court Civil Service Tribunal European lawyer Relationship with ECHR Public Prosecutor European civil code
Treaties	Rome Treaty Merger Treaty Single European Act Maastricht Treaty Amsterdam Treaty Nice Treaty Lisbon Treaty Charter of Fundamental Rights Opt-outs
Acts	Acquis: Regulation Directive Framework Directive Decision Recommendation
Procedures	Ordinary legislative procedure Consultation procedure Assent procedure Commission and Council acting alone Commission acting alone
Principles and terms	Subsidiarity Supremacy Direct applicability Direct effect Indirect effect Incidental effect Gold-plating Four freedoms Host state regulation Home state regulation Acquis communautaire EUR-Lex Minimum harmonisation Maximum harmonisation Home country control State liability Proportionality Principle of legal certainty Principle of conferral Preliminary ruling European labour law European Enforcement Order Staatenverbund
Regulations	Council Regulation (EC) No. 1206/2001 Council Regulation (EC) No. 1348/2000 Customs Regulation 1383/2003 Regulation 261/2004 EU-Eco-regulation Commission Regulation (EC) No 2257/94 Customs Regulation 3295/94 Regulation on roaming charges Brussels Regime CLP Regulation Regulation on Community designs Societas Europaea European Union System for the Evaluation of Substances Commission Regulation (EC) No 474/2006 REACH Rome II Regulation
Directives	Good Clinical Practice Directive Data Protection Directive ATEX directive Battery Directive Best available technology Biocidal Products Directive Birds Directive Capital Requirements Directive Clinical Trials Directive Computer Programs Directive Conditional Access Directive Copyright Directive Copyright Duration Directive (93/98/EEC) Copyright Term Directive (2006/116/EC) Cosmetics Directive Dangerous Substances Directive (67/548/EEC) Dangerous Preparations Directive Data Retention Directive Database Directive Database right Directive 2000/43/EC on Anti-discrimination Directive establishing a general framework for equal treatment in employment and occupation Directive on Privacy and Electronic Communications Directive on the Promotion of the use of biofuels and other renewable fuels for transport Directive on the re-use of public sector information Directive on Electricity Production from Renewable Energy Sources End of Life Vehicles Directive CHP Directive Directive on the energy performance of buildings Directive on the enforcement of intellectual property rights Directive 2004/38/EC on the right to move and reside freely Environmental liability directive European SEA Directive 2001/42/EC European units of measurement directives Habitats Directive Integrated Pollution Prevention and Control Internal Market in Electricity Directive Landfill Directive Directive on the legal protection of biotechnological inventions Directive on the legal protection of designs Markets in Financial Instruments Directive Measuring Instruments Directive Medical Devices Directive Posted Workers Directive Pressure Equipment Directive Rental Directive Resale Rights Directive Restriction of Hazardous Substances Directive Satellite and Cable Directive Directive on services in the internal market Temporary and Agency Work Directive Trade Marks Directive European Directive on Traditional Herbal Medicinal Products Unfair Commercial Practices Directive Universal Service Directive Urban Waste Water Directive Waste Electrical and Electronic Equipment Directive Waste Incineration Directive Waste framework directive Water Framework Directive Working Time Directive
Cases	ECJ Rulings (Caselex): Allonby v Accrington and Rossendale College Apostolides v Orams Bosman Cassis de Dijon Chacon Navas v Eurest Colectividades SA Chen Ciaran Tobin Coleman v Attridge Law Costa v ENEL Factortame Francovich Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd Kolpak Microsoft v Commission Marleasing SA v La Comercial Internacional de Alimentacion SA Metock Nordsee Palacios de la Villa v Cortefiel Servicios SA Peter Paul and Others v Bundesrepublik Deutschland Procureur du Roi v Dassonville Ralf Sieckmann v Deutsches Patent und Markenamt Tanja Kreil Van Duyn v Home Office Van Gend en Loos
Fraud	Court of Auditors European Anti-fraud Office Accountability in the European Union
European Union portal Law portal

This article is issued from Wikipedia. The text is licensed under Creative Commons - Attribution - Sharealike. Additional terms may apply for the media files.