Direct Effect and Related Actions

• Direct Effect distinguished from direct

applicability;
• Direct effect of primary and secondary
legislation;
• Incidental (or ‘Triangular’) Direct Effect;
• Indirect Effect;
• State Liability.
 Direct Effect and Direct Applicability

• Direct Applicability - enables a provision of EU

law to become an integral part of national (or
domestic or municipal) law of a Member State
without the need for further legislative
enactment within that Member State.
• Direct Effect - rights under EU Law that any
natural or juristic person may enforce in his
national courts.
 Pre-requisites for Direct Effect
• Two basic pre-requisites have to be satisfied
before any legislative provision may begin to
be recognised as directly effective, viz:
• the provision must be recognised as being
incorporated, or deemed to be incorporated,
into the English legal system; and
• the provision must be deemed appropriate to
confer rights on natural or juristic persons.
 Direct Effect of Treaty Provisions
• Case 26/62, van Gend en Loos.
• Van Gend “constitute[d] a new legal order of
international law”.
• Van Gend established direct effect and
implied supremacy of EU Law.
• Van Gend was a case on vertical direct effect.
Criteria for Direct Effect of a Treaty Provision

• the provision in question must have been

sufficiently clear and precise for judicial
application;
• it must have established an unconditional
obligation; and
• the obligation must not have been
dependent on further action being taken by
the Community or national authorities.
 Post-van Gend Developments
• Case 57/65, Alfons Lutticke – ECJ implied that
direct effect would apply to a positive
obligation;
• A-G Mayras in Case 2/74, Reyners, laid down
clearer criteria as to what constituted direct
effect of a Treaty provision;
• ‘Unconditional’ and ‘sufficiently precise’
required elaboration.
‘Unconditional’ and ‘Sufficiently Precise’

• ‘Unconditional’ – Case 236/92 – but note the

extension & qualification in Case 41/74, van
Duyn.
• Sufficiently clear and precise – Case 43/75,
Defrenne v Sabena.
• Case 43/75 also established horizontal direct
effect of a Treaty provision.
 Direct Effect of 2 Legislation
0

• Regulations – still require to be unconditional

and sufficiently precise (direct applicability is
insufficient) – though less emphasis on these
criteria cf Directives: Case C-253/00, Munoz;
• Regulations may be vertically and
horizontally directly effective;
• Decisions: Case 9/70, Franz Grad – vertically
directly effective. (HDE of Decisions??).
 Direct Effect of Directives
• Directives are addressed to Member States – so
why should they confer rights on individuals?
• 3 policy reasons for conferring direct effect on
some Directives.
• Where a Directive is directly effective it is
vertically directly effective, only: HDE does NOT
apply to Directives: Case 152/84, Marshall.
 Policy Reasons for VDE of a Directive
• “It would be incompatible with the binding effect attributed
to a Directive by Article[288 TFEU]to exclude, in principle, the
possibility that the obligation which it imposes may be
invoked by those concerned”;
• The ‘useful effect’ of a Directive would be ‘weakened if
individuals were prevented from relying on it before their
national courts’; and
• “A Member State which has not adopted the implementing
measures required by the Directive in the prescribed periods
may not rely, as against individuals, on its own failure to
perform the obligations which the directive entails”.
Could / should / or are directives capable of
being HDE?
• (Failed) arguments for HDE of Directives put
forward by A-Gs in:
– Case 271/91, Marshall II (A-G van Gerven);
– Case C-91/92, Faccini Dori (A-G Lenz);
– Case C-316/93, Vaneetveld (A-G Jacobs).
• Incidental (or ‘Triangular’) HDE HAS been
established: Cases C-201/02, Wells; C-152-
154/07, Arcor; and C-226/97, Lemmens, e.g.
 Criteria for VDE of a Directive
• the relevant provisions of the Directive must be
unconditional, sufficiently clear and precise and, of
course, capable of creating rights for individuals;
• the time-limit for implementing the Directive must
have expired without the Directive, or the relevant
part of it, having been correctly and completely
implemented into the law of the Member State in
question; and
• the action must be against the State - or at least an
organ or an emanation of the State.
 The State and its Manifestations
• Case 152/84, Marshall – a health authority;
• Case 222/84, Johnston v RUC – a Chief
Constable;
• Case C-188/89, Foster v British Gas:
– A body responsible for providing a public service;
– Under the control of the State; and having
– ‘special powers’.
 Indirect Effect
• Developed because of the limitations on the
direct effect of Directives and the desire to
provide individuals with effective judicial
protection – i.e., ‘do justice’.
• Cf. Case 14/83, von Colson with Case 80/86,
Kolpinghuis v Nijmegen;
• Cases C-106/89, Marleasing (5*) and C-
334/92, Wagner Miret.
 State Liability
• Cases C-6/90 and C-9/90, Francovich and
Bonifaci v Italy:
– the directive involves the conferring of rights on
individuals.
– The breach must be ‘sufficiently serious’ (as
modified by Factortame (No.3)); and
– There must be a causal link between the failure
by the member state to fulfil its obligations and
the damage suffered by individuals.