Direct and Indirect Effect

Question 1

What is direct effect?

Answer 1

A provision of EU law has direct effect if it has the capacity to be invoked before a national court, or more specifically, the capacity of a provision of EU law to confer rights on individuals which they may enforce before national courts.

Question 2

When does a treaty article have direct effect?

Answer 2

Van Gend en Loos
- ECJ first outlined the doctrine of direct effect in relation to provisions of the EU treaties
- If a particular provision meets the following criteria it is directly effective
- The provision must be sufficiently clear and precise;
- It must be unconditional;
- It must leave no room for the exercise of discretion in implementation (as to the end result, not the means).

Defrenne
- Held that it is the principle behind the provision which needs to be sufficiently precise, not the key phrases or wording.

Viking Line
- Confirmed horizontal direct effect

Question 3

When do regulations have direct effect?

Answer 3

Frumar Ltd
- If it intends to confer a right upon individuals a regulation or provision there of has both horizontal and vertical direct effect.

Question 4

When do directives have direct effect?

Answer 4

Van Duyn
- Van Gend en Loos criteria still apply
- Additional requirement to be examined on a case by case basis;
- Examine the nature, general scheme and wording of the provision to determine if it is capable of having direct effects on the relations between MS and individuals.

Ratti
- Only once the time limit for transposing the directive has passed its provisions be relied on.
- Wrong for a MS to benefit from its own failure to transpose a directive.

Verbond
- Original directive only applicable post transposition if the MS has failed to transpose it completely.
- Otherwise individual rights flow from the national implementing provision.

Question 5

Who are directives directly effective against?

Answer 5

Marshall
- Directives are only addressed to the state and thus only have vertical direct effect.
- This includes organs of the state.

Dori
- The basis of this is to prevent member states from taking advantage of their own wrong.

Wells
- Mere adverse repercussions on the rights of a third party did not justify preventing an individual from invoking directly effective terms of a directive against the MS concerned.

Question 6

What is an organ of the state?

Answer 6

Foster v British Gas
- Any body which
- has been given responsibility for providing a public service
- under control of the state
- and has powers beyond that normally applicable to relations between private individuals

Question 7

What is indirect effect?

Answer 7

• It acts as an alternative to the principle of direct effect
• where the Van Gend en Loos criteria are not satisfied (Colson)
• or in the case of a directive where the action is against a private party (Marleasing).
• It is essentially an interpretive tool, and places the national courts under an obligation to interpret existing national law in accordance with the directive where possible.