Direct Effect

Question 1

what does it means when a provision has direct effect? What criteria should it meet in order to have direct effect?

Answer 1

If a provision has direct effects it means that it can be invoked by an individual in a national court.
Direct effect is divided into:
* Vertical direct effect (individual vs State’s institution)
* Horizontal direct effect (individual vs individual)

To have direct effect a provision must meet the Van Gend en Loos requirements: it should be:
- CLEAR
- UNCONDITIONAL (automatic and absolute)
- PRECISE
NB: The court with case law has loosen these requirements, and today a provision has direct effect when it can be applied in a specific case

Question 2

What does having “direct applicability” mean? Which are the typical acts of secondary eu law that are directly applicable?

Answer 2

Direct Applicability = the provision is part of national law

REGULATIONS and DECISIONS are directly applicable

Question 3

Which are the characteristics (described in Art. 288 TFEU) of a REGULATION? Can regulations have horizontal direct effect?

Answer 3

REGULATIONS:
* BINDING
* DIRECTLY APPLICABLE (meaning they are part of the MS’s national law)
* GENERAL APPLICABILITY (can be applied in general to objectively determined situations)
Yes, regulations can potentially have both vertical and horizontal direct effect as long as they meet the Van Gend en Loos requirements

Question 4

Which are the characteristics (described in Art. 288 TFEU) of DIRECTIVES? Can directives have horizontal direct effect?

Answer 4

DIRECTIVES:
* BINDING -> but the means for their implementation are left to the discretion of the MS
* can have only VERTICAL DIRECT EFFECT (if they meet the Van Gend en Loos requirements)
However, vertical direct effect applies both to private parties exercising public functions and public authorities engaged in private activities.

+ there are EXCEPTIONS, in which directive directly affects the the horizontal relation between private parties

+ may have indirect effects on the interpretation of national law (doctrine of consistent interpretation)

+ Court can can also interpret directives through the medium of general principles of Union law, which have direct effect

Question 5

Which are the characteristics (described in Art. 288 TFEU) of a DECISION?

Answer 5

DECISIONS:
* BINDING
* DIRECTLY APPLICABLE
* can have DIRECT EFFECT if they meet the Van Gend en Loos criteria)
no General applicability but we have “non-addressed decisions” (which don’t have direct effect)

Question 6

What are the “divisions” of DECISIONS?

Answer 6

DECISIONS:
* SPECIFICALLY ADDRESSED DECISIONS (a): individual-decisions (b): state-addressed decisions
* NON-ADDRESSED DECISIONS (no direct effect)

Question 7

Can International Agreements have direct effect?

Answer 7

Yes, but they have to meet the two-stage test:
1. POLITICAL QUESTION: Court has to decide wether the agreement is capable of having direct effects
2. DIRECT EFFECT ANALYSIS: does it have direct effect (Van Gend en Loos criteria)