Direct Effect

Question 1

What is Direct Effect?

Answer 1

Paul Craig describes that “individuals can rely on Treaty articles before national courts… thereby bringing individuals into the EU legal order”

Private enforcement.

Question 2

Direct Effect: Origins

Answer 2

Van Gend en Loos: mentions that the EU intends to confer rights upon MS nationals.

Defrenne v Sabena (No.2): Gives guidelines for when direct effect will applicable.

Question 3

Defrenne v Sabena (No.2)

Answer 3

Air Stewardess forced to retire at 40, where male co-workers could retire later.

Sets test for when a provision can be directly effective:

1) The provision must be clear and precise
2) The provision must be unconditional

Question 4

Clarity and Precision?

Answer 4

Hartley describes LACK OF as when “the provision merely lays down a general objective or policy to be pursued without specifying the means to attain it”

Question 5

Unconditional?

Answer 5

Cava Case: Garbage to be built in the town.

The relevant provision here says: “MSs need to take further measures”
- therefore is subject to the taking of measures = conditional

Question 6

Types of Direct Effect

Answer 6

Vertical direct effect: imposing legally enforceable obligations on the MS (MSs can be liable against individuals)

Horizontal direct effect: imposing legally enforceable obligations on private individuals (private parties can be liable against other individuals)

Question 7

Direct Effect: Treaty Provisions

Answer 7

Vertical: YES
- Art 30 TFEU (Van Gend en Loos - customs duties)

Horizontal: YES

• Art 157 TFEU (Defrenne v Sabena - equal treatment in employment)
• Art 49 TFEU (Viking - freedom of establishment)
• Art 56 TFEU (Laval - freedom to provide services)

Question 8

Direct Effect: General Principles

Answer 8

Vertical: YES
- Charter of Fundamental Rights, Art 50 (Akerberg - double jeopardy)

Horizontal: MAYBE
- General principle of non-discrimination on grounds of age (Mangold, Kukudeveci, HK Danmark)

NOTE: the latter probably paves the way for grounds of gender and sexual orientation.

Question 9

What is direct application?

Answer 9

Regulations are the only EU instrument that are directly applicable.

Direct application means the regulation must immediately become part of domestic law, without the need for domestic legislation:

“A regulation shall be binding in its entirety and directly applicable in all Member States” - Art 288 TFEU

Question 10

Direct effect vs direct application

Answer 10

The CJEU answered the preliminary ruling in Van Gend en Loos in terms of direct effect, even though they asked about direct application because they wanted to clarify the difference:

Regulations (that are directly applicable) can ALSO be directly effective where their provisions are sufficiently clear, precise and unconditional (as per Defrenne v Sabena)

Question 11

What are EU directives?

Answer 11

They require implementation by EU Member States.
This implementation must occur within the specified time limit.

Once implemented, they are part of domestic law, and so nationals can rely on their provisions in their national courts instead of the EU directive.

SO: no need for direct effect of implemented directives.

Question 12

What about unimplemented directives?

Answer 12

Art 288 TFEU: Directives are addressed to MSs, not individuals

Van Duyn v Home Office: directives would be mostly useless if they could not be invoked by those concerned. (Scientologist case)
CJEU say the directive has to be directly effective otherwise they can’t be implemented.

Ratti case: If the MS still hasn’t implemented the directive before the deadline, individuals can still rely on them if meet other criteria (solvent label case).

Question 13

Test for direct effect for directives

Answer 13

Ratti case:

1) The provision of the directive must be clear and precise
2) The provision of the directive must be unconditional
3) The date for implementation has passed

ONLY for VERTICAL direct effect

Question 14

What about horizontal direct effect for directives?

Answer 14

No. It is the fault of the MS that they didn’t implement the directive in time. It would not be fair to hold private individuals to account for the mistakes of their MS.

Marshall v Southampton Health Authority: Dismissed from work age 62 because normal retirement age for women is 60, and 65 for men.
CJEU: “a directive may not of itself impose obligation on an individual because directives are addressed at the MS.
- NHS as a public body (Member State) or
- Employer (private individual)

Question 15

What if employer is not a public body and you want direct effect?

Answer 15

Paul Craig: “the CJEU has developed a number of doctrinal devices which have reduced the impact of there not being direct effect”

Foster v British Gas: Expanded the notion of the ‘State’.
CJEU: All “emanations of the state” must respect unimplemented directives = EXPANDS

Question 16

What is an ‘emanation of the state’?

Answer 16

Foster v British Gas:
Depends on the  characteristics of the company...
- nature of the service they provide
- under state control?
and/or???
- special powers/ exclusive rights

Farrell case (2017):
Are not conjunctive. Can have either one of the characteristics.