EU LAW -direct and indirect effect of EU LAW PDF

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The principle of direct effect allows individuals such as natural person and businesses to enforce certain provisions of EU law in a national court. Since its introduction in Van Gend 1 , the principle of direct effect has expanded and developed into a strong legal sword capable of transcending nati...

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The principle of direct effect allows individuals such as natural person and businesses to enforce certain provisions of EU law in a national court. Since its introduction in Van Gend 1, the principle of direct effect has expanded and developed into a strong legal sword capable of transcending national boundaries and upholding individual rights where national laws fail. Following Van Gend.2 it was possible for an individual to directly enforce a right provided by EU law, where that right was provided by the Treaty. Direct effect may be vertical or horizontal.

In Van Gend, direct effect was introduced through the assertion that treaty

Provisions are capable of creating vertical direct effect between “member states and their citizens”, as well as between member states themselves. This case defined vertical direct effect as allowing the citizens to assert their rights under the provisions of the directive against the state, but not against other individuals. 3The court propounded that a treaty article must be sufficiently precise, clear and unconditional as well as lacking dependency on any implementing measure in order for an individual to rely upon it. However, the ruling in Van Gend was not conclusive as there was still uncertainty over the capability of treaty articles to have horizontal direct effect.4 Hence, Defrenne 5was an important case regarding the introduction of horizontal direct effect within the European Union. 6 In this case, the ECJ held that Article 119 of the European Economic Community Treaty was of such a character as to have horizontal direct effect because it solely referred to the Member States of the European Union, implying that the effectiveness of the provision allows citizens of the Member States(MS) to enforce their rights directly against other citizens of the Member

1 Case 26/62 Van Gend en Loos (VGeL) v Netherlands [1963] ECR 1 2 ibid 3 All Answers ltd, 'Effect of the Lack of Horizontal Direct Effect of Provisions in EU Directives' (UKEssays.com, April 2021) < https://www.ukessays.com/essays/law/effect-of-the-lack-of-horizontal-direct-effect-of-provisions-in-eudirectives.php > accessed 27 April 2021 4 Matthew Hii “Direct Effect Essay” (StudyDocu 2016/2017) < https://www.studocu.com/en-gb/document/kings-college-london/european-law/essays/direct-effect-essaygrade-70/1634392/view > accessed 24 April 2021 5 Case 43/75, Defrenne v Sabena [1976] ECR 455 6 All Answers ltd, 'Effect of the Lack of Horizontal Direct Effect of Provisions in EU Directives' (UKEssays.com, April 2021) < https://www.ukessays.com/essays/law/effect-of-the-lack-of-horizontal-direct-effect-of-provisions-in-eudirectives.php> accessed 24 April 2021

State regardless of whether the defendant is a public or private body. 7 The case of Defrenne elucidate doubts over the potential application of direct effect as to treaty articles; and direct effect may now be invoked both vertically against the state and horizontally against other individuals in national courts.8 On the other hand, Article 288 TFEU states that a regulation shall be “binding in its entirety” and “direct applicable” in all MS. 9 Hence, regulations by their very nature are likely to be capable of having both Vertical and Horizontal Direct Effect 10 as illustrated in Muñoz v Frumar 11 . In fact, the term “directly applicable” in the provision implies the automatic incorporation of regulations into national law without need for further enactment. Therefore, as long as the regulations satisfied Van Gend Criteria, they are like Treaty Article, capable of creating both vertical and horizontal effect. While the direct effect of Treaty articles and regulations were relatively clear cut, there are doubts surrounding directives because they are clearly dependent on implementation by each MS as pursuant to Article 288 of the TFEU. Despite directives may not always fulfil the three conditions for direct effect, the CJEU still decided that directives can be directly effective as seen in Van Duyn12 where the court ruled that directive were capable of vertical direct effect as the usefulness of the directive would be weakened if individuals were prevented from relying on it before their national courts.13 Per Van Duyn, in order for a directive have direct effect, the directive must be sufficiently clear, precise and unconditional. In addition, the final criteria for establishing direct effect of a directive was set out in Ratti 14whereby direct effect is possible

7 All Answers ltd, 'Effect of the Lack of Horizontal Direct Effect of Provisions in EU Directives' (UKEssays.com, April 2021) < https://www.ukessays.com/essays/law/effect-of-the-lack-of-horizontal-direct-effect-of-provisions-in-eudirectives.php> accessed 24 April 2021 8 Matthew Hii “Direct Effect Essay” (StudyDocu 2016/2017) < https://www.studocu.com/en-gb/document/kings-college-london/european-law/essays/direct-effect-essaygrade-70/1634392/view >accessed 24 April 2021 9 ARTICLE 288 OF THE TFEU 10 Amina Zaman “Direct Effect-EU Law” (StuDocu 2018/2019) < https://www.studocu.com/en-gb/document/manchester-metropolitan-university/law-of-the-europeanunion/lecture-notes/direct-effect-eu-law/8140612/view > accessed 24 April 2021 11 Case 253/00 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd (2002) ECR I-7298 12 Case 41/74 Van Duyn v Home Office (1974) ECR 1137 13 Robert Schutze , Introduction to European Law (oxford University Press 2020) p121 14 Case 148/78 Pubblico Ministero v Tullio Ratti (1979) ECR 1629

only after the implementation deadline for the Directive has expired.15Nevertheless, it is important to note that the cases above are examples of vertical direct effect because in Marshall16, the CJEU drew a crucial distinction between vertical and horizontal direct effect and established that directives are not horizontally effective.17 The refusal of the ECJ to extend the direct effect of directives to horizontal situations means that even if the conditions for direct effect are satisfied, individuals of MS are unable to rely on the protection of directives against other individuals within the MS thereby leading to unjust situation between two individuals.

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This was seen in Harz19which concerned a claimant who had a work

application rejected and this violated the Equal Treatment Directive, but since the respondent was a private company, the claim could not success as this was a horizontal relationship. Had this case involved a vertical relationship, the outcome would have been different. 20In order to rectify this injustice, the ECJ had created several strategies over time to make the protection of individuals more equal throughout the MS without having to confer horizontal direct effect in directives.21 First, the interpretation of the definition of the State or ‘emanation of the State was broadened so that the situations in which ‘vertical' direct influence may be invoked are enlarged.22 This was completed in Foster

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in that a body

would be part of the state if it is providing a public service; was under the control of the

15 All Answers ltd, 'Effect of the Lack of Horizontal Direct Effect of Provisions in EU Directives' (UKEssays.com, April 2021) < https://www.ukessays.com/essays/law/effect-of-the-lack-of-horizontal-direct-effect-of-provisions-in-eudirectives.php > accessed 24 April 2021 16 Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) (1986) ECR 723 17 Matthew Hii “Direct Effect Essay” (StudyDocu 2016/2017) < https://www.studocu.com/en-gb/document/kings-college-london/european-law/essays/direct-effect-essaygrade-70/1634392/view > accessed 24 April 2021 18 Kaczorowska-Ireland, Alina, European Union Law (Taylor & Francis Group, 2016) ProQuest Ebook Central, accessed 26 April 2021 19 Dorit Harz v Deutsche Tradax GmbH (Case C-79/83) [1984] ECR 1922 20 Chris Mallon “Direct Effect Essay” < https://chrismallonlawtutor.com/eu-law/direct-effect-essay/ > accessed by 25 April 2021 21 All Answers ltd, 'The ECJ Created the Doctrine of Direct Effect in Relation to Treaty Articles' (Lawteacher.net, April 2021) < https://www.lawteacher.net/free-law-essays/european-law/the-ecj-created-the-doctrine-of-direct-effect-inrelation-to-treaty-articles-european-law-essay.php#ftn5 > accessed 25 April 2021 22 ibid 23 Case C-188/89 Foster v British Gas [1990]

State; and was granted special powers beyond those normally applicable by an individual. 24 This reasoning was later endorsed in NUT25 .Thus, the Foster formula was not exclusive and that entities that were different from Foster (such as privatised industries or services that formerly provided public services) could also be considered in a vertical relationship. 26The second strategy which the ECJ adopted is the principle of indirect effect established in Von Colson 27 where national courts are under an obligation to interpret national law in conformity with EU law.

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Hence, this principle achieves the result obtainable through direct effect of

directives, indirectly, through the technique of judicial interpretation of domestic law.29 Having established the principle of indirect effect, the next issue for the ECJ was to determine whether this principle would apply even in horizontal cases between individuals.

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This issue

was later clarified in Marleasing31 where the court confirmed that an unimplemented directive could be relied upon to influence the interpretation of national law in a case between individuals, even if the national law predates the directive and has no specific connection to it.32Here, the Spanish company law was in conflict with an EC directive that had not implemented in Spain but the national court was required to interpret law “in every way possible” to reflect the wording and purpose of a directive.33Therefore, the scope of indirect effect provided by Marleasing has the effect of introducing horizontal direct effect but by 24 All Answers ltd, 'The ECJ Created the Doctrine of Direct Effect in Relation to Treaty Articles' (Lawteacher.net, April 2021) < https://www.lawteacher.net/free-law-essays/european-law/the-ecj-created-the-doctrine-of-direct-effect-inrelation-to-treaty-articles-european-law-essay.php#ftn5 >accessed 25 April 2021 25 NUT v Governing Body of St Mary’s Church of England Junior School (1997)3 CMLR 360 (CA) 26 Chris Mallon “Direct Effect Essay” https://chrismallonlawtutor.com/eu-law/direct-effect-essay/#_edn13 27 Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891 28 Kirk, Ewan, Law Express: EU Law (Pearson Education, Limited, 2018) ProQuest Ebook Central, accessed 26 April 2021 29 EurWORK ‘Direct effect’ (Eurofound 2017) < https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/direct-effect > accessed 26 April 2021 30 All Answers ltd, 'The ECJ Created the Doctrine of Direct Effect in Relation to Treaty Articles' (Lawteacher.net, April 2021) < https://www.lawteacher.net/free-law-essays/european-law/the-ecj-created-the-doctrine-of-direct-effect-inrelation-to-treaty-articles-european-law-essay.php#ftn5 > accessed 26 April 2021 31 Case C-106/89 Maleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135 32 Paul Craig and Grainne de Burca , EU Law: Text , Cases ,and Materials (4 th edition Oxford University Press 2008) p289 33 Andrew Mitchell and Minel Dadhania, AS level Law(Cavendish 2003

indirect means.34 However, there has been some limitation to the indirect effect of directive. First, the national court are only required to interpret law ‘as far as possible’. This raises the assumption that there will be times when this cannot be done as shown in Wagner Miret 35

where the ECJ accepted that a national court has no duty to interpret national law contra

legem.36 Furthermore, indirect effect cannot be used to interpret national law to comply with EU law if it imposes new criminal liabilities. This was ilustrated in Kolpinghuis Nijmegen37 where ECJ made it clear that the principle of indirect effect is limited by the general principles of EU law such as non-retroactivity and legal certainty,38 which in the context of this case means that the directive could not be used to interpret national law in such a way it would give rise to, or aggravate the individual’s criminal liability.39 In conclusion, from Van Gend40 to Marleasing41, it can be clearly observed that there is an evolution of direct effect as well as development of its coverage. Undeniably, the lack of horizontal effect has compromised the judicial protection of citizens within Member States. Yet the ECJ's efforts to protect individual rights as illustrated above should eventually be lauded42 as it enables a certain form of protection of citizens when applying national laws to their cases.43 In fact, it would make more sense for the EU to implement horizontal direct effect for directives because it would lead to a fairer outcomes and a greater degree of legal

34 Storey, Tony, and Alexandra Pimor, Unlocking EU Law ( Taylor & Francis Group, 2018) ProQuest Ebook Central, < http://ebookcentral.proquest.com/lib/herts/detail.action?docID=5501400.> accessed 26 April 2021 35 Case C-334/92 Wagner Miret v Fondo de Garantia Salarial, [1993] ECR I-6911 36 Kaczorowska-Ireland, Alina, European Union Law (Taylor & Francis Group, 2016) ProQuest Ebook Central, accessed 26 April 2021 37 Case C-80/86 Kolpinghuis Nijmegen [1987] ECR 3969 38LondonLawStudent ‘NOTES ON: DIRECT EFFECT AND INDIRECT EFFECT IN THE EU’ < https://lifeofalondonlawstudent.com/notes-on-direct-effect-and-indirect-effect-in-the-eu/> accessed 26 April 2021 39 ibid 40 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] 41 C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] 42 Matthew Hii “Direct Effect Essay” (StudyDocu 2016/2017) < https://www.studocu.com/en-gb/document/kings-college-london/european-law/essays/direct-effect-essaygrade-70/1634392/view > accessed 26 April 2021 43 All Answers ltd, 'Effect of the Lack of Horizontal Direct Effect of Provisions in EU Directives' (UKEssays.com, April 2021) < https://www.ukessays.com/essays/law/effect-of-the-lack-of-horizontal-direct-effect-of-provisions-in-eudirectives.php > accessed 26 April 2021

certainty without the need to resort to complex strategies to mitigate the harshness of horizontal direct effects of the directives....