Direct effect essay

The EU has been advanced as a unique legal entity with supra-national features. The
principle of direct effect is not found in treaty but has been created and developed by ECJ in
series of judgments. The case in which two aspects were launched is of van gend en loos. It
provided that eu law can be directly applicable in national courts and provide supremacy to
eu law. The most important question which raised was whether article 12 EEC had an effect
within a territory of member state and whether could the citizens of the member state on the
bases of this article enforce individual rights which courts of member state must protect. To
arrive at its decision, court of justice heavily drew on the purposive method of interpretation.

Direct effect provides grass root level applicability that attains general public opinion in favor
of eu law and provides enforcement in a uniform pattern. Courts in the case of Van gend,
stated new constitutional order has been created for whose benefit states have limited their
sovereignty. Albeit within limited fields and subjects of which comprise not only member
states but also individual of member state. Further Van gend laid down their requirements for
defendant to have declaration to have direct effect. These includes declaration must be clear
and unconditional. It states that mere attachment of exception will not prevent from taking
direct effect as was stated in the case of Volcolson that exception and derogation of law will
not prevent it from taking direct effect provided that claim does not fall in to exception. So,
article 141 of EC treaty was given effect. Also, it is not dependent upon any further actions
of member state.

Once a treaty has been signed can be implemented by ways of regulation and directives.
Regulation are defined in article 288 TFEU and directly applicable in all member states and
binding in their entirety and no discretion is left in the hands of member state. In the case of
Azienda Agricola, court stated that to have direct effect, the law must satisfy the criteria of
van gend case. However, an exception exists where member states were given relaxation to
apply. This was regulation 1463/70. Further directives have been defined by article 288 and
only binding as to its effect. Here the member states are provided with the desecration due to
demands of practicality and enforcement. In Van Duyn v Home office case, court held that it
would be incompatible with the binding effect attributed to a directive by article 288 to
exclude, the possibility that the obligation which is imposes may be invoked by those
concerned so, defendant could rely on a clause in a directive which the Uk had not introduced
into national law. Additionally, Van Duyn case lay down the requirement when directives
will have direct effect. These includes following based on policy consideration, by the
concept of estoppel, the state will be stopped from relying on their failure and directives will
have direct effect on its expiry as it was stated in the case of Pubblico vs ratti.
There exist two types of direct effect namely, vertical and horizontal direct effect. vertical
direct effect involves a situation where a citizen invokes rights against the state while
horizontal direct effect involve situation where individual rights becomes effective directly
by one individual against the others. However, directives in vertical direct effect are only
address to member states not individuals. Although there has been a criticism as leading
towards inequality as in an individual ability to bring in action is based on directive will
depend whether they will sue state or individual. In the case of Marshal vs Southampton,
courts stated directives have only been address to the member states and do not approach any
liability on individuals. Same reasoning was adopted in the case of Faccini Dori case.
Further the courts have given a wide definition to state and extended the reach of vertical
direct effect to emanation of state. What constitute emanation of state has been given in the
case of Foster vs British gas. it laid down four requirements includes does it perform public
function, pursuant to a measure adopted by state (act of parliament), under the control of state
and possess and exercise special powers. National union of teacher’s vs governing body of
ST. Mary church of England school stated that emanation of state also included governing
body ST. Mary church of England junior school.

Partially to deal with problems with individual who could not rely on directives because the
conditions for direct effect were not fulfilled. The court develop concepts of indirect effect
and incidental horizontal effect. we shall first consider the concept of indirect effect. the
starting point of this doctrine is case of von colson, it is stated that it is for the national
approach to interpret and apply national legislation with requirement of community law. The
doctrine is based on idea that national courts are part of state found by article 4 (3) TEU.
TEU which states duty of domestic courts to achieve compatibility to EU law. ECJ extended
the principle of van colson in Marleasing case by stating that to apply national legislation
passed before the directives and national law have to be interpreted with in line with EU law
ignoring the extent of it. However, in case of Webb vs Emo Cargo, uk clearly refused
Marleasing reasoning by stating that ECJ is under no authority to direct us to interpret law
that are passed before the directive and interpretive duty will only apply to those laws which
are capable of interpretation and it is up to the uk courts to decide what rule of interpretation
they would adopt. However, there are certain limitations to usefulness of this doctrine. These
includes indirect effect will only operate when national law on particular matter exists, minor
claims can be interpreted not the major ones and in case of refusal to send preliminary
reference article 267 TFEU, outcome of law may be questioned.

Second concept is Incidental horizontal effect. In recent year, courts are inclined to giving
Incidental horizontal effect where both the parties are private and concerned particular
obligation is placed on directives. As was seen in the case of CIA securities V Signalson. the
Incidental horizontal effect is not giving any enforceable rights. in this case non-
implementation of directive by Belgium was pleaded by in horizontal proceedings to relieve
him of an obligation without imposing any obligation on defendant under directive.
Furthermore, in the case of Ruiz bernaldz, it was stated that when a claim was initiated
against a state, the defense of national law invoked by defendant was defeated. Thereby
Incidental horizontal effect was witnessed as no relief for damages. The above reasoning was
later endorsed in Panagis pafitis case.

EU law is blind towards fiscal laws and public penal laws of Member States. Indirect effect
could not impose criminal liability as the case of Arcaro in which it is stated that Indirect
effect would not be applicable where interpretation results in hardships of individuals in
criminal cases. However, the imposition and aggravation of civil liability then reference to
directive without need of domestic measures. further in the case of Centro steel v Adipol
court stated that duty to interpret national law in light of wording and purpose of community
law applied even if this would impose civil liability on private parties. Moreover, in the case
of Pupino, it is stated that Indirect effect of directives extends to police and judicial
cooperation and operations in criminal as well.

Furthermore, the problem created by the enforcement of directives in national courts was the
moment when CJEU develop a principle related to entitlement to a remedy of damages when
there is a failure in implementation of directives by member states. Courts created the new
concept of State liability where member states became liable to pay damages to individuals
with respect to any breaches of union law. The courts declared that the principle of state
liability was inherent in the scheme of article 4(3) TEU and principle of effectiveness of
union law. The principle case of state liability is Francovich case in which courts
reformulated the test if there is a failure in implementation of a directive. The courts in
Francovich case laid down three conditions for state liability test which includes the rule of
law infringed must be intended to confer rights on individuals, the breach must be sufficiently
serious and there must be direct causal link between the breach of the obligation resting on
the state and damages sustained by the injured parties. The courts since than sufficiently dealt
with the serious breach in the number of case such as Rechberger case and Hedley Lamas
case.

No doubt direct effect has enhanced the application and enforceability of EU law and created
a system of dual vigilance. However, direct effect has often being counter by certain
limitations. Although alternatives are being adopted but such alternatives are being
categorized as insufficient and there is a need for further reforms in order to insure
application of direct effect horizontally.