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Published: Fri, 02 Feb 2018

Capacity of ec law

Direct effect is capacity of EC law to be invoked by individuals in national courts

Direct effect is not identified in the Treaty as a characteristic of EC law.

Article 189 states that regulations have direct effect

Direct effect enforces the status of regulations within the internal law of member states

Direct effect can be assigned to any type of provision

This allows individuals to protect their EC law rights.

Direct effect can be enforced in two ways

  1. By the commission in regards to a state who violates EC law, this may result in article 169 leading to a ECJ ruling

  2. At national level by an individual against a state.

Manchini And Keeling State:

“As a result of Van Gend en Loos, the unique feature of community law is its ability to impinge directly on the lives of individuals, who are declared to be the ‘subjects’ of the new legal order, entitled as such to invoke rights ‘which become part of their legal heritage’. The effect of Van Gend en Loos was to take community law out of the hands of politicians and bureaucrats and to give it to the people. Of all the courts democratising achievements none can rank so highly in practical terms”

Precondition For Direct Effect

For a community law to be considered directly effective it must be seen to be precise, unambiguous and unconditional, as highlighted by Advocate General Van Geren’s statement in the case of H. Banks & Co Ltd v. British Coal Corporation

Direct applicability describes how regulations become law at national level.

Horizontal direct effect seen in the case of Walrave and Koch v Union Cyliste

The court ruled that articles 48 and 59 may control employment practices in the private sector.

Horizontal Direct Effect

In the case of Defrenne v Sabena the court held that Article 119 EC can have both horizontal and vertical direct effect. This article provides for pay equality between male and female workers. The court held that ‘the protection of equal pay in this Article is mandatory in nature and applies not only to public authorities but also any agreement intended to regulate paid labour collectively, as well as in contracts between people’

Directives would appear to be incapable of direct effect under the terms of article 189 of the Treaty due to the fact they are reliant on national implementing measures.

But article 189 fails where member states fail to comply with their obligations to implement. Even though the commission may intervene and invoke article 169 proceedings against them, it can be a very slow process.

Courts have empowered directives with direct effect so that individuals can invoke their EC law rights, even though no there has been no implementing measures taken by the national Government required under Article 189.

The court in the case of Ratti unveiled two different reasons for why directives enjoyed direct effect. At paragraph 20 “ It would be incompatible with the binding effect which Article 189 ascribes to directives to exclude on principle the possibility of the obligations imposed by them being relied on by persons concerned.” And at paragraph 22 the court stated, “ A member state which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perfom the obligations which the directive entails”.

So the first rational is in regards to the effectiveness of the Treaty, and how it would undermine its authority not to accommodate and individuals right to rely on EC law, and the second part would seem to reflect estoppel, that basically member states cannot rely on their own failure to implement a directive, as a defence against a individual relying on its effect.

The ECJ in Marshall v. Southampton South West Hampshire Area Authority (Teaching) ruled on the effect of a non implemented directive. They found that directives are not capable of enjoying horizontal direct effect against private individual and only capable of having direct effect vertically against the state or a state body.

It used the estoppl approach seen in Ratti stating that ‘it is necessary to prevent the state from taking advantage of its own failure to comply with Community law’. The court here stayed away from the effectiveness argument which would have pushed the scope of direct effect horizontally towards private bodies and individuals. The fact that the court here steered away from the effectiveness argument could possibly be seen as a result of the aggressive opposition of national courts in France and Germany to allowing direct effect to directives.

The result in the Marshal case was to create an uneven balance of individuals rights in regards to unimplemented directives, as only individuals who were employed by the state could benefit from direct effect.

Expansion Of Notion Of The State

In Foster v British Gas, the court again ruled on an unimplemented directive and expanded the notion of state to bodies having ‘special powers beyond those which result from the normal rules applicable in relations between individuals’. This now included any private company in possession of these so called ‘special powers’. But the scope of direct effect horizontally was still very much the same and undermines the principle of EC law have a fair and blanket effect on all its citizens.

How The Court Has Got Around The Problem Of Horizontal Direct Effect

The ECJ has cleverly used the provisions of Article 5 EC to force national courts to act where the political institutions of a state have failed to implement a directive.

In the case of Von Colson and Kamann v. Land Nordrhein-Westfalen, the court stated, “ member states’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of member states including…the courts. It follows that …national courts are required to interpret their national law in the light of the wording and purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189”

A tougher approach was taken in the case of Marleasing v La Comercial Internacional de Alimentacion. This case concerned national courts obligation to implement indirect effect, “in applying national law, whether the provisions concerned pre-date or post-date the directive, the national court asked to interpret national law is bound to do so in every way possible …. to achieve the results envisaged by it”

So if courts act in the way prescribed by the court, then it would be of no consequence that direct effect does not enjoy horizontal effect, because directives would be implemented promptly by courts and the fact that they were never technically implemented is of no relevance.

State Liability Introduced By ECJ For Member States Who Fail To Introduce Directives

The ECJ took a different approach in awarding damages against member states for failure to implement directives, as a means for encouraging them to comply with their obligations. In the case of Andrea Francovich and others v Italian state, the Italian government had failed to implement Directive 80/987. This involved the state setting up guarantee funds to compensate workers in the event of employer solvency. The question considered was if workers could take a claim for direct effect against the Italian state. Again here the court refused to let the state rely on options here that it had failed to implement to help it defeat the individuals claim.

The court here showed the lengths to which it was prepared to go to protect individuals rights because even though it found that the workers could not rely on the direct effect of the directive, the court held that the state should compensate them for the loss of the protection they would have had if the state had implemented the directive in the first place.

The court stated, “The full effectiveness of the community rules would be impaired and the protedtion of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of community law for which a member state can be held responsible” (Para. 33 of the ruling)

It also added, “the principle whereby a state must be liable for loss and damage caused to individuals as result of breaches of community law for which the state can be held responsible is inherent in the system of the treaty.”

Between 1993 and 1994 no less than three Advocates General, showed their belief in the fact that the decision in Marhall should be over ruled and direct effect be extend to give horizontal direct effect of directives. In the case of Faccini Dori v Recreb , Advocate General Lenz argued that by not allowing directives horizontal effect, it deprived EU citizens their fundamental right of equality before the law, which was diminished by member states failures to implement directives. However this did not change the ECJ mind regarding horizontal direct effect of directives, and refered back to its rulings in Marleasing and Francovich as providing sufficient protection for individual’s rights.


The question of the direct effect of a Treaty was first raised in van gend…………… the Dutch admin tribunal in an article 234 reference sought the ECJ ruling on whether Article 12 of EC Treaty enjoyed internal effect, meaning an individual could rely on it in to help enforce their EC law rights before national courts.

The ECJ decided that the Treaty did enjoy direct effect, thus allowing the individual the opportunity to seek redress before his own national court, but under the following conditions, the provision had to be clear, precise and in need of no further legislation from national governments in order to implement it.

In the case of Sebena, the ECJ held that Treaty provisions were capable of having both vertical direct effect, i.e. between an individual and the state, and also horizontal direct effect, between an individual and another individual. This case was in regards to equal pay between men and women. Mrs sebena claimed that this was in breach of Treaty Article 141


Article 249 describes directives as ‘binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of from and methods.’ Originally directives were not viewed as not being ‘directly applicable’ they were now regarded as having direct effect due to the fact they were addressed to member states and not individuals themselves. This view was changed by the ECJ ruling in the case of Van Duyn v. Home Office, here a women was denied entry into the U.K. because of her membership of a religious cult known as ‘the church of scientology’. Under Article 39 EC citizens enjoyed free movement between member states, however directive 64/221 stated that exceptions to Article 39 must be on the basses of conduct. Here the ECJ held that due to the fact that Article 39 required further legislation by a national government, it did not enjoy direct effect, however this case was important as it did find that directives could have direct effect under the following condition, they must be,

  1. Clear, precise and unconditional

  2. Not dependent on further legislation by the member state or community

  3. Date of implementation must have expired

The case of Marshall set further guidelines in regards to direct effect of directives. Use other notes here………………………..

Indirect Effect

The ECJ ruling in these cases was to severely restrict individuals relying on their community law rights in national courts, and this was in some way addressed by the way in which the ECJ found other ways of encouraging and penalising member states for non implementation of directives. One of the most important cases in this regards is van colson v.

The ECJ interrupted the German provision which was not adequate, in line with Article 249 and Article 10 which allowed the individual to enforce the directive. This has become known as the doc of indirect effect, now individuals can rely on directives even where these directives don’t enjoy direct effect, and even where they don’t enjoy horizontal direct effect. However this approach taken by the ECJ is dependent on their being a similar provision in the member states national law, which highlights a further lack of uniformity in community law throughout member states.

State liability

The ECJ was to find another way around the problem of member states not implementing directives and where there wasn’t a comparative provision in their laws. This was seen in the case of Francovich. The court held here that states could be held liable for non implementation of directives under three conditions,

  1. The objective of the directive must include the conferring of rights for the benefit of the indivisuals

  2. The contents of the rights must be identifiable from the directive

  3. There must be a causal link between the breach and the damage.

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