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Direct effect is a principle of European Community law according to which, certain pieces of European legislation are enforceable by citizens of the Member States.
Direct effect is not mentioned in any of the EC Treaties, and was established by the European Court of Justice in Van Gend en Loos v. Nederlandse Administratie der Belastingen (Case 26/62); ECR 1; [1970 C.M.L.R. 1, in which the court held that rights conferred on individuals by European Community legislation (treaties, regulations, directives, etc.) should be enforceable by those individuals in national courts.
The criteria
In Van Gend en Loos (Case 26/62), the European Court of Justice laid down the criteria (commonly referred to as the "Van Gend en Loos criteria") for establishing direct effect:
- The provision must be sufficiently clear and precisely stated,
- It must be unconditional or non-dependent,
- The provision must confer a specific right for the citizen to base his or her claim on.
Varieties of direct effect
In Van Gend en Loos (Case 26/62) it was decided that a citizen was able to enforce a right granted by European Community legislation against the state - the question of whether rights could be enforced against another citizen was not addressed. In Defrenne v. SABENA (Case 2/74) * ECR 631, the European Court of Justice decided that there were two varieties of direct effect: vertical direct effect and horizontal direct effect, the distinction drawn being based on against whom the right is to be enforced.
Vertical direct effect concerns the relationship between EC law and national law - specifically, the state's obligation to ensure its observance and its compatibility with national law, thereby enabling citizens to rely on it in actions against the state (or against "emanations of the state" as defined in Foster v. British Gas plc (Case C-188/89) * ECR I-3313).
Horizontal direct effect concerns the relationship between individuals (including companies). If a certain provision of EC law is horizontally directly effective, then citizens are able to rely on it in actions against each other. Directives are incapable of being horizontally directly effective due to the fact that they are only enforceable against the state. Certain provisions of Treaty law and acts such as Regulations from the Council or Commission are capable of being directly enforced horizontally. One noted case is Courage Ltd v. Crehan (case c-453/99) concerning the direct application of Article 81 of the EC Treaty and the effectiveness of the procedural law of the Member State.
Application of direct effect
Direct effect is applicable when the particular provision relied on fulfils the Van Gend en Loos criteria. It is therefore applicable in the case of treaty articles (Van Gend en Loos was a claim based on a treaty article), in which case it can be both vertically and horizontally directly effective.
Regulations can also be subject to direct effect. As under Article 249 of the EC Treaty they are "directly applicable", they are incapable of being conditional. As that criterion for direct effect is always satisfied in the case of regulations, if a specific right conferred, then the regulation can be both vertically and horizontally directly effective.
Decisions are directly effective against whomever they are addressed, as under Article 249 of the EC Treaty "they are binding in their entirety on the party to whom they are addressed".
Directives
As directives specify the results to be achieved, but the method and actual implementation is left to the national governments (subject to a specified time limit), they are not capable of being directly effective as they are not intended to create rights. However, in Grad v Finanzamt Traunstein (Case 9/70) * ECR 825, a case involving VAT, the ECJ ruled that a directive and a decision could be directly effective, as they imposed an obligation to achieve a required result. As the ECJ held in Becker, another case involving VAT, "wherever the provisions of a directive appear...to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State."In Pubblico Ministero v. Ratti (Case 148/78) * ECR 1629, however, it was held that if the time limit given for the implementation of the directive has not expired, it cannot have direct effect. Directives were directly effective only if the prescribed date, by which the Member State should have implemented it, had passed. Additionally, in instances where the Member State has introduced the required legislation, but has done so defectively, the directive may still be directly effective, as in the Verbond van Nederlandse Ondernemingen (VNO) case.
Unlike Articles, directives cannot have horizontal effect (against another individual or company), as this is adjudged contrary to the principles of equality (see Marshall v Southampton and South West Hampshire AHA (1986)). As such, Directives are currently only vertically directly effective (e.g. against the state or "emanations of the state").
Direct effect on procedural law
In Comet v. Produktschap (Case 45/76) * ECR 2043, the European Court of Justice established that the procedural rules of each member state generally apply to cases of EC law. However, two basic principles must be adhered to: "equivalence" (the procedure for EU cases must be equivalent to the procedure for domestic cases) and "effectiveness" (the procedure cannot render the law functionally ineffective).
Since then, the ECJ has ruled that national courts have general authority to interpret their own procedural laws, since they tend to be more familiar with local procedure than the European court. However, member state courts have to follow the basic principles of equivalence and effectiveness when interpreting the validity of their procedural law.
"Direct effect"