The Principle of Direct Effect

One of the reasons why law students are generally inclined to dislike European law might be the confusion that such terms as direct effect, direct applicability, indirect effect, and other terms containing effect may cause. One wishes that they were all fused together to create a unifying theory of effect or effect principle.

Unfortunately that is not the case at this point in time, therefore this article will focus on direct effect. It will start by illustrating the functioning of direct effect through case law and conclude with an evaluation of its effectiveness.

In Van Gend en Loos (1963) the question of whether treaties have direct effect, therefore confer legal rights upon individuals as well as member states, was raised. The answer was affirmative whereby it was famously said that:

Although regulations are not constructed by parliament, they can be regarded as an act of parliament as they need no further implementation by Member States. Hence, regulations are directly effective and applicable. In contrast, directives can not be directly applicable as they need further implementation. Article 249 states that directives are 'binding as to the results to be achieved' but leaving 'the form and method of implementation to member states.'

However, directives can have direct effect provided they are sufficiently clear, unconditional and precise. In Van Duyn v Home Office 1974, which concerned a member of the scientology church considered socially harmful but not banned in the UK, it was established that individuals can rely on a directive. The directive in question limits free movement on grounds of public policy, security and health. A limitation which according to the directive must be based on 'personal conduct'. As the clause derogated from the principle of free movement stated in the treaty, it is only just that an individual relies on the directive hence giving it direct effect. However, the direct effect of directives is only vertical, meaning that it can be relied only where the state or 'emanations of the state' are concerned and not individuals. This is illustrated by the case of Marshall (1986) where the question of whether the directive can have horizontal as well as vertical direct effect was answered more creatively by defining the 'state' much more broadly as a: 'body which performs public services under the control of the state and has special powers.'

Leaving the definition of a state to member states will inevitably lead to differences across the community, as illustrated by the example of universities which are 'emanations of the state' in some member states, while in the UK they are not. It may be argued that the success of the Community depends on a uniform application of its laws, an aim which does not seem to be achieved as far as the definition of the 'state' is concerned. Moreover, for the community law to have effet utile 'it must be enforceable by individuals in national courts'. It certainly might not be fair in the light of such fine principle as the monarch as well as the peasant being equal before the law, for the public body and private body to be not. The unfairness that such distinction may lead to might be apparent when considering, for example, that a female receiving a lower wage than her male counterparts, while performing the same functions, can rely on the vertical direct effect of a directive but not on the horizontal direct effect.

To overcome the distinction of public/private body, the courts in Von Colson (1984) stated that a member state has a duty to 'interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the results', even if such interpretation may distort national law. In Marleasing (1990) the ECJ clarified its position further by stating that the national court must interpret national legislation, whether they are adopted before or after the directive, as far as possible in the light of the wording and purpose of the directive.

One wonders therefore whether this duty imposed upon member states renders such terms as horizontal effect, vertical effect and indirect effect meaningless. If a national court is under a duty to interpret their law so as to conform with the purpose of a directive, it may be suggested that a directive can be relied upon horizontally as well as vertically. Perhaps the only difference, besides the terminology, might be the treatment of unimplemented directives. In Public Ministero v Ratti (1979) it was stated that a Member State: 'may not rely against an individual on its own failure to perform the obligation that a directive entails.' Therefore an individual may rely on a directive against the state or an 'emanation of the state' if it is not implemented by the date of implementation or, if the date of implementation is not stated, within 20 days of its publication. It is not clear however whether an individual may rely upon an unimplemented directive against a private body. In Criminal proceedings against Rafael (1996), which concerned an insurance company and a drunk driver, the ECJ stated that the unimplemented directive should apply. The ECJ in this case came up with another term: 'incidental horizontal direct effect.'

To conclude , direct effect has been considered by many scholars as a sign of supra-nationalism, echoing the sentiment that a new dawn of a 'new legal order' has arrived. However it seems that the ECJ has chosen to employ any term ending with effect rather than defiantly state that directives have vertical as well as horizontal direct effect, in which case even that distinction would be meaningless. Such insistence by the ECJ might be considered to have creating a needles complication of the law and by association uncertainty.

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