CHAPTER 4 – THE EFFECT OF EU LAW ON NATIONAL LEGAL SYSTEMS
Direct Effect
- Measures which take effect in the legal system without further action
- The Court of Justice ruled in Van Gend en Loos v Netherlandse Administratie der
Belastingen (Case 26/62) [1963] ECR 1 that in order for rights under EU law to be effective
they must be capable of direct effect.
o According to the Court of Justice, a measure that has direct effect is one that is
capable of direct enforcement in national courts (e.g. ones that do not need to be
transposed into national law – for example, Treaties (Van Gend), Regulations (Politi
SAS v Ministero delle Finanze (Case 43/71) [1973] ECR 1039), and Decisions (Grad v
Finanzamt Traunstein (Case 9/70) [1970] ECR 825) are all directly applicable
whereas Directives (Van Duyn v Home Office (Case 41/74) [1974] ECR 1337) are not)
- CASES IN BRACKETS ARE THE ONES WHERE THIS PRINCIPLE WAS ESTABLISHED
It was also held in Grimaldi v Fonds des Maladies Professionnelles (Cae C-
322/88) [1989] ECR 4407 that Recommendations & Opinions have no direct
effect (because they are not legally binding)
o The case also affirmed the Court’s jurisdiction in interpreting Communities legal
provisions, the object of which is to ensure uniform interpretation in the MS
(essentially, it is to show the supremacy of EU law)
- Direct applicability is set out in Article 288 TFEU
- If a measure is directly applicable then it is incorporated into national legal systems of each
MS automatically
o They require no further action by the MS and they can be applied by the Courts of
the MS as soon as they become operative.
Terminology:
- Directly applicable: effect in the legal system without further action
- Directly effective: give rise to rights or obligations to individuals
Direct effect in relation to Treaty Articles
- Treaty Articles and Regulations can have direct effect if they are:
o A) clear and precise
o B) are unconditional (for example, as to time limits)
o C) operative within MS = not requiring implementing measures to be taken by MS
institutions
- It is NOT necessary for EU law to be clear in its entirety for direct effect to apply, but only the
rights which are sufficiently clear are capable of having direct effect. This was shown in
Defrenne v SABENA (Case 43/75) [1976] ECR 455.
- Vertical Direct Effect
o This is where a Treaty obligation falls on an organ of state. It reflects the relationship
between individuals and the state.
o Leading case: Van Gend en Loos
- Horizontal Direct Effect
, o This is where the obligation falls on individuals. It reflects the relationship between
individuals.
o The first case confirming the horizontal effect: Defrenne v SABENA (Case 43/75)
Facts: there was a dispute between a Belgian airline (SABENA) and
Defrenne, an air hostess. It concerned Article 119 EEC Treaty (pay
discrimination between men and women). Ms Defrenne contract of
employment stated that she would have to retire at the age of 40, and it was
terminated when she reached this age. However, the same provision did not
apply to the male crew members.
Held: Article 157 TFEU imposed a clear, unconditional prohibition on direct
discrimination. However, this discrimination was not based on gender but
on another factor (age), which was not contemplated by the Article. The
court considered possible a judicial enforcement only in cases of direct
discrimination.
39. ‘The prohibition on discrimination between men and women
applies not only to the action of public authorities, but also extends
to all agreements which are intended to regulate paid labour
collectively, as well as contracts between individuals.’
This case confirmed that employers are obliged to comply with the
requirement of a Treaty Article, and other individuals may enforce
corresponding rights.
Direct effect in relation to Regulations:
- Just like Treaty Articles, Regulations must be sufficiently clear and unconditional if they are
to have direct effect.
- Case: Politi SAS v Ministero delle Finanze (Case 43/71)
o Court of Justice ruled that EU regulations could be directly effective because they
created individual rights that national courts must protect.
Direct effect in relation to Decisions:
- A Decision will have direct effect if:
o (1) it is sufficiently clear and precise
o (2) the defendant against whom it is being enforced is a MS of an emanation of the
State.
- Case: Grad v Finanzmt Traustein
o The Court held that it would be contrary to the binding nature of Community law if
the provision of a Decision could not be invoked by individuals
Direct effect in relation to Directives:
- Case: Van Duyn v Home Office – confirmed that Directives could give rise to direct effect if
the criteria was satisfied.
- Directives are not directly applicable, unless they satisfy these three conditions:
o (1) the provision must be sufficiently clear, precise, and unconditional.
Francovich and others v Italy (Joined Cases C-6 & 9/90) [1991] ECR I-5357,
Court of Justice
o (2) Timing (the deadline for transposition into national law must have passed)
Direct Effect
- Measures which take effect in the legal system without further action
- The Court of Justice ruled in Van Gend en Loos v Netherlandse Administratie der
Belastingen (Case 26/62) [1963] ECR 1 that in order for rights under EU law to be effective
they must be capable of direct effect.
o According to the Court of Justice, a measure that has direct effect is one that is
capable of direct enforcement in national courts (e.g. ones that do not need to be
transposed into national law – for example, Treaties (Van Gend), Regulations (Politi
SAS v Ministero delle Finanze (Case 43/71) [1973] ECR 1039), and Decisions (Grad v
Finanzamt Traunstein (Case 9/70) [1970] ECR 825) are all directly applicable
whereas Directives (Van Duyn v Home Office (Case 41/74) [1974] ECR 1337) are not)
- CASES IN BRACKETS ARE THE ONES WHERE THIS PRINCIPLE WAS ESTABLISHED
It was also held in Grimaldi v Fonds des Maladies Professionnelles (Cae C-
322/88) [1989] ECR 4407 that Recommendations & Opinions have no direct
effect (because they are not legally binding)
o The case also affirmed the Court’s jurisdiction in interpreting Communities legal
provisions, the object of which is to ensure uniform interpretation in the MS
(essentially, it is to show the supremacy of EU law)
- Direct applicability is set out in Article 288 TFEU
- If a measure is directly applicable then it is incorporated into national legal systems of each
MS automatically
o They require no further action by the MS and they can be applied by the Courts of
the MS as soon as they become operative.
Terminology:
- Directly applicable: effect in the legal system without further action
- Directly effective: give rise to rights or obligations to individuals
Direct effect in relation to Treaty Articles
- Treaty Articles and Regulations can have direct effect if they are:
o A) clear and precise
o B) are unconditional (for example, as to time limits)
o C) operative within MS = not requiring implementing measures to be taken by MS
institutions
- It is NOT necessary for EU law to be clear in its entirety for direct effect to apply, but only the
rights which are sufficiently clear are capable of having direct effect. This was shown in
Defrenne v SABENA (Case 43/75) [1976] ECR 455.
- Vertical Direct Effect
o This is where a Treaty obligation falls on an organ of state. It reflects the relationship
between individuals and the state.
o Leading case: Van Gend en Loos
- Horizontal Direct Effect
, o This is where the obligation falls on individuals. It reflects the relationship between
individuals.
o The first case confirming the horizontal effect: Defrenne v SABENA (Case 43/75)
Facts: there was a dispute between a Belgian airline (SABENA) and
Defrenne, an air hostess. It concerned Article 119 EEC Treaty (pay
discrimination between men and women). Ms Defrenne contract of
employment stated that she would have to retire at the age of 40, and it was
terminated when she reached this age. However, the same provision did not
apply to the male crew members.
Held: Article 157 TFEU imposed a clear, unconditional prohibition on direct
discrimination. However, this discrimination was not based on gender but
on another factor (age), which was not contemplated by the Article. The
court considered possible a judicial enforcement only in cases of direct
discrimination.
39. ‘The prohibition on discrimination between men and women
applies not only to the action of public authorities, but also extends
to all agreements which are intended to regulate paid labour
collectively, as well as contracts between individuals.’
This case confirmed that employers are obliged to comply with the
requirement of a Treaty Article, and other individuals may enforce
corresponding rights.
Direct effect in relation to Regulations:
- Just like Treaty Articles, Regulations must be sufficiently clear and unconditional if they are
to have direct effect.
- Case: Politi SAS v Ministero delle Finanze (Case 43/71)
o Court of Justice ruled that EU regulations could be directly effective because they
created individual rights that national courts must protect.
Direct effect in relation to Decisions:
- A Decision will have direct effect if:
o (1) it is sufficiently clear and precise
o (2) the defendant against whom it is being enforced is a MS of an emanation of the
State.
- Case: Grad v Finanzmt Traustein
o The Court held that it would be contrary to the binding nature of Community law if
the provision of a Decision could not be invoked by individuals
Direct effect in relation to Directives:
- Case: Van Duyn v Home Office – confirmed that Directives could give rise to direct effect if
the criteria was satisfied.
- Directives are not directly applicable, unless they satisfy these three conditions:
o (1) the provision must be sufficiently clear, precise, and unconditional.
Francovich and others v Italy (Joined Cases C-6 & 9/90) [1991] ECR I-5357,
Court of Justice
o (2) Timing (the deadline for transposition into national law must have passed)
