Direct Effect - EU Law

This hub contains the vital pieces of information - landmark cases and their significance - about the doctrine of direct effect.

It features a list of core cases which must be learnt at the start, a following explanation of each one, and then a final revision list with keywords in order to stimulate memorisation.

Good luck!

The Core List of EU Direct Effect Cases

  1. Van Gend en Loos [1963]
  2. Van Duyn v Home Office [1974]
  3. Defrenne v Sabena [1976]
  4. Ratti [1979]
  5. Marshall v Southampton [1986], Duke [1988]
  6. Foster v British Gas [1990]
  7. Frankovich [1990]

Van Gend en Loos [1963]

Get used to this name because the need to recall Van Gend en Loos [1963] will undoubtedly surface in most of your EU law exams.

Its significance lies in that it is the EU law case in which the ECJ decided there is vertical direct effect of Treaty provisions so long as they are:

  1. Clear/Precise - There is an obvious obligation and not just a general aim e.g. Article 4(3) which states that member states must work together to achieve the goals of the EU
  2. Unconditional - The fulfillment of the detailed obligation must not depend on the action of an EU body e.g. Articles 107-109 concern State Aid which negatively affects inter-member trade are not directly effective because they depend on the ruling of the Commission. This is a 'condition' of the fulfillment of these acts and therefore they are not unconditional as required by the test in Van Gend en Loos.
  3. Confer a right onto individuals - only that which relates to rights found in EU articles can be enforced in domestic courts, nothing more.

Defrenne v Sabena [1976]

Just as Van Gend en Loos [1963] birthed vertical direct effect for Treaty Articles, Defrenne v Sabena [1976] did the same for horizontal direct effect.

This is the right to enforce EU rights against fellow individuals, as opposed to enforcing them against public bodies (vertical direct effect).

Thus, in Defrenne v Sabena a flight attendant enforced the right for equal pay for equal work as expounded in Article 157 TFEU against the airline Sabena. This was a landmark decision because a private company is an individual and not a public body - now it is the case that individuals can use EU rights against each other and so EU law is far more effective/intrusive than before.

Regulations

Although Van Gend en Loos [1963] and Defrenne v Sabena [1976] concerned the direct effect of Treaty articles, they did not consider regulations or directives.

As a reminder, EU regulations are comparable to 'Acts of Parliament' in that they function as primary legislation to achieve certain results. What they contain is law and is immediately and simultaneously binding on all member states. This is so expounded in Article 288 in which regulations are described as 'directly applicable'.

Van Duyn v Home Office [1974]

Article 288 explains that directives are:

"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 form and methods."

What this means is that directives need to be assimilated into national law before they take effect, contrasting regulations which are in effect as soon as they are finished.

What the ECJ decided in Van Duyn [1974] however was that directives do have vertical direct and so rights contained within them can be enforced by individuals against their member state. This was so that the effect of directives was not significantly weakened.

Ratti [1979]

In Ratti [1979] it was clarified that directives can only be enforced by individuals of member states after the time given to implement the directive has lapsed.

What this means is the EU gives the chance for a member state to decide its own way of implementing the details of the directive, but if it does not do so in time its citizens have the right to enforce it directly against them in their domestic courts.

Marshall v Southampton [1986] and Duke [1988]

Marshall v Southampton [1986] was the case in which it was first said, albeit dictum, that directives are not horizontally directly effective.

Marshall v Southampton [1986] involved a claimant enforcing a directive right against a hospital, falling under the purview of state or emanation of state.

It was in Duke [1988] that enforcement of directive rights were denied on the grounds that the claim was against an individual and not a public body.

Foster v British Gas [1990]

Since there is a great divide between vertical and horizontal direct effect based on what is or isn't a public body, Foster provides great value by outlining exactly what is an 'emanation of state' with respect to vertical direct effect.

A public body or 'emanation of state is any body which:

  • Is under the control or authority of the state, or
  • Has special powers beyond those which normally occur between individuals.

British Gas was considered an emanation of state in Foster [1990] despite it being recently privatised.

The ECJ's "Frankovich's Monster"
The ECJ's "Frankovich's Monster"

Frankovich v Italy [1990]

Frankovich [1990] held that if a member state let the situation arise where either domestic law was completely contrary to EU law, or the directive in question was not properly implemented, it will be liable for any damages caused as a result.

Consequently, if it can be proved by an individual that the directive conferred particular rights and the absence of those rights lead to his loss, the state must pay damages.

Note: this case applies where a directive is not clear or unambiguous enough to be directly effective, but still confers some rights.

Core List and Keywords

  1. Van Gend en Loos [1963] - Vertical direct effect of Treaty Articles
  2. Van Duyn v Home Office [1974] - Vertical direct effect of directives
  3. Defrenne v Sabena [1976] - Horizontal direct effect of Treaty Articles
  4. Ratti [1979] - Directives only have vertical direct effect after implementation time lapses
  5. Marshall v Southampton [1986] - No horizontal direct effect for directives (obiter dictum)
  6. Duke [1988] - No horizontal direct effect for directives (ratio decidendi)
  7. Foster v British Gas [1990] - definition of 'emanation of state': special powers due to state
  8. Frankovich [1990] - If the state fails to implement a directive properly or in time, individuals can sue it for damages they have faced as a result. This is instead of suing the individual who - due to the state's failure - was under no obligation to and so did no follow the directive.
  9. Faccini Dori [1995] - followed the Frankovich principle.

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