The Challenges in The Theory of Direct Impact of Ec Law

The doctrine of “direct effect” of EC Law is applicable in principle at least to all binding Community law including EC Treaties, secondary legislation and international agreements. This means that provisions of EC Law which are clear, precise and unconditional can be relied upon by individuals in national courts or, more subjectively that a provision can confer individual rights. However there are difficulties with the idea of direct effect, and limitations as to where and when it will apply, the most problematic being directives. Even though there have been extensions of this idea, as seen with horizontal and indirect effect, the principle is still not without restriction. In the words of Cappelletti “if a court is forced to condone the wholesale violation of a norm, that norm can no longer be termed law” , which is possibly part of the reason for the limits of direct effect. In this essay I would like to discuss what the limitations are, and whether or not they should still be maintained.

Some, such as Sacha Prechal, believe that EC law should simply become applicable in all contexts, and be treated just the same as national law, as “law of the land”. However different types of EC law have different types of legal effects. It seems strange in the first instance that this is the case because of the principle of supremacy. This principle is that Community Law will prevail over national courts, and Member States will therefore set aside conflicting provisions of national law, a monist approach. Why then, is there any need for direct effect? As Prechal stated, “European Community law is integrated into the legal orders of the member states” , so in that way are they not already effective in national law without having to be directly effective? In reality, this isn’t the case - direct effect is needed because there is no treaty obligation to commit to supremacy, and therefore this “ideal” of supremacy is actually supported through the idea of direct effect. Furthermore, many Member States, such as the UK are far more dualist in their attitudes towards Community law – there is national law and community law and they are not the same. Direct effect has to be there because politically if EU law was just law of the land that would be a surrendering of sovereignty, which most countries cannot and are not prepared to do.

In the case of Van Gend en Loos , they imported a quantity of a chemical substance from Germany into the Netherlands, which was charged a duty supposedly higher since the EEC Treaty came into force, contrary to Article 12. This issue was whether, on the basis of this article nationals can lay claim to any individual rights. In the Judgement, the ECJ put forward various arguments for direct effect – that the objective of the EEC Treaty was to establish a common market. This implies more than an agreement and therefore creates mutual obligations. The preamble to this Treaty refers to not only governments but peoples, which is then confirmed by the establishment of institutions empowered with sovereign rights which effect member states and citizens. It imposes on people limitations but also confers upon them rights, and it is therefore beneficial to have these Treaty provisions, and other areas of EC law directly effective as it furthers the objectives of the Treaty, whilst directly giving individual rights. In other words, this concept was to create a democratic ideal. However, despite this ideal, there have been limitations set down upon direct effect by the ECJ, which make it harder to invoke an action by an individual.

One problem is that in order to be directly effective, a provision must be “self executing”. “It should be clear, negative, unconditional, containing no reservation on the part of the member state, and not dependent on any national implementing measure” However since the Van Gend en Loos judgement this has been widened in some respects by considering the precise and “unconditional” parts of broader Treaty provisions, and allowing them to be directly used by a national court. This can be seen in the case of Costa v ENEL , where the Court ruled that although Article 31(1) of the EC Treaty imposed a positive obligation on Member States to adjust state monopolies of a commercial nature, further down it contained “an absolute prohibition, an obligation to refrain from doing something” 4. The latter was capable of being directly effective as it was unconditional. In this instance, if the ECJ imposed these strict limitations on when a provision could be directly effective, and then widened it to fit more forms of Community law, why bother having these strict guidelines at all? It seems that in this case any Treaty provision could be found to have a clear unconditional part to it, and can therefore become directly effective. Furthermore, under the case of Commission v Italy , where the Commission instituted by regulation a system of premiums for slaughtering cows and withholding milk products from the market, regulations are directly effective and it criticized any Member State which tried to alter a regulation. There are therefore some areas of EU Law which seem to have little or no limitations on whether they are directly applicable.

However, in the case of directives, this particular widening of the judgement doesn’t work. The strict guidelines go against direct effect for directives as they actually require implementation by the member states. Under article 249 a directive “shall be 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” . However, doesn’t this show all directives to be binding, and therefore without direct effect that means nothing? It can be said that directives are an equally important part of the Treaty’s objectives and that their proper implementation is an integral part of Community policy. The ECJ wished to give directives some kind of effect even when they had not been properly implemented, because they were equally important. Their argument, as put down in Van Duyn v Home Office , was that as directives are binding, then one cannot dismiss any possibility of relying on them before a national court. In this case a Dutch national had come to the UK to work for the Church of Scientology but was not allowed in because Scientology was regarded as socially harmful. It was stated that each provision must be examined in context to see whether it is sufficiently clear to be imposed upon a national court.

This was not the final say on directives – there were limits imposed upon this idea, as some felt that the ECJ had gone too far in the face of the obvious limitations on the direct effect of directives. However, it was still felt that there should be some way of enforcing directives where a Member State had failed to implement them properly, the “estoppel” idea, which was explored in Pubblico Ministero v Tullio Ratti . The ECJ’s attitude was that individuals should not bear the burden of a Member State’s failure to implement a directive, and this shows the reasoning behind the idea of direct effect for directives. Article 249 does not give direct effect to directives, only regulations, but when a member state has not implemented them properly, there may be a similar effect to regulations. Nevertheless with every widening of the directive principle, there was yet another check on its progress, which came in the form of Marshall . In this case, Marshall was dismissed after 14 years employment by the Health Authority, on the grounds that she had passed retirement age for women but national legislation did not impose this upon her. She argued that her dismissal violated the Equal Treatment Directive, and the ECJ was asked whether individuals could rely on a directive. The distinction between regulations and directives were continually emphasised as well as the provision in Article 249 of them not being directly effective in the above case, whereby the court ruled that directives could not have direct effect against individuals, only against the state. The main reason put forward by the ECJ for not affording horizontal direct effect to directives was largely based upon article 249, which says that the binding power of a directive will only exist against the State to which it is addressed.

In spite of this, The ECJ developed the idea of the vertical effect of directives, and this was even set down in the ruling of Marshall. The justification for allowing this type of direct effect is to prevent the state from taking advantage from it’s on own failure to comply with Community law, going back to the estoppel idea in Pubblico Ministero v Tullio Ratti. Another, more questionable justification is that directives are not capable of imposing obligations on individuals as the binding nature of a directive only exists to each Member State to which it is addressed, thus prohibiting horizontal direct effect. It can be argued that this formalist mode of interpretation does not “sit comfortably” with the more purposive approach by the court in other areas. In light of all these facts, it seems that the ECJ are determined, despite what limitations they may impose through the case law, to have direct effect in directives in some way. If this is the case, and if all directives are binding under Article 249 these limitations seem rather senseless.

Indirect effect was another, different way of enforcing the direct effect of directives. This requires national law to be interpreted in light of directives, a “harmonious interpretation” . In this way directives would still have some effect despite not being implemented properly. This was clearly seen in the case of Von Colson , where the plaintiffs wanted a specific remedy of appointment to the post in their sex discrimination claim, and even though the Equal Treatment directive was not specific enough to grant this, the court did go on to rule on what the directives aims may be. This was a key case in enhancing the effect of unimplemented or misimplemented directives as the ECJ wanted the national courts to supplement their own legislation with that of the directive. Although there were, as usual, limits, this can be seen as a way of directives becoming (if only in a small way) integrated into domestic law, as if national law has to be interpreted in light of directives, national law must now be subject to it. This is in line with Pierre Pescatore’s view that “direct effect is nothing but the ordinary state of the law” Moreover, the case of Marleasing widened the scope of indirect effect even further to include unimplemented directives and directives which outdated national law. The plaintiff wanted the defendant’s article’s of association declared void as the company was created for the sole purpose of defrauding and evading creditors (including Marleasing). The predating Spanish law had to be interpreted in light of the newer directive.- In a way this could be seen to eclipse the idea that implementation is to be left to the Member States, as even before implementation they can affect national law. This again shows there to be no need to limit direct effect, as the ECJ seem to be ruling around their own limitations on this principle. Looking back to the case of Marshall, where Article 249 was emphasised, and where it was stated that directives are not directly effective, there is now indirect effect which although does not go completely against this ruling, does go a long way to diminishing its limitation.

Marshall’s ruling on the prohibition of the horizontal effect of directives is also lessened with the development of “incidental” horizontal effect, whereby the use of unimplemented directives in cases between private parties is permitted. This type of horizontal effect may well go along with the more subjective idea of direct effect, as explained in the beginning of this essay, as directives can have this type of horizontal effect when they do not impose legal obligations on individuals. The cases of CIA Security and Unilever both involve Directive 83/189 on technical standards regulations, and was used to nullify the application of a provision of national law with the result that one party is subject to a legal liability or disadvantage. In neither case was a reference made to Marshall, even though this case had prohibited horizontal effect in the first place. Doesn’t this show a willingness of the ECJ to blatantly ignore an earlier limitation on direct effect? Perhaps the question is not whether the limitations should be maintained, but whether they are in the first place.

Another area which has limitations imposed upon it is that of international agreements. Most international agreements which are entered into by the EC can be enforced by individuals so long as they meet the guidelines of justicability set out above. In international matters, the Community is thought to have a “legal personality” , and as agreements entered into by the Community they could be capable of direct effect under some circumstances if they were clear and unconditional. However the ECJ have not ruled in this way over World Trade Organisation Agreements, because they are broad ranging and multilateral and they did not want disuniform application of WTO rules. This ties in with the ideas of a provision being clear and precise in some respects, as set out in Van Gend en Loos.

The reason for direct effect seems a very simple one – to make sure Community law is effectively implemented into domestic legislation so as to further the objectives of the EC Treaty. Direct effect upholds the doctrine of supremacy, in that it makes Community Law supreme, but shouldn’t it be supreme anyway, without it having to fulfil the conditions of direct effect? It seems odd that if it is supposed to be law of the land, it is subject to certain conditions before it can in reality actually be law of the land. One can argue, as mentioned previously that it is largely down to individual Member States and sovereignty and that direct effect acts like a “buffer between the Supremacy of EU Law and the Sovereignty of the individual members. However if this were the case, wouldn’t the limits be more apparent and strict in their application? Moreover, the ECJ have continually diminished every limitation to direct effect that has been created, whether it be through indirect effect, vertical direct effect, and even a form of horizontal direct effect which was specifically ruled against. Why have limitations on direct effect if they can be avoided by the creation of a new type of direct effect by the ECJ on a case to case basis? One can see this clear inconsistency in cases such as Marshall and CIA Security. Perhaps the ECJ can see the benefits of a lack of limitation on direct effect, as without limits direct effect could in fact mean that Community law would be treated as provisions of national law.

Pescatore states “legal rules by their very nature have a practical purpose. Any legal rule is devised so as to operate effectively. If it is not operative, it is not a rule of law” In this respect if Community law cannot operate effectively because of limits to direct effect, how can it be law? Therefore In conclusion I would argue, in agreement with Prechal, that the remaining limitations on direct effect should not be maintained as it not only hinders community objectives but seems a rather futile process as these limits are continually contradicted and widened.