In European Community law, certain emanations of the European Community are capable of direct effect. This allows major aspects of European Union policy to come into effect in all Member States in the same way and at the same time. Community law is sometimes referred to as European Union law and although this is currently a misnomer, one effect of the Lisbon Treaty will be to make this name change official.
When a law has direct effect, national courts are obliged to apply it regardless of whether the national legislature has passed a law enacting it or not. The result is that any national legislation which contradicts the directly effective EC law will be regarded by the courts as no longer applicable; regardless of whether the conflicting national law was enacted before or after the EC legislation it opposes.
Which EU Provisions are Capable of Direct Effect?
Initially, only the articles of the various EC Treaties were directly effective following the decision of the European Court of Justice in Van Gend en Loos v. Nederlandse Administratie der Belastingen. However, following numerous other court decisions, there are now three types of provision which are capable of direct effect, under different circumstances: Treaty articles; EC Regulations; and EC Directives.
Are Treaty Articles Capable of Direct Effect?
In order for the terms of the EC Treaty, and the Treaties that followed, to have their full intended effect, it is necessary for their Articles to have the force of law in each Member State. The provisions of the Treaties have therefore been given both direct effect and superiority over national laws following the decisions of the European Court of Justice, the highest court in the European Union, if the Articles in question follow the Van Gend criteria.
The Van Gend criteria come from the decision in Van Gend en Loos and are simply a requirement that articles be written clearly; be precise in their intentions; and be unconditional. If the Article in question follows these criteria, it has direct effect.
Articles have horizontal and vertical direct effect, meaning they may be relied on against both individuals and the State, respectively.
EC Regulations and the Rule in Munoz v. Frumar
As with the various Treaty Articles fulfilling the Van Gend criteria, many EC Regulations are also directly effective. Following the decisions in Leonesio v. Italian Minister of Agriculture in 1973 and the more recent Munoz v. Frumar in 2002, it is now clear that any Regulations fulfilling the Van Gend criteria enjoy both horizontal and vertical direct effect.
Can EC Directives be Relied on in Court?
The requirements for an EC Directive to have direct effect are more complex than for Articles and Regulations. In order to become law it is usual for European directives to be translated into the legal system of the Member State; which may choose to take some or all of the Directive as law according to the needs of the State and in accordance with the instructions in the Directive itself.
For this reason, Directives contain a date of implementation by which time the translation must have become law. However, sometimes the Directive is not translated in time, or specific portions of the Directive which must be translated into the State's legal system are missed out. At this point, it is possible for a Directive to achieve direct effect; although it is by no means certain.
In the case of Van Duyn v. Home Office, the European Court suggested that where the terms of a Directive fulfil the Van Gend criteria and the date of implementation has passed, the Directive is capable of direct effect. This was then confirmed by the decision in Pubblico Ministerio v. Ratti.
However, unlike Treaty Articles and Regulations, the European Court suggested in Marshall v. Southampton and South-West Hampshire Area Health Authority (No. 1) that it would be unfair and against the principle of clarity of law to suggest that individuals must check to see if the date of implementation had passed for each Directive, in order to know what the law is. The implication that Directives could therefore only have vertical direct effect (i.e. they could only be relied on in cases brought against the State) was later confirmed by the decision in Paola Faccini Dori v. Recreb Srl.
Direct effect allows legal rules produced in Europe to have effect in Member States without the need for the States themselves to pass individual laws. Of the three provisions that allow direct effect, two may be relied on against both the Member State and individual citizens, while one allows only cases brought against the State itself. In each case, the terms of the legislation being relied on must satisfy the Van Gend criteria if it is to be directly effective.
Zoe Kirk-Robinson - Zoë Kirk-Robinson is a freelance writer/artist specialising in legal writing, internet technology and creative writing. She holds a ...
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