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The doctrine of the “direct effect” is a principle under the EU law, which is applicable to the aspects of the European Union law that can be enforced directly by the citizens of the union within their own member countries irrespective of whether the member country has adopted particular national legislations for implementing the provisions. The concept of the “direct effect” of the EU law was first adopted by the European Court of Justice when it attributed to particular treaties during the Van Gend en Loos v. Nederlandse Administratie der Belastingen. The case identified the three fundamental requirements that are needed to form a direct effect of the European law, which included sufficient clarity and precise stating of the provision, unconditional and independent of other legal provisions, and that it should grant a particular right that the citizen can use to make a claim. In cases whereby the criteria have been fulfilled, then the rights that are being debated about can be enforced in the domestic courts. It is arguably evident that the doctrine of “direct effect” has provided tremendous, though not complete, assistance to the citizen who wishes to enforce their rights derived from EU law. Basing on this view, the objectives of this paper are two-fold, mainly to explain the sources of complexities in the direct effect of directives, and critically discuss the spin-off doctrines developed by the European Court of Justice which appear to circumvent this limitation.
The sources of complexity in the case law on the direct effect of directives
The principal source of complexity in the case law on the direct effect of directives is mainly derived from the fact that the ECJ has explicitly stated that a directive may not of itself impose obligations against such a private person. Under the legal system of the European Community, the European Court of Justice serves as the Supreme Court, irrespective of this, Courts that are found in the EU member countries can make use of the European Union Law. In cases whereby the laws of the laws of the member countries have less provisions compared to the European Union Law, then the EU law can be used by the courts of the member countries. In cases whereby the EU law should be integrated into the existing laws of the EU member countries through frameworks such as directives, then the European Commission has the responsibility of taking the proceedings against the member country as stated in the EC Treaty. The fundamental approach to this phenomenon is that the EU law that has been directly adapted by the Courts of the member countries results into what is referred to as the direct effect; on the other hand, an indirect effect is characterized by scenario whereby the member countries use the European Union Law to interpret the domestic laws. Basing on this, there are various forms of the direct effect of the European Union membership on the English legal system. The European Court of Justice identifies the two forms of the direct effect; they are the Vertical and Horizontal direct effect, with a significant difference basing on the individual who supposed to be subject to the enforcing of the rights. The Vertical direct effect is primarily concerned with the relationship that exists between the European Union law and the domestic laws, with a specific consideration of the obligation of the state to guarantee that it is observing the EU law and that the national laws are somewhat compatible to the EU law. This enables the citizens to depend on the actions of the EU against the actions undertaken by the state, a phenomenon referred to as an “emanation of the state”. The Horizontal direct effect is primarily concerned with the relationship between the citizens. A European law is said to be horizontally directly effective if the citizens of a member states can rely on the actions stipulated by the law against each other. A typical example of the horizontal direct effect is the directives in the sense that they are enforced against the member state. Legislative acts also have a direct horizontal effect on the member countries. The basic argument is that directives usually result to vertical direct effects provided that they are clear, precise and not conditional. An example of a case law was during Van Duyn v Home Office  ECJ, which served as the first case that was referred to the ECJ by English Court. Miss Van Duyn was denied entry into the United Kingdom mainly because of her undesirability. Van Duyn used the article 48 of the Treaty and Article 3 of Directive 64/221 that permitted the free movement of workers within the European Union. The ECJ claimed that the useful effect of directives is likely to be weakened if private persons were prohibited from using them to their defense on the national courts. Owing to the fact that the directive represented an obligation that was not conditional or exceptional and that its intrinsic nature did not rely on the intervention of the member country, it was considered as directly effective in conferring the individual rights that can be enforced, which the national courts have an obligation of protecting.
Complexities associated with applicability of the doctrine of direct effect are an outcome of the indirect effect of EU law, which ensures that domestic courts interpret the national legislations basing on the aims of a specific EU directive. A directive can be defined as a legislative order that that the national government has the responsibility of its implementation. Normally, the member country is at liberty to draft the way they will implement the directive; however, the law should meet the core objective of the original EU directives. This implies that the implementation of such directives can vary in the different member countries. Individuals have the right of suing their stage for not providing support to an EU directive, but they cannot make use of directives that have not been implemented as a framework for suing other individuals. The state in this case refers to any entity that is controlled the national government such as administrative authorities. The basic argument is that state authorities have to implement the EU directives even if they are in line with the national laws. Another effect of the European Union membership on the English legal system is the aspect of supremacy of the EU law. Supremacy of the EU law guarantees that national laws that conflict with the EU law have to be ignored in order to facilitate the implementation of European Union law.
Spin-off doctrines developed by the European Court of Justice that appear to circumvent this limitation
There are a number of doctrines adopted by the European Court of Justice that have attempted to circumvent the limitation of the principle of direct effect in the case law. A notable doctrine is the doctrine of horizontal direct effect associated with directives, which is a subject of contention among the law makers found in the EU. There are a number of Advocate Generals who have attempted to provide support to the establishment of the horizontal direct effect, but the limitation is that they do not have the ability of conferring such rights. In numerous cases, the English Court of Justice has developed strategies aimed at circumventing this limitation with regard to the applicability of Directives. In the case Foster v British, it is arguably evident that the English Court of Justice was willing to grant the rights of Directives unto private persons. This is due to fact that the prime intention of this case as outlined by the ECJ was that any government organization or a company that is carrying its operations within the scope of the public sector is regarded as a public body for the intent of adopting a vertical direct effect in situations whereby a narrow interpretation of the case might compel the implementation of the horizontal direct effect. This is also evident in the case of Van Colson, whereby the ECJ developed the aspect of ‘reading in’ a directive into the domestic law so as to recognize the effect of the directive, irrespective of the fact that it is not part of national legislation. Francovich v Italy is another case law that can be used to demonstrate the concept of interpreting a national law basing on a directive, whereby a private person can take action against the government if it fails to implement an EU directive and the associated loss of rights that such a person may suffer in Court.
In another case involving Valued Added Tax, Grad v Finanzamt Traunstein, the English Court of Justice claimed that an EU directive may perhaps be directly effective, and that the private person can use them against any national legislation that are not compatible with the directives. However, in the case, Pubblico Ministero v. Ratti, the ECJ concluded that provided that the time limit for the implementation of a directive has not ended, such a directive cannot have a direct effect. Therefore, directives are regarded directly effective on condition that the prescribed date of implementation has passed and the member country has not implemented.
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