Direct Effect as a Means of the
Enforcement of EU law through
National Courts
Ljiljana Biukovic
Assistant Professor
Faculty of Law, UBC
Fall 2007
Starting point – Direct Effect of the Treaty:
Van Gend en Loos (case 26/62)
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The question referred to the ECJ (on the basis of ex Art. 177 now Art. 234)
by a Dutch court (Tafiefcommissie) was: whether a Dutch person could
claim before a Dutch court the protection of his rights conferred on him by
the provision of the Treaty of Rome (ex. Art. 12)
The case arose out of a claim submitted by a private party to a national
court
Another means of enforcing the EU law (or compliance with the Treaty) was
for an importer to inform the Commission to take necessary legal actions
against The Netherlands for if failure to comply with the EU law
Important: the Treaty does not have a provision on direct effect of the EC
law but the ECJ deduced it from “the spirit, the general scheme and the
wording” of the Treaty
Test: ECJ held that ex Art. 12 was clear, unconditional and not
dependent upon any further implementation at the national level –
thus capable of having direct effect
Development of the Doctrine of Direct Effect:
Defrenne v. Sabena (case 43/75)
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Develops the doctrine further by examining its effects and establishing that the Treaty provisions
could have both vertical (proceedings against a Member State) and horizontal (proceedings
against another private party) direct effect
The question referred to the ECJ by a Belgian Court was whether a female air steward could rely
on Article 141 of the Treaty (requiring every Member State to ensure equal pay for men and
women) in her claim to have the same salary and pension payments as male retired air stewards
of the same company (Sabena)
Important:
ECJ had to use the same test as in Van Gend en Loos to find if the Treaty provision was capable
of having direct effect
If applied strictly, the test would not find Article 141 neither clear nor unconditional and some
further actions by Belgium were needed to clarify measures needed to abolish discrimination
[para. 19]
ECJ then relaxed the test asking only for a provision to be sufficiently precise and unconditional
to be invoked in national courts – the issue is one of justiciability (according to a former ECJ
judge Pescatore)
ECJ introduced the concept of horizontal direct effect of the Treaty - the case involved two
private parties (SABENA was not seen as a public/government agent) and acknowledged direct
effect of the Treaty in the context of legal proceedings against a private party
Direct Effect of Directives:
Van Duyn v. Home Office (case 41/74)
Ms. Van Duyn, a Dutch national and a member of the
Church of Scientology, challenged the UK ban on foreign
scientologist entering UK as being contrary to EC
Directive 64/221
 ECJ considered if the Directive was capable of having
direct effect and held:
“ 12… where the Community authorities have, by Directive,
imposed on MSs the obligation to pursue a particular
course of conduct, the useful effect of such an act would
be weakened if individuals were prevented from relying
on it before their national courts … It is necessary to
examine, in every case, whether the nature, general
scheme and wording of the provisions in question are
capable of having direct effect on the relations between
MSs and individuals.”
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Direct Effect and Estoppel:
Ratti (case 148/78)
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Ratti challenged related national law by relying
on two EC Directives not implemented in Italy
arguing that Italy could not be able to benefit
from its own failure to fulfill its Treaty obligations
(estoppel) – case of vertical direct effect
ECJ made important ruling that directives could
be directly effective only when the MSs fail to
implement them correctly and timely
Horizontal Direct Effect and Directives:
Marshall (case 152/84)
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Ms. Marshall, a 62-year old women working for UK
health authority dismissed as a result of her age,
challenged a decision as contrary to the EC Equal
Directive
ECJ denied horizontal direct effect to directives but since
Marshall was an employee of a public health authority
she was able to rely on vertical direct effect of a
directive
Important: decision criticized for not really explaining
how were public health authorities liable for transposing
the Equal Pay Directive into national law even if they are
considered to be public entity)
Indirect Direct Effect:
Von Colson (case 14/83)
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Von Colson and Kamann who were refused employment in a male prison
because of their gender, challenged German law that did not allow for them
to receive full damages for discrimination (but only travel costs) on the
basis of the Equal Treatment Directive
Directive held not to be directly effective due to lack of clarity and
unconditionality (does not provide a specific sanction and remedy in case of
discrimination but leaves it to Member States to decide on any specific form
of sanctions for unlawful discrimination)
ECJ held that Directive could have indirect direct effect doctrine holding that
“it is for the national court of interpret and apply legislation adopted for
implementation of the directive in conformity with the requirements of
Community law” but held also that “compensation in any event be adequate
in relation to the damage sustained…” - nominal compensation would not
be adequate
ECJ used indirect effect doctrine to impose a duty of consistent
interpretation of national laws with EC laws on national courts
Limits of Indirect Direct Effect:
Marleasing (case C-106/89)
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Advocate General Van Gerven’s Opinion para 8:
“The obligation to interpret a provision of national law in conformity with a directive arises
whenever the provision in question is to any extent open to interpretation …
The obligation to give an interpretation in conformity with a directive is…restricted by Community
law itself, of which the directive forms part, and in particular by the principles of legal certainty
and non-retroactivity which also form part of Community law…”
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ECJ para 8:
“It follows that, in applying national law, whether the provisions in question were adopted before
or after the Directive, the national court called upon to interpret it is required to do so, as far as
possible, in the light of the wording and the purpose of the Directive in order to achieve the result
pursued by the latter and thereby comply with the third paragraph of Article 189 [now 249] of the
Treaty”
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Conclusion: decision strengthens duty of consistent interpretation suggesting that all national
legislation should be interpreted in the light of EC law (prior and subsequent to the relevant EC
law) in particular if the national provision is vague and ambiguous
Origins of State Liability and Direct Effect
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Factortame (case C-213/89): House of Lords asked ECJ whether, notwithstanding
that rule of national law, English courts had the power, under EC law, to grant an
interim injunction against the Crown and the ECJ held that:
19. In accordance with the case-law of the Court, it is for the national courts, in
application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to
ensure the legal protection which persons derive from the direct effect of provisions
of Community law
21. … the full effectiveness of Community law would be … impaired if a rule of national
law could prevent a court (seized of a dispute governed by Community law) from
granting interim relief in order to ensure the full effectiveness of the judgment to be
given on the existence of the rights claimed under Community law . It follows that a
court which in those circumstances would grant interim relief, if it were not for a rule
of national law, is obliged to set aside that rule .
23. Consequently, the reply to the question raised should be that Community law must
be interpreted as meaning that a national court which, in a case before it concerning
Community law, considers that the sole obstacle which precludes it from granting
interim relief is a rule of national law must set aside that rule . “
Francovich (joined cases C-6 & 9/90)
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The Italian Court asked ECJ important questions regarding the Member
State’s liability to pay damages to its nationals for failure to implement a
directive
ECJ held:
Regarding direct effect of a directive: “12. It is … necessary to see whether
the provisions of Directive 80/987 are unconditional and sufficiently precise.
There are three points to be considered: the identity of the persons entitled
to the guarantee provided, the content of that guarantee and the identity
of the person liable to provide the guarantee… 26. [e]ven though the
provisions of the directive in question are sufficiently precise and
unconditional as regards the determination of the persons entitled to the
guarantee and as regards the content of that guarantee …[t]hose
provisions do not identify the person liable to provide the guarantee, and
the State cannot be considered liable on the sole ground that it has failed
to take transposition measures within the prescribed period.
Francovich (joined cases C-6 & 9/90)
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Regarding Member State’s liability:
“33. The full effectiveness of Community rules would be impaired and the protection of the rights
which they grant would be weakened if individuals were unable to obtain redress when their
rights are infringed by a breach of Community law for which a Member State can be held
responsible. (reference to individual rights)
35 … a State must be liable for loss and damage caused to individuals as a result of breaches of
Community law for which the State can be held responsible is inherent in the system of the Treaty
(principle of state liability embedded in the EC law)
36 A further basis for the obligation of Member States to make good such loss and damage is to
be found in Article 5 of the Treaty, under which the Member States are required to take all
appropriate measures, whether general or particular, to ensure fulfilment of their obligations
under Community law. Among these is the obligation to nullify the unlawful consequences of a
breach of Community law (see, in relation to the analogous provision of Article 86 of the ECSC
Treaty, the judgment in Case 6/60 Humblet v Belgium [1960] ECR 559).
Regarding the conditions of MS’s liability:
“40. The first of those conditions is that the result prescribed by the directive should entail the
grant of rights to individuals. The second condition is that it should be possible to identify the
content of those rights on the basis of the provisions of the directive. Finally, the third condition is
the existence of a causal link between the breach of the State' s obligation and the
loss and damage suffered by the injured parties.
CONCLUSION: ECJ established MS’s liability for breach of EC law (failure to implement a
directive) even though a directive was not found to have full direct effect
State Liability beyond Direct Effect of Directives:
Brasserie du Pêcheur (joined cases C46
&48/93)
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ECJ applied modified the 3 condition test given in Francovich to
cases of MS liability in damages for breaches not stemming from
failure to implement a directive:
“74. …[W]here a breach of Community law by a Member State is
attributable to the national legislature acting in a field in which it
has a wide discretion to make legislative choices, individuals
suffering loss or injury thereby are entitled to reparation where
(1)the rule of Community law breached is intended to confer rights
upon them, (2) the breach is sufficiently serious and (3.) there is a
direct causal link between the breach and the damage sustained by
the individuals....The possibility of making reparation conditional
upon the existence of fault (third question in Case C-46/93)”