Confusingly, the Directives have no direct effect, since they cannot be applied by the courts until they have been adopted by national legislation. Dive into our 1 Precedents related to direct action However, in Pubblico Ministero v. Ratti[13], it was decided that the deadline for transposition of the Directive cannot have direct effect if it has not expired. Directives shall have direct effect only if the prescribed period within which the Member State should have transposed them has expired. Moreover, the Directive may still have direct effect in cases where the Member State has adopted the necessary legislation but has done so insufficiently, as in the Verbond van Nederlandse Ondernemingen (VNO) case. There is direct effect if the provision in question meets the Van Gend en Loos criteria. It is therefore applicable in the case of contractual articles (Van Gend en Loos was a claim based on a contractual article), in which case it may have both vertical and horizontal direct effect. If the rights conferred by a directive are violated by the State or by bodies attributable to it, a citizen may have a direct vertical effect. Vertical direct effect concerns the relationship between EU law and national law and the State`s obligation to ensure that its legislation is compatible with EU law. Citizens may apply them in actions against the State (or against a State body) within the meaning of the Foster v British Gas judgment (Case C-18/89).
According to this case, the criteria for defining state-owned entities could include privatized industries or services that previously provided public services. Workers in these industries and services can rely directly on the provisions of EU directives, allowing a large proportion of national workers to directly assert the rights contained in the directives. The effect of the horizontal direct effect doctrine, applied to Treaty provisions, has been limited in the areas of employment and industrial relations, since relatively few Treaty provisions confer individual rights in these areas. However, the Charter of Fundamental Rights of the European Union was transposed into EU primary law by the Treaty of Lisbon, which entered into force on 1 December 2009. The integration of fundamental rights to employment and industrial relations into EU primary law, as was the case for equal pay for women and men (Article 157 TFEU), could lead the CJEU to attribute binding direct effect, both vertically and horizontally, to the provisions of the Charter. The question of direct effect is of particular importance in the context of EU law. Historically, the Court of Justice of the European Union (CJEU) has given direct effect to many provisions of EU primary and secondary law (starting with the Seminar van Gend en Loos, 1963), paving the way for more harmonious and comprehensive European integration. In this sense, the former is crucial for the latter. From a purely legal point of view, the norm can have direct effect only if it is clear, complete, precise and does not contain clarifying references to other norms (element of applicability or ratione materiae) and if it concerns a definable group of individuals (determinant or ratione personae).
The narrower and more well-articulated the standard, the easier it is to attribute a direct effect to it. In reality, the degree of precision may vary. The term “direct effect” is sometimes used confusingly to define the nature of EU legislative acts when distinguishing between acts requiring separate national transposition (e.g. directives) and those not requiring such transposition (e.g. regulations). EU regulations are still directly applicable, but not all directly applicable provisions (i.e. EU legislation that does not require subsequent transposition by a national act is necessarily directly applicable; and conversely, even certain provisions of EU legislative acts that are not directly applicable (i.e. EU directives) can take effect immediately if they are not transposed in time by the Member State. The concept of direct effect is also closely linked, albeit partially, to the principle of primacy (of certain provisions of one) legal order over another. The fact that provisions of international or Union law may prevail over provisions of national law does not automatically imply the direct effect of those provisions; conversely, not all directly applicable provisions of EU law necessarily take precedence over national law.
What is the direct effect of EU law? The doctrine of direct effect is a fundamental principle of EU law developed by the Court of Justice of the European Union in the Van Gend en Loos judgment. This is a mechanism that allows individuals to assert their rights before the courts of the Member States on the basis of EU law – a remedy against non-compliance with EU law. In Van Gend en Loos, the contested provision of EU law was an article of an EU Treaty, that is to say, primary law. The transport company Van Gend & Loos had imported goods from Germany into the Netherlands and had to pay customs duties which it considered incompatible with Article 12 of the EEC Treaty (now Article 30 of the Treaty on the Functioning of the European Union (TFEU)), which prohibits tariff increases in trade between Member States. The preliminary ruling concerned the conflict between national law and the provisions of the Treaty. The Court answered the question referred by a Netherlands court by establishing the principle of direct effect, thus granting the transport undertaking a direct guarantee of its rights under Community law before the referring court. The court stated: “.. The Community represents a new legal order of international law in favour of which States have limited their sovereign rights, albeit in limited areas, and whose subject matter has been the subject. In recent years, class action lawsuits have been filed to assert claims on behalf of indirect purchasers under state laws that canceled Illinois Brick, defendants have often argued that designated class representatives are not “entitled” to assert claims in a class action lawsuit. by (…) Decisions have direct effect vis-à-vis their addressee, since Article 288 TFEU (ex Article 249 TEC) provides that they are `binding in their entirety`.
to whom [they] are addressing.” Treaties and regulations have a direct vertical and horizontal effect. A contract or settlement may be used as an act before a court of a Member State against the State or another person. Direct effect is a doctrine of EU law which allows individuals to rely on a provision of EU law before a national court. In the case of Komet v Produktschap[22], the Court of Justice of the European Union stated that the procedural rules of each Member State generally apply to cases under EU law. However, two fundamental principles must be respected: “equivalence” (the procedure for EU cases must be equivalent to the procedure for national cases) and “efficiency” (the procedure must not render the law functionally ineffective). So what happens if the state does not implement a directive? The horizontal direct effect of directives is controversial. Many Advocates-General have argued in favour of introducing horizontal direct effect. [10] However, the CJEU has always opposed an amendment to the Marshall case law that allows a general right to invoke untransposed directives against private parties.
[11] In a number of cases, the CJEU has put in place means to limit the scope of the prohibition of horizontal direct effect and to ensure as far as possible the full effectiveness of directives. If a state fails to transpose a directive within the deadline set by the EU, a person can sue the state for failing to transpose. It is important to remember that in situations where the state has been brought to justice, the CJEU has adopted a “broad perception” of the state and includes the state as all areas of government, including schools, NHS trusts and local authorities. EU treaties and regulations are directly applicable. They do not need other laws of the Parliament of the Member State to transpose them into law. Therefore, once a treaty or regulation has been signed or adopted by the Council of Ministers in Brussels, it becomes immediately applicable in all Member States. The reason for attributing the direct effect of the directives was to ensure the “effectiveness” of EU legislation. Since EU law is a new transnational legal order capable of conferring rights on individuals, an interpretation of Article 249 of the Treaty on European Union (now Article 288 TFEU) has been developed which focuses on the binding result to be achieved by directives and not, as stated in Article 288 TFEU, `leaves to the national authorities the choice of form and methods`.