La doctrine de l'effet direct (document en anglais)

The doctrine of direct effect delves into the multifaceted relationship between the legal order of the European Union and the national of the individual member states of the Union. Direct effect occurs where a treaty, or a provision in a treaty, applies in the legal system of a State without the State having to implement any legislation providing specifically for its application. In the narrower definition, direct effect is the ability of a provision of Union law to confer rights on individuals that are enforceable in their respective national courts. Although the concept of direct effect is not explicitly stated in the Treaties, or any other form of Union legislation, its application is still authoritative in the Union jurisdiction. Beginning with the establishment of the principle of direct effect in the case of Van Gend en Loos v. Nederlandse Administratie der Belastingen , we shall examine how the European Court of Justice, with regards to its case law, has developed the doctrine over the years. The rationale, limitations, role and necessity of direct effect, and its related elements, will also be analysed.

Widely regarded as one of the most significant decisions in the development of European Union legislation, Van Gend en Loos formed the foundation of the direct effect principle that is applicable today. Prior to the case, it was broadly assumed that only the Commission had the power to take legal action against member states when Union law had been breached. Following the landmark judgement, a ‘new legal order’ had been created which provided individuals with the legal rights to invoke provisions of Union law against the State in national court. A partial reasoning for the decision was adopted from the text of what is now Article 267 of Treaty on the Functioning of the European Union (TFEU) , which contains no indication in the text of any limitation that prevented individuals from invoking Union law at the national level. Although it can never be determined if this purpose was intended during the framing of the Treaty, the Court interpreted it to provide for the inclusion of the participation of individuals instead of only the States.

Van Gend en Loos also established the conditions to be satisfied before it is deemed necessary that a Treaty provision can be directly effective. There are three conditions. Firstly, the provision has to be clear and unambiguous, thus excluding articles and provisions that lay down general, unspecific objectives or policies. Next, the provision must be unconditional, meaning it cannot be dependent on the discretion or judgment of any Union institution or member state. The last condition is that the provision should be independent of further action being taken by either Union or national institutions. With the necessary requirements for direct effect to be invoked in place, the focus of the discussion shall now move to the consideration of the doctrine with respect to the various sources of Union legislation.

For a start, we shall examine the effects on the primary legislation, which are the Treaty provisions. Direct effect can be classified into two forms: vertical and horizontal. Vertical direct effect occurs when an individual invokes Union law against the State, and is exemplified in case of Van Gend en Loos. The concept was later expanded to horizontal direct effect, whereby individuals could be authorized to invoke Union law against other individuals or organizations, as long as the Van Gend en Loos criteria is fulfilled. This form of direct effect was established in Defrenne v. Sabena . Furthermore, the Treaties have been given the authority to utilize the doctrine of supremacy, as seen in Costa v. Enel , where Union and national provisions are found to be in conflict.

Besides primary legislation, there are three types of secondary legislation where direct effect is applicable, namely: regulations, directives and decisions. As it is provided in Article 288 of the TFEU that the regulations “shall be binding in its entirety and directly applicable” , regulations are understood to have both horizontal and vertical direct effects. The provisions must, however, satisfy the conditions set out in Van Gend en Loos to be enforceable. Likewise, as stated in the same Article, decisions are “binding in their entirety on the party to whom they are addressed”, and thus are directly effective with regards to the addressee. While the principle of direct effect is generally straightforward when applied to regulations and decisions, the issue is rather more complex when it comes to directives.

Directives, as stated under Article 288 of the TFEU, must be implemented by each member state, with a key difference from regulations being that the choice of form and method of implementation is left to the discretion of the authorities of each State. As directives are binding only as to the result to be achieved, it can be construed as giving Member States a broad discretion in implementation, and therefore considered to be too ambiguous to fulfill the Van Gend en Loos criteria for direct effect. However, with the emergence of the landmark decision in Van Duyn v. Home Office , directives were given the capacity of being directly effective if they were unconditional and sufficiently unambiguous. It was felt that the binding and useful effect of a directive, and the Union policies which rely on the implementation of directives, would be weakened

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