Direct effect is a community concept developed by the court of justice to apply to treaties, regulation, directives and decisions.

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Direct effect is a community concept developed by the court of justice to apply to treaties, regulation, directives and decisions. It is the term given to judicial enforcement of rights arising from provisions of community law which can be upheld in favour of individuals in the courts of the member states. To be capable of direct effect a provision must satisfy the criteria established by the Court of justice in the case of Van gend en loos, that a provision should be clear and precise; unconditional; should not require implementing measures by the state or leave room for discretion by the member state. In Van gend en loos it was held that the institution of the community are endowed with sovereign rights, the exercise of which affects not only member states but also their citizens and that community law is capable of conferring rights on individuals which become part of the legal system.

A Directive can be subject to direct effect providing they satisfy the criteria set out in Van gend en loos case.

Article 249 state that:

        “A directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authority the choice of form and method”

The concept of directives was established in the Van Duyn case in which a Dutch citizen hoped to take up residence in Britain on the basis to fill the post of secretary to the church of scientology her entry in to the UK was refused on the grounds of public interest. She validated this claim by pleading article 3(1) of directive 64/221 which regulates the conditions in which member states may plead  the public policy exception stated in article 39(3) EC treaty. The ECJ found her appeal successful as this subsection of the directive met the criteria for direct effect. The directive could be enforced, but the UK would have to recognise the binding effect upon them. Where directive is not required it may take effect at once provided the criteria for direct effect are met. Directives are capable of creating rights for individuals, who might enforce them in national courts. The three interlinked doctrines of directives are: direct effect, indirect effect, and state liability. Which provide protection for individuals who may suffer as a result of the state failing to abide by community law.

The general potential of a directive to have direct effect does not depend on its legal basis but exclusively on its intrinsic characteristics. I.e. the question whether or not its provisions were sufficiently clear and precise etc. For Sophie to be able to rely on the directive 109/ 01 to obtain remedies we need to establish whether the directive 109/ 01 is capable of having direct effect the ECJ has tended to take a fairly broad view of the directive to be sufficiently clear. Directive 109/ 01 quite clearly satisfies this criterion as it clearly states what it entails and there is no unambiguously in its provisions.

The directive does not require any further action to be taken by the UK for it to be implemented, nor does it seem to be based on any conditions. Thus seems to be unconditional as it does not require any dependency on the UK authorities. (Ministere public Luxembourg v Muller).

An individual who is a citizen of the member state which is recipient of a directive from the council can rely on the directive on a charge against the state. For a directive to have direct effect it must have reached its expiry date or other wise time limit for implementation. After this respective date the directive has direct effect. As all directives carry with them their respective dates of implementation, which in turn gives member states a specific date by which implementation must be assured, the provision of the directive cannot be pleaded directly before such date.

The case of Pubblico minstero v Tullio Ratti illustrates this position. Ratti owned an Italian company which had began packaging and labelling its containers of solvents in accordance with the requirements of 2 council directives. The 2 council directives had not been implemented by the state of Italy it was held that as the deadline for implementation had been reached in relation to one but not both of the directives, only the directive for which the deadline had expired could be relied upon and was directly effective. It is only at the end of the prescribed period that the directive can be relied upon and until that date the member state will not be liable to damages or a claim for not implementing the directive. Whose expiry date still has time before it expires. The directive 109/ 01 was issued in September 2001 to the UK with an implementation date of 30th September. Thus Sophie may rely on directive 109/ 01 against the UK as the date for implementation has passed. Thus being directly applicable and being capable of having direct effect..

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We now need to consider against whom Sophie will bring the action. From the stated facts it is difficult to establish whether the employer she was working for was a private body or a public body. Hence we need to consider both possibilities as the advice would differ for both.

The advice to Sophie would differ if the employer she worked for was in private owner ship. A Directive itself cannot impose obligations on an individual and cannot therefore be relied upon against another individual. This notion is referred to as “Horizontal direct effect” the authority for this ...

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