The ECJ's primary purpose in creating the concept of direct effect was to ensure the efficient development of the Union, rather than to empower the individual. Discuss.

When we talk about directives, the first question we should ask is: Do directives have direct effect? This is an area of confusion. Here many writers have given different opinions on this. Pierre Pescatore in his article gives a negative answer to our question. He justifies himself saying, many writers have written different comment on this, but the court has never said that directives do have “direct effect” and it has never tried to blurr the difference that is made by Art 249 between regulation, directives and decision. Directives have never been accepted as generally binding laws; only against Government they may have direct effect. As per Deirdre Curtin, all the Judgments given by the Court in the context of infringement proceedings over the course of last three years, ending in 1990, it emerges that more than half of these cases concerned failure by Member States to implement directive in the national law. Art 249 states that the binding nature of a directive exist only in relation to “each member state to which it is addressed”, and for Court it is therefore followed that directive were not capable of imposing obligations on the individuals

To find correctly the effects of directives on individual rights, account must be taken both of the necessity that they be implemented by Member States as well as the fact that certain provisions may confer directly effective rights on individuals. The duty to implement Directive is absolute: no excuses such as slowness of the legislative process, governmental crisis etc. are brooked by the Court of Justice as potential justification for failure to do so. Indeed, non-implementation is a breach not only of the specific provisions of Art 249 of the EC Treaty but also of the duty of Community “solidarity” as enshrined in Art 10 of the EC Treaty. Central to this notion of Solidarity is the protection of individual rights since the non-implementation by a Member State may prejudice the legal position of the individual who finds himself subject to two sets of contradictory rules. Art 249 nevertheless confers upon Member State discretion as to the “choice of form and method” with which it implements a Directive into national law. Here the Member States are given the widest possible choice of possibilities as far as implementation of Directive into national law is concerned. Where the directive is intended to create rights for individuals, the legal position arising from these principles is sufficiently precise, clear and transparent and where appropriate those individuals are afforded the possibility of relying on their enforceable rights before the national courts.

The concept of direct effect is a product of the jurisprudence of the Court and in the context of directives it has been elaborated, at least in recent years, in terms of reflex effect rather in the nature of estoppel – it only occurs when a Member State has failed to perform its obligations, and this cannot be the case until the time limit for the performance of those obligations has expired. The concept of direct effect can thus act as a powerful counter check for the non-implementation of directive, that means that individuals are given a legal tool to assist them in the process of squeezing effects from unimplemented directive in the national legal context. In the case of McDermott and Cotter v. The Minister for Social Welfare, here the court said that even though the Member State has been given full discretion about the form and method to implement the directive, but the Member State cannot in any way restrict or place conditions on the application of the directly effective right in that particular area.

The Court has limited the principle of direct effect to directives limiting it to vertical direct effect. The Vertical direct effect takes places when the matter is between individual and the state. Direct effect of directives is only possible in the case of vertical direct effect. In the case of Van Duyn, the ECJ held that provision of the directive could be directly effective on its own. In this case the court had to consider Art 234, whether a private individual dealing with the personal conduct of an individual derogation allowed to the Member state on the ground of public policy. Here Van Duyn could ask the court to enforce the individual rights given to her by the directives.

The Judgment of French Conseil d’Etat was criticized in the case of Cohn-Bendit Case (1979), where they did not make any reference to the Art 234 and gave the view that the nationals of the Member States cannot invoke directives, which mean that an individual does not have direct effect to challenge the decision of the Member State. This decision was completely different to the ECJ. Due to this decision the ECJ did clarify that individuals can invoke the directives where needed.

Here in Emmot case, a directive was issued in 1979 on the ground of sex discrimination in the matter of social security, which was prohibited. Directive should have been implemented by 1984 but was not implemented until 1988. The ECJ held that directive has a particular nature imposing an obligation on Member States to adopt, within the framework of their national legal systems, all the necessary measures should be taken to ensure that the directive is fully effective. ECJ added that here the directive has a vertical direct effect, as over here the case is between herself and Irish Government

The concept of horizontal direct effect of directives has been more problematic as the ECJ ruled that they couldn’t be invoked against the individuals. P. Craig in his article said that directives should not be given horizontal effect, he gives the reason that there is no requirement to publish directives therefore it would be wrong in principle for private parties to have obligation imposed on them based upon unpublished norms. This argument of Craig is now not of any importance as directives are now legally bound to be published under Art 225. Here in the case of Becker, where a German credit broker successfully claimed the benefit of the sixth VAT directive against VAT authorities. However ECJ did make it clear that the directive is not involved in this case, as there is a mutual relation between the individuals, so this is a Horizontal direct effect. Same way in the case of Marshall, who was employed by the area authority or Foster, who was working with a pre-privatized corporation shows that right can be enforced under the direct effective of directives, as there is relationship with the state. If the relationship is between individuals it’s a horizontal direct effect and horizontal direct effect cannot invoke directives.

The issue of direct effect in triangular situation was prompted from the case of Grosskrotzenburg. Triangular situation is a situation where two or more private parties are involved and a national administration.  Here in this case, ECJ brought an action against Germany for not compiling with the obligations laid in the directives. Here Germany submitted that it could not have failed to fulfill an obligation with in the meaning of Art 226 E.C., unless the provision of the directive invoked were to be considered as having direct effect. ECJ held in this case that the question of direct effect of provision should be considered independently of the possibility for individuals to rely on the provisions of the unimplemented directive as against the state concerned.

Private individuals should not be placed in unreasonable doubt concerning the nature of their obligations. Rather than to enforce the provision of a directive against the private party on whom the obligation contained in those provisions should be imposed if it were properly implemented, the individual can choose instead to bring proceedings for damages against the state for failing to implement it. The availability of adequate judicial remedies for the effective protection of individual in the national courts in relation to enforceable community rights may be described as an essential requirement of community law. In the case of Heylens v. UNECTEF, the Court said that all individuals have the right to obtain an effective remedy in a competent national court against the national measures, which they do consider to be contrary to Community law. In Francovich, ECJ stated that ‘Community law lays down a principle according to which Member State is liable to pay compensation to individuals which is caused by breach of community law for which Member State is responsible’. ECJ held that under three conditions damages can be taken from Member State for failure to implement the directive, they are: (1) If the directive was for the benefit of individuals, (2) The content of those rights are identifiable to the directive and (3) If there is a link between the breach of Member States obligation and the damage suffered by the individual.

From the above discussion of concept and Judgment of various cases, we can see that European Court of Justice was mainly developed to take care of the European Community Law. When the Community Law was developed it was mainly for the benefit of the Member States. Member States always had the problem between national law and community law. Later on from the case of Costa v. ENEL, it was proved that Community law prevails over the national law i.e. Community Law is supreme. The main purpose of Community law was to make a common market between Member States; they achieved this goal by making Single Market Act. This act developed four free movements: free movement of goods, capital, workers and services. From here the problems did start between individuals and state, as every Member State sometimes interpreted community law in a different manner. ECJ was formed for efficiently running of the European Union. But due to many problems which did occur from community law such as: free movement, misinterpretation of the community law, due to problems with implementing the directives on which people have already started working on, this all caused different problems, therefore ECJ had to start taking more cases concerning the problems of individuals. So that individuals do get proper justice. ECJ do work for the betterment of the European Union and it even gives right to Member State to come with the problem of individuals.

BIBLIOGRAPHY

• Craig, P. “EU LAW TEXT, CASES, AND MATERIALS”, 2nd edition, Oxford University Press (1998)
• Charlesworth, A. “European Community Law”, London: Pitman (1994)
• Foster, N. “EC LEGISLATION”, 12th edition, Blackstone’s (2001-2002)
• Judge Mancini, G.F. “Democracy and Constitutionalism in the European Union”, Oxford – Portland Oregon (2000)
• Curtin, D. “DIRECTIVES: THE EFFECTIVENESS OF JUDICIAL PROTECTION OF INDIVIDUAL RIGHTS”, 27 CMLR (1990) 709-739
• Pescatore, P. ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law’, 8 European Law Review 155
• Craig, P. “Directives: Direct Effect, Indirect Effect and the Construction of National Legislation’ (1997) 22 European Law Review 519
• Lackhoff, K. & Nyssens, H. “Direct Effect of Directives in Triangular Situations”, (1998) 23 European Law Review 397
• Coppel, J. “European Developments: Horizontal Effect of Directives”, (1997) 26 Industrial Law Journal 69
• Prechal, S. “DOES DIRECT EFFECT STILL MATTER?” 37 CMLR (2000) 1047
• Schermers, H.G. “No Direct Effect for Directives”, (1997) 3 European Public Law 527
• Winter, J.A. ‘Direct applicability and direct effect: two distinct and different concepts in community law’ (1973) 9 Common Market Law Review.

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