Direct applicability vs Direct effect: Guidelines for Students.

by Antonio Racano

On occasion of the 10th anniversary since the birth of “All Around” (Student Association in LUISS, University of Rome) and the 12th anniversary of its linked student magazine “Madama Louise”, Antonio Racano – former president of the association and Managing Editor of the magazine, now IP/Competition Trainee in a law firm – proposes a translation of the article he wrote on 2015 on a substantial issue of EU law. The author aimed at summarising the core differences between direct applicability and direct effect in EU law. The article has been clicked on a high number of times and it is currently the first result of Google when searching for the item “applicabilità diretta efficacia diretta” (“direct applicability direct effect”) or similar. Comments may be sent at antoracano@gmail.com.


I often find myself having to clarify the difference between two fundamental issues to those who undertake EU law studies for the first time: direct applicability and direct effect. From a purely methodological point of view, the two notions should be neither put together nor compared, due to a number of reasons that I am going to clarify below. However, the thin boundary delimiting their flow creates more than one problem to students, who appear often confused, especially when these concepts are analysed in conjunction with the legislative instrument of Directives. Therefore, I have decided to provide my younger colleagues with a quick and clear understanding on the matter (hoping to succeed).

First, it may be useful to proceed with an analysis of the substance of both concepts.

Direct applicability is a characteristic of the rule – in the form required by the Treaty and as laid down within the provisions of the Treaty –, consisting in a ‘direct link’ between EU legislation and the parties – whether public or private – against whom the same applies, without any rule of transposition on part of the Member State [1]. Indeed, Member States may not put in place any form of implementation into national law [2], nor might they provide for the publication on their Official Journals, in order to avoid any confusion as for the direct applicability of the official act [3].

The wordings ‘in the form required by the Treaty’ and ‘as laid down within the provisions of the Treaty’ are aimed at emphasising that the legislative instruments retaining direct applicability are only those explicitly listed in the Treaty [4]. Actually, neither in the TEU nor in the TFEU we do find any explicit definition of direct applicability: we implicitly infer it from art. 288 (2) TFEU: ‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States‘.

Pursuant to art. 288, only Regulations are directly applicable, since the instrument of the Directive has a ratio incompatible with direct applicability, while Decisions do not require any clarification (being them addressed to Member States or individuals).

Thus, there is a legal instrument called ‘Regulation’ (the main one of EU law) which has direct applicability; in other words, only the EU may determine the scope and the effects of its laws into Member States’ legal orders [5]. Based on this assumption, the European Court of Justice was able to construct two corollaries (which soon after become milestones of the entire framework of EU law): the direct effect doctrine and the concept of EU legal order as a ‘new’ legal order [6], which departs from traditional categories of International law, being it autonomous and special. The ECJ spelled out both concepts in the famous Van Gend en Loos Judgment on 1963 [7].

For the purposes of this analysis, the Court defines direct effect as the possibility for individuals to invoke a provision (of EU law) before a national Court. Such concept has been put forward by the Court in the Judgment, points 9 and 13 [8] (a careful reading is recommended).

In addition, in Van Gend en Loos ruling the Court made it also clear that not all provisions of EU law have direct effect, but only those having a ‘clear and unconditional’ wording. In most cases, textbooks authors also refer to the adjective ‘precise’: therefore, clear, precise and unconditional.

In other words, direct applicability is a feature of the set of provisions, to be ascertaind by simply taking into account the legal classification of a given EU act, while direct effect is an intrinsic quality of the single provision, to be determined on a case-by-case basis.

The possibility for provisions contained into Directives to retain direct effect has been recognised since the Van Duyn and Ratti Judgments [9, 10] (and subsequently a number of other rulings expanding the scope of the doctrine have been delivered). In particular, Directives have direct effect in case:

– MS do not implement them in time (i.e. within the deadline prescribed by the EU legislator); or

– MS partially implement them; or

– [even in case] MS do not implement them at all while the deadline has not still expired, if the provision(s) it contains stand(s) to ensure a fundamental principle of EU law (for instance, the principle of non-discrimination [11]).

Nonetheless, direct effect is to be interpreted only in the vertical direction (i.e. an individual against an institution of the Member State) and not in the horizontal one (an individual versus another individual). In fact, horizontal direct effect has always been explicitly denied by the Court. This distinction is a crucial one.

In the light of the above, the student should be able to answer accurately to the following questions: does direct effect of a provision postulate its direct applicability? Is it possible for a provision to be directly applicable without having direct effect, and vice versa?

Once it is clear that direct applicability is one of the formal features attributed by law to the provision, while direct effect is an intrinsic quality of the provision, the answer to such questions should no more represent an obstacle. Indeed, it is quite possible that a Regulation – which because of its nature has direct applicability – does not contain “self-executing” provisions (i.e., provisions with clear, precise and unconditional wording and that establish upon individuals immediately enforceable rights and duties): such Regulation has no direct effect. Similarly, as noted above, it is quite possible that a Directive – by definition not directly applicable – contains self-executing rules, thus being directly enforceable (i.e. effective).

Ultimately, if on the one side Regulations are directly applicable in their entirety, because – it is worth repeating it – the Treaty so provides, on the other side when dealing with direct effect it is appropriate and correct to refer to the single provisions contained within an official act (being it a Regulation or a Directive) rather than the act in its entirety: not all provisions include the same substantive content and not all of them have a clear, precise and unconditional wording.

 

 

I would like to dedicate this article to Professor Van Empel, an extraordinary scholar who made the passion for EU law rise in me. I also dedicate this article to All Around and Madama Louise, a piece of my life as well as of my heart, forever: happy 10th anniversary! Comments may be sent at antoracano@gmail.com.

 

[1] See, Martijn Van Empel, European Union Law, An Introductory Overview. After Lisbon, LUISS University Press, 2010, page 110.

 

[2] Pointedly, ‘implementation’ rather than ‘execution’.

 

[3] The Court of Justice clarified this concept in Case 39/72, Commission v. Italy, p. 17: ‘Consequently, all methods of implementation are contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Union Regulations and of jeopardizing their simultaneous and uniform application in the whole of the Union’.

 

[4] When mentioning the Treaty, I refer to the Treaty on the Functioning of the European Union (TFEU).

 

[5] See, Robert Schutze, European Union Law, Cambridge, 2015, pages 80 and ss.

 

[6] At that time, CEE.

 

[7] Case 26/62.

 

[8] See, Case 26/62, p. 9: ‘the task assigned to the Court of Justice under article 177, the object of which is to secure uniform interpretation of the Treaty by national Courts and Tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those Courts and Tribunals . The conclusion to be drawn from this is that the Community constitutes a new legal order of International law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals’. See, also p. 13: ‘the fact that these articles of the Treaty enable the commission and the member states to bring before the Court a State which has not fulfilled its obligations does not mean that individuals cannot plead these obligations, should the occasion arise, before a national Court, any more than the fact that the Treaty places at the disposal of the Commission ways of ensuring that obligations imposed upon those subject to the Treaty are observed, precludes the possibility, in actions between individuals before a national Court, of pleading infringements of these obligations’.

 

[9] Case 41/74.

 

[10] Case 148/78.

 

[11] See, Judgment in Case C-144/04, Werner Mangold c. Rüdiger Helm.

 

Unauthorised reproduction is prohibited. Reference might be made by citing Antonio Racano, Direct applicability vs Direct effect: Guidelines for Students, Madama Louise, 2017.

 

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