 In a broad sense, direct effect means invocation of EU rights in the domestic legal

system
 In a narrow and classical sense, direct effect is provision of EU rights directly to
individuals – this narrow classical approach is applicable to Treaty Articles and at
max would expand to Regulations
 Public enforcement is possible pursuant to Art 258 TFEU as the Commission could
enforce obligations on m/sts which they have agreed to however the scope of
enforcement is limited and often weak since m/sts enjoy great influence in the
political setup of the Union
 The ECJ thus designed the doctrine of direct effect around private enforcement
whereby an individual would be capable of claiming a right in the domestic legal
system.
 The domestication of international law depends on the constitutional law of the
country. If it is dualist country such as UK, a transposing Act shall be needed to
internalize international law. But the EEC Treaty was different from the other
Treaties.
 The first step was to provide limited direct effect to Treaty Articles.
 The next step was to expand the scope of Treaty Articles having direct effect in cases
where other horizontal parties were involved. Reyners and Deferenne
 Further expansion was witnessed in direct effect being made available to regulations
and decisions.
 The judicial focus then shifted to directives. While it was difficult to understand how
and why directives would be accommodated under this category but for reasons
similar to those provided for Direct Effect for Treaty Articles, Directives are also given
direct effect.
 However the vertical and horizontal distinction has played a key role in limiting the
scope of direct effect.
 Yet the Court has attempted to expand further or allow other legal mechanisms to
be created which could allow directives to be given direct effect in complicated
situations.
 Direct Effect for Treaty Articles started under Van Gend en Loos and could be
explained in three ways:
o New legal order which bound not only states but also individuals
o The Treaty provides for Art 267 TFEU Preliminary Reference Procedure which
shall only be effective when a national would invoke EU law in domestic
courts. The reasoning adopted was citizens were envisaged to have a role to
play in this preliminary reference procedure. Not allowing direct effect shall
mean that only when public bodies commence proceedings against one
another would there be a possibility for Art 267 to be used.
o This would in turn also feed private enforcement. Automatic internalisation
of Treaty articles would strengthen effectiveness of Community norms.
 Pescatore states that the Community calls for participation of everybody with the
result that private individuals are not only liable to burdens and obligations but also
have prerogatives and rights which must be legally protected.
 The initial requirements were loosened in further cases
o Reyners v Belgium: Belgian Bar refused enrolment of a Dutch national on the
basis of his nationality despite the fact that he had acquired a Belgian law
 degree. This was challenged on the basis of equal treatment. The ECJ held
that equal treatment was a fundamental legal provision of the community.
o Thus non-discrimination was deemed to be directly effective even though the
conditions for genuine freedom of establishment were far from being
achieved.
o Salgoil [1968]: The fact that Art 36 provided defences to support policies of
the state defending any breach of Art 34 did not preclude the direct effect of
Art 34 since the cases under Art 36 were far and few and exceptional.
o Discrimination was further considered in Deferene v SABENA where a claim
on equal pay was brought about by a female employee of a private airline
company. This case not only removed the need for a prohibition but also
ensured that treaty article shall apply irrespective of not having a concrete
system of implementation. This case additionally allows horizontal direct
effect to Treaty Articles.
o International Transport Workers Union v Viking [2007]: Viking was shifting its
registration from Finland to Estonia which would reduce the minimum
payment levels for the seamen employed by the company. The Court held
that the fact that certain Treaty provisions directly address the member state
does not prevent rights from being conferred at the same time on any
individual who has an interest in compliance with obligations thus laid down
and secondly any provision prejudicing a fundamental freedom would not be
allowed.
o Alfons Lutticke [1987]: clear and precise and no need for transposition
 General principles of EU Law
o Mangold v Helm [2005]: Non-discrimination was made applicable even
though the time limit of directive to expire had not come.
 Charter of Fundamental Rights: Direct effect from 2007 following the Lisbon Treaty
but this Direct Effect was limited to vertical relations. No direct case which states
what shall happen between private parties.
 Regulations:
o Slaughtered Cow Case (Commission v Italy): all methods of implementation
were contrary to the Treaty which would have the result of creating an
obstacle to the direct effect of Community Regulations and of jeopardizing
their simultaneous and uniform application in the whole of the Community.
o In Munoz the Court state that owing to their very nature and their place in
the system of sources of Community Law, regulations operate to confer
rights on individuals which the national courts have a duty to protect.
o Not all measures however shall be invalid: Amsterdam Bulb Case: the ECJ
ruled that it is only if a national measure alters, obstructs, or obscures the
direct effect or nature of the regulation that it will constitute a breach of EU
law.
o Domesticating a regulation might alter its impact or adversely affect the
national implementing measures.
o Stitching El Asqa (2012): the Court found that a national measure freezing the
funds of a person who was also subject to a freezing of funds imposed by an
EU Regulation could affect the scope of that regulation due to possibly
 divergent definitions under national and EU law of key provisions shared by
the two measures.
o Azienda v Sardegna: clear and precise and no need for transposition.