Giving Effect to European Community Directives
| Date | 01 March 1992 |
| Author | Grainne Burca |
| Published date | 01 March 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01872.x |
Giving Effect to European Community Directives
Griiinne de
Bhrca"
Introduction
Since the foundation of the European Community, the influence of European
Community (EC) law on the national legal system has expanded in two ways: first,
in the growth
in
volume and scope of the substantive law emanating from the EC's
legislative institutions; and second,
in
the readiness of the courts of the Member
States to enforce and give practical effect to those laws. Differences over substantive
lawmaking have largely been played out
in
the political field, whereas controversy
over the application and enforcement of EC law has taken place, as a result of
decisions of the European Court of Justice (ECJ), mainly
in
the national judicial
sphere.
The ECJ developed the doctrine of direct effect at an early stage
in
its jurisprudence,
to ensure that the body of law provided for
in
the EC Treaties would have effect
in
the various Member States without the need for national implementing legisla-
tion.' Through a series of cases the Court developed this doctrine and applied it
to articles
of
the EC Treaties,2 to EC Regulations3 and, in a more limited way, to
EC Directives. Direct effect means that provisions of EC law may confer rights
upon individuals and are required to be directly applied by national courts at the
suit of individual litigants, without the need for domestic implementing legi~lation.~
Article
189
of the EEC Treaty provides that Directives shall be binding as to their
aim, but that the choice
of
form and method of their implementation remains with
the Member States. Despite this provision, the ECJ nevertheless decided that
Directives could be relied upon directly by litigants before national courts
in
certain
situation^.^
The Court has declared that Directives will not have direct effect
where their terms are insufficiently precise or where, although clear and precise,
those terms are conditional or leave some discretion to the Member States.6 The
major limitation on their direct effectiveness, however, is that Directives cannot
be directly enforced
in
a 'horizontal' situation, ie
in
proceedings against a private
party rather than against the State.' The case for their direct enforcement against
the State appears to be based on a concept of estoppel whereby the State may not
rely, as against an individual, upon its own failure to implement a Directive properly
and on time.x
*Fellow of Somerville College, Oxford.
I
am grateful
to
Murray Hunt. Aidan Robertson and Derrick Wyatt for their help.
I
Case 26/62,
NV Algemene Transport-
en
Expeditie Onderneming Van Gend En
bos
v
Nederlandse
Administratie der Belastigen
[
19621 ECR
I,
[
19631
2
CMLR
105.
2
See also Case 43/75,
Defrenne
v
SABENA (No
2)
[
19761 ECR 455,
[
19761
2
CMLR 98.
3 Article 189 of the EEC Treaty specifically provides that Regulations are to be directly applied. See
50176,
Amsterdam Bulb BV
v
Produkrschap Voor Siegenuassen
[I9771 ECR 137, [I9771 2 CMLR 218.
4 See Article 189 of the EEC Treaty and
s
2(
1)
of
the European Communities Act 1972 which enacts
this requirement into
UK
law.
5
This was decided initially in Case 41/74,
Van Duyn
v
Home Ofice
[I9741 ECR 1337. [I9751
I
CMLR
I.
6
ibid.
7
See
Case 152184.
Marshall
v
Southampton and South West Hampshire Area Heulrh Aurhority (Teaching)
[
19861 ECR 723, [I9861
1
CMLR 680. The ECJ ruled that Directives could only be directly enforced
by an individual against the State
or
against an organ of the State.
8 See Case 148/78,
Pubblico
Minisrero
v
Tullio
Ratti
[I9791 ECR 1629, [I9801
1
CMLR
96.
The
Modern LCIu' Revieu,
55:2
March 1992 0026-7961
215
nte
Modern
Law Review
[Vol.
55
This limitation on direct effect remains an awkward problem for the Community,
since the effectiveness of its laws and their equal and uniform application
in
all
of the Member States is a prerequisite to the attainment of the objectives which
the Community was founded to achieve. The combination
of
the States' frequent
non-implementation of Directives, with the fact that Directives cannot
in
themselves
be
directly enforced against individuals, means that their effectiveness as a legislative
form is seriously undermined. In practical terms, many of the Community's important
legislative policies, such as that embodied in the Equal Treatment Dire~tive,~ have
been hindered or frustrated.
The second problem which has dogged the effectiveness of Directives is the fact
that, even where a Directive is sought to be enforced against the State and has been
held to confer a right directly upon an individual, the Member State in question
may not have provided a suitable domestic remedy for the enforcement of that right.
National courts have frequently had to grapple with the problem of what to do when
faced with a directly enforceable Community right for which no national remedy
exists.
lo
The ECJ, following on from its elaboration of the doctrine of direct effect, has
continued its attempt to ensure the effectiveness of Directives by the involvement
of domestic courts in their enforcement. In the case of Directives which lack direct
effect, the Court has developed a principle of interpretation which imposes a very
strong obligation on national courts to construe provisions of national law
in
the
light of EC Directives." And, in the case of Directives which are directly enforce-
able, but which do not themselves specify any particular remedy for breach, the
ECJ has stressed that there is an obligation upon national courts to provide adequate
and effective remedies.I2 However, its pronouncements on these matters at times
have been ambiguous and have left important questions unresolved.
l3
Both problems involve fundamental legal and constitutional issues for the EC as
a whole and for the Member States individually. The effectiveness of EC law in
advancing the EC's aims and policies depends on the readiness of national courts
to give effect to that law. It is therefore important that Directives which the Member
States have failed to implement be enforced by courts throughout those States, and
that a comprehensive system of procedures and remedies for the enforcement of
rights derived from Directives be made available.
The emergence of the interpretive obligation in the case law of the ECJI4 and
its initial impact on decision-making in the
UK
courts
will
be examined. This
examination will include, in particular, the recent development of the interpretive
obligation by the ECJ,'5 its implications for judicial decision-making and constitu-
tional theory in the
UK,
and some of the general difficulties inherent
in
an interpretive
principle of that apparent scope. Secondly, the problem of the effectiveness of EC
laws in the absence of domestic remedies for securing the rights derived from
Directives and from other EC provisions will be discussed. Neither the direct
9
Directive
761207,
OJ
No 39, p
40.
10
A celebrated example in the
UK
being the case
of
Factorfame
hd
v
Secrerav ofstarefor Transport
I1
This
strategy was initially developed by the
ECJ
in Case 14/83,
Von
Colson
v
Land
Nordrhein-Westfalen
12
ibid.
13 See below. Dart
VII.
I19901
2
AC
85
and 119911
I
AC 603.
[I9841 ECR 1891. [I9861
2
CMLR 430.
14
See n
I
I
abbve.
15
Case 106189,
Marleasing
SA
v
La
Comercial Intemacional de Alimenracion
SA,
unreported judgment
of
13 November
1990.
216
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