← The hardest concepts in European Union law
In one breath
A provision of Union law has direct effect when it gives individuals rights that they can invoke before their own national courts, without waiting for the Member State to pass a law. The Court of Justice established the idea in its case law, and the usual conditions are that the provision is clear, precise and unconditional.
The picture
The cinema ticket in your own hand
Imagine that a group of cinema owners signs a contract among themselves promising to admit ticket-holders. If the promise is made only between the owners, a ticket-holder turned away at the door has no claim, because she is not a party to their contract. If the owners instead print real tickets and hand them out, the ticket itself becomes something she can show at the door and insist on, and the doorkeeper must let her in.
That is what Van Gend en Loos did for the Community Treaties. The Court said that the Treaty was more than an agreement between States: it created a new legal order whose subjects include individuals, and Union law not only imposes obligations on them but also confers rights. Some provisions are tickets that can be held and shown to a national court. Others are only promises that the doorkeepers have yet to turn into tickets.
Where the picture stops working
A real ticket is valid wherever it is printed. A Union provision gives rise to a right only if it passes the Court’s conditions, and many provisions fail them. The ticket picture also hides who may be sued: a ticket may be shown against the doorkeeper, but whether it can be shown against a private person depends on the type of provision (see the page on vertical and horizontal effect).
How it really works
- 1Know where the rule comes from. The doctrine is not written in the Treaties; it comes from the Court’s case law, beginning with Van Gend en Loos, which concerned a Treaty article on customs duties.
- 2Ask whether the provision is clear and precise. A vague programme or a statement of objectives will not do.
- 3Ask whether it is unconditional. If its operation is conditional on further measures by the institutions or Member States that leave real discretion, it has no direct effect.
- 4Ask who is bound. Even where a provision is directly effective, it may be invocable only against the State (vertical effect) or also against private parties (horizontal effect). Treaty articles addressed to everyone, such as the equal pay rule in Defrenne, can be invoked against private employers.
- 5Use the right: a national court must hear the claim and apply the Union provision, if necessary setting aside conflicting national law (see the page on supremacy).
Why people get it wrong
- Confusing direct effect with direct applicability. Direct applicability is about a regulation entering national law automatically; direct effect is about enforceable individual rights.
- Assuming that every Union provision has direct effect. Many Treaty articles and many directive provisions fail the conditions.
- Treating the doctrine as written in the Treaties. It is judge-made and was not mentioned in the original texts.
- Expecting the right to be enforced only in Luxembourg. The point is that it is enforced in the national courts.
- Reading “unconditional” as meaning that no implementation is ever needed. The test is whether implementing measures involve discretion, not whether any implementation exists.
A worked example
The facts are invented
Suppose a Member State, after joining a common market, introduces a new charge on lamps imported from a neighbouring State. An importer, Mara, believes this breaches a Treaty article that forbids new customs duties between the States. She sues the national tax authority in her own court, not in Luxembourg.
The court asks the direct-effect questions. The Treaty ban is stated in clear words, it is a plain prohibition, and it needs no further act of the institutions or the Member States to work. Mara can therefore rely on it. If the court has doubts, it may ask the Court of Justice what the article means, but it will still decide the case. If the article does apply, the charge is unlawful and she can recover what she paid. No national statute was needed to give her the right.
Try it
A Treaty article states in clear terms that Member States must not introduce new charges on imports from one another. Can an importer rely on it in a national court?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Van Gend en Loos v Nederlandse Administratie der Belastingen, Case 26/62, 1963
- Van Duyn v Home Office, Case 41/74, 1974
- Defrenne v Sabena (No 2), Case 43/75, 1976
Where to go next
More hard concepts in European Union law
- Vertical and horizontal effect of directives (Union law in national courts)
- Supremacy and national constitutional courts (Union law in national courts)
- Indirect effect and conforming interpretation (Union law in national courts)
- State liability for breach of Union law (Union law in national courts)
- Effectiveness, equivalence and national procedural autonomy (Union law in national courts)
- Harmonisation and the internal market (Internal market)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.