The notion of direct effect is difficult to define and contains several ele- ments.22In the early days, the emphasis was on the creation of rights for individuals. As stated already in Van Gend en Loos, directly effective pro- visions of Community law create rights for individuals.23 Conversely, individuals derive rights from directly effective provisions of Community law. Yet, the language of rights is confusing, not only due to the inherent intricacies of the concept in legal theory, but also since the concept is understood differently in different legal systems.24 In
21 It did give proof of a generous attitude vis-à-visdirect effect, since the provision is for- mulated in the form of obligations imposed on the Member States, rather than as rights for individuals; On the other hand, it is a clear and unconditional prohibition, which was legally perfect and apt for judicial application.
22 The matter of the difference between direct effect and direct applicability will not be dis- cussed, since the ECJ does not make the distinction. See on this issue J Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community law’, (1972) 9 CML Rev425; and more recently P Elefteriadis, ‘The Direct Effect of Community Law: Conceptual Issues’, (1996) YEL, 205.
23 As Bruno De Witte has rightly pointed out, the ECJ did not, in Van Gend en Loos make direct effect coincide with the creation of rights: ‘Article 12 of the Treaty (..) produces direct effects andcreates individual rights which national courts must protect’, Case 26/62Van Gend en Loos [1963] ECR 1, at 16, emphasis added.
24 See egM Ruffert, ‘Rights and Remedies in European Community Law; A Comparative View’, (1997) 34 CML Rev307; W Van Gerven, ‘Of Rights, Remedies and Procedures’, (2000) 37 CML Rev 501; S Prechal, Directives in European Community Law (Oxford, Clarendon Press, 1995) at 129 et seq; and her ‘Does Direct Effect Still Matter’, (2000) 37CML Rev2000, 1047, at 1053 et seq.; C. Hilson and T Downes, ‘Making Sense of Rights:
Community Rights in EC Law’, (1999) 24 ELR121.
Salgoil,25the Court of Justice made it clear that the meaning of the notion and the consequences thereof for the jurisdiction of the courts, for the procedures and remedies are to be decided by the national systems. The Court did use the language of rights in the context of direct effect, but as a non-dogmatic notion.26The translation into national rights categories, of the Community law concept into national legal concepts is for the national courts, as long as they ensure the effective protection of those
‘rights’, whatever their classification in national law. Consequently, the classification of the effects of the provision will vary from procedure to procedure27 and from Member State to Member State.28 Moreover, Community law may also create ‘rights’ without being directly effective, for instance a right to compensation where the Member State has infringed a non-directly effective provision which was intended to cre- ate rights for individuals.29The ‘creation of rights’and ‘direct effect’formula
25 Case 13/68 Salgoil[1968] ECR 661, where the Rome Corte d’Appellosought clarification on the nature of the legal protection granted to the subjective position of the individual as regards the State. The question concerned the distinction in Italian law between sub- jective rights and legitimate interests, which separates the jurisdiction of the civil and the administrative courts. The court was in fact asking about the classification under national law of the position which the individual derived from the direct effect of Community law. The ECJ held that the courts must award direct and immediate pro- tection, but it was for national law to classify these rights and to designate the courts having jurisdiction; see also Case C–236/92 Comitato di Coordinamento per la Difesa della Cava and others v Regione Lombardia and others[1994] ECR I–483; the referring court inquired about the classification of the right which an individual may derive from the directive on waste which had not been correctly implemented. In fact the court referred a whole series of interesting questions as to what a court should do if disapplication of conflicting measures of national law did not suffice to solve the case before him, and could even lead to another infringement, giving rise to State liability. The ECJ denied the direct effect of the relevant provision of the directive holding that it did not create rights for individuals, which they may invoke against the State. The other questions therefore needed no answer. The ECJ denied direct effect in the sense of the creation of rights for individuals, and did not go into the other right, of judicial review – the application of the provision as a standard of review.
26 The Community law version of the notion of ‘rights’ is a-dogmatic; the concrete implica- tions are left to national law and national legal theory. The ECJ is concerned only with the result, namely the immediate and adequate protection of the position of individuals under Community law. While this is probably the only option for the ECJ, it continues to cause confusion on the part of the national courts. Yet, the ECJ does not seem to care much about the theory of rights, see Case C–287/98 Luxembourg v Berthe Linster and Others[2000] ECR I–6917.
27 Depending, for instance, on whether the provision is applied, to use the French approach and terminology, in a recours objectifor a recours subjectif.
28 The classification of ‘rights’, as ‘subjective rights’ (dirritti soggettivi)or ‘legitimate interests’
(interesse legitimi), is crucial, for instance, in the Italian legal system for the division of labour between the administrative and the civil courts. German law is notoriously sophisticated in the classification of rights. English law uses an entirely different distinc- tion between private and public law rights, for the protection of which different causes of action and different remedies are available; an additional complication in the case of common law systems is the focus on remedies rather than rights.
29 For instance Joined Cases 6/90 and 9/90 Francovich and Bonifaci v Italy[1991] ECR I–5357.
cannot completely be equated. In some cases, especially in the area of direc- tives, provisions may not of themselves create rights for individuals and yet they may be used as a standard for review of the legality of Member State action30or as a defence in criminal proceedings.31In short, to say that direct effect exclusively means the creation of rights for individuals seems to be a rather formalistic and limited way of presenting things.32
Nevertheless, it appears that the notion of direct effect is always linked in some way or other to individuals as addressees. Direct effect assumes effects towards citizens.33 In contrast, non-directly effective provisions may also concern citizens – though not directly: some other intervention is required in order to achieve the effects intended by the provision – but they have public authorities as their addressees. There are cases which do not involve individuals, and where the question of direct effect was raised nonetheless. In the Grosskrotzenburg case,34 the Commission brought infringement proceedings against Germany for failure to fulfil its obliga- tions by not having achieved the result intended by the environmental impact assessment directive. More in particular, the District Office Darmstadt had granted consent for the construction of a new block at the Grosskrotzenburg thermal power station without carrying out a prelimi- nary environmental impact assessment required by the directive. The alleged violation of Article 10 and 249 EC (then Article 5 and 189 of the EC Treaty) thus consisted in an incorrect concrete implementation or application rather than a mere failure to adopt the necessary implementing legislation. The German Government alleged that the procedure should be held inadmissible inter aliabecause the case law of the Court of Justice
30 An early example is Beckerwhere the ECJ separated direct effect from the creation of rights holding that ‘Wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive orinsofar as the provisions define rights which individuals are able to assert against the State’, Case 8/81 Ursula Becker v Finanzamt Münster-Innenstadt [1982] ECR 53, at para 25, emphasis added.
31 It is possible to also bring these effects under the umbrella of the creation for rights, by extending the notion of ‘rights’ to ‘procedural rights’, besides the more common creation of substantive rights; the individual derives a ‘right to judicial review’ and a right not to have a conflicting measure applied against him. This is not the approach of the ECJ (see the Beckercase mentioned above) and it seems rather artificial.
32 See egCase C–431/92 Commission v Germany (Grosskrotzenburg)[1995] ECR I–2189, where Germany had argued that the ECJ had only awarded direct effect to directives where they confer specific rights to individuals; the ECJ rejected the argument: ‘The question which arises is thus whether the directive is to be construed as imposing[the obligation flow- ing directly from the directive to conduct an environmental impact assessment, MC].
That question is quite separate from the question whether individuals may rely as against the State on[directives]’, at para 26.
33 LFM Besselink, ‘Curing a “Childhood Sickness”? On Direct Effect, Internal Effect, Primacy and Derogations from Civil Rights. The Netherlands Council of State Judgment in the MettenCase’, (1996) 3 MJ, 165, at 169.
34 Case C–431/92 Commission v Germany (Grosskrotzenburg) [1995] ECR I–2189.
recognized the direct effect of the provisions of a directive only where they confer specific rights on individuals, which the relevant provisions did not.
Since the Commission itself had not argued that the contested decision granting development consent failed to take account of the legal position of individuals protected by the directive, the latter’s provisions could not have direct effect irrespective of whether they were unconditional and sufficiently precise. The German authorities were not therefore required to apply them directly before implementing the directive. The Court dismissed the argu- ment, stating that the case did not concern the question whether individuals may rely as against the State on provisions of an unimplemented directive which were unconditional and sufficiently clear and precise, a right which had been recognized by the Court of Justice. It was only concerned with the question whether the directive could be construed as imposing an obligation to assess the environmental impact of the project concerned. In other words, direct effect had nothing to do with the case, as it did not involve the ques- tion whether individuals could rely on the relevant provisions.
Other cases which at first sight have no relation to direct effect are those in which a Member State seeks to rely on the provisions of WTO law or GATT to challenge the validity of Community law. While these cases are of course relevant to individuals and companies, they are not involved in the proceedings at hand which are conducted between a Member State and the Community institutions. In Germany v Council (bananas)35 the German Government submitted that compliance with GATT rules was a condition for the lawfulness of Community acts, regardless of any question as to the direct effect of GATT, and that the Regulation infringed certain basic provisions of GATT. The Court did not exactly answer in terms of direct effect, but it held that those features of GATT, from which the Court had in other cases concluded that an individual within the Community could not invoke it in a court to challenge the lawfulness of a Community act, also precluded the Court from taking provisions of GATT into consideration to assess the lawfulness of a regulation in an action brought by a Member State. The special features of the GATT rules demonstrated that these were not unconditional and that an obligation to recognize them as rules of international law which are directly applicable in the domestic legal sys- tems of the contracting parties could not be based on the spirit, general scheme or terms of GATT. The Court may not have equated direct effect and the possibility of a Member State to rely on GATT in an annulment action, but it came very close, and the rationale appeared to be exactly the same. This has been confirmed with respect to the WTO Agreement and GATT 1994 in the Portuguese Textilescase and in Parfums Christian Dior.36
35 Case C–280/93 Germany v Council (bananas)[1994] ECR I–4973.
36 Case C–149/96 Portugal v Council (Portuguese Textiles Case)[1999] ECR I–8395; Joined Cases C–300/98 and C–392/98 Parfums Christian Dior SA v TUK Consultancy BV and Assco Gerüste GmbH and Rob van Dijk v Wilhelm Layher GmbH & Co KG and Layher BV[2000] ECR-11307.
Turning back then to the definition of direct effect as related to the cre- ation of rights, Cottier and Nadakavukaren Schefer have in relation to WTO law suggested a definition reminiscent of remedies. Direct effect, for them, intends to signify ‘that a private person in a State (or Union, respec- tively) may base a claim in, and be granted relief from, the domestic courts of that state against another private person or the state on the basis of the state’s obliga- tions under an international treaty. (..) Direct effect brings about the empower- ment of three actors: the administration, private actors and the courts’.37In the context of Community law, the definition would require some adjust- ments,38 but it does have some attractive elements by focusing on the remedy rather than the right created.39
In the more recent case law on the direct effect of the Europe Agreements, the Court apparently limits the content of the right to a pro- cedural right to invoke the directly effective provision. The Court held, after affirming that the relevant provisions established ‘a precise and unconditional principle which is sufficiently operational to be applied by a national court and which is therefore capable of governing the legal position of individuals’, that ‘the direct effect which those provisions must therefore be recognised as having means that (..) nationals relying on them have the right to invoke them before the courts of the host Member State’.40
4.1.4.2. Invokability
The concept of direct effect is also described in terms of invokability.41In many cases, when considering the direct effect of a provision, the Court says that the provision ‘may be relied upon by individuals andmust be applied by the national courts’.42The creation of rights formula is omitted and put
37 T Cottier and K Nadakavukaren Schefer, ‘The Relationship Between World Trade Organization Law, National and Regional Law’, (1998) JIEL, 83, at 89.
38 The passage ‘against another person’ would have to be abandoned under Community law, because of the distinction between horizontal and vertical direct effect.
39 On the rights-remedies issue see W van Gerven, ‘Of Right, Remedies and Procedures’, (2000) 37 CML Rev501.
40 Case C–63/99 The Queen v Secretary of State for the Home Department, ex parte Gloszczuk and Gloszczuk[2001] ECR I–6369; Case C–257/99 The Queen v Secretary of State for the Home Department, ex parte Barkoci and Malik[2001] ECR I–6557; Case C–235/99 99 The Queen v Secretary of State for the Home Department, ex parte Kondova [2001] ECR I–6427; Case C–268/ 99 Jany and Others v Staatssecretaris van Justitie[2001] ECR I–8615. The recognition of direct effect of the provisions did not save the case of the nationals involved, given the content given to them, see A Pedain, ‘A hollow victory: The ECJ rules on direct effect of freedom of establishment provisions in Europe Agreements’, (2002) CLJ, 284 and by the same author ‘“With or without me”: The ECJ adopts a pose of studied neutrality towards EU enlargement’, (2002) 51 ICLQ, 981.
41 For a recent discussion PV Figueroa Regueiro, ‘Invocability of Substitution and Invocability of Exclusion: Bringing Legal Realism to the Current Developments of the Case Law of “Horizontal” Direct Effects of Directives’, Jean Monnet Working Paper, 7/02.
42 Case 8/81Ursula Becker [1982] ECR 53, at para 25, emphasis added.
in more objective terms, referring to the capacity of the norm to be invoked by individuals in national courts.43In Becker, and on numerous occasions since, the Court stated that ‘(..) wherever the provisions of a direc- tive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing meas- ures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive orin so far as the provisions define rights which individuals must be able to assert against the State’. It seems that the Court of Justice places both types of effects – creation of rights and invokability as standard for review – under the umbrella ‘direct effect’. Direct effect is broader than the creation of rights, and also covers the situation of a (directly effective) provision being invoked as a standard for review of national law, besides the cases where rights as such are awarded.44The definition of invokability has further been distinguished according to the intended effects of the norm invoked, between invocabil- ité de substitutionand invocabilité d’exécution.45
Also, provisions may be sufficiently clear and precise to be invoked in one case and not in another. For instance, in Francovichwhen discussing whether relevant provisions of the directive were sufficiently clear and unconditional to be invoked directly against the State, the Court held that they were indeed with respect to the amount due and the definition of the creditors, but not with respect to the debtor. Since the State had discretion with respect to the identity of the agency or fund obliged to pay the amounts due, the provisions could not be enforced directly against the State. Does this mean that it cannot be directly effective in other cases? It
43 Among the many examples, note the following definitions: ‘le droit de toute personne de demander à son juge de lui appliquer traités, règlements, directives ou décisions communautaires’, R Lecourt, L’Europe des juges (Brussels, 1976) at 248; ‘the possibility for an individual to invoke the Community law provisions concerned before his national court in order to protect his inter- ests’, J Mertens de Wilmars, ‘De directe werking van het Europese recht’, (1969) SEW, 66 (my translation).
44 Michel Waelbroeck distinguished between ‘effet direct positif’or ‘imméditateté’on the one hand and ‘effet direct simple ou négatif’on the other, M Waelbroeck, ‘L’immédiateté communautaire, caractéristique de la supranationalité: quelques conséquences pour la pratique’, in Le droit international de demain, (Neuchâtel, 1974), 85-90; David Edward distinguishes between objective and subjective direct effect, D Edward, ‘Direct Effect, the Separation of Powers and the Judicial Enforcement of Obligations’, in Scritti in onore di Giuseppe Federico Mancini, Vol II, Diritto dell’ Unione Europea, (Milano, Giuffrè, 1998) 423, at 442.
45 Y Galmot and J-Cl Bonichot, ‘Le Cour de justice des Communauté européennes et la transposition des directives en droit national’, (1988) RFDA, 1; These authors seem to restrict the notion of direct effect to the alternative of invocabilité de substitution. Others add also the invocabilité d’interprétation conformeand the invocabilité de réparation, each of which would require different conditions of clarity and unconditionality: D Simon and A Rigaux, under Case C–334/92 Wagner-Miret[1993] ECR I–6911, Europe, February 1994, 9–10; Manin distinguishes between ‘invocabilité dans le cadre de l’effet direct’and
‘invocabilité au-delà de l’effet direct’, Ph Manin, ‘L’invocabilité des directives: Quelques interrogations’, (1990) RTDeur, 669.