Literature Notes – Week 6
Michal Bobek, ‘The effects of EU law in the national legal systems’, in Barnard and Peers
(eds), European Union Law (2017) chapter 6
1 Introduction
This chapter explains how the supranational and national ‘worlds’ relate. It focuses on three key
principles: direct effect, indirect effect, and primacy.
2 EU law in the Member States: institutions, procedures, principles
There are three important elements to the constitutional settlement within the EU and the issues
raised in this chapter:
Institutions: on the institutional plane, EU law in the Member States is carried out by the
existing national institutions;
Procedures: on the procedural plane, EU law is enforced according to existing national rules
of procedure. National institutions have thus become servants of the national states and of
the EU;
Principles: principles provide for the overall status of EU law in the Member States.
Thus, the Union could be called a type of ‘cooperative federalism’; one the one hand, it has clearly
moved away from the public international mode, and on the other it is still far away from being a
fully-fledged federation.
3 Direct effect
Direct effect means that an EU provision becomes the immediate source of law for the national court
or administrator.
3.1 Van Gend en Loos
This case from 1963 was about a Dutch company importing a certain chemical from Germany that
disagreed with the amount of duty charged by the Dutch state, based on Article 12 EEC (now
repealed). The question here was whether a private party could invoke such provisions directly in the
courts of a signatory party, to which the Court answered that they could. In its view, a clear and
unconditional prohibition such as Article 12 which does not necessitate any further implementation
by the Member States, is capable of producing direct effect in the Member States’ legal order.
3.2 The conditions and the real test
In Van Gend en Loos, the Court stated that a treaty provision may produce direct effects in the
Member States if it is (a) clear; (b) unconditional (i.e. not allowing for any reservations by the
Member States), and; (c) not dependent on any subsequent further implementation measures by the
Member States or the Community. However, later case law obscured these conditions in two ways.
First, even Treaty articles which did not meet these criteria were deemed to be directly effective (e.g.
Defrenne on Article 157 TFEU). Second, direct effect was subsequently expanded to other sources of
EU law: regulations, decisions, directives, as well as provisions of international agreements to which
the EU is a party.
The standard formula used by the Court for direct effect (of directives) today includes three
conditions. A provision of a directive may be directly effective if it is: (a) unconditional; (b) sufficiently
precise, and; (c) the Member State failed to implement the directive by the end of the period
prescribed therein or failed to implement the directive correctly.
3.3 Direct effect in action
A directly effective provision of EU law may function in a number of ways. First, a directly effective EU
provision may create a new rule which did not previously exist. Second, together with the principle of
primacy of EU law, it may exclude the application of an existing but contrary national rule.
3.4 Differentiation I: types of legal acts
