H418/02 - Historical EU impact and supremacy

Direct effect and individual rights

An international treaty usually creates obligations between states. Direct effect made a qualifying EU provision enforceable by an individual in a national court, giving the individual a legal route without waiting for their government to take diplomatic action. It differs from direct applicability, which concerns a measure entering domestic law without national transposition.

In Van Gend en Loos (1963), a Dutch company challenged an increased import duty using the EEC Treaty's prohibition. The Court of Justice recognised that the Community legal order could confer rights on individuals which national courts must protect. A treaty provision needed to be sufficiently clear, precise and unconditional to be directly effective. The doctrine was not a rule that every treaty promise automatically supplied a completed private claim. The court's account of its foundational decisions explains the rights-based significance.

Vertical direct effect means reliance against the state; horizontal direct effect means reliance against another private person. Some treaty provisions could operate horizontally. In Defrenne v SABENA (1976), the treaty's equal-pay principle could be relied on against an employer in the circumstances identified by the court. This mattered because discrimination by a private employer was not beyond the reach of the treaty right. The judgment must not be read as giving horizontal effect to all EU sources indiscriminately.

Original historical example: a clear, unconditional treaty prohibition applicable to a tax authority could allow a company to challenge that authority in an English court during membership. A broad policy aspiration needing further choices would not satisfy the same conditions merely because it appeared in a treaty.

Directives and direct-effect limits

A directive addressed a member state and normally required implementation. Where the deadline had passed and a provision was sufficiently clear, precise and unconditional, an individual could rely on it vertically against the state or an emanation of the state. The state should not gain an advantage from failing to implement the required protection. The doctrine did not generally allow a directive itself to impose obligations horizontally on a private defendant.

In Marshall v Southampton and South-West Hampshire Area Health Authority (1986), a woman challenged discriminatory retirement treatment by a public health authority. The CJEU allowed reliance on the relevant directive against the state employer, while explaining that a directive could not of itself impose obligations on an individual. The judgment, especially paragraphs 48–49, supplies both the protection and its boundary. An ordinary private employer was not automatically an emanation of the state merely because employment was regulated.

Original historical comparison: a clear directive entitlement is unimplemented after its deadline. Employee A works for a state ministry; employee B works for an ordinary private company. A has the vertical direct-effect route against the ministry if the rule's conditions are met. B cannot simply use the directive itself as a horizontal claim against the company. B may nevertheless have domestic rights, an interpretation argument or a state-liability route. Failure of one route does not prove that no remedy exists.

This distinction can produce uneven protection because the available route depends on the legal source and defendant. It also respects that directives impose implementation obligations on states, rather than being regulations that immediately impose the same rules on everyone.

Interpretation and state liability

Indirect effect, or consistent interpretation, required national courts to interpret national law as far as possible in the light of a directive's wording and purpose. The claim still used domestic law, interpreted to achieve the EU result; it did not simply turn the directive into a horizontal obligation. Marleasing (1990) stated that this applied to relevant national provisions adopted before or after the directive. The judgment's paragraph 8 is a legal instruction to interpret, not unlimited permission to replace legislation with whatever rule a judge prefers.

Domestic courts helped make EU rights effective. In Pickstone v Freemans (1988), women sought equal-value pay protection. The employer's reading would have allowed a token male comparator doing the women's work to block comparison with better-paid men doing work of equal value. The House of Lords interpreted the implementing provisions purposively to give effect to the intended EU obligation. Its judgment illustrates interpretation developing practical protection within the legislation's purpose, rather than judges simply announcing a new personal preference.