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Essay: Understanding Direct, Indirect, and Incidental Effects in EU Law

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  • Published: 1 October 2019*
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“Direct, indirect and incidental effect”;

Direct, indirect and incidental effect allow applicants to fully benefit from their rights under EU law. In 1963 the Court of Justice ruled that in order for rights under EU law to be effective, they must be capable of direct effect. Direct effect is said to be capable of direct enforcement in national courts and there is no need to implement it into our national law. Indirect effect refers to the responsibility of national courts to interpret national law regularly with EU law. Incidental effect is a concept in European Union law that allows the use of indirect effect of EU directives in private legal actions which helps directives to impose obligations on private parties. Unlike regulations and decisions that are binding in their entirety under article 288, directives are only binding, the method of its transposition is left to the member states.

In today’s society, direct effect is a fundamental principle, and according to the Court of Justice, a measure that has direct effect is one that is capable of direct enforcement in national courts. Direct effect should therefore not be necessary, but the European Court of Justice felt that the position was not so simple, as a member state may have adopted national transposing legislation that does not accurately reflect the objectives of the Directive and therefore decided that in some situations, a Directive may have direct effect. This decision was founded in Van Duyn v Home Office where it was decided that Directives may be capable of vertical direct effect [1], it should also be noted that there is no horizontal direct effect of Directives after Marshall v Southampton & South West Health Authority [2]. In order for the direct effect to be enforced, it must be compliant with several principles and these are precision and clarity, un-conditionality, deadline for transposition must have passed and the defendant must be an emanation of the state.[3] In order to set the limits, within which an article is applicable, you need precision and clarity. A general provision that is not precise enough on its own will not be capable of direct effect. [4] The principle of un-conditionality means that the provision is self-sufficient, i.e. it does not need to rely on other provisions. [5] As has been mentioned, only vertical direct effect can be used (individual/business against the state). This is essential to a claim and so the definition of an emanation of state is equally essential. This was decided in Foster v British gas where the Court of Justice provided the following criteria, providing a public service pursuant to a statutory duty, or the industry/service is under state control, or the service has special powers for carrying out its functions. [6]

Due to the restrictions direct effect have on Directives, because of the European Court of Justice’s rejection to allow horizontal direct effect of Directives and thus limiting their effectiveness,the doctrine of indirect effect was developed in sequence to give the individuals the best possible level of protection before their national courts. The decision by the Court of Justice to create indirect effect now allows individuals to rely on directives against another individual. The principle was first developed in Von Colson and Kamann v Land Nordrhein-Westfalen [7] and Harz v Deutsche Tradax [8] where in both cases, female litigants had been victims of discrimination, going against the Equal Treatment Directive, the only difference is that Von Colson sought to rely on a directive against the regional government whereas Harz sought to rely on it against a private company, and thus showing that the Court of Justice had deemed that indirect effect can operate vertically and horizontally.[9]  

Another strategy to avoid the potentially harsh consequences of a lack of horizontal direct effects of Directives is to provide for incidental effects. This principal allows the horizontal relationships between the laws to be applied, however it does not directly provide enforceable rights for individuals. The principle is described as incidental because the directive itself does not impose the rights and obligations on the parties but more the failure of a Member State to comply with the directive has the result of effecting other legal rights [10]. The principle was established in CIA Security International SA v Signalson SA and Securitel SPRL, where it was assumed that the CIA had breached the national technical standard for alarm systems, where the CIA then sought to defend this by appealing about the inapplicability of the national standard due to the fact that the State had failed to inform it to the Commission, as necessary by a Directive. The Court of Justice were in agreement with the CIA over the case allowing the CIA to rely on the Directive in order to remove the national obligation. [11]

In order for the EU to meet its goals set out by the treaties, they have operated together in order to create a system to allow all member states into one system and common market. The Court of Justice has stressed the importance of separating regular international law with the EU legal system, thus, one of the primary reasons for developing these principles is to make the law as effective as can be, in order for efficient integration to take place. In addition, it can be argued that the Court of Justice created these principles to provide maximum protection for the rights of an individual by allowing them to rely on national court before the Court of Justice, especially where member states have failed to implement measures.

In conclusion, it is apparent that the principles of direct, indirect and incidental effect were developed by the Court of Justice in order to allow for greater protection of rights for individuals living under EU law, and to allow for a more efficient system. The principles of indirect and incidental effect allow for more horizontal effect compared to direct effect, which only allows for vertical effect. They are therefore considered more beneficial for individuals attempting to rely on a directive which is arguably a further reason for their creation.

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