Direct applicability and direct effect
The terms direct effect and direct applicability often get confused by students of EU law, but it is important to understand the distinction between them. We shall try to break them down here so that they become straight forward.
Direct applicability talks about whether an EU law needs a national parliament to enact legislation to make it law in a member state.
EU treaties and EU regulations are directly applicable. They do not need any other acts of parliament in the member state to make them into law. Therefore, once a treaty is signed or a regulation is passed in Brussels by the Council of Ministers, it instantly becomes applicable in all member states.
EU directives are not directly applicable. Directives, in essence, tell member states to do something, so when passed they need a piece of legislation to make them into national law.
Direct effect refers to whether individuals can rely on the EU law in domestic courts. There are two types of direct effect – vertical and horizontal.
- Vertical direct effect means that you can use EU legislation against a member state.
- Horizontal direct effect means that you can use EU legislation against another individual.
Treaties, regulations, directives and direct effect
Treaties and regulations are vertically and horizontally directly effective. Either a treaty or a regulation can be used as a piece of law in a member state court against the state or another individual.
Confusingly, directives are not directly effective, as they cannot be used in court until they have been enacted by national legislation.
So what happens if the state does not implement a directive?
If a state fails to implement a directive within the time given by the EU then an individual can take the state to court for non-implementation. It is important to remember that in situations when the state has been taken to court, the ECJ has adopted a ‘wide perception’ of the state, deeming the state to include all areas of government, including schools, NHS trusts and local authorities.
One must, however, refrain from seeing this as an entirely one sided process of the EU passing legislation over member states. As we have seen in module two, member states (in the Council of Ministers) collectively approve these decisions and they are only applicable in community areas (discussed in module 2) and are currently not applicable in areas such as defence, taxation, pensions, social policy etc where national governments remain, in general, the highest authority.