European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Whereas Article 288 TFEU specifies that regulations have direct effect, it states that directives are “binding, as to the result to be achieved, upon each Member States to which it is addressed, but shall leave to the national authorities to choice of form and methods”. At first sight, the absence of direct applicability seems obvious since the directive requires a national measure for its impleme …

Directives

Whereas Article 288 TFEU specifies that regulations have direct effect, it states that directives are “binding, as to the result to be achieved, upon each Member States to which it is addressed, but shall leave to the national authorities to choice of form and methods”. At first sight, the absence of direct applicability seems obvious since the directive requires a national measure for its implementation. However, failing to accept the possibility of relying on a non-regulatory European act before the national courts would amount to the Member State subject to the obligations of the directive denying the binding nature of the provision. The useful effect of the act would be weakened if individuals of that State were prevented from relying on it before court . Furthermore, Article 267 TFEU, which allows national courts to request the Court of Justice to give a ruling on the validity and interpretation of all acts of the institutions, without distinction, implies that such acts are liable to be relied upon by individuals or undertakings before courts . 

A directive may therefore have a direct effect in narrowly defined conditions. The provisions must be unconditional and sufficiently precise  and the period granted to Member States for its transposition must have expired  for individuals to be able to rely on it. In effect, the directive can be directly relied upon only where it has not been transposed within the prescribed time-period , where the national implementation measures are incorrect or inadequate  or where the application made thereof is not such as achieving the result sought by it . In all events, the direct effect of the directive is unrelated to its legal basis, depending instead on its intrinsic characteristics .

The direct effect of directives is more limited than for regulations since the rights derived from a directive are not enforceable on individuals (horizontal effects) and can be relied on only against a State or a public collectivity (vertical effect), which has failed to comply with its performance duty . Before being transposed into domestic law, a directive produces effects that ensure the minimum rights guaranteed to individuals. Accordingly, although an individual cannot rely upon a non-transposed Directive to claim a right against another individual, by contrast, when applying its domestic law, the national court must interpret it in the light of the wording and purpose of the directive .

The directive has a vertical direct effect at the expiration of the transposition period. Individuals may rely upon it before the national courts not only against the Member State, whether exercising its sovereign functions  or under private law , but also against all competent national authorities, such as municipalities , independent administrative authorities  or private operators which are responsible, pursuant to a measure adopted by the public authority, for providing a public interest service under the latter's control and which have for that purpose special powers beyond those which result from rules applicable in relations between individuals . 

By contrast, a Member State which has not transposed a directive cannot rely on the provisions of that Directive against its nationals . Since the State is the sole addressee of the directive, such Directive cannot create obligations for individuals . In effect, it would be unacceptable for States, which are required by the European legislator to adopt certain rules intended to govern its or State entities' dealings with individuals and to confer upon them the benefit of some rights, to be able to rely on the non-performance of its obligations for depriving individuals of the benefit of those rights . So long as the directive has not been properly transposed into national law, individuals cannot ascertain the full extent of their rights. Thus, a Member State cannot rely, in proceedings brought against it by an individual before the national courts in order to protect rights directly conferred upon him by a non-transposed directive, on national procedural rules relating to time-limits for bringing proceedings . The fact that the public body purporting to assert the provisions of the directive against an individual is not responsible for their non-transposition into domestic law is irrelevant . Furthermore, Article 288 TFEU precludes a national court – which, in the context of proceedings laid down in national law for that purpose, finds that the Member State to which it pertains has failed to fulfill its obligation to transpose a directive correctly - from refusing, on the ground that it appears to it  that the national legislation is consistent with a later regulation which repeals that directive and will be applicable with effect from  28 January 2022, to make a declaration that that Member State has not correctly transposed that directive and is required to take remedial  steps in that regard . By contrast, a directive may indirectly impose obligations on individuals, subject to compliance with the principle of legal certainty, where a regulation expressly refers to its provisions .

In criminal matters, the principle of legality of penalties goes against the fact that a directive may, of itself and independently of a domestic law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of the persons who act in violation of its provisions . By contrast, where national law already provides for the application of criminal sanctions, for violation of requirements similar to those referred to in the directive, the question of direct applicability does not need to be raised . 

Directives do not produce a direct horizontal effect. A directive cannot of itself impose obligations for individuals and cannot be relied upon as such against another national , whether a competitor, a consumer or a trader . In effect, the Union has the power to enact obligations for individuals with immediate effect only by way of regulation . By contrast, adverse repercussions on the rights of third parties, even if the repercussions are certain, do not prevent an individual from asserting the provisions of a directive against the Member State concerned .

Case 9/70 Grad v Finanzamt Traunstein [1970] ECR 825, LawLex200900001949JBJ; 41/74 Van Duyn v Home Office [1974] ECR 1337, LawLex200900001963JBJ; 51/76 Verbond nederlandse ondernemingen v Inspecteur der invoerrechten en accijnzen [1977] ECR 113, LawLex200900001995JBJ. 

Case 41/74 Van Duyn v Home Office [1974] ECR 1337, LawLex200900001963JBJ; 51/76 Verbond nederlandse ondernemingen v Inspecteur der invoerrechten en accijnzen [1977] ECR 113, LawLex200900001995JBJ.

Case 41/74 Van Duyn v Home Office [1974] ECR 1337, LawLex200900001963JBJ: Home Ministry; Case 51/76 Verbond nederlandse ondernemingen v Inspecteur der invoerrechten en accijnzen [1977] ECR 113, LawLex200900001995JBJ; Case 8/81 Becker [1982] ECR 53, LawLex200900002146JBJ; C-430/04 Feuerbestattungsverein Halle [2006] ECR I-4999, LawLex200900000790JBJ: tax authorities.

Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, LawLex200900001573JBJ; and Case C-271/91 Marshall v Southampton and South West Hampshire Area Health Authority [1993] ECR I-4367, LawLex200900001573JBJ: Ministry of education; See also Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, LawLex200900001683JBJ: State authority charged with the maintenance of public order and safety; as part of its environmental protection task, C-237/07 Janecek [2008] ECR I-6221, LawLex200900000838JBJ.

Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839, LawLex200900001440JBJ. 

Case C-201/94 The Queen v The Medicines Control Agency, ex parte Smith & Nephew Pharmaceuticals and Primecrown v The Medicines Control Agency [1996] ECR I-5819, LawLex200900002147JBJ: drug agency.

Case C-188/89 Foster and others v British Gas [1990] ECR I-3313, LawLex200900002052JBJ: body in charge of the gas distribution service; C-253/96 Kampelmann and others v Landschaftsverband Westfalen-Lippe and others [1997] ECR I-6907, LawLex200900000997JBJ: public undertaking in charge of providing the energy supply or services of highway construction and maintenance and of managing the highway services; C-343/98 Collino and Chiappero [2000] ECR I-6659, LawLex200700001628JBJ: entity operating a public telecommunications network; C-157/02 Terra Baubedarf-Handel [2004] ECR I-5583, LawLex200900000615JBJ: private body in charge of the management of motorways; C-356/05 Farrell [2007] ECR I-3067, LawLex200900000475JBJ: a body responsible for compensating victims of road accidents involving drivers who had not taken out the compulsory civil liability insurance.

Case 8/81 Becker [1982] ECR 53, LawLex200900002146JBJ; Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, LawLex200900002308JBJ; Case C-6/90 Francovich and Bonifaci v Italy [1991] ECR I-5357, LawLex200900001066JBJ.

See inter alia Case C-253/96 Kampelmann and others v Landschaftsverband Westfalen-Lippe and others [1997] ECR I-6907, LawLex200900000997JBJ.

Case C-102/02 Beuttenmüller [2004] ECR I-5405, LawLex200900000310JBJ; C-142/04 Aslanidou [2005] ECR I-7181, LawLex200900002360JBJ and C-141/04 Peros [2005] ECR I-7163, LawLex200900000542JBJ; C-226/07 Flughafen Köln/Bonn [2008] ECR I-5999, LawLex200900001294JBJ.

Case C-208/90 Emmott v Minister for Social Welfare and Attorney General [1991] ECR I-4269, LawLex200900002066JBJ.

Case C-297/03 Sozialhilfeverband Rohrbach [2005] ECR I-4305, LawLex200900001429JBJ.

Case C-6/90 Francovich and Bonifaci v Italy [1991] ECR I-5357, LawLex200900001066JBJ.

Case C-64/20 UH, Judgment of 17 March 2021, LawLex202100004334JBJ.

Case C-37/06 Viamex Agrar Handel and ZVK [2008] ECR I-69, LawLex200900000560JBJ.

Case 14/86 Pretore di Salò v X [1987] ECR 2545, LawLex200900001549JBJ; C-168/95 Arcaro [1996] ECR I-4705, LawLex200900000691JBJ; C-387/02 Berlusconi and others [2005] ECR I-3565, LawLex200900000587JBJ; C-23/03 Mulliez and others [2006] ECR I-3923, LawLex200900000508JBJ; Conversely, see Case C-230/97 Awoyemi [1998] ECR I-6781, LawLex200900001305JBJ: which admits that a directive may be relied on before the expiry of its transposition period, where that directive is liable to allow an individual to escape criminal sanctions by virtue of the national principle of the retroactive effect of more favorable provisions of criminal law.

Case C-457/02 Niselli [2004] ECR I-10853, LawLex200900000904JBJ.

Case C-106/89 Marleasing v Comercial Internacional de Alimentación [1990] ECR I-4135, LawLex200900000333JBJ; Compare C-221/88 ECSC v Busseni [1990] ECR I-495, LawLex200900002348JBJ: holding that the fact that recommendations adopted under the ECSC Treaty may be relied on is limited, such as that of directives adopted under the TFEU, of which they are the equivalent, to the requests submitted against the State, so that they cannot affect the rights of other nationals; T-172/98 Salamander and others v Parliament and Council [2000] ECR II-2487, LawLex200900001282JBJ.

Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, LawLex200900001208JBJ; Case C-192/94 El Corte Inglés v Blázquez Rivero [1996] ECR I-1281, LawLex200900002127JBJ.

Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, LawLex200900001208JBJ.

Case C-201/02 Wells [2004] ECR I-723, LawLex200900001075JBJ; C-152/07 Arcor and others [2008] ECR I-5959, LawLex200900000606JBJ; See tacitly, Case C-201/94 The Queen v The Medicines Control Agency, ex parte Smith & Nephew Pharmaceuticals and Primecrown v The Medicines Control Agency [1996] ECR I-5819, LawLex200900002147JBJ.

Case 148/78 Ratti [1979] ECR 1629, LawLex200900001559JBJ; See after that period, Case 8/81 Becker [1982] ECR 53, LawLex200900002146JBJ.

Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, LawLex200900001683JBJ: where a Member State has properly implemented the provisions of a directive, the effects of that Directive reach individuals through the implementing measures adopted by the national law.

Case C-253/96 Kampelmann and others v Landschaftsverband Westfalen-Lippe and others [1997] ECR I-6907, LawLex200900000997JBJ.

Case C-62/00 Marks & Spencer [2002] ECR I-6325, LawLex200900001084JBJ: individuals are entitled to rely before national court, against the State, on the provisions of an implemented Directive where national authorities applies the implementation measures by violating the provisions of that Directive.

Case C-319/97 Kortas [1999] ECR I-3143, LawLex200700001898JBJ.

Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, LawLex200900001573JBJ.

European Business Law

180. Directives

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

180. Directives

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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