4. Direct effect – Directives
Directives need to be transposed into national law by Member States. However, provisions of
directives can have direct effect too, as was originally established in the Van Duyn7 and Ratti8 cases.
A recent restatement of the principle is the following:
‘(…)[W]herever the provisions of a directive appear (…) to be unconditional and
sufficiently precise, those provisions may be relied upon by an individual against the
State (…) A[n EU law] provision is unconditional where it is not subject, in its
implementation or effects, to the taking of any measure either by the institutions of
the [EU] or by the Member States (...) Moreover, a provision is sufficiently precise to
be relied on by an individual and applied by the court where the obligation which it
imposes is set out in unequivocal terms (…)’.9
Clearly, in criminal proceedings your opponent is the state so – fortunately – there is not going to be
an issue in terms of the vertical nature of direct effect. However, on the question of the requirement
for the provision to be ‘unconditional and sufficiently precise’, there are some points to make:
The fact that a provision may be unclear – in the sense that it needs interpreting –
does not prevent it having direct effect: the meaning and exact scope may be
clarified by the CJEU.10
An EU law provision including derogations can have direct effect: such a provision
‘limits the discretionary power’ available under national law and the individual is
able to rely on this;11 ‘This is especially so when the individual invokes a provision
of a directive before a national court in order that the latter shall rule whether the
competent national authorities, in exercising the choice which is left to them as to
the form and the methods for implementing the directive, have kept within the
limits as to their discretion set out in the directive’.12
Further to the above we would make these observations:
The provisions of the Directives – entitled ‘Right to…’ – impose unequivocal obligations in favour
of suspected or accused persons and appear intended to give rise to rights for such persons.
Provisions establishing derogations to the rights so established (e.g. Article 7(4) of the Right to
Information Directive allowing exceptions to the right of access to case materials) appear simply
to limit national discretion, and do not detract from the precision of the whole obligation.
Unclear provisions in the Directives may still be directly effective (it may need to be clarified
what an ‘essential document’ within the meaning of Article 3 the Interpretation & Translation
Directive is, but that provision nevertheless creates a right to translations of such documents).
7
Case 41/74 Van Duyn ECLI:EU:C:1974:133.
Case 148/78 Ratti ECLI:EU:C:1979:110.
9
Case C-236/92 Difesa ECLI:EU:C:1994:60, paragraphs 8-10.
10
Case 41/74 Van Duyn ECLI:EU:C:1974:133, paragraph 14.
11
Van Duyn, cited above note 7, paragraph. 13.
12
Case 51/76 Verbond van Nederlandse Ondernemingen ECLI:EU:C:1977:12, para. 24.
8
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