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 5

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