The Gazette 1992

GAZETTE

JUNE 1992

Di rect ives and Damages in Domes t ic Cour ts

certain number of directives or provisions thereof could give rise to direct effect. Neither did it appear that unimplemented provisions of directives could be enforced against private individuals, denying what is known as horizontal direct effect. 13 Since one must have prior knowledge of a right before one can seek to enforce it, Member States retained great scope to avoid the obligation to implement directives into domestic law. Enforcing Community Law against Member States Over the years the Court of Justice appears to have altered the basis upon which it affords direct effect to directives. Instead of the need to ensure the effectiveness of Community law, it now seems the purpose of direct effect is to prevent Member States from evading their obligations. 14 Enforcement from the centre is thus replaced by reliance upon private persons to ensure that Member States comply with Community law. This has been dramatically exemplified by the Court's judgments requiring national courts to grant interlocutory relief to private persons wishing to suspend the application of national and Community legislation which arguably infringes their Community law rights. 15 " Enforcement from the centre is thus replaced by reliance upon private persons to ensure that Member States comply with Community law."

by Anthony M. Collins, B.A. (Mod.), Barrister-at-law, Référendaire at the Court of Justice of the European Communities* Persons with interests as diverse as businessmen, bankers, part-time workers and social welfare recipients will find themselves confronted with a brave new world of opportunities and perils upon the establishment of the 'Internal Market* by 31 December 1992 1 and the creation of a 'Social Europe'. 2 Many of these latest steps towards the "ever closer union among the peoples of Europe" mentioned in the preamble of the EEC TYeaty have been and will be taken on the basis of directives. 3 Member States are required to incorporate directives into national law by a given date although they are free to choose how they will be implemented. 4 Where a Member State fails to fulfil this obligation it may be brought before the Court of Justice and condemned on account of that failure. 5 If it inaccurately implements a measure or flouts the Court's judgment, the Commission can only commence fresh proceedings against the recalcitrant Member State which may lead to a second judgment condemning the failure to comply with the first. 6 This can not only lead to different rules for the 'compliant' and the 'evader' Member States but must also lend an air of unreality to discussions in the Council where agreements are reached which some Member States have little intention of heeding. 7 The number of infringements brought before the Court indicates that this is a real problem. 8 Although Member States may now be prepared to submit to monetary * This article is written in a personal capacity.

Anthony M. Collins

sanctions where they have failed to comply with their obligations, 9 this approach would have been rejected in an era when Member States were more conscious of their sovereignty. Other solutions had thus to be found to ensure that the rule of law was observed. Direct Effect In Van Gend en Loos 10 and Costa -v- ENEL, 11 the Court of Justice declared Community law to be an integral part of the legal systems of the Member States, As such it binds both Member States and their nationals and can impose duties and confer rights upon individual persons independently of national legislation. It was but a short step for the Court of Justice to apply this reasoning to Community secondary legislation. Provided these provisions were unconditional and sufficiently clear and precise to be capable of producing direct effects in legal relationships between individuals and Member States, the Court was prepared to find that they had what was described as 'direct effect' in national legal systems. 12

This process has been taken considerably further by two recent decisions of the Court.

As long as a Member State fails to apply a directive having direct effect,

This principle had its limits. Only a

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