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GAZETTE
JUNE 1992
Di rect ives and Damages
in Domes t ic Cour ts
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 principle had its limits. Only a
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."
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,
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