Abstract
Abstract The main aim of this paper is to cast light on the case law on direct effect of directives, which has remained elusive to both scholars and practitioners. To this end, we first revisit the relevant case law on inverse vertical, horizontal. and triangular disputes to show that the fundamental distinction drawn by the case law is that between ‘direct obligations’ and ‘mere adverse repercussions’. Subsequently, we propose a doctrinal approach to distinguish between ‘direct obligations’ and ‘mere adverse repercussions’ which centres on the impact of invoking a Euorpean Union (EU) directive on the norms governing the dispute. This ‘normative impact theory’ explains all existing case law on the direct effect of directives, and thus aids a better understanding of the concept of imposing obligations on individuals. We compare this theory with other doctrinal theories that have purported to explain the case law, including the well-known distinction between invocabilité de substitution and invocabilité d’exclusion, concluding that the normative impact theory has descriptive and normative advantages over existing approaches. Lastly, we show how the functioning of the preliminary reference procedure has affected the development of the case law on direct effect. We demonstrate that the European Court of Justice (ECJ) applies a presumption that consistent interpretation is capable of remedying incompatibilities between national and EU law. Secondly, we show how the formulation of the preliminary reference can substantially affect, and even confuse, the answer of the ECJ as regards matters of direct effect.
Highlights
European Union (EU) law scholars are well acquainted with the lights and shadows of the doctrine of direct effect.[1]
We demonstrate that the European Court of Justice (ECJ) applies a presumption that consistent interpretation is capable of remedying incompatibilities between national and Euorpean Union (EU) law
The complexity of the myriad issues surrounding the invocability of EU norms is not unknown to the Court, which has often been confronted with difficult questions on the invocability of EU norms, forcing it to navigate between providing satisfactory outcomes in individual cases and creating a consistent, predictable, and understandable jurisprudence
Summary
European Union (EU) law scholars are well acquainted with the lights and shadows of the doctrine of direct effect.[1]. The central aim of this article, is to provide such a theory by emphasising the ‘normative impact’ of invoking a directive This ‘normative impact theory’ is capable of explaining the Court’s case law on direct effect of directives, and arguably is normatively more desirable than existing theories. We clarify the case law on the invocability of directives, which has remained elusive notwithstanding much doctrinal work in the 1990s and 2000s, by putting the distinction between ‘mere adverse repercussions’ and ‘direct obligations’ in the spotlight (Section III) Whilst this analysis includes revisiting some wellknown cases, it is necessary because the existing literature has focused mainly on horizontal direct effect,[9] missing the jurisprudential image that emerges from the case law as a whole.
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