Direct Enforceability: Treaty Provisions and Directives

July 2010
            Direct enforceability deals with whether or not a state and person may rely on a treaty or directive in a national court (direct effect), respectively, and under what circumstances they may rely upon either. All European Union legislation, regardless of being a treaty, directive, or regulation, creates rights that an individual may enforce against the Member State (direct effect, vertical effect). There is a difference between the way treaties and directives are looked at regarding direct enforceability.

            Treaties are essentially primary legislation and as such become directly effective when the "transitional period" has expired and the treaty becomes "complete in itself and legally perfect." Reyners, paragraph 30 & 12. This boils down to meaning that treaty provisions do not need the Member States (States) to legislate for them to become implemented and relied upon because it automatically becomes part of the States' legislation (also known as direct applicability). See Article 288 TFEU. Furthermore, it means that when a treaty article is not followed a State has essentially breached their treaty. Directives, on the other hand, are considered secondary legislation and as such only the legal objective/outcome is to be achieved by the States by the specified date in the directive. (This is also seen in academic discussion as having to have the States implement directives.) If a State does not implement the directive in its national legislation the State may still be held liable for the directive because Article 288 TFEU does not preclude its direct effect. Defrenne No.2, paragraphs 64 & 67.

            There are two types of direct effect: vertical and horizontal. Vertical (direct) effect is when a private individual may rely on a treaty or directive provision in a national court against the State or an agent of the State. An agent of the state is an entity that is made responsible for providing a public service which is provided for and under the control of the State and the entity must have "special powers beyond those which result from the normal rules applicable in relations between individuals." Foster, paragraph 18. For either a treaty or a directive to have vertical effect they must pass a test, respectively.

            If a directive is unconditional and sufficiently precise then it is deemed to have horizontal effect. See Marshall. Not all provisions in any given directive will pass this test. Thus, not all directive provisions are directly effective. The test for a treaty is found in Van Gend en Loos - "it is necessary to consider the spirit, the general scheme, and the wording of those provisions." Thus, the treaty provision in question, as later elaborated on, must be looked at for three criteria: 1. is the text clear and unambiguous, 2. it imposes an unconditional prohibition in the sense that the rights it protects are not subject to the discretion of an European Union institution or Member State, and the implementation of the treaty article does not depends on any further legislative action by the Member State. See Van Gend en Loos; Moens and Trone, Commercial Law of the European Union. If a treaty and directive pass their respective tests then both of them have the possibility of having vertical effect; however, that is not the case with horizontal effect.

            Horizontal effect is when a private individual may enforce against another private individual (or legal entity) the treaty article in a national court. Essentially, this is saying that a private individual may enforce primary legislation upon all of those individuals who are part of the Member States. Due to the nature of directives as secondary legislation, they cannot be horizontally effective.

            The differentiation of vertical and horizontal effect for directives has a direct impact on employees. Essentially, employees in the public sector are able to enforce directive provisions against his or her public sector employer when a private sector (private individual) is not able to enforce a directive provision against his or her private employer. The doctrine of supremacy says that European Union legislation trumps a State's legislation/constitution when they do not coincide. Moens and Trone, Commercial Law of the European Union. So, by having a different set of laws to abide by the public and private sector workers vary possibly creating more structure and better working conditions for the public sector worker.