Law Essay Part 1

Direct and indirect effect are mechanisms devised by the ECJ to safeguard the supremacy of EU law.

Direct effect is a doctrine developed by the ECJ to ensure that individuals can directly invoke rights deriving from EU law within the national legal systems. It is applicable to treaty provisions, regulations and directives, provided the relevant provision is binding, capable of creating general rights and duties, unconditional and sufficiently precise. Such a provision can be invoked in UK courts to establish rights and obligations deriving from EU law, or challenge the application of a conflicting UK law provision.

The ECJ has recognized that there are limitations to direct effect. Directives have “vertical” direct effect only after the date they should be made part of UK law. Vertical direct effect means that such provisions can only be invoked by an individual against the state, or an emanation of the state, but not against other individuals. This does not apply to regulations, which can have both vertical and “horizontal” direct effect, from the time they come into force. “Horizontal” direct effect means that the relevant provision can be invoked by one individual against another in UK courts.

The doctrine of indirect effect is a means to supplement direct effect and overcome its limitations. It is essentially an obligation imposed on national courts to interpret national law, to the extent possible, in the light of and in conformity with EU law. It operates irrespective of whether the relevant provisions are directly effective and it can be invoked as between individuals. It is thus a way to give greater effect to directives, even if their provisions are not directly effective or have not been properly implemented, and to ensure that their objectives are achieved.