Indirect Effect

Indirect Effect will not always enable the provision of a directive to be given effect. The ECJ held “the national court must interpret national law in light of any relevant directive, as far as it’s possible to do so”. The case of Marleasing confirmed that even in the case of non-implentation of a directive, indirect effect could still be used. In the case, no national law had been passed to comply with a directive, it was not necessary to have a national law passed specifically in the name of the directive. This was further confirmed in Webb v Emo Air Cargo. A limitation to Marleasing as well as indirect effect is the limits of natural meaning which is otherwise known as the Contra Legum principle.

Indirect effect also has a limitation when it comes to criminal liability. This was found in the case of Luciano Arcaro. Arcaro was prosecuted in criminal proceedings and under the Italian implementing legislation he would found not guilty however under the directive he was indeed found to be guilty. The ECJ held that for this, indirect effect cannot impose in criminal liability.

De Burca wrote, in giving effect to European Community directives, our attention is drawn upon the possible conflict between indirect effect and legal certainty. Individuals must be as much as aware of the provision of EC directives as they are of the regulations. This could lead to the contradiction with the doctrine of direct effect which only regulations and treaties are enforceable by individuals