Direct Effect of EU Law

Abstract

This article examines the concept of direct effect of EUlaw. It discusses whether the conferral of rights is a condition of a norm taking effect in the national legal system, and it is argued that this is not the case. The quintessence of the direct effect doctrine is whether a norm is justiciable by the national judges, rather than the norm’s capacity of conferring rights on individuals. It is argued that the question whether a norm has direct effect must be resolved in accordance with the «theory of relativity»;i.e., it is the aim for which the norm is relied on and the circumstances of the case that determines whether the norm is sufficiently precise and unconditional. It will be argued that there are «two different kinds of direct effect»that have originated in the Court of Justice’s case law, substitution effect and exclusion effect. Both are variations of direct effect. The former aims at entirely substituting the national norm, and hence concerns the conferral of a right on an individual. The latter aims at having a national rule set aside (excluded from application), allowing EUlaw rules laying down sufficiently clear obligations to be enforced. [It is underlined that one should not equal the question of whether a norm has direct effect with the question whether a person can rely on a norm in front of a national court and what questions the national court has to pose in order to establish that an EU-norm can be relied on. While the former concerns the quality of the norm, the latter is concerned with the attributes of the specific person who seeks to rely on the norm.]