Rethinking direct effect and its evolution: a proposal

This article revisits the present and future of the direct effect principle and submits solutions for its appropriate understanding and enforcement. Once the topic has been put into context and it has been shown why direct effect is an evolving notion whose scope goes beyond the Van Gend & Loos judgement and the doctrine originating from it, the study presents five intertwined arguments. First, direct effect has two facets since, aside from a subjective-substitutive form of direct effect, there exists an objective-oppositive manifestation of direct effect, whereby a directly effective European Union (EU) provision entails the disapplication of national law, without either conferring immediately an individual right or replacing the domestic norm in governing the case at hand. Second, the article claims that the obligation to disapply is triggered always by primacy and direct effect, never by primacy alone. In fact, justifying disapplication on the basis only of the primacy principle and not on primacy and direct effect is likely to undermine the logic implied in the relationship between the EU legal order and domestic legal systems. Third, there are legitimate derogations from the obligation to immediately disapply a conflicting domestic provision with EU law endowed with direct effect in so far as they are admitted by the Court of Justice of the European Union (CJEU) on the condition that the replacement of a national provision by an EU norm may harm individual rights and/or question the national identity clause enshrined in Article 4(2) Treaty on European Union (TEU). Fourth, the test on clarity, precision and unconditionality for assessing whether an EU norm is directly effective, as it was conceived by the CJEU, is no longer a pillar in the conceptualisation and practice of direct effect. As a matter of fact, only unconditionality, in practice, proves to be the core element of direct effect. Moreover, direct effect and direct applicability are equivalent concepts since unconditionality, as the condicio sine qua non of direct effect, coincides with direct applicability. Fifth, a distinctive quality of direct effect, along with unconditionality, is the creation of an advantage resulting from the application of EU law and the subsequent disapplication of national law. This implies that an EU directly effective provision can never be only in malam partem (ie, detrimental for the individual) and thus disapplication, lacking the existence of an advantage for the individual, shall never come into play. The article concludes that the duty to refine the doctrine of direct effect must be performed, ultimately, by the CJEU. Indeed, only the CJEU can offer guidance to national authorities, since it has an interpretive monopoly on the ifs, whens and hows of direct effect. To this end, it is vital that the EU judges, by rejecting argumentative minimalism brought to its extreme, come to reassert their constitutional role and re-establish the common core of the EU system, beginning with the principles that created and shaped it.