Revista

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Universidad

del Zulia

Fundada en 1947

por el Dr. Jesús Enrique Lossada

DEPÓSITO LEGAL ZU2020000153

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Ciencias

Sociales

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Año 13 N° 38

Septiembre - Diciembre 2022

Tercera Época

Maracaibo-Venezuela

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Direct and indirect effect of European Union directives in the

context of European Union Court of Justice decisions

Stepan Burak *

Ivan Bratsuk **

Vitalii Gutnyk

***

Yuliia Petrenko ****

Iryna Yavorska

*****

ABSTRACT

The objective of this article is to analyze the direct effect of EU directives in vertical and

horizontal legal relationships as well as the indirect effect of EU directives in the context of

EU Court of Justice decisions. In particular, attention is paid to the study of the

consolidated legal positions regarding the possibility of the “vertical direct effect”,

“horizontal direct effect” and “indirect effect” of EU directives. Dialectical, comparative-

legal, historical, and formal dogmatic methods were used in the research. As the result of

analyze was made the conclusion that the EU directives, which are used by national courts

to fulfill their obligations regarding the respective interpretation, can not be considered

with direct effect, because in such disputes they serve as a means of determining the scope

of other legal provisions that the national court treats or interprets. In such situations, the

directive may be applied in cases indirectly, that is, by virtue of another (national)

provision, as interpreted.

KEYWORDS: European Union, Law, justice, doctrines, courts.

* Assistant of professor of European Law Department, Ivan Franko National University of Lviv,

Ukraine. ORCID: https://orcid.org/0000-0002-5184-0451.

** Сandidate of legal sciences, associate professor of European Law Department, Ivan Franko

National University of Lviv, Ukraine. ORCID: https://orcid.org/0000-0003-0164-7407.

*** Doctor of legal sciences, professor of International Law Department, Ivan Franko National

University of Lviv, Ukraine. ORCID: https://orcid.org/0000-0003-1401-4393. E-mail:

vitalik_gutnik@ukr.net

**** Doctor of Philosophy degree, senior lecturer at Poltava University of Economics and Trade,

Ukraine. ORCID: https://orcid.org/0000-0003-4954-3332.

***** Сandidate of legal sciences, associate professor of European Law Department, Ivan Franko

National University of Lviv, Ukraine. ORCID: https://orcid.org/0000-0002-4504-9065.

Recibido: 26/04/2022 Aceptado: 14/06/2022

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Efecto directo e indirecto de las directrices de la Unión

Europea en el contexto de las decisiones del Tribunal de

Justicia de la Unión Europea

RESUMEN

El objetivo de este artículo es analizar el efecto directo de las directrices de la UE en

las relaciones jurídicas verticales y horizontales, así como el efecto indirecto de las

directrices de la UE en el contexto de las decisiones del Tribunal de Justicia de la UE.

En particular, se presta atención al estudio de las posiciones jurídicas consolidadas en

cuanto a la posibilidad del “efecto directo vertical”, “efecto directo horizontal” y

“efecto indirecto” de las directrices de la UE. En la investigación se utilizaron métodos

dialécticos, comparativos-jurídicos, históricos y dogmáticos formales. Como resultado

del análisis se llegó a la conclusión de que las directrices de la UE, que son utilizadas

por los tribunales nacionales para cumplir con sus obligaciones en cuanto a la

respectiva interpretación, no pueden ser consideradas con efecto directo, pues en tales

controversias sirven como medio para determinar el alcance de otras disposiciones

legales que el tribunal nacional trate o interprete. En tales situaciones, la directriz

puede aplicarse en casos de manera indirecta, es decir, en virtud de otra disposición

(nacional), tal como se interpreta.

PALABRAS CLAVE: Unión Europea, Derecho, justicia, doctrinas, tribunales.

Introduction

It is worth mentioning, that similarly to other legal systems, provisions of EU

law were created by their securing in sources of law. Sources of EU law themselves are

unique and specific. It is primarily due to peculiarity of EU law that arose as a result of

the interconnection and interaction of international and national laws. The EU has

developed into a far-reaching regional integration organisation endowed with a

constitutional order (Gutnyk at al, 2021). The EU legal order is based on a clear

distinction between external relations, on the one hand, and the internal market and

the (internal) area of freedom, security and justice, on the other. External borders

should be effectively controlled while internal borders gradually dismantled (Rosas,

2018). Directives are one of the main forms of lawmaking and specific source of law,

which through introducing general rules of legal regulation in certain spheres of public

life, add to harmonization (approximation) of national law.

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Analysis of provisions of the Art. 288 of Treaty on Functioning of the European

Union (hereinafter – ‘TFEU’) shows that in general directives do not have direct effect,

as such legal act should be implemented in the legal system of the Member State.

Thus, the problem is that although the directive can be clear, precise and

unconditional, its legally defined nature requires further action by the Member States.

It is worthwhile noting, that although all the Member States shall reach the objectives

of directive, mechanism of its implementation may differ within the Member States.

However, in case provisions are only generally outlined, are conditional, inaccurate or

leave the Member States substantial powers over the implementation process, such

directive in any case would not have direct effect (Steiner at al, 2006).

In this context P. Craig observes that reluctance to recognize that directives

have direct effect is partly due to the fact that, although it is stated that regulations

are directly applicable, such terminology is not used in relation to directives. It would

be rational to save the difference between regulations, fully endowed with direct

effect, and directives, as stated in the Art. 288 TFEU. Endowing directives with direct

effect will reduce the difference, and this in its turn would lead to legal instability and

violations of the functioning of the EU's law and order.

However, during its lawmaking practice EU Court of Justice (hereinafter – ‘the

Court’) in some cases allowed direct effect of directives, but limited it. In addition the

Court has stated the difference between vertical and horizontal planes. ‘Vertical direct

effect’ of directives may apply, when subjects to legal relationship are physical persons

and the Member State. ‘Horizontal direct effect’ of directives takes place in case one

physical person sues another individual. In general the Court has not recognized

horizontal direct effect, thus EU citizens in national courts can refer to directive with

direct effect only in case a lawsuit is filed against the Member State. In this context it

seems relevant to examine and analyze cases, in which the Court has decided on the

possibility of vertical direct effect of directives.

The objective of this article is to analyze the cases of the European Court of Justice,

which consolidated legal positions regarding the possibility of the direct effect of EU

directives in vertical and horizontal legal relationships. Despite the importance of the study

of direct and indirect effect of EU directives, the existing scientific research is limited

only to some aspects of the subject of this paper.

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In this article were solved the following tasks:

– to characterize the “vertical direct effect” of EU directives;

– to find out the specific features of the “horizontal direct effect” of EU directives;

– to define the particularities of the indirect effect of EU directives;

The study was conducted through the critical analysis of the EU legal doctrine and

the EU legislation. Particular attention is paid to the practice of the EU Court of Justice.

The subjects of the research were norms of the EU law as well as the the practice of

the EU Court of Justice. The subject study are EU directives.

1. Literature review

The question of the peculiarities of the EU directives in the national law of the

Member States in the context of the decisions of the EU Court of Justice has been reflected

in the scientific works of such scholars as P. Craig, G. Búrca, S Prechal, J. Coppel ,W.

Gerven, E. Frantziou, J. Weiler, P. Kapteyn and others. Thus, J. Coppel considers the

fulfillment of obligations to be a key element of the concept of direct action of EU directives

in the vertical plane, so if a Member State has not used all the means of implementation

required by the directive within the specified time and thus has not implemented the

directive, such a State must nevertheless comply with all the obligations contained in this

directive (Coppel, 1994). S. Prechal, considering the possibility of direct effect of EU

directives in the horizontal plane, concludes that in fact in EU law there are only rare cases

of such an approach, as in general directives should not be aimed at individuals. But “it may

be achieved by interpreting national law, in particular national private law provisions or

open textured national rules such as good faith and good morals, in a way that the result is

in compliance with EU fundamental rights” (Prechal, 2020). Also interesting is the point of

view of M. Bobek according to which “indirect effect of EU law stands also as a “flexible”

principle.It produces several consequences in national practice which are dependent on the

wording and strength of EU law norm (used as the model) and wording and scope of

national rule as well” (Bobek, 2014).

2. Methodology

In the article were used dialectical, comparative legal, historical, and formal

dogmatic methods.

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The dialectical method makes it possible to highlight the place of EU directives in

the EU legal order. The comparative legal method was used to compare the “vertical direct

effect” and “horizontal direct effect” of EU directives. The historical method is used to

analyze the genesis of the direct and indirect effect of EU directives in the context of EU

Court of Justice decisions. The formal-dogmatic method was used to interpret the

provisions contained in the decisions of the EU Court of Justice.

3. “Vertical direct effect” of EU directives

The Grad case was one of the first cases, in which the preconditions for the

direct effect of the directives were laid, as EU Court has made the decision that

physical person in national courts can refer to any acts issued by European

institutions. At the same time, it was mentioned that fact of the limited nature of the

directive does not prevent these decisions to have direct effect (Case С-334/92 “Тeodoro

Wagner Miret v Fondo de Garantía Salarial”, 1993). In essence, these were the first

reasoned assertions of the Court regarding the possibility of directives’ direct effect.

However, the full scope of the direct effect of the directives was formulated and

enshrined in the Van Duyn case, in which the Court had to decide whether Article 3 (1)

of Directive 64/221 had direct effect. The EU Court stated that if, based on the

provisions of Article 249 (now 288 TFEU), the regulations are directly applicable and,

by virtue of their nature, may have direct effect, then it does not suggest that other

types of acts referred to in that article cannot have a similar direct effect (Case 41/74

“Yvonne van Duyn v Home Office”, 1974). In this case was allowed existence of other

regulatory legal acts, apart of regulations, which to some extend have direct effect. In

essence, the very fact of the possible direct effect of directives permeated when

considering abovementioned cases.

Another important postulate regarding the direct effect of the directives in this

case is the recognition by the Court that a person may refer to a directive as a means of

protection in domestic courts. The Court noted that the incompatible with the

binding effect of the directive of articles 288 of the TFEU (formerly 249 TEU) would

be, in principle, exclusion of the possibility of use (meaning the possibility of referring

to it -auth.) of this binding action by the interested parties. In particular, if the

Community, in accordance with the directive, imposes an obligation on Member States

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to comply with a particular line of conduct, the useful effect of such action will be

reduced if individuals were denied the opportunity to invoke such a duty in the

domestic courts and if the latter were deprived of the opportunity to take them into

consideration as an element of Community law. Under EU law, national courts have

the right to refer matters relating to the operation and interpretation of all acts of EU

bodies, without exception, to the Court, in addition, it provides that the same right

can be used by individuals in national courts. It is considered important to investigate

in each particular case whether nature, general structure and wording of a provision

can have a direct effect in relations between Member States and individuals (Case

41/74 “Yvonne van Duyn v Home Office”, 1974). In this way, the Court has noted that the

usefulness of the directives will be considerably lower when individuals can not use

them in their national courts (Kapteyn, 1998). Finally, the Court noted that if the EU

law provides national courts with the authority to refer to the Court's judgments

regarding the interpretation of all acts of EU bodies, it also means that physical

persons may also be guided by these acts in national courts (Craig, 1998).

It can be argued that the main purpose of the directives was to leave the

Member States the right to choose the way of fulfilling a specific EU commitment and

that the Court should not have allowed individuals to cancel this given right, by

referring to the provisions of directives. Consequently, the most important matter in

the Van Duyn case is the desire of the Court to turn directives into an effective form of

EU law and ensure their proper application by the national courts of the Member

States. The main reason for the adowing directives with direct effect is to ensure the

effectiveness of the implementation of EU law in the national legal order of the

Member States.

Ratti case was another key case, which was of great importance for the

development of the principle of direct effect of the EU law as a whole and of the

possibility of directives’ direct effect in particular. In this case the Court changed the

approach to the very concept of the scope of "direct action" . In particular, the Court

emphasized that the directive could have a direct effect only after the expiration of the

deadline for its implementation (Case 148/78 “Pubblico Ministero v. Ratti”, 1979). In this

case, the so-called principle of estoppels was introduced by the Court. The essence of

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the matter was that Member State, having not used the means of implementation

required by the directive within the specified time frame and thus not having

implemented the directive, still has to fulfill all the obligations contained in this

directive (Coppel, 1994). Consequently, its specificity is manifested in the way when

non-compliance with the deadline for the implementation of directives will rise the

possibility of their direct effect in the territory of the Member States. As already

mentioned, the directive will have direct effect if the obligations arising out of it are

clear, precise and unconditional. In this case, the deviation from the text and the

purpose of the directive is possible if the directive provides for such an option. It

should be noted that there is no obligation to implement the verbatim text of directive,

although sometimes it is the only way of its transposition (Svoboda, 2006).

During its law-making practice, the Court has repeatedly emphasized the

difference between regulations and directives and stated that a directive could have

direct effect in case the Member State did not comply with the deadline of

implementation obligation or did not properly implement it. However, in this aspect,

it is necessary to agree with the opinion of I. Kravchuk, who quite logically notes that

"if there is a vertical direct effect when a Member State has not fulfilled its obligation

regarding the implementation, it is necessary to determine how broadly one can

interpret ‘who is quilty’ for such failure” (Kravchuk, 2004). On the basis of Marshall

case, the Court declared that it would be the State to take responsibility for failing to

implement the directive.

Thus, if the obligations contained in the directive were clear, complete and

unconditional and the Member State did not implement those provisions in its

national legal order, the Court would give the individual the right to refer directly to

directives in the national court in order to strengthen effectiveness of EU law. In turn,

the Member States that have not executed the directive can not refer to it in cases

against individuals because they failed to comply with the obligation imposed by the

directive. All of the abovementioned wording and approaches to the direct effect of

directives apply to its vertical plane. Consequently, on the basis of the decisions of the

Court, it can be assumed that the directives are endowed primarily with vertical direct

effect.

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In general, analyzing the vertical direct effect of directives, we can conclude that

it has undergone significant changes in relation to the moment of its occurrence. In

essence, leaving freedom of action for Member State in the process of its

implementation, the Court asserts that an individual may directly refer to the

provisions of the directive. This occurs, in particular, when the Member State acts

solely at its discretion where an exact and specific obligation can be obtained from

different parts of the directive or even in a situation where the Member State has a

permit for non-compliance with the directive and the Commission has not expressed

any objection (Case 441/ 99 “Riksskatteverket v Ghareveran”, 2001). It should be noted

that references to directives are mandatory for the Member States; in most cases such

requirement is contained in directive as a standard condition. Member States are

obliged to refer to directives in their national acts, by means of which they implement

directive. In the event that one directive is transposed into several national la ws, all of

them must contain a reference to the directive. The requirement for a reference is due

to the fact that in the event of problems with the interpretation of harmonized with

directives national law, national courts would know what directive underlies it and, if

necessary, can send a request to the Court for a preliminary ruling on the

interpretation of the directive.

4. “Horizontal direct effect” of EU directives

Regarding the possibility of direct action of directives in the horizontal plane,

first of all, we share the view, that "like in domestic legal orders, in EU law horizontal

effect can be realized in various ways. It may be achieved by interpreting national law,

in particular national private law provisions or open textured national rules such as

good faith and good morals, in a way that the result is in compliance with EU

fundamental rights. Another option is to rely on the State’s duty to protect the

fundamental rights of private individuals. In Union law, there are only scarce examples

of this approach" (Prechal, 2020).

With regard to the direct effect of directives in the horizontal plane, best

practice here is Marshall case, in which the Court clearly stated that the provisions of

the directive should not be directed towards an individual and can not be directly used

against an individual. In particular, he stressed that "the directive can not be referred

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to in cases against a private individual. It should be noted that, according to Article

294 of the TEU (now Article 288 of the TFEU - auth.), the binding nature of the

directive, which provides for the possibility of referring to it in national courts, exists

only in relation to "each Member State to which it is addressed". This means that the

directive itself cannot create obligations for private individuals and that the provisions

of the directives can not be referred to in cases against a private individual in national

courts ”. In this case, it was actually declared infeacibility of horizontal direct effect of

directives. As we see, the main argument of the Court was the provision of Article 249

of the TEU (now Article 288 of the TFEU), which states that directives are binding on

the Member States to which they are addressed and, therefore, can not create

obligations for other persons.

This position of the Court has evolved in the context of the Faccini Dori case. In

particular, the Court noted that "the extension of case law (ie direct effect of

directives) to the field of relations between private individuals would result in the

automatic recognition of the right of the Community to impose obligations on

individuals, whereas the Community has such powers only in that area, where it is

provided by the regulations” (Case 91/92 “Faccini Dori v Recreb SRL”, 1994).

Consequently, the Court considers that the European Union has no authority to

impose obligations on individuals through directives. Such authority falls outside the

competence of the Member States. The justification for such a legal interpretation is

carried out in accordance with the literal wording of Article 288 of the TFEU (former

249 TEU), which, in order to achieve the objectives of the directive, imposes

obligations only on Member States. It should be noted that in this case, the EU Court

touched upon the issue of competence between the Member States and in essence

noted that this issue of competence was the main reason for the refusal to give a

horizontal direct effect to the directive.

Another case in which the Court has confirmed the prohibition of horizontal

effect of directives is Adriatica di Securtà SpA (RAS) case. Before the Court of the EU

there was a choise, what law to be applied, national legislation or a directive, in the

regulation of horizontal legal relations. The Court, having considered the case, stated:

"It should be remembered that, in accordance with settled case law, in applying

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national law adopted before or after a directive, the national court must clarify the

application of the law, to the possible extend, in the light of the scope and object of

the directive, in order to achieve the objective and therefore comply with the third

paragraph of Article 249 of the TEU (now Article 288 of the TFEU), in addition, a

directive can not in itself create obligations for a private individual and can not be

referred to in cases that consider such action " (Case C-233/01 “Riunione Adriatica di

Securtà SpA (RAS) v Dario Lo Bue”, 2002).

It should be noted that although the Court rejected the horizontal direct effect

of the directives, however, if it were to analyze a number of other cases, it would seem

that the Court partially recognized it.

Thus, in particular, in the case of Bernaldez before the Court raised the issue of

the interpretation of Directives 72/166 / EEC and 84/5 / EEC concerning vehicle

owners’ civil liability insurance. The matter of the case was that the national court

ordered a Spanish citizen who caused the accident, being in a state of alcohol

intoxication to compensate the damage caused by his actions to a third party. At the

same time, the court dismissed the insurance company of the citizen from the

obligation to pay any reimbursement, because, according to Spanish law, the insu red

sum should not cover losses caused by the person in a drunken state. In its appeal, the

Supreme Court of Spain expressed doubts as to whether the exclusion was compatible

with the relevant directives. The Court ruled that directives should be interpreted in

such way as to exclude the ability of an insurance agency to refer to normative or

contractual provisions for the purpose of refusing to pay compensation to injured third

parties as a result of an accident caused by an insured vehicle (Case C-129/94 “Rafael

Ruiz Bernaldez”, 1996). However, the Court has not made any mention of the horizontal

direct effect of the directives.

Another very interesting case regarding the possibility of recognizing the

horizontal effect of the directives was the case Smithkline. National court adressed to

the Court a question concerning the interpretation of EU Directive 76/768 / EEC on

the approximation of the laws of the Member States in relation to cosmetic products.

The EU Court ruled that Article 6 (3) of the directive excludes the application of a

national law, that limits the forms of advertising of toothpastes (Case C-

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77/97 “Smithkline Beecham”, 1999). Consequently, in the abovementioned cases, we can

state that although the EC Court has not made any statements regarding the

horizontal direct effect of the directive, when resolving similar cases before national

courts, plaintiffs will not be able to refer to national law, and defendants will benefit

from the prohibition contained in the directive. And this de facto is a partial

recognition of the direct effect of directives in the horizontal plane.

Recently, in case Farrell, the Court has had the opportunity to clarify the

concept of “emanation of the State” for the purposes of vertical direct effect of

directives. At the same time, it reaffirmed its previous position with regard to the

interdiction on the horizontal direct effect of directives, although the Advocate

General in this case had suggested that it would be necessary a reopening of the debate

on the recognition of horizontal effect of the directives (Case C-413/15 “Elaine Farrell”

judgment, 2017).

Consequently, the Court contradicts itself, on the one side, denying the

horizontal direct effect of the directives, while on the other recognizing it partially. It

should be noted that there are still discussions between EU law researchers on this

issue. Thus, we fully share the view that, in fact, in the cases of Smithkline and Bernaldez,

the Court provided national courts only with a legal interpretation of the relevant

provisions of the directive without any reference to its direct effect. The question put

forward by national courts concerned only the interpretation of EU law and,

accordingly, the Court could not take into account the issue on direct effect. In other

words, the question of how to continue to apply the interpretation of the Court to

decisions was entirely within the jurisdiction of the national court (Gerven, 2001).

Consequently, at these seemingly controversial cases, the Court did not even partially

recognize the horizontal direct effect of the directives, but only carried out an

interpretation at the request of national courts, even if the parties to the case were

individuals. A national court judge may need to interpret the provisions of the

directive for various reasons, and not only when it comes to its direct application.

However, not all scholars adhere to the above position regarding the Court

rulings, which makes it impossible to apply horizontal direct effect of directives. Quite

interesting is the concept, whose supporters believe that cases traditionally classified

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under the common title of "direct effect" should be divided into two categories. In

cases of the first category, individuals engage the EU law if the provisions of national

legislation are less favorable. (“l’invocabilité de substitution”). The second category of

cases includes situations where individuals are looking for ways to avoid the

application of the provisions of national law without accompanying their action with

the application of the appropriate means of the EU (“l’invocabilité d’exclusion”).

Consequently, cases in which the Court appears to have recognized the direct effect of

directives belong to the second category (Bernaldez, Pafitis і Draehmpaehl). Accordingly,

the directives can be applied in horizontal plane if the parties do not require direct

application of the provisions of EU law, but only ask for the recognition of the

provisions of national legislation inapplicable. The authors emphasize that this

division corresponds to the basic doctrines of EU law, namely, the concept of direct

action (“l’invocabilité de substitution”) and the concept of supremacy (“l’invocabilité

d’exclusion”) (Lenz, 2000). However, it should be noted that the essential

disadvantage of this concept is the complexity of its practical application, since to

make a division between “l’invocabilité de substitution” and “l’invocabilité

d’exclusion” is significantly difficult. In turn, the parties' ability to choose the law to

be applied to the contract between them derives from the basic principle of the

autonomy of treaties, which is defended at the level of the European Union.

After analyzing cases in which the Court touched upon the horizontal direct

effect of directives and having investigated the positions of scholars on this difficult

issue, it can be concluded that one has not applied the Court with a special request for

the application of horizontal direct effect. It means that the Court has a great freedom

of action in applying the EU directives, what is expressed first of all in the sphere of

influencing national laws, and possibility of the withdrawal of horizontal direct effect

of directives from national legislation. In any case, it would be desirable for the Court

to clarify these issues in its jurisprudence in order to avoid legal uncertainty. We agree

with C. Mătuşescu, that “for a long time, the horizontal effect narrative in the case law

has been dominated by a stark discrepancy between the horizontal application of

fundamental rights enshrined in directives and those enshrined in Treaty articles. It is

trite EU law that, while Treaty-based rights could enjoy direct effect ‘a directive may

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not of itself impose obligations on an individual and [cannot] be relied upon as such

against such a person. However, the policy rationale behind this distinction s not self-

evident. This is especially true in respect of the application of horizontal effect to

fundamental rights” (Mătuşescu, 2017).

Analyzing the doctrine of direct effect in the vertical and horizontal plane, we

fully share the opinion of D. Weiler, who noted that "the consequences of this doctrine

had and have a significant influence. The Court has changed the traditional

understanding of international public law, through which international legal

obligations have become outcome-oriented and addressed to State The most important

thing in the doctrine of direct action was not just the conceptual change that it

introduced. In practice, direct action meant that Member States that had breached

their obligations would not be able to transfer their disputes at international level or

at Community level. They will deal with lawsuits for petitions of individuals in their

own courts within their legal jurisdiction. In fact, individuals in real cases and

disputes (mainly against public authorities) become the main "advocates" of the legal

integrity of EU law in Europe ” (Weiler, 1991).

5. Indirect effect of EU directives

Quite interesting is the question of the concept of indirect effect of directives in

the national law of the Member States. As we know, individuals can file an action in

court on the basis of a national legal act aimed at implementing the directive, however,

the act itself may turn out not to be in compliance with the purpose specified in the

directive, in order to fill the gaps, The Court has created a concept of indirect effect.

The subject matter is that the rules of EU law, even if they do not have direct effect,

should be taken into account by national courts in the application of their national

legislation.

In general, we share the view that “indirect effect of EU law stands also as a

“flexible” principle. EU law may be used as argument in different forms: as

confirmative argument to underline the relevance of the chosen decision, which clearly

flows from national law, as mediatory argument where EU norm determines which of

plausible paths of interpretation of national law must be chosen; as evolutive

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argument where EU law bent the traditional interpretation of national norm and open

it for new non-established meanings” (Bobek, 2014).

The concept of indirect effect was developed by the Court on the basis of the

rejection of horizontal direct effect of directives and reflected in the case Von Colson.

This case concerned the fact of discrimination in the employment of women on the

grounds of sex. Having decided that the fact of discrimination had taken place, the

German court applied to the Court on EU matters in this case and interpretation of

the directive (Equal Treatment Directive). After examining this case, the Court first

noted that "this directive does not contain unconditional and sufficiently precise

obligations relating to the list of sanctions for discrimination, to which, in the absence

of timely fulfiled implementation measures, individuals could refer in order to obtain

specific compensation in accordance with the directive” (Case 14/83 “Sabine von Colson

and Elisabeth Kamann v Land Nordrhein-Westfalen”, 1984). In this case, we reach the

conclusion that the directive did not have direct effect and individuals could not

invoke it in their national courts. However, the Court stated that "in applying national

law, the task of the national court is to interpret and use the law adopted for the

implementation of the directive in accordance with the requirements of Community

law, within the limits of the freedom of action under national law”. In essence, this

meant that national courts were required to interpret national legislation in

accordance with the directives. However, this obligation applies only to national

implementation measures.

The concept of indirect effect has also been applied to national law, which was

essentially adopted before certain directive and was not intended to comply with it. A

striking example of such an action was the Marleasing case, which referred to a dispute

between the two Spanish companies regarding the legitimacy of their establisment. In

considering this case, the Spanish court addressed the Court with a question whether

Article 11 of Directive 68/151, which has not yet been implemented in national law, has

direct effect, thereby abolishing the declaration of invalidation of a company on

grounds other than the grounds for invalidity provided for by the aforementioned

article. In this case, the Court has faced horizontal direct effect of directives.

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Having considered this case, the Court mentioned that, in the question of

whether a private individual could refer to directive against national law, it should be

noted that, as the Court has repeatedly pointed out, a directive itself can not create

obligations for physical persons and one cannot refer to the provisions of directive in

an action against private individual. Thus, once again, it has been confirmed that there

is no possibility for . However, in this case, the Court mentioned that "by applying

national law, irrespective of whether the provisions in issue are dated earlier or later in

relation to the directive, national courts interpreting national law should always do so

in the context of the scope and object of the directive in order to achieve its results. ”

(Case 106/89 “Marleasing S.A v. La Commercial International De Alimentacion S. A.”, 1990).

The Court's decision in this case means that, when applying national law, adopted

earlier or later from directives, the national court is bound to interpret it as much as

possible in accordance with the directives.

While considering another case of Kolpinghuis Nijmegen, the Court has somehow

modified and even restricted the concept of indirect effect of directives. He stated that

"the obligation of national courts to interpret the relevant provisions of national law in

accordance with the scope of the directive is limited to the general principles of law

which form part of Community law, namely the principle of legal certanity and the

absence of retroactive effect” (Case 80/86 “Officier van Justitie v. Kolpinghuis Nijmegen”,

1987). At the same time, the Court has emphasized that this postulate does not matter

if the date indicated in the document according to which the national legislation is to

be changed has not yet come to an end. Here, the first question is from what time

arises the "indirect action" of directives, and national and foreign scientists cannot give

a clear answer.

In general, we also share the view that “the doctrine of indirect effect can be

usefully seen in light of the EU's careful management of uniformity and flexibility,

whereby domestic measures remain in effect and are being interpreted in light of EU

law in order to facilitate EU objectives. Importantly, interpretative discretion remains

with the domestic authorities, who are also to act as faithful agents in accordance with

the duty of sincere cooperation” (Hameed, 2022).

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Conclusions

Consequently, EU directives, which are used by national courts to fulfill their

obligations regarding respective interpretation, can not be considered with direct

effect, because in such disputes they serve as a means of determining the scope of other

legal provisions that the national court treats or interprets. In such situations,

directive may be applied in cases indirectly, that is, by virtue of another (national)

provision, as interpreted. On the other hand, the directive, creating an indirect action,

is not applied under national law, but is applied independently and contrary to other

national rules. It is also necessary to draw attention to a number of problems that may

arise as a result of the implementation of directives in national law. There may rise

problem situations (when national courts, taking into account the "horizontal direct

effect" or "retroactive vertical direct efect" of directives) considering the way and

possibility of applying doctrine of indirect effect in the in a way that will affect the

legal certainty of individuals. In this context, we note that the case law of the Court is

trying to keep Member States from failing to comply with EU law. In this aspect, the

adoption of the concept of "retroactive direct effect" is impossible. Taking "horizontal

action" as the basis of national law, directives would still not create obligations on

their own, and their provisions as a result can not be used against a person. In this case

not directives, but national law would be source of obligations.

Analysis of peculiarity of direct and indirect effect of directives in horizontal

and vertical relations shows, that the concept of indirect effect is important in cases,

where principle of direct effect cannot be applied. National authorities are obliged to

interpret their national provisions, aimed to execute directive, according to its scope

and object, even when directive is not of direct effect. The Court created the concept

of ‘indirect effect’ primarily to improve efficiency of EU law. EU managed to fill

significant gap in the effectiveness of EU law, in spheres where its legal provisions

lacked direct effect, by virtue of imposing obligation on the Member States to

interpret national law in accordance with EU law. In its turn the concept of ‘direct

effect’ is a key element in improving the effectiveness of EU law. An important aspect

of direct effect is that national courts should refer to the EU law and apply it in the

event of a conflict between EU law ans national law of Member State.

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