Gavin Howe
Direct applicability is a concept in European Union constitutional law that relates specifically to regulations. It refers to the fact that EU regulations require no implementing legislation within individual member states and take effect as soon as they are published by the European Commission. Direct applicability is often confused with the doctrine of direct effect, which refers to the ability of EU member state nationals to enforce rights derived from EU legislation directly in national courts. Direct applicability and direct effect are distinct concepts, with direct applicability concerning whether an EU law needs a national parliament to enact, and direct effect concerning the enforceability of rights derived from EU legislation in national courts.
| Characteristics | Values |
|---|---|
| Definition | Direct applicability is a concept of European Union constitutional law that relates specifically to regulations, direct applicability (or the characteristic of regulations to be directly effective) |
| Direct applicability vs. direct effect | Direct applicability is often confused with the doctrine of direct effect. Direct applicability talks about whether an EU law needs a national parliament to enact. Direct effect refers to the ability of EU Member State nationals to enforce rights derived from EU legislation directly in national courts. |
| Treaty provision governing regulations | They, and only they, have direct applicability within the member states. |
| Treaty | Article 288 (ex Article 249) of the Treaty on the Functioning of the European Union (as amended by the Lisbon Treaty) |
| Number of EU regulations directly applicable in all member states | 5,000 |
| EU directives | EU directives are in principle not directly applicable, but they may be so, and EU decisions may be directly applicable on the same basis as directives. |
| UK-specific | Section 2(1) of the European Communities Act 1972 (ECA) gives the authority for directly applicable EU law to have legal effect in UK law without needing further UK enactment. |
| UK-specific, post-Brexit | Directly applicable laws will need to be 'saved' to ensure that they continue to operate until the Government (and Parliament?) decides what to do with them. |
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What You'll Learn
Direct applicability and direct effect
Direct applicability is a concept of European Union constitutional law that relates specifically to regulations. It refers to the fact that EU regulations require no implementing legislation within individual member states. They take effect as soon as they are published by the European Commission and become part of a member state's national law without the need for any implementing legislation. Direct applicability is set out in Article 288 (ex Article 249) of the Treaty on the Functioning of the European Union (as amended by the Lisbon Treaty).
EU directives, on the other hand, are not directly applicable as they must be implemented through national legislation before a prescribed deadline. Directives tell member states to do something, so they need a piece of legislation to make them into national law.
The terms direct effect and direct applicability are often confused. Direct effect refers to the ability of EU Member State nationals to enforce rights derived from EU legislation directly in national courts. In other words, if a provision of an EU Treaty, Regulation, or Directive satisfies the requirements to be directly effective, national courts must enforce the rights that such a provision grants. Direct effect was first established by the Court of Justice of the European Union (CJEU) in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Direct effect has subsequently been loosened in its application to treaty articles and expanded to include directives and other measures.
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EU directives
Directives may, however, be directly applicable in certain circumstances. The EU Court of Justice established the principle of "direct effect" of EU Treaty obligations in 1963, provided they confer rights on individuals, are precise and clear, and do not entail any additional measures. Directives can be directly effective in instances where the member state has introduced the required legislation but has done so defectively, as in the Verbond van Nederlandse Ondernemingen (VNO) case.
The distinction between direct applicability and direct effect is important to understand. Direct applicability refers to whether an EU law needs to be enacted by a national parliament, while direct effect refers to the ability of EU member state nationals to enforce rights derived from EU legislation directly in national courts. Direct applicability is set out in Article 288 (ex Article 249) of the Treaty on the Functioning of the European Union (as amended by the Lisbon Treaty).
The issue of directly applicable EU laws has been a major concern in the context of Brexit, as these laws will no longer apply in the UK once the European Communities Act 1972 is repealed. The proposed 'Great Repeal Bill' aims to address this by converting the body of existing EU law into UK law "wherever practical".
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EU decisions
Direct applicability is a concept of European Union constitutional law that relates specifically to regulations. Direct applicability is often confused with the doctrine of direct effect. Direct applicability refers to the fact that EU regulations require no implementing legislation within individual member states. They take effect as soon as they are published by the European Commission. Direct applicability is set out in Article 288 (ex Article 249) of the Treaty on the Functioning of the European Union (as amended by the Lisbon Treaty).
EU directives, on the other hand, are not directly applicable as they cannot be used in court until they have been enacted by national legislation. Directives are currently only vertically directly effective, i.e. against the state, and do not have horizontal effect (against another private individual or company).
The principle of direct effect was established by the Court of Justice of the European Union (CJEU) in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Direct effect has been expanded to include virtually all possible forms of EU legislation, most importantly regulations, and in certain circumstances, directives. Direct effect refers to the ability of EU member state nationals to enforce rights derived from EU legislation directly in national courts.
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EU regulations
Direct applicability is a concept of European Union constitutional law that relates specifically to regulations. It is set out in Article 288 (formerly Article 249) of the Treaty on the Functioning of the European Union (as amended by the Lisbon Treaty). Direct applicability is often confused with the doctrine of direct effect. However, direct applicability refers to whether an EU law needs a national parliament to enact it. In other words, it concerns whether a piece of EU legislation becomes part of a member state's national law without the need for any implementing legislation. EU treaties and regulations are directly applicable as they come into force without any action on the part of member states.
EU directives, on the other hand, are not directly applicable as they must be enacted by national legislation before a prescribed deadline. Directives cannot have horizontal effect (against another private individual or company) as this is contrary to the principles of legality and legal certainty. Directives are only vertically directly effective, i.e., against the state, which is interpreted broadly by the ECJ to include state schools, NHS trusts, and local authorities.
The principle of direct effect was established by the Court of Justice of the European Union (CJEU) in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Direct effect refers to the ability of EU member state nationals to enforce rights derived from EU legislation directly in national courts. If a provision of an EU treaty, regulation, or directive satisfies the requirements to be directly effective, national courts must enforce the rights that such a provision grants.
There are around 5,000 EU regulations that are directly applicable in all EU member states. These regulations largely concern technical details required by other EU legislation. They do not generally need further implementation and take effect as soon as they are published by the European Commission.
The issue of directly applicable EU laws became significant in the context of Brexit, as the thousands of EU laws that were directly applicable in the UK would no longer apply once the European Communities Act 1972 was repealed. The proposed 'Great Repeal Bill' aimed to address this by converting the body of existing EU law and obligations into UK law "wherever practical".
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The Great Repeal Bill
The bill aimed to repeal the European Communities Act 1972 (ECA), which sets out the UK's relationship with the EU. The ECA created a 'pipeline' that enabled UK law to be updated in line with changes made by the EU. The Great Repeal Bill would cut off this pipeline and end the supremacy of EU law in the UK. It would also provide for the EU acquis—the body of existing EU law and obligations—to be "converted" into UK law "wherever practical".
The UK government recognised that this would be a major legislative project, potentially one of the largest ever undertaken in the UK. The bill would contain powers to enable government ministers to amend laws using secondary legislation, which could require up to a thousand statutory instruments to be enacted in a limited timeframe. The changes would include removing references to EU institutions and EU law.
The bill was designed to re-establish Parliament's control over law-making and provide certainty over the content of the statute book during the UK's negotiation of its exit from the EU. It would not contain substantive policy changes itself but would provide the "legal nuts and bolts" necessary for leaving the EU.
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Frequently asked questions
Direct applicability refers to whether an EU law needs a national parliament to enact it. EU laws that are directly applicable come into force without any action on the part of member states. EU treaties and regulations are directly applicable, while directives are not.
Direct effect refers to the ability of EU member state nationals to enforce rights derived from EU legislation directly in national courts. Direct applicability and direct effect are often confused, but they are distinct concepts. Direct applicability relates specifically to regulations and is set out in Article 288 of the Treaty on the Functioning of the European Union.
Brexit raises questions about the fate of directly applicable EU laws in the UK. The proposed 'Great Repeal Bill' aimed to convert the body of existing EU law into UK law "wherever practical". Directly applicable laws would need to be ''saved'' to ensure their continued operation until the government decides on their fate, depending on the outcome of EU-UK negotiations and the future relationship between the UK and the EU.
