Direct Applicability and Direct Effect

Direct applicability:

•  A provision of EU law is directly applicable when it immediately becomes part of the law of each member state.
• National Parliaments cannot reject it, nor do they have to do anything to incorporate it. It is applicable in the exact way it was drafted by the E.U (automatic)
• Direct applicability applies to primary legislation (treaties and regulations)

Direct effect:

•  If something is directly effective, it still applies to E.U countries. However, they have discretion in creating the most appropriate laws in their own legal systems to bring the relevant E.U law into effect.
• A provision of E.U law has direct effect when it creates individual rights that are enforceable in national courts. There are two main forms of direct effect: horizontal and vertical
• Direct effect applies to secondary legislation (directives)

Horizontal direct effect:

• If the EU passes a directive (a secondary piece of legislation), it usually involves creating a 'right' for people e.g non-discrimination
• If the government fails to adopt this directive, they can be sued. This becomes difficult when it comes to those working for a private company and not the state as the government is not responsible for those working for a private company
• Anyone who doesn't get the benefit of a 'right' given under a directive cannot really sue the government if they work for a private company
• The government can only be sued through horizontal direct effect if the accuser can show three things: the proof that the directive did confer a 'right', that the directive was clear about said right and they have suffered financial loss as a direct result. These are known as the Francovich Principles
• Horizontal direct effect means that a person can use EU legislation against an individual - NOT THE STATE

Vertical direct effect:

• Creates individual rights against the government
• When a person is denied a right laid out by a directive, they can sue the government (if the government is responsible)
• A good example of the use of vertical direct effect is the Foster v British Gas case
• Basically, if the government has failed to adopt a directive into national law and one has suffered a loss of the right established by the directive , they can sue the government

Indirect effect:

• Indirect effect is where national courts have to interpret national law in line with an unimplemented or badly implemented directive of the European Union. Indirect effect comes from the failure of a member state to implement a directive, but direct effect cannot apply because the party against whom the directive is sought to be enforced is a private entity (or fails to meet the conditions that would give it direct effect)
• "National courts are under a duty to interpret national law consistently with EU Law, so far as it is possible to do so, whether or not the Directive has direct effect" - Article 4(3) TEU