Supremacy, Direct Effect and Consistent Interpretation
Supremacy, direct effect and consistent interpretation
This domain tests the mechanisms that make EU law effective in national courts: primacy, direct effect, indirect effect and State liability. These are judge-made principles, now reflected in the Treaties and case law.
Core rules
- Primacy: Costa v ENEL. Simmenthal requires national courts to disapply conflicting national law, including later legislation, without waiting for constitutional amendment.
- Direct effect: Van Gend en Loos. Treaty provisions and regulations may be invoked if clear, precise and unconditional.
- Directives: vertical direct effect against the State or emanations of the State (Marshall); no horizontal direct effect against private parties (Faccini Dori).
- Consistent interpretation: Marleasing requires national law to be read in light of the directive's wording and purpose, but not contra legem or to impose criminal liability.
- State liability: Francovich and Brasserie du Pêcheur where a sufficiently serious breach causes loss.
Worked example
A private employer refuses paid leave required by a directive that the Member State has not transposed. The employee cannot rely directly on the directive against the private employer, because directives lack horizontal direct effect. The national court must first try consistent interpretation of national law. If that is impossible, the employee may claim damages from the Member State, provided the breach is sufficiently serious.
Traps
Do not treat directives as directly applicable regulations. Direct effect and primacy are distinct: a provision may be directly effective without displacing all national law. Consistent interpretation cannot create criminal liability or contradict clear national law. State liability does not require the directive to have direct effect.