Direct Effect and Indirect Effect of EU Law in UK Courts

Running head: INTERNATONAL LAW
International Law
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1INTERNATONAL LAW
Part A
A UK court is required to determine whether the legal provisions of EU law have direct
effect. If it has a direct effect, it can be relied upon directly by or against the party, thus,
prevailing over any inconsistent national law. In the given case scenario, the European
Parliament created Directive Non 2015/224 that required the Member states to undertake
reasonable measures for accommodating minors seeking for asylums. UK being a member state
was supposed to bring the directive into force within 1 October 2017.
In order to implement this directive, the UK passed a new statutory instrument SI
57/2017. Here, as per the EU law, ‘minor’ refers to every human being below the age of 18
years and an ‘unaccompanied minor’ is a person under 18 years old and is separated from both
parents. On the contrary, under the SI passed by UK, minors under 14 years are entitled to
additional safeguards such as they shall not be detained and placed into adult facilities, should be
entitled to guardianship and should be reunited with their families.
The issue that arises under the given scenario is whether the directive issued by the EU
law is binding upon UK. On the facts here, Rina being 15 years old has been seeing asylum in
UK and has been identified as unaccompanied minor who has been brought to an adult facility.
Despite the definition provided under the EU directive that any person below 18 is a minor who
is entitled to additional safeguards as per UK SI, the UK Home Office have rejected such
requests. Rina has been denied the additional safeguards on the ground that she is not below 14
and as per the UK SI, children below 14 only are entitled to guardianship and are not held in
adult facilities.
Direct Effect of EU law

2INTERNATONAL LAW
As mentioned earlier, if a relevant piece of EU law has direct effect it will override any
national law that is inconsistent with the national law. However, a piece of EU Law has a direct
effect if such law is:
 clear and precise; does not give the member states any substantial discretion; or unconditional;
The UK courts are entitled to seek for guidance before the European Court of Justice (ECJ)
in the event of any issue pertaining to EU Laws. The Citizens of the Member States may also
rely on the EU law under circumstances where the national law contradicts with the EU law.
Now, Directives are not enforceable in member states directly but have a binding effect after
they are enforced by the member states. The member states are provided with instructions and a
stipulated period within which such EU Directives are to be implemented. However, the method
in which member states can implement the Directives is upon the states as this way, EU law shall
be in harmonization with the EU Law. In Pubblico Ministero v Ratti [1979]1, it was held that a
Directive had a direct effect and shall be implemented after the expiry date of implementation.
Although Directives were not originally considered to be binding before the member states
implemented them, however, the emergence of the doctrine of direct effect by the CJEU has
developed the direct binding effect of the directives on the individuals of the Member states. The
directives shall be directly enforceable upon the individuals under circumstances where such
directives have been badly implemented or have not been implemented within the stipulated
time. The direct effect of the EU directives has been established in the landmark case decided by
1Pubblico Ministero v Ratti [1979] Case 148/78

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the European Court of Justice (CJEU) in Van Gend en Loos v Nederlandse Administratie der
Belastingen [1963]; [1970]2. In Defrenne bv Sabena [1974]3, CJEU decided there were two
types of direct effect:
Vertical direct effect- this is concerned about the relationship between national law and EU law
in particular, an obligation of a state to ensure that the national laws complies with and are
consistent with the EU laws.
Horizontal direct effect- this deals with the relationship between the citizens and in particular,
the ability of the citizen to enforce some of the EU legal provisions in any legal proceeding
brought against another citizen.
Directives issued by the EU law are usually horizontally directly effective as was mentioned
in the CJEU case of M.H. Marshall v Southampton & South-West Hampshire Area Health
Authority4. Further, in another CJEU case Van Duyn v Home Office [1975]5 it was established
that directives are not effective horizontally.
In order for national courts to implement EU Law, it is important that the legal provisions of
EU law be construed in a manner it achieves the desired result and is not inconsistent with EU
law. The national courts are entitled to seek guidance from the European Court of Justice so
that it provides a ruling with respect to the fact if the secondary legislation is valid. The doctrine
of ‘direct effect’ is perceived as a judicial development of the European Court of Justice. This
doctrine is fundamental as it ensures enforcement and application of EU Law in the national
2 Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1[1970] CMLR 1
3 Defrenne bv Sabena (Case 2/74) [1974] ECR 631
4 M.H. Marshall v Southampton & South-West Hampshire Area Health Authority (Case 152/84)
5 Van Duyn v Home Office (C-41/74) [1975] Ch.358