Direct Applicability v. Direct Effect

Question

Is there any contradiction or incongruity between these two books' definitions? I don't grasp them, but the boldened phrases look contradictory.

EU Law Concentrate (2018 6 edn). 7 edn will be published in 2020. p 29.

Distinguishing ‘direct applicability’ and ‘direct effect’

Directly applicable (or ‘self-executing’) provisions of EU law are part of national law and automatically binding, without further enactment. Regulations are directly applicable and of general application (Article 288 TFEU). They are automatically incorporated into the national legal order. Similarly, Treaty provisions are directly applicable. Their national validity was established through ratification of the Treaties. By contrast, directives are not directly applicable, since they require implementation into national law.
        If a provision of EU law has direct effect, individuals (natural persons and businesses) can enforce it in the national court.
        Directly applicable EU law is not necessarily directly effective, but provisions that are not directly applicable (ie provisions of directives) are capable of direct effect. Whilst any provision of EU law is capable of direct effect, this is not automatic. Direct effect is subject to the conditions laid down by the Court of Justice. Confusingly in the past, ‘directly applicable’ has been used by some UK courts and the Court of Justice to mean ‘directly effective’, though this now occurs less frequently. This chapter uses the current generally accepted convention, using ‘directly effective’ to mean EU law which is directly enforceable by individuals in national courts.

Robert Schütze. European Union Law 2 ed 2018. p 79.

        Importantly, all European law is directly applicable law,11 and the European Union would therefore be able to itself determine the effect and nature of all European law within the national legal orders. The direct applicability of European law indeed allowed the Union centrally to develop two foundational doctrines of the European legal order: the doctrine of direct effect and the doctrine of supremacy. The present chapter deals with the doctrine of direct effect; Chapter 4 deals with the doctrine of supremacy.
        What is the doctrine of direct effect? It is vital to understand that the Court’s decision in favour of a monistic relationship between the European and the national legal orders did not mean that all European law would be directly effective, that is: enforceable by national courts or the national executive (see Figure 3.2). To be enforceable, a norm must be ‘justiciable’, that is: it must be capable of being applied by a public authority in a specific case.12 But not all legal norms

p 80.

have this quality. For example, where a European norm requires Member States to establish a public fund to guarantee unpaid wages for insolvent private companies, yet leaves a wide margin of discretion to the Member States on how to achieve that end, this norm is not intended to have direct effects in a specific situation. While it binds the national legislator, the norm is not self-executing. The concept of direct applicability is thus wider than the concept of direct effect. Whereas the former refers to the internal effect of a European norm within national legal orders, the latter refers to the individual effect of a norm in specific cases.¹³ Direct effect requires direct applicability, but not the other way around. However, the direct applicability of a norm only makes its direct effect possible.

¹³ In this sense direct applicability is a ‘federal’ question as it relates to the effect of a ‘foreign’ norm in a domestic legal system, whereas direct effect is a ‘separation-of- powers’ question as it relates to the issue whether a norm is addressed to the legislature or the executive and judiciary.

Answer 1

I'm not an expert on the EU by any means, but this seems to be an expression of the natural distribution of powers within any system of federated states.

• 'Directly applicable' means that a rule passed by the EU automatically becomes part of the legal structure of the individual member states: for instance, the EU might make the rule: "EU citizens can move freely across borders", and then no member state could pass or enforce laws restricting the movement of any other member state's citizens.
• 'Direct affect' means that individuals and businesses can go directly to EU courts, bypassing the member states' court systems. Thus, if the EU has a rule prohibiting interference in interstate commerce, and state X does something that interferes with business 'A', 'A' doesn't need to sue 'X' in the court system of 'X', but can sue directly in EU courts.

Laws that are not directly applicable are closer to resolutions or guidelines. The EU says it wants certain conditions to occur, but leaves the actual creation and implementation of the laws to the member states. E.g., the EU might pass a rule that each member state's carbon emissions should be reduce by 10%, but then each state would have to pass it's own regulatory laws to achieve that goal. Rules that do not have direct effect mean that lawsuits must proceed up through the court systems of a member state before they can be brought before an EU court.

'Direct' and 'indirect' in this context seem to refer to whether the EU has direct involvement in the implementation and execution of a law, or whether its involvement is indirect, requiring implementation and action by the legislative and judiciary branches of the member states.