Directives implementation by the Member States and the principle of an indirect effect

Each Directive contains a deadline by which EU countries must incorporate its provisions into their national legislation and inform the Commission to that effect.


A directive is a measure of general application that is binding as to the result to be achieved, but that leaves member states discretion as to how to achieve the result. Directives usually contain a deadline by which EU member states must implement it into national law.


A directive directly affects when its provisions are unconditional and sufficiently clear and precise and when the EU country has not transposed the Directive by the deadline.


This historical case law helped to create the principle of indirect effect. Due to this case, the EU Member States started to be obligated to provide a legal remedy to affect the principle of equal treatment following the Equal Treatment Directive. 


The European Court of Justice established that national courts are required to interpret their national law in the light of the wording and the purpose of the Directive, in order to achieve the result, referred to in the third paragraph of Article 189 of the EEC Treaty, what means that EU Member States are obliged to interpret their existing national laws in a way which will give effect to EU directives.

Case law summary

The Arbeitsgericht (Labour Court) Hamm referred to the European Court of Justice for a preliminary ruling several questions on the interpretation of Council Directive no 76/207/EEC, to establish whether Directive no 76/207 requires the Member States to lay down legal consequences or specific sanctions in the event of discrimination regarding access to employment and whether individuals may where appropriate, rely on the provisions of the Directive before the National Courts where the Directive has not been transposed into the national legal order within the periods prescribed. 


Those questions were raised in the course of proceedings between two qualified social workers, Sabine von Colson and Elisabeth Kamann, who applied to work in men’s prisons administered by the Land Nordrhein-Westfalen, but they were rejected on the basis they were women.


Germany had no practical transposition of this Directive, but they understood that under the third paragraph of Article 189 of the EEC Treaty, each Member State has a margin of discretion regarding the legal consequences that must result from a breach of the principle of equal treatment. So, German law restricted the right to compensation for Sabine and Elisabeth.


The ECJ decided in response to the questions that even if a full implementation of the Directive does not require any specific form of sanction for unlawful discrimination, it does entail that that sanction is to guarantee proper and adequate judicial protection. The Directive does not include any unconditional and sufficiently precise obligation which, in the absence of implementing measures adopted within the prescribed time-limits, may be relied on by an individual to obtain specific compensation under the Directive, where that is not provided for or permitted under national law.


The ECJ clarified that this Directive requires that if a Member State chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must, in any event, be adequate about the damage sustained and must therefore amount to more than purely nominal compensation.


The European Court of Justice established that national courts are required to interpret their national law in the light of the wording, and the purpose of the Directive to achieve the result referred to in the third paragraph of Article 189 of the EEC Treaty.


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