Towards Inverse Direct Effect? A Silent Development of a Core European Law Doctrine

• Published date: 01 April 2014
• Author: Hans H.B. Vedder,Lorenzo Squintani
• DOI: http://doi.org/10.1111/reel.12063
• Date: 01 April 2014

Case Note

Towards Inverse Direct Effect? A Silent

Development of a Core European Law Doctrine

Lorenzo Squintani and Hans H.B. Vedder

In Salzburger Flughafen, the Court of Justice of the

European Union extended the scope of the doctrine of

direct effect to include one branch of a State being able

to, without being asked to do so by a private party,

rely on a provision of a Directive to impose an obliga-

tion upon another private party. The scope of this

extension is difficult to determine due to the lack of the

Advocate General’s opinion, which could have clarified

the administrative structure existing in Austria for the

granting and legal review of environmental permits.

This case note argues that Salzburger Flughafen can

only be considered a positive development if it does not

mean that a State can rely on direct effect vis-à-vis an

individual. Therefore, this article pleads for a conser-

vative interpretation of the case under which adverse

repercussions on the rights of third parties, even if the

repercussions are certain, do not justify preventing a

Member State from relying on the provisions of a

Directive against another emanation of itself. In other

words, this case should be considered as an extension

of the side effects of direct effect, and not as a limita-

tion to the prohibition of ‘inverse vertical direct effect’.

INTRODUCTION

Under the Environmental Impact Assessment (EIA)

Directive,1public authorities are required to assess the

environmental impacts of a project before approving it.

In practice, undertakings perform an impact assess-

ment study that is submitted to the relevant public

authority together or immediately after the request for

development consent. Certain projects always have to

be subjected to an EIA. Other, by and large smaller,

projects must be subjected to an impact assessment

only if they constitute a serious threat to the environ-

ment. Whether such a threat exists is to be determined

by the Member States, which can set thresholds for

such projects. Given that such assessments are costly

and time-consuming, public authorities seeking to

develop the land and further economic progress have

an interest in minimizing the EIA obligations. One way

of doing so is by setting the threshold at a level where

certain projects are excluded from the scope of national

laws implementing the EIA Directive. As a result, there

have been myriad cases in which private parties have

sought to enforce the EIA Directive with a view to

ensuring that the EIA obligation would be applied.

Some of these cases have significantly contributed to

the development of the doctrine of direct effect.2

As is well known, the European legal order is autono-

mous.3This means that from the perspective of Euro-

pean Union (EU) law, the national legal doctrines of

monism and dualism do not affect the manner in which

European law generates effects in the legal orders of the

Member States. European law itself determines the

mechanisms to bind the Member States and their

nationals.4Direct effect is one of the mechanisms devel-

oped by the Court of Justice to ensure the full effective-

ness of European measures. In order to realize this full

effect, individuals may rely on EU law provisions that

are sufficiently precise and unconditional to challenge

the applicability of conflicting national law in a national

court of law. If the claim is well founded, direct effect

and supremacy determine the disapplication of the con-

flicting national rule and, if necessary, the application

of the Union measure at hand to resolve the case ad

quo. The direct effect doctrine applies generally to

primary and secondary law,5but in the context of direc-

tives, matters are a bit more complicated.

1Directive 2011/92/EU of 13 December 2011 on the Assessment of

the Effects of Certain Public and Private Projects on the Environment,

[2012] OJ L26/1.

2On direct effect, see, in particular, ECJ, Case C-72/95, P.K.

Kraaijeveld BV e.a. v. Gedeputeerde Staten van Zuid-Holland, [1996]

ECR I-5403; ECJ, Case C-127/02, Landelijke Vereniging tot Behoud

van de Waddenzee, Nederlandse Vereniging tot Bescherming van

Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij,

[2004] ECR I-7405.

3ECJ, Case 26/62, Van Gend & Loos, [1963] ECR 1.

4ECJ, Case 6/64, Costa v. ENEL, [1964] ECR 585.

5However, for Article 34 of the Treaty on the Functioning of the

European Union, [2010] OJ C83/47 (‘TFEU’), the question whether it

can be relied upon between two individuals is still open. See ECJ,

Case C-171/11, Fra.bo SpA v. Deutsche Vereinigung des Gas- und

Wasserfaches eV (DVGW) – Technisch-Wissenschaftlicher Verein,

[2012] not yet reported.

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Review of European Community & International Environmental Law

RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12063

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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