When European Instances apply National Rules transposing Directives: the Direct Effect in an Atypical Situation

Abstract

The process of European convergence involves Union institutions and bodies occasionally applying national rules that transpose directives. This updating of the role of the EU framework has raised certain problems of articulation, which, in particular, concern the possible direct effect of the provisions contained in the transposed directives. Despite significant shortcomings, adopting a functional and goal-oriented interpretation would extend the doctrine of the direct effect of directives to the institutions and bodies of the Union, in order to prevent asymmetries and perverse incentives. However, it would be desirable for the EU legislator to explicitly clarify how to approach the most contentious issues, strengthening legal certainty and reducing reliance on interpretations that may stem from disputes before the Court of Justice.