Implementation of European Union Law in the National Court of the Member State: Limits of the Doctrine of Indirect Effect of the Directives

Although the function of implementation of EU law primarily falls within the competence of the legislator, a significant role in this process is attributed to national courts, capable to “cure the mistakes” made by the legislator. A national court of a Member State is the court of the EU entrusted with the power to apply EU law and by the same token responsible for the effectiveness of EU law in the judicial system of the Member State. This is where the doctrine of indirect effect of EU directives is of great use. Directive is a unique creature of the EU law, obliging the Member States to attain the objectives set by the directive. This particularity usually brings up into surface various connotations concerning proper fulfillment of the objectives set by the directive, in particular when a directive is possibly misimplemented. In such cases, the effectiveness of the rights granted by the directive may be attained with the helping hand of the doctrine of indirect effect of the directives. In a nut-shell, this doctrine obliges a national judge to interpret relevant national laws in conformity with the objectives of the directive at stake. However, the exact scope of this imposition on the national judge remains somehow foggy, in particular when interests of vis-a-vis private parties concerning rights granted by the directive come into play. In addressing this problem, the author analyses relevant ECJ case-law, practice of Lithuanian courts and doctrine with a view to give guidelines on how to use the tools granted by the indirect effectiveness of the directives. The author suggests that justices shall firstly determine if the rights or obligations at stake fall within the scope of EU law; secondly, if national laws implement EU law; thirdly, if such implementation is proper or not. In the latest phase, judges shall employ the tools granted by the doctrine and apply national laws in compliance with a particular directive. However, in such a case, the judges shall stop shortly before possible violation of the general principles of law, such as legal certainty, lex retro non agit, etc. is committed; e.g. in cases where application of the doctrine would lead to interpretation of national laws contra legem. Regardless of structural simplicity of this concept and substantial case-law on the issue, it seems that the doctrine of the ECJ on the matter is far from being finally settled. In Mangold and Kucukdeveci cases, the ECJ was reluctant to declare irrelevance of indirect effect of the directive by giving green light to application of principle of non-discrimination on grounds of age as given expression by the directive in the dispute vis-a-vis private parties. Though it is rather early to say that the notion of indirect effect was given a new shape, it looks like the ECJ, by “closing the door to direct effect of directives between private parties, leaves the window open”.