Introduction

The whole of EC law (as it then was) was received into English law by s. 2(1) and (4) of the European Communities Act 1972. However, in order to understand this statement fully, we must investigate two doctrines of what is now EU law that have no equivalents in English law, namely direct applicability and direct effect.

Direct applicability

A provision of EU law is said to be directly applicable if it becomes part of the law of member states automatically; or, in other words, without any action on the part of member states.

Direct effect

A provision of EU law is said to be directly effective if, and only if, it creates rights which are enforceable in the courts of a member state at the instance of people who are aggrieved by breaches of the provision.

Most people’s immediate reaction when they first encounter the distinction between direct applicability and direct effect is one of puzzlement. How can a provision of EU law enter the legal systems of member states without also creating rights which are enforceable in the courts of those states? After all, is it not one of the prime functions of courts to enforce all the law in all cases? Understandable though this puzzlement is, in reality it flows from not thinking the topic through with sufficient rigour.

Even if we limit ourselves entirely to the English legal system, many laws do not give rise to rights that are enforceable in the courts. For example, I have the power (or capacity) to enter into contracts, such as a contract to buy a book. However, if I choose to exercise that power by buying a book written by author A rather than a competing title written by author B, nobody can argue that I have infringed the rights of author B.