Summary

Article 288 of the Treaty on the Functioning of the European Union stipulates that a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. When transposing directives, it is up to the national legislator to decide which legislation needs to be amended and which authorities need to be given the power to do so. Since the practice of transposing directives has been inconsistent and sometimes full of flaws in the Member States, the Court of Justice has developed a practice whereby directives may in certain situations have both a direct vertical effect and, in some narrow cases, also a de facto horizontal by-effect on legal relations between individuals.

The article analyses this case law to develop a complete approach to the topic and to support the development of a uniform practice in the Estonian legal space. The authors aim to provide the reader with a toolbox containing the necessary tools to deal with inconsistencies found between national legislation and a Union directive when implementing the legislation, whether the inconsistencies lie in matters of interpretation, in direct conflict with the directive or in a transposition gap. The main tools in this toolbox are the direct legal effect of a directive and interpretation in line with a directive, i.e., indirect legal effect. If neither can be used, one can look for whether the right arising from the directive also exists in the Treaty itself, and resolve the legal issue by directly applying the Treaty. If the suggestions above provide no solution, the incompatibility may result in a claim for damages against the Member State, arising directly from the substantive law of the European Union. However, this is a subject for a separate article and is not covered in detail here.