EU directives are a powerful and flexible legal instrument not only in the hands of individuals, but also in the hands of the national administrative authorities of the Member States. Until recently, they were exclusively perceived as an effective legal instrument, available to individuals, enabling them to exercise their rights against a defaulting Member State. This perspective has been the main subject of lengthy doctrinal debates and legal analysis. On the contrary, my research (La directive européenne, instrument juridique des autorités administratives nationales, Collection droit de l’Union européenne – Thèses, Bruylant, 2021, 740 p.) examines EU directives from another perspective: the invocation and the application of EU directives, which are not transposed or are transposed incorrectly, by national administrative authorities. French case law provides useful examples in this regard.

Admittedly, the use of the directives as an instrument invoked and applied by national administrative authorities shares some common points with their use by individuals or private entities. However, the administration also pursues aims other than those governing the enforceability of directives against a defaulting Member State.

• Exploring direct and indirect forms of invocability of EU directives by national administrative authorities

Firstly, a directive can be used as a legal instrument by national administrative authorities in litigation against private individuals, but also against other national administrative authorities.

It follows from European and French case law that the administration does not have the right to rely on the provisions of a directive that has not been transposed, or has been transposed incorrectly, and they cannot impose obligations, which derive directly from the directive and not from national law, on individuals (Ratti (148/78); EU:C:1979:110; [1979] at [22]). Nevertheless, the enforceability of EU directives in vertical disputes has not been totally ruled out.

Based on the principle of primacy, French case law accepts that the administration relies on the objectives pursued by a directive so as to disapply national law (CE, 24 février 1999, Association de patients de la médecine d’orientation anthroposophique e.a., req. n° 195354, Rec. Leb., p. 29 ; CE Ass., 30 juin 2000, Association « Choisir la Vie » e.a., req. nos 216130, 218208, 218209, 218244, 218266, 218267, 218268, 218269, 218270, Rec. Leb., p. 248), which means that an administrative authority may question, before national courts, the compatibility of national measures, even of a legislative act, with the directive. The administration can also rely on a directive with the view of interpreting national law (legislative or administrative acts) in light of the wording and the purpose of the directive (Von Colson and Kamann (14/83); EU:C:1984:153; [1984] at [23-25]; Kolpinghuis Nijmegen (80/86); EU:C:1987:431; [1987] at [12]. CE Ass., 22 décembre 1989, Cercle militaire mixte de la caserne Mortier, req. n° 86113, Rec. Leb., p. 260). These forms of invocability are subject to a number of limitations, such as the prohibition of interpretation of national law contra legem, resulting from the general principles of law and in particular the principles of legal certainty and non-retroactivity (See, for exemple, Kolpinghuis Nijmegen (80/86); EU:C:1987:431; [1987] at [13]; Pupino (C‑105/03); EU:C:2005:386; [2005] at [47]). Consequently, directives can be an instrument for interpreting national law in force, as well as for assessing the compatibility of national law with the directive, which can lead to the immediate disapplication of conflicting national legislation. The power to rely on a directive that has not been transposed, for the purposes of consistent interpretation and disapplication of a conflicting national rule, transforms the administration into a guardian of the European legality/rule of law.

Secondly, the EU directive can be used as an instrument to defend the legality of administrative acts issued by administrative authorities that do not necessarily comply with the existing legal framework.  In this case, the administration chooses to comply with the purposes of the directive and not with the incompatible law or administrative act serving as their legal basis.

Thirdly, relying on a directive allows administrative authorities, at least in the French legal order, to justify the extension of their regulatory power beyond what is permitted under the strict separation of powers provided by the French Constitution. In this respect, it can be observed that the conflict between national rules and an EU directive leads the administration to refrain from implementing a law – or a regulation – that contradicts the provisions of the directive.

Finally, EU directives can potentially become an instrument of mutual control between administrative authorities regarding the respect of the EU legal order (CE Sect., 8 décembre 2000, Commune de Breil-sur-Roya, req. n° 204756, Rec. Leb., p. 581). Thus, they may be invoked to block the application of unlawful administrative acts (contrary to a directive), irrespective of the authority’s power to transpose directives or adopt implementing measures.

These last two aspects push towards an ex post operation of bringing national law into line with the directive before any action is taken by the legislator. Such an approach defended by the administration is likely to eliminate the risk of Member State liability for a breach of the directive committed by the administrative authorities.

• Exploring the obligations of national administrative authorities to apply EU directives

In this research, it was necessary to address the other facet of the power to rely on a directive : the obligation of the administration to apply a directive that has not been transposed. This can be explained by the Court’s findings in the case Fratelli Costanzo, where it was stated that “the reason for which an individual may […] rely on the provisions of a directive in proceedings before the national courts is that the obligations arising under those provisions are binding upon all the authorities of the Member States” (Costanzo (103/88), EU:C:1989:256; [1989] at [30]). More precisely, consideration should be given to the circumstances under which the administration may or must apply such a directive, as well as the purpose of this obligation.

In this respect, the directive should be perceived as a legal instrument, which generates an obligation for all organs of the administration, including decentralized authorities, such as municipalities, to apply the provisions of the directive that have direct effect and to refrain from applying contradictory provisions of national law. In the presence of a conflict of rules, the principle of primacy applies to administrative action. This principle imposes an obligation on any national body entrusted with enforcing EU law in a particular area to disapply national legislation, regulation or case law that conflicts with EU law (Costanzo (103/88), EU:C:1989:256; [1989] at [31]; Minister for Justice and Equality and Commissioner of An Garda Síochána (C‑378/17), EU:C:2018:979; [2018] at [50]). Finally, the competent authorities called on to apply and interpret the relevant national law must also comply with another important obligation. They have to interpret national law, as far as possible, in the light of the wording and the purpose of the directives so as to achieve the result pursued by them (Henkel (C‑218/01), EU:C:2004:88; [2004] at [60]; Kofoed (C‑321/05), EU:C:2007:408 ; [2007] at [45]).

Since directives are a source of obligations and a parameter for the legality of acts issued by public and private entities involved in administrative action, compliance with these obligations gives rise to a rearrangement of the constitutional balance between the legislative and executive powers and becomes the source of regulatory autonomy of national administrative authorities. This means that, even if administrative bodies have no legislative power that allows them to transpose a directive, the case law of the Court of justice of the EU imposes a certain shift in their powers. In case of a violation of a directive (lack of transposition, incorrect or incomplete transposition of a provision, incorrect application in an individual case), all administrative authorities should ensure the full effectiveness of directives by assessing the legality of national legislative and regulatory measures, neutralising incompatible acts and adopting measures when they have competence to do so. The fulfilment of this obligation expresses the intention to defend the respect for the EU rule of law.

This study demonstrates that the obligations of national administrative authorities do not end with the transposition of a directive into national law. Following a top-down approach, all legal entities, created under public or private law, entrusted with administrative powers and acting within the scope of application of a directive, are obliged to use, under certain conditions, all legal means in order to bring into line national rules (regulatory or individual administrative acts) with the requirements of a directive. An ex ante approach would require to adapt their administrative acts to directives that have not been transposed, while an ex post approach would lead them to compensate for the failure of the central State. By imposing such obligations on any national administrative authority, it strengthens and enhances its position and functions within the national legal system, strengthening particularly the administration’s position vis-à-vis the other national authorities in the implementation of directives. Following a bottom-up approach, the directive has also become a source of inspiration for national authorities when adopting national rules.

Admitting the intrumentalisation of EU directives for very specific purposes should be subject to some limits. In this respect, it should be noted that the directive does not constitute a basis of the competence of administrative authorities to adopt positive measures, where national law does not provide a valid legal basis for doing so. National courts play a decisive role in reviewing the use of EU directives as a legal instrument. It is up to them to verify the conditions under which an administrative body can rely on a directive or apply a directive, as well as to block any attempts of abusive invocation and application of directives aiming, in particular, at imposing on individuals non-transposed obligations or attempts to circumvent national rules regarding the constitutional division of powers.

Posted by Stamatina XEFTERI.

Stamatina XEFTERI holds a PhD in EU law from the University Paris Panthéon-Assas (Paris II) and works as a legal administrator in the Research and Documentation Directorate of the Court of Justice of the European Union. Her PhD research on EU directives was published in 2021 by Bruylant under the title « La directive européenne, instrument juridique des autorités administratives nationales » (Collection droit de l’Union européenne – Thèses, Bruylant, 2021, 740 p.).