This chapter considers the circumstances when EU law provisions can be invoked in national courts. The doctrine of direct effect enables an EU law provision to be invoked in a national court when it grants entitlements to individual parties in a sufficiently precise way. Directly effective provisions of the EU Treaties and Regulations can be invoked against both the State and private actors. By contrast, directly effective provisions of Directives can only be invoked against the State. The doctrine of indirect effects requires any national law or procedure to be interpreted so far as possible to comply with all EU law. However, this cannot be done if the interpretation would contradict the wording of the national law or aggravate criminal liability. The doctrine of State liability allows individuals to sue the State for damages for breach of an EU law which grants them individual rights in a number of circumstances: if the State has failed to transpose a Directive, it has not complied with an order of the Court of Justice, it has failed to follow settled case law of that court or it breaches a clear provision of EU law.

The author presents the constitutional model of State responsibility in Central Europe as exemplified by four legal systems: the Czechia, Hungary, Poland and Slovakia. In all of them, the legal rule providing for the reparation of damage caused by public authorities takes the shape of a subjective constitutional right which requires implementation in ordinary legislation. The very generous system of the Polish Constitution led to some limitations and qualifications of the broad constitutional right by the case law. In Hungary, a similarly broadly phrased constitutional right coexists with quite restrictive legislative provisions and a case law which tends to go slowly and cautiously beyond the letter of the ordinary legislation. In the Czech Republic and Slovakia, the drafters of the Constitutions were much more cautious and the precise content of the constitutional right is specified in ordinary legislation. State responsibility mechanisms at the domestic level have proven quite effective to compensate material damage. The greatest remaining challenge is compensation of moral damage.

Is there any point in a body of law providing rights that cannot be accessed by individuals? If a prohibition needs a procedure to make it effective in practice, this was the job for which direct effect was originally introduced. This chapter will consider the application of direct effect to primary and secondary Union law. It will only explore binding EU law – it was clearly stated in Grimaldi that recommendations and opinions could not have direct effect as they are not binding. This prevented Mr Grimaldi from relying upon two Commission recommendations which dealt with occupational diseases. Although the recommendations recognised his particular malady, the Belgian Occupational Diseases Fund did not, with the consequence that he was unable to receive compensation. The recommendations were deemed to be clear, unconditional and precise, but it is clear from the wording in Article 288 TFEU that these are not binding. The CJ therefore decided that the recommendations did not create rights upon which individuals may rely before a national court.

Chapter 5 addresses the role of the foundational principles of EU law – primacy, direct effect, consistent interpretation and state liability – in ensuring the proper functioning of the internal market. The EU-specific principles are compared with their equivalents in public international law and in the EEA, the Energy Community, the ECAA and the Transport Community legal orders. The analysis helps to determine the implications of a possible absence of the supranational principles in the agreements exporting the acquis on the effectiveness of the acquis transferred to third countries by means of agreements operating under public international law.