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Eleonora Rosati, CJEU rules on vertical direct effect of InfoSoc Directive and allows national courts to disapply incorrect national transpositions, Journal of Intellectual Property Law & Practice, Volume 20, Issue 3, March 2025, Pages 131–133, https://doi.org/10.1093/jiplp/jpaf001
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Legal context
A key principle of EU law is that of direct effect. The now CJEU recognized it for the first time in the landmark 1963 judgment in Van Gend en Loos (Case 26–62, EU:C:1963:1).
Insofar as EU directives are concerned, the dominant view is that they do not produce any horizontal direct effect. This means that they cannot be relied upon in private-party proceedings and do not impose obligations on individuals. Nevertheless, EU directives may produce—at certain conditions—a vertical direct effect. In cases in which EU law imposes upon Member States ‘the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of [EU] law’ (van Duyn, Case 41–74, EU:C:1974:133, para 12).
All this means that, when a provision in an EU directive imposes on EU Member States, in unequivocal terms, well-defined obligations as to the result to be achieved that is not coupled with any condition regarding the application of the rule laid down in them, then that provision may be directly relied upon before the courts of a Member State that has failed to implement it correctly or even altogether. But how does vertical direct effect play out in the intellectual property context, especially in a field—that of copyright—in which Member States’ laws have been harmonized mostly through directives?
