Primauté, vous avez dit primauté ? Sur l’invocabilité des directives dans les litiges entre particuliers

The problem of the utility of Directives in a dispute between individuals is not a new one. Far from being an exercise for Academics, it is at the centre of concrete dis- putes. Admittedly, the Court had already addressed the issue in the past. However, several recent references for a preliminary ruling gave the opportunity to the Court to establish a clearer methodology for the national Court.
In a dispute between individuals, the national court has no other option than to try to interpret national law in a manner consistent with the applicable Directive when this one has not been transposed or has been incorrectly transposed. If the inter- pretation in conformity is contrary to a general principle of law or contra legem, the obligation to set aside the contrary national norm will only be likely to apply if the provision of the Directive in question can be associated with a general prin- ciple or a fundamental right of Union law. On the other hand, the question wheth- er the obligation to disapply national legislation contrary to a directive is subject to the direct effect of the provision at issue remains open.