Handbuch des Verwaltungsrechts. Группа авторов

of EU law. Whether or not a certain EU provision has direct effect depends on the type of legal act and its particular content. In a nutshell, in order for a provision to have direct effect in relation to the state (vertical direct effect) or other individuals (horizontal direct effect), it has to be sufficiently clear, precise, and unconditional (par. 9 et seq.). 5. The provisions of directives may only have direct effect if the implementation period the Member State had for transposing the directive into the national legal order has passed and an individual invokes a provision to defend her rights against a Member State. In general, a provision in a directive cannot have direct effect between individuals (no horizontal direct effect) (par. 15 et seq.). 6. The primacy of EU law represents the key concept for resolving conflicts between EU law and national law. In the ECJ’s view, the primacy of EU law is absolute and justified by the need for an effective and equal implementation of EU law. By contrast, German doctrine and jurisprudence focus on the national constitutional mandate (Art. 23 of the German Basic Law), which grants the primacy of EU law within the limits of the current constitutional order (par. 18 and par. 28 et seq.). 7. Concerning the primacy of EU law, the German Basic Law includes key reservations that pertain to the warranty of the protection of fundamental rights, the unalterable core of national identity laid down in Art. 79 (3), and the principle of the conferral of powers (no Kompetenz-Kompetenz). The German Federal Constitutional Court reserves the right to review these limits, including whether the EU goes beyond the powers conferred upon it (acting ultra vires) (par. 32, par. 35 et seqq.). 8. A national provision that is contrary to EU law has to be set aside only if it is impossible to interpret it in accordance with EU law (par. 48). 9. The primacy of EU law does not affect the validity of conflicting national law in the Member States. The national law that is contrary to EU law is rendered inapplicable to the extent required by the regulatory content of EU law (par. 50 et seq.). 10. Τhe binding effect of administrative acts and the principle of res judicata can be overturned only in exceptional cases, since legal certainty constitutes a general principle of EU law (par. 54 et seq.). 11. A national provision that is contrary to EU law can be applied only exceptionally, due to imperative reasons of overriding public interest (par. 57). 12. National courts are obligated to interpret domestic law in accordance with EU law as far as possible. Otherwise, they are both authorised and obligated to leave any domestic provisions unapplied which are in breach of EU law (par. 59). 13. The administrative bodies must not apply any domestic provisions contrary to EU law if the infringement is evident. It is worth considering the introduction of a right to refer a question to the ECJ based on the model of Art. 267 TFEU (par. 60 et seqq.). 14. The principles of applicability, direct effect, and primacy of EU law provide for an efficient enforcement mechanism of EU law in the legal systems of the Member States. These principles are therefore crucial parts of a European Rechtsgemeinschaft, a community based on law, which has recently been exposed to manifest risks (par. 65).