Horizontal Direct Effect of Directives
1. Introduction:
What is direct effect?
Direct effect = a principle of EU law whereby individuals are able to invoke a
European provision before a national or European court.
The extent of this direct effect depends on the type of provision
adopted by the EU, distinguished by Article 288 TFEU.
According to such Article, a directive shall be binding, as to the
result to be achieved, “upon each Member State to which it is
addressed but shall leave to the national authorities the choice of
form and method.”
What does the case law tell us?
As the case law of the Court of Justice (CJEU) states, while directives are
found to have vertical direct effect, allowing individuals to bring claims
against the state, subject to certain conditions (C-41/74 Van Duyn), the Court
has been clear in prohibiting horizontal direct effect and individuals from
bringing claims against other private individuals, outside of state bodies (C-
152/84 Marshall).
BUT – this essay will show that such ruling has consequently given rise to a highly
complex and incoherent area of law, due to the existence of the doctrines of indirect
and incidental direct effect which seem to be merely an indirect or “back door”
application of horizontal direct effect, thereby appearing to be wholly arbitrary.
ALSO – this complexity = wholly unnecessary.
The results obtained through the use of these latter two doctrines appear to be
little different to the result that would have been achieved had horizontal
direct effect of directives been permitted.
What’s more, as Craig points out, the justifications put forward for
prohibiting horizontal direct effect (textual argument and legal
certainty) are all vulnerable to strong criticism and the consequences
are arguably heightened under the current regime, leading us to
question the existence of the prohibition in the first place.
2. The Current Legal Position:
The question of direct effect in relation to directives was first answered in C-41/74
Van Duyn which concerned an applicant who wished to enter the UK to take up
employment with the Church of Scientology.
Applicant argued, inter alia, that she could rely on a Directive which stated
that any “measures taken on grounds of public policy or public security shall
be based exclusively on the personal conduct of the individual concerned.”
Although the CJEU found that direct effect was not applicable in this case,
due to the need for further legislation by a national government, the Court did
take the opportunity to set the foundations for recognising directives to have
direct effect.
Following the lines of the judgement in C-26/62 Van Gend en Loos,
the Court stated that, in order to have direct effect, the directive must
be clear, precise, and unconditional in its wording and must not be
dependent on further legislation by the Member State.
BUT – the scope of reliance on directives before national courts was significantly
limited in C-152/84 Marshall.
Applicant in this case was dismissed from her job upon reaching the then
pensionable age for women of 62 (compared to 65 for men) which she argued
was contrary to the Equal Treatment Directive.
CJEU concluded that the scope of direct effect of directives was
limited by the fact that under Article 288 TFEU, it is only binding
, upon those to whom it is addressed (MS) and consequently, as
confirmed in C-91/92 Faccini Dori, a directive cannot of itself
impose obligations on an individual and cannot therefore be relied
upon as such against an individual.
The justifications relied upon by the Court in reaching such decision will be
returned to later in the essay.
The current legal position can thus be summarised as follows: while directives have vertical direct
effect and can therefore be enforced against the state, they cannot be enforced against
individuals/private bodies and therefore lack horizontal direct effect.
While such statement of the law seems straightforward at first glance, such ruling has, in fact,
given rise to complex and incoherent case law.
As mentioned at the start of this essay, this is due to the development of the doctrines of
indirect and incidental direct effect.
3. Indirect Effect:
The doctrine of indirect effect was first established in C-14/83 Von Colson by which
national courts are able (or even required) to interpret the wording of national laws to
be compatible with directives.
Such doctrine was further developed in cases such as C-456/98 Centrosteel
and C-397/01 to C-403/01 Pfeiffer whereby it was, respectively, held that
such doctrine applies to domestic law that both predates and postdates the
relevant Directive and that it does not merely involve an interpretation of
those provisions enacted to implement a Directive but rather requires the
national court to “consider national law as a whole in order to assess to what
extent it may be applied so as not to produce a result contrary to that sought
by the Directive.”
The result is the same:
While such rule is argued merely to “fill the gaps” of the inability of EU directives to
have horizontal direct effect, as Craig aptly points out, the practical effect will often
be the same as if horizontal direct effect of directives had been permitted in the first
place.
In both scenarios, the private party’s obligations are determined in substance
by the Directive, the only difference being that the immediate source of those
obligations is in conceptual terms national law rather than the Directive, an
outcome which clearly “smacks of formalism” (Craig).
Applying to the facts of Von Colson itself, whether the CJEU required the German
national court to enforce the Equal Treatment Directive directly against the private
party, or it was required to interpret the law in line with it, the law which denied the
claimants’ work application on the basis of their gender would have been declared
invalid.
The outcome is the same.
4. Incidental Direct Effect:
A similar story is present with regard to the development of incidental direct effect,
first enunciated in C-194/94 CIA Security.
The effect of such doctrine is that, while the directive does not directly
provide enforceable rights against individuals, it does have an impact upon
horizontal relationships with regard to which the law is applied.
In other words, an individual, through evoking their rights under an
unimplemented directive against the state, indirectly affects a third
party.
The result is the same:
One can appreciate the effect of such doctrine by looking at the outcome of the case
C-443/98 Unilever Italia v Central Food.
1. Introduction:
What is direct effect?
Direct effect = a principle of EU law whereby individuals are able to invoke a
European provision before a national or European court.
The extent of this direct effect depends on the type of provision
adopted by the EU, distinguished by Article 288 TFEU.
According to such Article, a directive shall be binding, as to the
result to be achieved, “upon each Member State to which it is
addressed but shall leave to the national authorities the choice of
form and method.”
What does the case law tell us?
As the case law of the Court of Justice (CJEU) states, while directives are
found to have vertical direct effect, allowing individuals to bring claims
against the state, subject to certain conditions (C-41/74 Van Duyn), the Court
has been clear in prohibiting horizontal direct effect and individuals from
bringing claims against other private individuals, outside of state bodies (C-
152/84 Marshall).
BUT – this essay will show that such ruling has consequently given rise to a highly
complex and incoherent area of law, due to the existence of the doctrines of indirect
and incidental direct effect which seem to be merely an indirect or “back door”
application of horizontal direct effect, thereby appearing to be wholly arbitrary.
ALSO – this complexity = wholly unnecessary.
The results obtained through the use of these latter two doctrines appear to be
little different to the result that would have been achieved had horizontal
direct effect of directives been permitted.
What’s more, as Craig points out, the justifications put forward for
prohibiting horizontal direct effect (textual argument and legal
certainty) are all vulnerable to strong criticism and the consequences
are arguably heightened under the current regime, leading us to
question the existence of the prohibition in the first place.
2. The Current Legal Position:
The question of direct effect in relation to directives was first answered in C-41/74
Van Duyn which concerned an applicant who wished to enter the UK to take up
employment with the Church of Scientology.
Applicant argued, inter alia, that she could rely on a Directive which stated
that any “measures taken on grounds of public policy or public security shall
be based exclusively on the personal conduct of the individual concerned.”
Although the CJEU found that direct effect was not applicable in this case,
due to the need for further legislation by a national government, the Court did
take the opportunity to set the foundations for recognising directives to have
direct effect.
Following the lines of the judgement in C-26/62 Van Gend en Loos,
the Court stated that, in order to have direct effect, the directive must
be clear, precise, and unconditional in its wording and must not be
dependent on further legislation by the Member State.
BUT – the scope of reliance on directives before national courts was significantly
limited in C-152/84 Marshall.
Applicant in this case was dismissed from her job upon reaching the then
pensionable age for women of 62 (compared to 65 for men) which she argued
was contrary to the Equal Treatment Directive.
CJEU concluded that the scope of direct effect of directives was
limited by the fact that under Article 288 TFEU, it is only binding
, upon those to whom it is addressed (MS) and consequently, as
confirmed in C-91/92 Faccini Dori, a directive cannot of itself
impose obligations on an individual and cannot therefore be relied
upon as such against an individual.
The justifications relied upon by the Court in reaching such decision will be
returned to later in the essay.
The current legal position can thus be summarised as follows: while directives have vertical direct
effect and can therefore be enforced against the state, they cannot be enforced against
individuals/private bodies and therefore lack horizontal direct effect.
While such statement of the law seems straightforward at first glance, such ruling has, in fact,
given rise to complex and incoherent case law.
As mentioned at the start of this essay, this is due to the development of the doctrines of
indirect and incidental direct effect.
3. Indirect Effect:
The doctrine of indirect effect was first established in C-14/83 Von Colson by which
national courts are able (or even required) to interpret the wording of national laws to
be compatible with directives.
Such doctrine was further developed in cases such as C-456/98 Centrosteel
and C-397/01 to C-403/01 Pfeiffer whereby it was, respectively, held that
such doctrine applies to domestic law that both predates and postdates the
relevant Directive and that it does not merely involve an interpretation of
those provisions enacted to implement a Directive but rather requires the
national court to “consider national law as a whole in order to assess to what
extent it may be applied so as not to produce a result contrary to that sought
by the Directive.”
The result is the same:
While such rule is argued merely to “fill the gaps” of the inability of EU directives to
have horizontal direct effect, as Craig aptly points out, the practical effect will often
be the same as if horizontal direct effect of directives had been permitted in the first
place.
In both scenarios, the private party’s obligations are determined in substance
by the Directive, the only difference being that the immediate source of those
obligations is in conceptual terms national law rather than the Directive, an
outcome which clearly “smacks of formalism” (Craig).
Applying to the facts of Von Colson itself, whether the CJEU required the German
national court to enforce the Equal Treatment Directive directly against the private
party, or it was required to interpret the law in line with it, the law which denied the
claimants’ work application on the basis of their gender would have been declared
invalid.
The outcome is the same.
4. Incidental Direct Effect:
A similar story is present with regard to the development of incidental direct effect,
first enunciated in C-194/94 CIA Security.
The effect of such doctrine is that, while the directive does not directly
provide enforceable rights against individuals, it does have an impact upon
horizontal relationships with regard to which the law is applied.
In other words, an individual, through evoking their rights under an
unimplemented directive against the state, indirectly affects a third
party.
The result is the same:
One can appreciate the effect of such doctrine by looking at the outcome of the case
C-443/98 Unilever Italia v Central Food.
