Vertical/Horizontal Direct Effect & Exclusionary Effect
Going Too Far? - Van Duyn
It is the nature of directives that they should let Member States decide how to
implement them, so we should not impose obligations on the basis of directives on
relationships between state authorities and private parties, because it should be left
to Member States as to how they are transposed.
Court was being activist – debate about judicial activism – and the extent to which
the court steps out of its powers and beyond its competences, by violating the
principle of separation of powers between judicial power and political power.
Refining the Court’s Position
Time-limits for implementation.
Direct effect should only take place after the deadline for transposition of the
directive in question has expired.
148/78 Ratti; 8/81 Becker.
Member states should be given that deadline for transposition, and
during that deadline, directives should not have direct effect in
vertical relationships.
This way the court offers the member states the possibility to
transpose the directive as they want to, within the deadline, and
direct effect only kick in when that deadline expires.
Estoppel argument.
An entity or authority cannot use their wrongdoing to defend the violation of
the law.
Member states cannot use their lack of transposition of directive to violate
the directive.
If member states transpose it incorrectly, or they do not transpose it within
the deadline, they cannot use their own wrongdoing to argue that they
cannot respect the directive.
148/78 Ratti.
Tried to justify the direct effect of directives in vertical relationships.
Horizontal Direct Effect of Directives?
In horizontal relationships (private party-private party).
152/84 Marshall.
‘According to Article 189 of the EEC Treaty the binding nature of a
directive, which constitutes the basis for the possibility of relying on
the directive before a national court, exists only in relation to ‘each
member state to which it is addressed’. It follows that a directive may
not of itself impose obligations on an individual and that a provision
of a directive may not be relied upon as such against a person’.
In principle – No, directives should not have direct effect.
Directives are addressed to member states, not to people.
Going Too Far? - Van Duyn
It is the nature of directives that they should let Member States decide how to
implement them, so we should not impose obligations on the basis of directives on
relationships between state authorities and private parties, because it should be left
to Member States as to how they are transposed.
Court was being activist – debate about judicial activism – and the extent to which
the court steps out of its powers and beyond its competences, by violating the
principle of separation of powers between judicial power and political power.
Refining the Court’s Position
Time-limits for implementation.
Direct effect should only take place after the deadline for transposition of the
directive in question has expired.
148/78 Ratti; 8/81 Becker.
Member states should be given that deadline for transposition, and
during that deadline, directives should not have direct effect in
vertical relationships.
This way the court offers the member states the possibility to
transpose the directive as they want to, within the deadline, and
direct effect only kick in when that deadline expires.
Estoppel argument.
An entity or authority cannot use their wrongdoing to defend the violation of
the law.
Member states cannot use their lack of transposition of directive to violate
the directive.
If member states transpose it incorrectly, or they do not transpose it within
the deadline, they cannot use their own wrongdoing to argue that they
cannot respect the directive.
148/78 Ratti.
Tried to justify the direct effect of directives in vertical relationships.
Horizontal Direct Effect of Directives?
In horizontal relationships (private party-private party).
152/84 Marshall.
‘According to Article 189 of the EEC Treaty the binding nature of a
directive, which constitutes the basis for the possibility of relying on
the directive before a national court, exists only in relation to ‘each
member state to which it is addressed’. It follows that a directive may
not of itself impose obligations on an individual and that a provision
of a directive may not be relied upon as such against a person’.
In principle – No, directives should not have direct effect.
Directives are addressed to member states, not to people.
