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Essay: Direct effect of Directives in EU law

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  • Published: February 27, 2021*
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  • Direct effect of Directives in EU law
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The basic premise of this essay is that the direct effect of directives was established to encourage integration and improve the legal protection of citizens by creating rights and, what contributes as a right to one leads to an obligation for the other. Thus, by denying the horizontal direct effect of directives in order to abstain from imposing obligations on individuals, The European Court of Justice (referred to as Court hereby) is circumscribing rights as well. The essay will institute this by establishing that the TFEU does not clearly deny the horizontal direct effect of directives. Further, it establishes that horizontal direct effect is the best possible path to allow just application of directives and would be a step in the right direction for the evolution of EC law. Finally, it will evaluate all the reasons provided by the court to do so and analyse how the courts very actions in some cases is not consonant with this decision.

The TFEU states the following: “. 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 methods .” No part of the TFEU expressly assists the creation of the no horizontal direct effect rule. It was the Court’s jurisprudence in Marshall that established the rule based on a textual argument that, “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 directive may not of itself impose obligations on an individual…” The court further confirmed this reading in Dori by establishing that the case law that allows for vertical direct effect of directives cannot be used to support horizontal direct effect because the estoppel argument proposed in Ratti , only seeks to prevent ‘the state’ from taking advantage of its failure to comply with European law.

The Court justified its decision using 4 arguments in subsequent jurisprudence. First being the textual argument based on the wording of Article 288 and its interpretation in Marshall . This can be opposed simply, using the Courts disregard for the fact that Treaty articles too are addressed explicitly to Member States in the Defrenne case. The Court dismissed the argument that it can relied upon only against the state. Secondly, the estoppel argument. The Court argued that since individuals were not responsible for the non-implementation of a directive, direct effect should not place an obligation on them. The Court’s actions have not been consistent with this explanation. If we consider cases such as CIA Security and Unilever Italia it is visible that the Court ruled in favour of horizontal direct effect irrespective of its focus on a ‘substantial procedural effect. Thirdly, the Court believes that if horizontal direct effect were given to directives the distinction between regulations and directives would disappear as directives would then have a legal impact despite not being implemented. This argument is unconvincing as not only is this explanation equally true of vertical direct effect and therefore cannot be a ground for distinction between horizontal and vertical effect but more importantly, as recognised by A.G Lenz horizontal direct effect does not interfere with this distinction. Directives still leave Member states their choice of implementation and direct effect comes in only when they fail to implement the directive. Lastly, the court added legal certainty as one of the arguments in the case of Wells . Legal certainty on the surface focuses on the fact that a community norm has to be clear and precise to have the ability to impose an obligation, this condition is met by directives. Legal certainty also requires that directives should be published. Since this argument was proposed when directives were not published it held some weight but the publication of directives is now required.

Directives have for long been a tool for the European Union to harmonise the legal systems of different Member States. The refusal of the Court to identify horizontal direct effect as a principle of law as opposed to a concept is odd when observed in the light of its effect on European integration. Horizontal direct effect of directives would not only allow l’ effete utile of EU law but it would allow the court to continue its legacy as a measure of last resort for individuals to claim rights. While the estoppel argument argues that the State must not benefit from its failure to impose directives does the argument justify individuals losing out on rights because of the failure of the State to integrate directives. Horizontal direct effect has only been proposed as a measure to be used when the State fails to implement a directive and the ‘implementation period must have expired’ clause needed to invoke direct effect ensures that. Given the Court’s recent resolve on remedies and just enforcement of Community rights before the national court, horizontal direct effect would be a logical conclusion. Moreover, horizontal direct effect of directives is the most coherent deduction of the principle of supremacy of EC law. It can be aptly justified by the very concept of direct effect as it focuses on conferring rights on individuals which the State should not have the power to prevent. When conferring horizontal direct effect to Treaty articles the Court focused on their content as opposed to who the Treaty articles were addressed to and logically the same argument should be used for directives. The Court in Defrenne has identified that the Community is not purely an economic union. In the process of economic integration, it generated by-products and the judicial protection of the individual’s rights was one of them and horizontal direct effect would conform to this. Since Monist and Dualist approaches are both present, horizontal direct effect of directives would help bridge the disparity as it would allow the individuals, irrespective of which Member State they belong to, to be on equal ground in terms of their rights irrespective to the manner in which their State interprets international law.

The Court has recognised the contradictory nature of the “no horizontal direct effect rule” and it is visible in its proceedings. The Court compensates by broadening the scope of vertical direct effect using the Foster test, which as seen in Marshall can create an unjust system for those employed by private parties at times. The development of the principle of indirect effect in Marleasing and cases such as CIA Security and Unilever Italia show that the Court ruled in favour of horizontal direct effect. Irrespective of its focus on a ‘substantial procedural effect’ in both the above cases, the Court did indeed impose an obligation on the defendant to forfeit their national right on the basis of a directive. The Courts efforts to use other methods to compensate for horizontal direct effect only makes the situation more complicated and less ‘legally certain’.

It is fitting to conclude that the textual interpretation of the TFEU, legal certainty, the estoppel argument and the distinction between Regulations and Directives are the rationales behind The Court’s decision to establish the “no horizontal direct effect rule” The TFEU is not clear when it comes to this. The very fact that complicated case law and legal exceptions exist is indicative of the soundness of this rule. In light of this we must consider that this debate could be a product of a basic linguistic confusion and is indeed the best way to guarantee effective application of directives. As AJ Jacobs concluded “it might well be conducive to greater legal certainty, and to a more coherent system, if the provisions of a directive were held in appropriate circumstances to be directly enforceable against individuals”

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