Essay: The CJEU case-law on horizontal direct effect

The CJEU case-law on horizontal direct effect of directives arguably lacks consistency in regards to the application of the general principle. The principle of direct effect was established in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Although there is no set definition of direct effect, a broader definition was provided in Van Gend en Loos that it “can be expressed as the capacity of a provision of EU law to be invoked before a national court.” However, Van Dyun v. Home Office established that directives are capable of direct effect. Furthermore, Marshall v. Southampton established that there could only be vertical direct effect of directives. This stringent principle has arguable ignited the highly contested debate of whether or not horizontal direct effect is applicable to directives or if directives could only have vertical direct effect. However, this essay shall explore the lack of consistency in case-law regarding horizontal direct effect of directives. Firstly, this paper will delve into the case-law of the topic of horizontal direct effect of directives in efforts to try to highlight its consistency in its approach. Secondly, the paper will use case law and the opinion of academics (enter the name of the academics later) to highlight its inconsistencies using the legal mechanisms that have been introduced by the Courts to try to compensate for the lack of horizontal direct effect of directives. Namely, indirect effect, incidental horizontal direct effect, broadening the term of the ‘state’- Foster test, and state liability for breach of EU law.
Arguably, the CJEU case-law on horizontal direct effect of directives does lack consistency. Traditionally, the case-law on this topic highlights that directives are incontestably not capable of horizontal direct effect. The Court of Justice acknowledged in the case Grad that “non-directly applicable provisions, such as directives…, may have direct effect.” However, it was confirmed in Van Dyun that directives would only be capable of vertical direct effect which is “where a party invokes a provision of EU law in a national court against a Member State”. However, for a directive to produce vertical direct effect, “the provisions concerned must be clear, precise, and unconditional” , as enumerated in Van Gend. This general principle stems from the notable case of Marshall v. Southampton as Helen Marshall, an employee was dismissed by the Health Authority on the ground that she had passed 60, which was argued that it was incompatible with Directive 76/207/EEC . The European Court of Justice, ECJ, held that it “has taken the firm approach that a directive may not of itself impose obligations on an individual and…a provision of a directive may not be relied upon as such against a person.” This principle was consolidated a decade later by Faccini Dori v Recreb . In this case Ms Dori was induced by a salesman into signing up to course to learn English, in which she subsequently regretted. However, she could not rely on that provision against an individual as Article 189 highlighted “a directive is binding only in relation to ‘each Member State to which it is addressed.’”. Therefore, arguably case-law on the horizontal direct effect of directives is consistent as the strict adherence to the general rule is evident amongst these cases. Furthermore, cases such as Ratti, Becker and others have further solidified this principle in CJEU case-law in which directives are not capable of horizontal direct effect.
Contrastingly, it is arguable that the CJEU case-law on horizontal direct effect of directives does lack consistency. CJEU case-law has shown that Courts have compensated for lack or horizontal direct effect using legal mechanisms such as “the extension of the notion of the state”. The leading case for this mechanism is Foster v British Gas which raises the question of what qualifies as a state. “The Court explained that the concept of an emanation of the State encompassed public or private bodies” , thus arguably enabling private individuals to rely on the provisions of directives in actions against other private bodies. However, the private body must provide “a public service under the control of the State and have, for that purpose, special powers beyond those which result from the normal rules applicable in relations between individuals”.18 Therefore, although broadening the meaning of the term ‘state’ principally comes under the notion of vertical direct effect, the persons in which this mechanism remedies include private individuals provided they would be regarded as an organ of the state , for instance a Health Authority in Marshall. As a result, this highlights the inconsistency regarding the application of the general principle that individuals cannot invoke directives against other individuals, which notionally is horizontal direct effect, as this legal mechanism allows the individuals to do so if they satisfy the criteria of what a state is. Furthermore, Advocate General Van Gerven also suggests that directives can or rather should be capable of horizontal direct effect as he states “in my view, the coherence of the Court’s case-law would benefit if the Court were now also to confer horizontal direct effect on sufficiently precise and unconditional provisions of directives.” Thus corroborating the statement that the case-law it is inconsistent through the way the general principle, which voids the possibility of directives being capable of horizontal direct effect, is applied in certain cases.
Furthermore, CJEU case-law on horizontal direct effect does lack consistency as there are several cases which directives are capable of having horizontal direct effect, which rejects the general legal principle of cases discussed earlier. A fundamental case highlighting the case-law’s irregularity is Defrenne v Sabena as a female member of the cabin crew she was paid less than her male counterparts for the same role.