HORIZONTAL DIRECT EFFECT ESSAY PLAN
INTRODUCTION: THERE IS NO HDE OF DIRECTIVES
Dashwood: matter of “trite” law that Directives, if unconditional & sufficiently precise, can be invoked by an individual against MS that default on
their obligations under a directive.
However: Directives NOT invokable in proceedings between individuals
• Marshall (No1) says 2 points:
o Binding nature of directive exists only in relation to MS to which it is addressed
o May not of itself imposed obligations on an individual
• Faccini Dori:
o HDE would imply Community has a power to enact obligations for individuals with immediate effect
But Court has explored ingenious avenues of providing for HDE indirectly
Rationale for no HDE rule
3 rationales generally put forward:
• DE not an innate quality of Directives; it is an innate quality of regulations
• Mentioned in Marshall (I): Directive is only binding in relation to MS to which it is addressed.
• Bad for legal certainty: individuals would have to consider, before ordering their private affairs on the basis of applicable national rules,
whether the rules would be different in MS concerned fully complied with its obligations under a Directive (Dashwood)
All 3 rationales = subject to academic criticism
• Certain provisions – Art 141(1) on principle of equal pay for equal work – impose obligations on individuals
• Craig: it is not self-evident in black-letter textual terms that Directives should be binding ‘only’ on the MS to which it is addressed. Art 249
EC simply states a “directive should be binding on the MS to which they are addressed’. But Art 249 does not touch the issue of
who within the State may be bound. If countries are mentioned as addressees, the Directive might also impose obligations on
private parties.
• Legal certainty argument is also flawed:
There can be different meanings of legal certainty:
- Legal certainty can mean Community norms must be sufficiently clear, precise and unconditional to impose obligations on an
individual. This already applies to Directives and so shouldn’t preclude HDE
- Legal certainty can capture requirement that Directives should be published. This = required by Maastricht treaty so not a
reason to deny HDE
- Broader meaning that you can’t impose obligations rom an unimplemented Directive because it would place the private party
in an invidious position bc the private party might not know whether to comply with pre-existing national law or
unimplemented Directive
- Also: individuals should be able to plan their lives around legal consequences of their actions. Viewed from this perspective,
current law is highly unsatisfactory
Directives/Regulation:
• Common rationale = HDE would erode distinction between regulations and Directives.
• Flawed. AG Lenz and AG Jacobs and Craig: to accord HDE to Directives does not erode distinction. Directives leave MS choice as
to form and methods of implementation, and they only take effect after the period for transposition. Giving DE to Directives,
vertical or horizontal, doesn’t undermine this
Rationale for VDE rule
Van Duyn: Scientology Church case. D relied on Directive that limits scope of national authorities’ to restrict free movement on policy grounds.
D had an enforceable right, which however had not been infringed
• Rationale = effectiveness
o “Where Community authorities have, by Directive, imposed on a MS the obligation to pursue a particular curse of conduct
the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national
courts and if the latter were prevented from taking it into consideration as an element of Community law”
Ratti elaborated:
• “A MS which has not adopted the necessary implementing measures required by the directive in the prescribed period may not rely,
as against individuals, on its own failure to perform the obligations which the directive entails’
• Also NB: Ratti says DW only arises after deadline for implementation has passed
• So basically a public law adaptation of principle that you shouldn’t be allowed to profit from your own wrong
• Form of estoppel
Dashwood: dual rationale: enabling the Directive to produce useful effect, while also preventing MS from gaining advantage through its own
default
INDIRECT EFFECT WAY NO. 1: EMANATION OF STATE
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,First alluded to in Marshall (No. 1);
• Where a person can rely on a directive agains the State, he “may do so regardless of the capacity in which the latter is acting, whether
employer or public authority”
• AG Slynn: the state must be taken broadly i.e. including all organs of State
Foster: “loosely formulated criteria” (Dashwood):
• State encompasses any organization which is subject to the control/authority of the State OR private bodies which exercise any aspect
of public authority
• Includes public hospitals, state-owned companies etc.
Dashwood criticises this, even though it is “ingenious”
• Deprives Ratti of explanatory power
• Bodies like British Gas (Foster) bear “no vestige of responsibility of the failure of UK” to implement Directive. They = in same position
as any private employer trying to apply and apply legislation
• Also creates arbitrary discrimination between private and public sector employees. This argument dismissed by CoJ on Marshall; could
be avoided is MS implemented Directives properly
• BUT assumes incorrect directive implementation = always bad faith. In reality, Directives may sometimes be incorrectly transposed
through honest misunderstanding
Also criticized by Craig:
• AG Jacobs in Vaneetveld & Craig agree with Dashwood
SO: emanation = first method of neutralizing no HDE rule
INDIRECT EFFECT WAY NO. 2: DUTY OF CONSISTENT INTERPRETATION
First appeared in Von Colson in context of vertical dE; was applied to horizontal situation in Marleasing:
• “In applying national law,…the national court is required to interpret it so far as possible in the light o the wording and the purpose of the
directive”. Also in Pfieffer
• CoJ explains this as application of general duty of loyal cooperation in Art 10 EC
Spanish legislation that fell to be interpreted in Marleasing had not been enacted in order to implement Directive; it existed way before
• So duty applies “whether provisions = adopted before or after the directive”
• But the duty only arises once the period for implementation of the Directive has elapsed (Adeneler)
The CoJ language = increasingly insistent:
• Oceana Grupo: national court = required to favor interpretation that would give consistent reading with Directive
• Pfeiffer: Working Time Directive: “national court is bound to use those methods in order to achieve the result sound by Directive”. Also
have to consider “national law as a whole” i.e. whether the canons of interpretation of domestic order allow some other provision of
national law to be applied instead of incompatible provision to produce result desired by Directive
Dashwood: criticized that MS feel compelled to adopt strained construction of national law
• Argued test should be whether national provisions can be reasonably understood to correspond with wording and purpose of the
Directive
Craig: indirect effect is also worse for legal certainty than recognizing HDE of directives would be:
• Forensic legal exercise required of the individuals is more wide-ranging & difficult under the interpretive obligation than if horizontal DE of
Directives existed. Here, the relevant provision doesn’t have to be sufficiently precise, certain and unconditional for the obligation to bite.
• Difficulties faced by private parties are further exacerbated by the cross-border element
- A private firm may have business operations in a number of EU countries. It will have to estimate for each such country that has not
implemented the Directive the likelihood that the relevant national courts will feel able to interpret national law to be in conformity with
the Directive, and it will have to do so in the light of the entirety of relevant national law. The answer may well differ, since the pre-
existing national law will not be the same in each country, and there may well be differences between judicial attitudes to drawing the
line between “legitimate judicial interpretation” and “illegitimate judicial legislation”
- The consequence for the private firm will be costly in terms of legal advice and there will be an irreducible element of legal certainty
pending an authoritative determination of the matter in each of the national courts
NB: some limits to indirect effect:
1. No contra legem interpretation (Impact); cannot reach an “artificial or strained interpretation”. In ImpactL conformity with Irish law could
only be achieved if retrospective effects of national implementing Act were allowed
2. General principles of law
3. In vertical situations, it only applies upwards (for the benefit of individual against MS authorities) and never downwards (for benefit of
MS authorities against individual). So no reverse vertical DE
INDIRECT EFFECT WAY NO. 3: INCIDENTAL EFFECT
Paradigm of this = CIA security
• C brought proceedings against private defendants arguing it has been libelled. D’s claimed C’s alarm system was not approved by Belgian
legislation. C argued Belgian had not notified the Commission on its technical standards under Art. 8 Directive 83/189.
• ECJ: effectiveness of Directive is greater if breach of obligation to notify renders technical regulations inapplicable to individuals
• So the case did NOT give rise to obligations for defendants arising from Directive; the effect = just to deprive thhe defendants of a defense
to unfair trading they would have had under national law and therefore altered the outcome of legal proceedings
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,Unilever:
• Olive oil was labelled in a way that complied w/ Community but not Italian labelling legislation
• ECJ followed CIA: disapplied pre-existing national law
Criticized by AG Jacobs:
• Causes injustice: individuals lose cases “not because of his own failure to comply with an obligation deriving from Community law, but
because of MS behaviour”
Technically: obligations stem not from the Directive, but from its exclusionary effect of national law. This SMACKS of formalism:
• Craig: the distinction between exclusion and substitution isn’t helpful because the realist is that in both instances it is the Directive that
mandates the outcome and creates a new legal status quo within national systems
• Dashwood agrees: ‘false dichotomy’; whether national provision is substituted by a provision of the Directive, or merely excluded so as
to allow application of another national measure, the dispute is STILL being resolved on basis of a rule different from the one prescribed
by the national legislator
INDIRECT EFFECT WAY NO. 4: GENERAL PRINCIPLES OF LAW
Directives don’t have HDE, but other norms of Community law do
3 stages to case law:
1. Mangold (Directive implementation deadline not even passed)
• Directive did not itself establish the principle of non-discim, but the source of the principle was to be found in various intl instruments and
in the constitutional traditional common to the MS. So it was a general principle of Community law
• Where a directive concretizes a general principle of law, this principle will have DE and can be invoked against private parties
• So discrimination on grounds of age = enshrined in the Charter
• Similar result in Kucukdeveci: Art 21(1) [non-discrim grounds of age] is sufficient in itself to confer on individuals and individual right
which they may invokke
2. AMS
• Curtailed Mangold: when dealing with a provision in the charter such as Art 27, the Court argued it was not directly applicable and so its
concretization did not employ a Mangold effect. Court seemed to agree by AG by hinting Art 27 is a ‘principle’ and not a ‘right’
• The provision needed further legislation to be cognizable into a invokable rule of law
• Restricted Mangold to cases where enforceable subject right for individuals can be derived from specific wording of Charter
3. Bauer: put AMS in a corner
• Art 31(2) made direct references to ‘worker’.- it individualizes the addressees and so created a presumption in favour of HDE
• Current test: when a provision individualizes the addressess and the fundamental rights in the provision are concretized by EU law, there
is a strong presumption in favor of HDE
Sarmiento: “if AMS appeared to have cornered Mangold and leave it in the specific and isolated territory of discrimination law, Bauer has
reversed that situation and it has not put AMS in the isolated corner itself.”
Criticism of general principles:
Harley: gp’s are “inherently amorphous and uncertain”
AG Mazak in Palacios: CoJ has “set foot on a very slippery slope”. For such a principle to be given DE would not only raise serious concerns
in relation to legal certainty, it would also call into question the distribution of competence between the Community and MS, and the attribution
of powers under the Treaty general
Dashwood: “blown a very large hole in what remains of the NHDE rule”
Craig: controversy = not hard to discern. The effect of the ruling in Mangold was to render some of the obligations from the Directive
immediately applicable in an action between private parties through the general principle of non-discrimination on grounds of age.
ECJ would have presumably reconciled Mangold with Marshall by recourse to the word ‘itself’: the Directive does not itself impose obligations
on private parties
• Craig: this = formalistic reconciliation. The time limit for the Directive has not even expired, and the obligations read into the general
principle of non-discrimination on grounds of age were based on provisions of the Directive
• Problematic for legal certainty: private defendant was complying with existing German law before Directive implementation deadline. He
would therefore have good legal reason for believing that he could plan his legal affairs according to the prevailing national law. This legal
certainty = undermined.
CONCLUSION
ECJ has recognized NDHE whilst simultaneously restricting the scope of this rule though various stratagems: emanation, duty of consistent
interpretation, incidental effect and general principles. NHDE rule therefore lacks substance.
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