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Effect of the Lack of Horizontal Direct Effect of Provisions in EU Directives

3532 words (14 pages) Essay in Law

23/09/19 Law Reference this

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The lack of horizontal direct effect of provisions in EU directives severely undermines effective judicial protection of a citizen who seeks to rely on her or his rights under Union law in the courts of the Member States.

For this assignment I will be showing an understanding of both the history of direct effect of directives throughout the Member States of the European Union and also how the lack of horizontal direct effect through directives severely undermines effective judicial protection of citizens in the Member States of the European Union.

Direct effect was first introduced and established during the case of Van Gend en Loos v Nederlandse Administratie der Belastingen[1]. This was a case concerning a large importation of chemicals from Germany into the Netherlands[2]. The Court of Justice held that under Articles 169 and 170 direct legal protection of individual rights would be removed from nationals within each of the European Union’s Member States. This case defined vertical direct effect as allowing the citizens of the Member States to assert their rights under the provisions of the directive against the state, but not against other individuals.

The case of Defrenne v Sabena[3]was a vital case with regards to the introduction of horizontal direct effect within the European Union. During this case the court discussed horizontal direct effect as being inclusive under Article 119 of the European Economic Community Treaty [4]. The court stated that Article 119 solely referred to the Member States of the European Union, meaning that the effectiveness of the provision allows citizens of the Member States to be able to enforce their rights directly against other citizens of the Member State regardless of whether the defendant is a public or private body.

 

Directives are addressed to the Member States themselves as opposed to the world at large. Directives allow the Member States a sense of freedom with regards to the way in which the directive is implemented throughout the state. Article 288 of the Treaty[5] of the Functioning of the European Union[6] states:

 

“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”[7]

 

Directives themselves are seen as being unable to gain direct effect into Member States. This was expressed by Advocate General Warner in the case of Enka[8]. During this case the Advocate General reviewed Article 288 of the Treaty of the Functioning of the European Union[9]. This article allows the Member States to implement the directive into their legal system using any form of method allowing the Member State the choice of the form and methods to the implementation of the directive, however the Article does not allow the Member State the choice of not giving effect to the directive or only partial effect of the directive meaning it is compulsory for the Member State to implement the Directive by which ever means they wish. This view was changed by the European Court of Justice ruling in the case of Van Duyn v Home Office[10]. In this case a woman was denied entry into the U.K. due to knowledge of her membership of a religious “cult” known as The Church of Scientology. Under Article 39 European Union citizens should be free to enjoy free movement between the Member States. Directive 64/221 however stated that exceptions to Article 39 must be on the basis of conduct. The European Court of Justice held that due to the fact that Article 39 required further legislation by a national government, direct effect was not applicable to this directive. Although direct effect was not eligible in this case, it did enable the court to set the foundations for recognising directives to have vertical direct effect following the conditions that: the directive is clear, precise and unconditional in its wording, the directive must not be dependent on further legislation by the Member State and in the case of Ratti[11]the final criteria for establishing direct effect of a directive was that: the date of implementation of the directive must have expired allowing the Member States time to implement necessary regulations and changes throughout to ensure full compliance and implementation of the directive.

 

The ideology of horizontal direct effect of the provisions within directives was rejected by the Court of Justice in the case of Marshall v Southampton and South West Hampshire Area Health Authority[12] as the court believed that under Article 288 of The Treaty of Functioning of the European Union[13] the binding characteristics of directives was to exist only in relation to each State where the directive is addressed. The definition of the state was set down in the case of Foster v British Gas[14], this case summarised a state under these criteria:

“1. The body must be responsible for providing a public service;

2. Public service under the control of the State; and

3.  The body granted special powers for that purpose.[15]

The directives themselves do not impose the obligations set out within the directive on individuals also meaning individuals of the Member State are unable to rely on the directive for judicial protection. The issue of insufficient judicial protection available for citizens of the Member States was recognised in the case of Paolo Faccini Dori v Recreb Srl[16]. This case focused on directive 85/577[17] which concerns consumer protection with regards to business contracts negotiated away from the business’ premises. This directive places a requirement on the Member States to protect individual consumers when entering business contracts away from the company premises. The victim of this case had purchased an English language course from Interdiffusion Srl. However, when Faccini Dori later attempted to cancel the purchase, she was sued by Recreb Srl for the cost of the purchase as the provision of the course had been assignment over to Recreb Srl. When The matter was raised in court it was held that Faccini could not rely on the 85/577 directive as it was not implemented into Italian law through horizontal direct effect, it was only implemented through Italian law by vertical direct effect meaning it was not possible for individuals to apply the directive provisions toward another individual.  This case upheld the ruling and judgement set out in Marshall v Southampton and South West Hampshire Area Health Authority[18].

 

Since directives are only binding in regard to the member state and not individuals of that member state, this means that citizens are unable to invoke the directives in a court of law upon another individual as seen in the case of Marshall v Southampton and South West Hampshire Area Health Authority[19]. The European Union argues that directives are unable to be horizontally directly effective as regulations throughout the European Union are already horizontally directly effective meaning that if directives also had the same implementation of being granted horizontal direct effect then the differentiation between directives and regulations would be lost[20] as they would have the same meaning and same implementation. [21]

Since individuals of Member States are unable to rely on the protection of directives against other individuals within the Member State this leads to unjust circumstances between two individuals. For example, where issues arise with two separate employees in identical situations. Unjust circumstances will arise if one person is employed by the state and the other by a private company, the individual employed by the state such as a governmental business will be able to have judicial protection from the directive, but the privately employed individual will not be able to have the same protection and reliance from the directive. Since this was seen as gross injustice, the European Court of Justice developed several strategies over time to make the protection of individuals more equal throughout the Member State without having to give rise to horizontal direct effect in directives. [22] [23]

The first of these strategies to be implemented was the broadening interpretation of the definition of ‘the State’. As previously explained in the case of Foster v British Gas[24]the definition of state was firstlydefined and explained as: the body must be responsible for providing a public service; the Public service of the business is under the control of the State; and he body granted special powers for that purpose. Although British Gas is not a state-run business the company did provide a public service to the individuals of the state and they were essentially under the control of the state and given powers to exercise the public service function they are to perform by the state. Since the implementation of this strategy, it has made it easier for individuals of Member States to reach a fair and just outcome for cases regarding issues between individuals and businesses. If this strategy had not been implemented, it would mean that individuals would still be unable bring actions to court which coincide with aa breach of directives as they would be seen to be actioning a case against ‘one single individual’ as opposed to a company serving a public service.

The second strategy to be implemented by the European Court of Justice was the principle of indirect effect of directives. This principle was laid down in the cases of both Von Colson and Kamann v Land Nordrhein-Westfalen[25] and the case of Harz v Deutsche Tradax[26]. Both of these judgements were reached on the same day. Both these cases involved two female employees who had both been victims of discrimination within the workplace under the Equal Treatment Directive. The European Court of Justice took note of Article 4(3) of the Treaty of the Functioning of the European Union[27] which stated that all member states must take the appropriate measures stated in the Article to give effect to European Union laws. This means that Article 4(3) of the Treaty of the Functioning of the European Union[28] had a similar outlook to the Equal Treatment Directive. It was held that the courts of Member States are able to interpret the wording of the national laws of the State in conjunction with directives. Enabling courts to interpret national laws with similarities to directives as close to the directive meaning without the national law becoming so abstracted from its original meaning that it would be considered absurd is giving individuals of the Member States an opportunity to be protected by directives in a sense as the national laws being interpreted will cover certain aspects of the Directives. This strategy was classed as indirect effect of Directives.

Another strategy introduced by the European Court of Justice is the establishment of incidental horizonal effect. This strategy allows national laws to be disapplied where it does not conform with European Union procedural laws within the Member States. Even though it has been recognised that this does not directly provide enforceable rights for individuals of the Member States it does have an impact upon horizontally relationships with regards to which the law is applied.  This was established in the case of CIA Security International SA v Signalson SA and Securitel SPRL[29] where it was believed that the CIA had breached the national standard for alarm systems contained under Article 30 of the Establishing the European Community Treaty[30]. The CIA held that the state had failed to notify the standard for alarm systems to the Commissioner which was required under the Directive 83/189/EEC[31]. The European Court of Justice found that the CIA was in fact correct and their commissioner had not been informed of the standard expected of alarm systems throughout the corporation, the court held that the CIA was able to rely on the Directive in question. The outcome in this case impacted Signalson SA and Securitel SPRL as they lost the case due to the disapplication of national law. The implementation of this strategy meant that if national laws were not implemented correctly and directives require that law to be implemented in certain way then individuals are able to rely on the directive within the national courts.

The final strategy to be implemented by the European Court of Justice is that where a directive is so similar to a general principle contained within European Union Law then that principle may in fact be horizontally directly effective, even though the directive itself would not be. This strategy applies even where the time limit for the implementation of the directive had not yet passed. 

Although horizontal direct effect of directives has not been passed within the European Union, the fact that the European Court of Justice has implemented strategies over time to try and combat the unjust consequences caused to citizens who live within the Member States of the European Union, it has led to confusion within the law as both citizens and members of the legal system as they are unable to dictate and advise with complete certainty of the law as to whether the directive will apply to the case in question.

In conclusion, although the lack of horizontal direct effect does undermine the judicial protection of citizens within Member States the strategies implemented but the European Court of Justice enables a certian form of protection of citizens when applying national laws to within their cases. Overall, it would be beneficial for the European Union to implement horizontal direct effect for directives as it would lead to fairer legal outcomes and it would help the citizens of the Member States to trust the legal systems of the European union. Enabling the use of horizontal direct effect for directives would also clear the confusion of the strategies put into place by the European Court of Justice.

 

Bibliography-

 

Books –

  • P. Craig & G. De Burca ‘EU Law’ (6th edn, OUP 2015)
  • M.Horspool & M. Humphreys ‘European Union Law’
  • C.Barnard & S. Peers ‘European Union Law’ (2nd edn, OUP 2017
  • T. Storey & C. Turner ‘Unlocking EU Law’ (3rd edn Hooder Education 2011)

 

Websites-

Journals-

 

  • J.Johansson & L Lindström, ‘Direct Effect of Directives – An instrument for uniformity or the cause of incoherence’
  • Tridimas, Takis, ‘Horizontal Effect of Directives: a Missed Opportunity’

 


[1] 1963] ECR 1

[2] P. Craig & G. De Burca ‘EU Law’ (6th edn, OUP 2015) 187

[3] C-43/75, Defrenne II, [1976] ECR 455

[5] Treaty of the Functioning of the European Union [1958] OJ 1 326/01

[6] Treaty of the Functioning of the European Union [1958] OJ 1 326/01

[7] P. Craig & G. De Burca ‘EU Law’ (6th edn, OUP 2015) 200

[8] Case 38/77 Enka [1977] ECR 2203 at 2226

[9] Treaty of the Functioning of the European Union [1958] OJ 1 326/01

[10] [1974] ECR 1337

[11] [1979] ECR 1629. [23]

[12] [1986] ECR 723

[13] Treaty of the Functioning of the European Union [1958] OJ 1 326/01

[14] (Case C-188/189) [1990] ECR I-3313

[15] P. Craig & G. De Burca ‘EU Law’ (6th edn, OUP 2015) 206 – 207

[16] (1994) c-91/92

[17] Council Directive (EC) 85/577 Consumer Protection in the Case of Contracts Negotiated Away from Business Premises

[18] [1986] ECR 723

[19] ibid

[20] J. Johansson & L Lindström, ‘Direct Effect of Directives – An instrument for uniformity or the cause of incoherence’

[22] All Answers ltd, ‘The ecj created the doctrine of direct effect in relation to treaty articles’ (Lawteacher.net, January 2019) <https://www.lawteacher.net/free-law-essays/european-law/the-ecj-created-the-doctrine-of-direct-effect-in-relation-to-treaty-articles-european-law-essay.php?vref=1> accessed 5 January 2019

[23] Tridimas, Takis, ‘Horizontal Effect of Directives: A Missed Opportunity’

[24] (Case C-188/189) [1990] ECR I-3313

[25] 14/83 [1984] EUECJ R-14/83

[26] [1984] C-79/83

[27] Treaty of the Functioning of the European Union [1958] OJ 1 326/01

[28] Treaty of the Functioning of the European Union [1958] OJ 1 326/01

[29] (1996) C-194/94

[30] European Union, Treaty Establishing the European Community (Consolidated Version), Rome Treaty, 25 March 1957, available at: https://www.refworld.org/docid/3ae6b39c0.html [accessed 6 January 2019]

[31] Directive 83/189/EEC

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