Horizontal remarkably more harmonious and coherent European

Horizontal Direct Effect

 

In 1994,
Advocate General Jacobs stated that if directives were granted the ability to
have horizontal direct effect, a remarkably more harmonious and coherent
European Union would arise. Jacobs insisted that horizontal direct effect would
lead to an overall improved legal effect regarding domestic laws. Moreover,
there would be a renewed sense of fairness between member states.1

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Whilst treaties are
a primary source of law, both directives and regulations are secondary sources.

These secondary sources need to be implemented by Member States. When
implemented correctly, they will become law within the Member State.2
The importance and general discussion of horizontal direct effect has gained much
momentum in recent years, with questions arising in regards to the Court of
Justice of the European Union (ECJ) being seemingly unable to provide
clarification regarding the uncertainty of its limitations. To desipher A.G
Jacobs opinion, and DECIDE whether or not there would indeed be a more
harmonious effect on domestic law should horizontal direct effect exist, we
must first provide a brief description of the origins of direct effect, followed
by an exploration as to the reasons why the Court of Justice has upheld its
decision to not allow horizontal direct effect. Is horizontal direct effect
really necessary, and would it, as it has been argued, be a long overdue and
greatly welcomed addition to European Union law?

 

Direct Effect

 

The
ECJ recognised more than one way in which a directive can effect a Member State
– Directly and indirectly. Most commonly known as indirect effect and direct
effect.3
Vertical direct effect governs the relationship between member states and the
EU whilst horizontal direct effect relates to the relationship between private individuals.

 

It
should be noted that the power to create a directive can be found under Article
249 of the Treaty of Rome. Furthermore, this article also deals with
regulations. Whilst regulations may have both vertical and horizontal effect,
as previously stated, directives may only have vertical effect.  Within Article 288 of the Treaty on the
Function of the European Union it is explicitly stated that each Member State is
bound by the dire ctive. It must be noted that although each Member State is
bound, they do have somewhat free reign when it comes to implementation and
form. The directive details a goal the EU desires to reach, one that all member
states must adhere to. Each member state must then “divise their own laws on
how to reach these goals”.4

 

The
origins of direct effect can be traced back to the landmark case of Van Gend en
Loos.5
The principle founded within this case revolves around public international
law. However, the principle (now known as direct effect) was a somewhat “reformulation
of a pre-existing principle”6 of
public international law. To put it simply, direct effect can be explained as a
way in which European Union law allows persons to protect their rights within
the national courts.7 As
previously stated, the principle first arose in the Van Gend en Loos case,
however, the courts were only then focutsed upon direct effect in relation to
Treaty Articles. Though in no relation to directives, the criteria regarding
Treaty Articles was also subject to criticism and growing confusion over the
years.

 

This
remained the case until 1974, wherein the case of Van Duyn v Home Office8 it
was held that directives could indeed have direct effect. Unlike the slight
vagueness of Van Gend en Loos, the courts clearly stated that directives were
also capable of direct effect. Furthermore, the Courts decided that for these
directives to be directly effective, a certain criteria must be met. It was
established that an EU article provision must be, “unconditional, sufficiently
precise, the Member State in question failed to implement the directive by the
end of the period prescribed therein or failed to implement the directive
correctly.”9

 

 

Horizontal Direct Effect  

 

Horizontal
direct effect and the choices made in relation to it by the Courts is one that
has been heavily criticised. In the case of Marshall v Southhampton and
South-West Hampshire Area Health Authority,10
the courts established what some perceive as an aritificial barrier preventing
directives having horizontal direct effect. It was argued that by enabling directives
to have horizontal direct effect it would create a confusion surrounding the
differences between them and regulations, ultimately creating a disharmony
within the European Union.11

 

It
was only follwing the case of Marshall that evident unfairness was recognised. For
example, within the case of Harz12 a
woman of German desent had applied for a job within the public sector, however
she was denied the positon. She then proceeded to argue that she had been
discriminated against on the grounds of gender. When compared with the Von
Colson 13case
(again regarding a german woman and gender discrimination), whereby Von Colson was
indeed able to exercise her rights, it was made abunduantly clear how unfair
the treatment of Harz was. Unlike Harz, Von Colson’s prospective job was
related to the private sector, this being the differing and deciding factor when
determining the outcome of each case. As previously stated, only Von Colson was
successful in her claim. This decision was a direct result of the stance taken
in Marshall.   REWOOOOORDDD

 

It
could be argued that to rectify this injustice, judicial intervention is
required. Furthermore, this intervention may allow an individual sufficient
protection when involved with private companies or individuals who choose to
openly disregard European Union Directives.

 

 

1 Rosa Greaves, ‘A Commentary on Selected Opinions of Advocate General Jacobs’ 2005 29(4) Forham International
Law Journal

2
Catherine Barnard and Steve Peers, European
Union Law (Oxford 2014) 

3 Case 43/75 Defrenne v Societe Anonyme Belge de
Navigation Aerienne (SABENA)

4 European union, ‘Regulations, Directives and other acts’ (Europaeu, Unknown)  accessed 6 January
2018

 

5 Case 26/62 Van Gend en Loos v
Nederlandse Administratie der Belastingen 1963 ECR 1, 1963 CMLR 105, 129

6 James
Crawford , Brownlie’s Principles of Public International Law (8th
edn, Oxford 2012)

7 Damian Chalmers and others, European
Union Law: Text and Materials (3rd edn, Cambridge University
Press 2006)

8
Case C-41/74 Van Duyn v Home Office 1975

9 Catherine Barnard and Steve Peers, European
Union Law (Oxford 2014) 145

10Case 152/84 Marshall v Southampton and
South-West Hampshire Area Health Authority (Teaching) 1986 ECR 723

11 Case C-201/02 R (on the
application of Wells) v Secretary of State for Transport 2004 ECR I-723

12 Case 79/83 Harz v Tradax
1984 ECR 1921

13 Case 14/83 Von Colson v Land
Nordrhein Westphalen 1984 ECR 1891