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1 Horizontal Direct Effect of Directives Horizontal Direct Effect of Directives: Reform Long Overdue? By Beatrice Grasso Introduction Since its introduction in the European legal system, the principle of direct effect has generated very conflicting opinions. On the one hand, in fact, it is seen as fundamental to protect citizens’ rights in a decentralised system of enforcement such as that of the European Union;1 on the other, however, it has been identified as an inappropriate exercise of judicial activism on part of the Court of Justice of the European Union (previously known as European Court of Justice; hereinafter referred to as ‘Court of Justice’ or ‘the Court’), leading to the excessive erosion of individual Member States’ sovereignty.2 This issue became particularly controversial with respect to directives, which, because of their nature, are more dependent on Member States’ willingness to implement them promptly and correctly, with disagreements emerging especially in relation to their potential to confer rights directly on individuals.3 In light of the great importance of the principle of direct effect, particularly in relation to directives, and its potential repercussions on the rights and obligations of individual citizens, this article seeks to provide a critical evaluation of said principle and of the alternative means developed by the Court of Justice in order to mitigate disadvantages caused to individuals by the absence of horizontal direct effect for directives. In order to achieve this objective, a brief overview of the development of direct effect will be provided firstly. Subsequently, consideration will be given to the reasons why the Court of Justice refused horizontal direct effect for directives. In the final part, alternative means of redress available to individuals will be identified and their effectiveness assessed. It is here submitted that, although the alternative methods developed by the Court to mitigate the effects of its decision not to allow individuals to rely on direct effect of directives in proceedings which do not involve public entities can be fairly effective if taken jointly, they tend to generate considerable uncertainty and impose a 1 Alina Kaczorowska, European Union Law (3rd edn, Routledge 2013) 264. 2 Asterios Pliakos and Georgios Anagnostaras, ‘Who is the Ultimate Arbiter? The Battle Over Judicial Supremacy in EU law’ (2011) 36 EL Rev 109, 113. 3 Thomas König and Brooke Luetgert, ‘Troubles with Transposition? Explaining Trends in Member-State Notification and the Delayed Transposition of EU Directives’ (2009) 39 Brit J of Pol Sc 163, 164-165. 1 greater financial burden on individuals and States alike than horizontal direct effect otherwise would. Despite the shortcomings of such doctrine, and the disagreements it generates, it is here contended that, on balance, its introduction in EU law would be a highly necessary and long overdue one. Origin of the principle of direct effect The concept of direct effect was first introduced by the Court of Justice in the landmark case of Van Gend en Loos.4 This principle, which is not included in any of the Treaties, was, however, not wholly invented by the Court of Justice, but was rather the transposition and reformulation of a pre- existing principle of public international law.5 The general rule in public international law provides that international treaties do not confer rights directly on individuals: it is, in fact, the governments’ task to introduce such provisions into national legislation, so as to carry out their obligations under any treaty.6 An exception to this rule is nevertheless present, and was identified by the Permanent Court of International Justice (PCIJ) in its judgment in the Danzig case as far back as 1928, where it held that some treaties – now commonly referred to as ‘self-executing’ – could confer direct and personal rights on individuals, but only if it was the parties’ express intention to adopt a treaty to create individual rights and obligations enforceable by municipal courts.7 In Van Gend, which concerned the introduction of a new custom duty in contrast with the provisions then contained in the EEC Treaty, the Court of Justice converted the Danzig exception into one of the basic principles of EU law, by holding that a sufficiently clear, precise and unconditional Treaty provision could be capable of conferring directly enforceable rights upon individuals.8 This was possible because the (then) European Economic Community constituted a ‘new legal order of international law’ for the sake of which States had willingly restricted their 4 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, [1963] CMLR 105. 5 Alina Kaczorowska, European Union Law (3rd edn, Routledge 2013) 264. 6 Case Concerning Jurisdiction of the Courts of Danzig (Advisory Opinion) PCIJ Rep Series B No 15. 7 ibid. 8 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, [1963] CMLR 105, 130; Case 43/75 Defrenne v Sabena [1976] ECR 455, [1976] 2 CMLR 98, 112; Case 57/65 Alfons Lütticke GmbH v Hauptzollamt Sarrelouis [1966] ECR 205, Opinion of AG Gand, 216; Case 2/74 Reyners v Belgium [1974] ECR 631, Opinion of AG Mayras, 659-661. 2 sovereign rights in certain fields.9 In reaching this conclusion, the Court of Justice rejected the Danzig suggestion that such an interpretation should be based on the intention of the parties, but rather applied, as it usually does, a teleological approach of interpretation,10 striving to give effect to the spirit of the Treaties and achieving the objectives set therein, rather than adopting the strictly textual interpretative approach endorsed by the PCIJ.11 As the intention behind the Treaties was to create an internal market, it was necessary to ensure consistency in their application and enforcement in all Member States if this objective was ever to be achieved.12 The fact that the creation of an internal market directly concerns individual citizens within the Union meant that they had themselves become subjects of this ‘new legal order’ as much as Member States, therefore rendering it necessary for them to be able to enforce their rights and obligations and access remedies before their national courts in all matters governed by EU law.13 Although Van Gend only introduced direct effect for Treaty articles creating obligations for States towards individuals in a vertical relationship (‘vertical direct effect’), the doctrine was later substantially expanded to comprise also Treaty articles which placed duties on other individuals, thereby rendering them enforceable also in horizontal relationships (‘horizontal direct effect’).14 Over the years, the Court of Justice gradually expanded the scope of the principle, establishing that regulations could also have direct effect, both vertically15 and horizontally.16 As for directives, they posed a particular problem: given that they are not directly applicable but only require Member States to achieve a particular result, thus leaving them wide discretion as to the methods used,17 it 9 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, [1963] CMLR 105, 129. 10 R v Henn [1980] 2 All ER 166, [1980] 2 WLR 597 (HL) 635 (Lord Diplock). 11 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, [1963] CMLR 105, 129. 12 ibid. 13 ibid; Alina Kaczorowska, European Union Law (3rd edn, Routledge 2013) 266. 14 Case 43/75 Defrenne v Sabena [1976] ECR 455 15 Case C-93/71 Leonesio v Ministero dell’Agricoltura e Foreste [1972] ECR 287, para 22; Case 43/71 Politi v Ministero delle Finanze [1971] ECR 1039, para 9 16 Case C-253/00 Munoz v Frumar [2002] ECR I-7289, para 28. 17 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2010] OJ C83/01, art 288. 3 was initially thought that they would not be capable of fulfilling the Van Gend criteria.18 The same issue initially seemed to arise also in relation to decisions and general principles, as they too are not directly applicable, that is, they require further implementing legislation to be passed in order for them to take effect in the various Member States.19 Introducing direct effect of directives A change in stance came with the case of Grad,20 where the Court of Justice conceded that non- directly applicable provisions, such as directives or decisions, may have direct effect, provided their ‘nature, background and wording’ were capable of doing so.21 The Court of Justice relied on the doctrine of effectiveness (generally referred to by its French name, effet utile) to guide its interpretation of the law. Under this doctrine, if the purpose of a provision has been clearly identified, any subsequent interpretation of the specific terms of the provision itself must be interpreted so as to guarantee that the provision will retain its overall effectiveness.22 In Grad, the Court adopted the view that the introduction of direct effect for non-directly applicable provisions was needed to ensure that the effet utile of such measures would not be weakened by the fact that nationals of Member States could not invoke certain provisions in national courts, despite the obligation that these provisions placed on Member States to act in a particular way.23 It was therefore necessary to promote integration and to reinforce legal safeguards for individuals in national courts by granting direct effect also to decisions and, potentially, directives.24 Subsequently, the Court of Justice confirmed this possibility in the case of Van Duyn.25 Miss Van Duyn, a Dutch national, sought to work at the British Headquarters of the Church of Scientology, but was refused leave to enter the country by British immigration authorities on grounds of public 18 AJ Easson, ‘The “Direct Effect” of EEC Directives’ 28 ICLQ 319, 323-324, 328.
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