EU Horizontal Direct Effect of Directives essay plan

thesis

The prohibition on HDE for Directives - (the invocation against other individuals of rights deriving from directives) = INCOHERENT 

1) the court’s rejection of horizontal direct effect (HDE) of directives is based on unstable textual and policy justifications  

• justifications (textual, legal certainty, estoppel) are inconsistent and selectively applied 

• Treaty provisions also have HDE  

• The concept of the “state” has been expanded (e.g. emanations of the state), undermining the textual argument.  

• Private bodies can be bound (as “state emanations”) even when they are not responsible for implementation → creates arbitrariness.  

2) the strength of the harmonious interpretation duty functionally achieves horizontal enforcement of directives rendering the vertical/horizontal distinction unprincipled 

• Applies even in purely horizontal disputes (e.g. Marleasing).  

• Can require courts to reinterpret the entire body of national law (Pfeiffer). 

• practically allows individuals to achieve the same outcome as HDE, without formally recognising it. 

• The distinction between direct and indirect effect collapses in practice. 

3) the development of the doctrine of incidental effect creates an unjustified distinction between the protection of rights derived from substantive and procedural directives. 

• Directives can invalidate/exclude conflicting national law (CIA Security, Unilever).  

• Individuals are still burdened due to state failure. 

• CIA Security: Procedural Defect → Disapplication of National Law 

• A directive can decisively shape private rights by removing national legal protections. 

• Unilever Italia: Extension of Exclusionary Effect 

• Directives can reconfigure contractual outcomes by altering which national rules apply. 

• Conceptual Inconsistency in the Court’s Reasoning 

• the distinction between “no direct obligation” and real legal impact is formalistic and unconvincing. 

• Parallel with “Triangular Situations” (Wells) 

• individuals can invoke directives against the State.  

• Even if this causes “mere adverse repercussions” for third parties.  

• he Court already accepts indirect harm to private parties as a by-product of enforcing directives. 

• The Court prioritises:  

• Effectiveness of EU law (effet utile)  

• Over:  

• Legal certainty for private parties  

• Private parties:  

• May suffer consequences despite having no role in the State’s breach.  

• Key thesis: The jurisprudence reflects a systematic prioritisation of EU effectiveness over individual fairness and predictability.