Medium Hard Law – Still No Horizontal Direct Effect of European Community Directives After Faccini Dori

1 Colum. J. Eur. L. 469 (1995)

Gerrit Betlem. Researcher at the Center for Enforcement of European Law/NISER, Utrecht University, The Netherlands.

What is the law when a private party seeks to invoke, against another private individual, the right to cancel a contract derived from an EC Directive which has not been implemented into domestic law within the required time limits? In short, that is the central question not only of this article but also of a dispute between a consumer and a trader involving a contract negotiated away from business premises. In terms of Community law, the case raises the controversial and thorny issue of the possible direct effect of directives between private persons.

This article is structured as follows. Part I will introduce the discussion. Part II will examine the most recent pronouncement of the European Court of Justice on the issue of non-horizontal direct effect, the Faccini Dori case, and its legal history. Part III will discuss the arguments pro and contra horizontal direct effect. Part IV will indicate the current surrogate instruments for giving effect to directives between private parties and will explore possible future developments. Part V will draw conclusions.