13 Colum. J. Eur. L. 401 (2007)
Florian Becker. Professor of Law, Sixth Century Chair, University of Aberdeen School of Law.
Angus Campbell. Senior Lecturer in Law, University of Aberdeen School of Law.
According to the doctrine of horizontal direct effect certain provisions of a Directive may apply within a Member State between individuals and may be invoked before a national court without first being implemented by the national legislature. When the E.E.C. treaty was signed, it was far from obvious that Directives could apply directly, in any manner, within a Member State. Indeed the opposite seemed true, that Directives required implementation by the Member State under all circumstances for their provisions to have direct effect within Member States legal systems. The E.C.J nevertheless, and without regard to the language and the rationale of the Treaty, decided that Directives may be invoked in certain relations between an individual and the Member State-so called vertical direct effect. Until very recently, the European Court has denied in principle all attempts to decisively expand this flawed concept to situations of horizontal direct effect. This has occurred despite some circumventions of this rejection in the case law. This article considers the theoretical coherence and development of the controversy concerning the principle of direct horizontal effect of EU Directives.
The most significant achievement (marked by the famous statement of the E.C.J. in van Gend & Loos) of the European Court of Justice has been to integrate European Community Law, at least in part, into the domestic legal orders of the Member States. This has occurred notwithstanding the fact that some states have traditionally been strong advocates of a dualistic concept governing the relationship between national and international law. This integration not only includes provisions of the EC-Treaty itself, but also secondary law passed in accordance with the primary provisions. With respect to the latter, three doctrines which every law student is familiar with are (i) that Directives normally have to be transposed into national law, but (2) on the occasion of a Member State’s failure to do so Directives can have direct effect on an individual if they satisfy certain conditions. But this only holds true with regard to (3) non-horizontal legal relationships, i.e. direct effect must not allow an individual to invoke rights vis-A-vis another individual. As with many legal concepts, on closer scrutiny this seemingly clear doctrinal trinity rapidly degenerates into a considerable state of confusion. This confusion is mainly caused by the E.C.J. case law’s lack of theoretical coherence on direct effect, which has resulted in a principle with exceptions, qualifications and counter-qualifications. Against a background of the justification of direct effect as such, this article identifies whether doctrine (3), concerned with the non-horizontal limitation on direct effect, can still be seen as valid, and also attempts to reconstruct the perceived theoretical drive towards the full (i.e. horizontal) direct effect of Directives.