• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

The rule against the horizontal direct effect of directives should be abandoned" Discuss.

Extracts from this document...

Introduction

The rule against the horizontal direct effect of directives should be abandoned" Discuss. This essay is mainly concerned whether or not the rule against the horizontal direct effect of directives should be abandoned. The analysis will be made in three major stages; the first stage will show the application of direct effects and its distinction from direct applicability; the second will analyse the distinction of vertical-horizontal direct effect and finally an analysis will be made on the rectification of the problem and on a possible extension of it. INTRODUCTION The EC Treaties, together with a number of international agreements formally amending these treaties, form the constitution of the Community and are the ultimate source of legal authority within the Community system. One of their functions is to lay down the powers of Community institutions to pass secondary legislation. These are regulations, directives and decisions. In addition, they can make recommendations or deliver opinions.1 REGULATIONS-DIRECTIVES Regulations, the most common form of secondary legislation, are, according to Article 249(ex 189) EC, as amended by the TEU2, "binding in their entirety and directly applicable in all Member States". ...read more.

Middle

The ECJ held that she could appeal against the area health authority as the AHA was part of the state, thus having a vertical direct effect24. The result of this decision made a crucial distinction between public service and private body25. This can be seen in the later UK case of Duke V Reliance26 in which on similar facts a claim for compensation was lost by Ms Duke for being forced to retire earlier than men. Therefore between public and private employers within member states and between member states there is no uniformity in the application of Community Law out of the different concepts of what the state is and what private and public employers are27. Thus a 'horizontal' limitation was placed upon the scope of the direct effect of directives. Alternative ways of rectifying the problem Nevertheless, this was not the end of the matter, as the ECJ developed a number of alternative ways to reduce the impact of Marshall28. The principle of indirect effect was established in Von Colson29 concerning Art 6 of the Equal Treatment Directive (76/207). Here the ECJ allowed national law to be interpreted in the light of directives30. ...read more.

Conclusion

LQR, p. 524 12 Case 148/78 [1979]ECR 1629 13 Darbyshire P., 'Eddey and Darbyshire on the English Legal System' ,7th edition, p.62 14 op cit 1, p. 98 15 [1970] ECR 825. 16 op cit 1, p. 98 17 [1974] ECR 1337 18 Hartkamps, Towards the European Civil Code, p.71 19 Steiner J., 'From Direct Effects to Francovitch: Shifting Means of Enforcement of Community Law' (1993) 18 EL Rev 3 20 Steiner & Woods, Textbook on EC Law (6th edition), p.52 21 Collins L., European Community into the United Kingdom, 4th edition, p.88 22 152/84 [1986]ECR 723 23 ibid 24 op cit 22 25 op cit 1, p.98 26 [1988] 2 WLR 359 27 op cit 1, p.103 28 op cit 12, p.525 29 14/83 [1984]ECR 1891 30 Hartley T., The Foundations of European Community Law, (4th edition), p.204 31 op cit 7, p.211 32 Cases C-6 & 9/90, [1991] ECR I-5357 33 op cit 7, p.227 34 Sacha P., Directives in European Community Law, p.295-98 35 Easson, 'Can Directives Impose Obligations on Individuals?', (1979) 4 EL Rev 67 at p.70-73 36 op cit 9, p.84 37 Coppel, J., 'Horizontal Direct Effect of Directives', (1997) 26 ILJ 69 38 Case c-91/92, [1994]ECR I-3325 39 op cit 14, p.64-65 40 Sacha P., Directives in European Community Law, p.304 1 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree European Union Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree European Union Law essays

  1. Predatory pricing strategies in the European union: A case for legal reform.

    able to prevent new firms from expanding in the market at an efficient scale and thus undercutting its supra-competitive profits. By the same token, where the structural characteristics of a market imply that the minimum efficient scale of entry is considerable, or is made at more than one level (e.g.

  2. EU Freedom of Establishment. In this essay I will discuss the definition of establishment ...

    The ECJ found this to be discriminatory and in breach of Articles 49 and 18 and declared this an unjust restriction on the freedom of establishment. The ECJ made clear the importance of the principle of mutual recognition. The ECJ held that host MS had to compare a non-national's qualifications

  1. Critically evaluate the impact of the E.U. Directive on Copyright in an Information Society, ...

    However, despite the effectiveness of the legislation within the EU, the Internet is not merely an EU phenomenon. It's global presence requires a global solution. The laws relating tothe Internet must not only be harmonised within the EU but throughout the world.

  2. How far has the creation of a single market in goods resulted in the ...

    ECJ has strictly applied the proportionality test here. In Walter Rau Lebensmittelwerke v De Smedt[1988]46, the legislation was arguably justifiable, but the proportionality test was strictly applied. In Commission v UK (Re origin of retail goods)[1985]47 a law requiring the country of origin be labelled on goods was considered in breach of A.

  1. EU Law - age discrimination and market access case studies.

    Also, it has to affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Looking at the literal black letter of the law; the law does affect both kinds of traders in the same way.

  2. Critically discuss the proposition that the Treaty of Lisbon has completed the evolution of ...

    4.4 The Charter goes further than the ECHR because it contains rights that were not envisaged at the time of the ECHR in 1950, including issues such as cloning and data protection. The Charter also extends the meaning of some traditional rights into new areas.

  1. European Law

    case it is even more necessary for Commission action, to send a deterrent message to other member states not to follow suit and thus maintain harmonisation.16 PRE-LITIGATION PROCEDURE In my view Commission enforcement is valuable as it has the safeguards of a pre-litigation procedure, which refers to the period of

  2. EU Law - Albatros Pool problem case. Mark and Sunita must be advised that ...

    under EC law. (1500 words max) ANSWER A) This scenario exposes a discrepancy in the legal system of the European Community in relation to the enforcement of directives. As a consequence, after a general commentary applicable to both it will be necessary to offer separate and individual advice to Mark and Sunita.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work