← The hardest concepts in European Union law
In one breath
A directive that has direct effect can be relied on against the Member State and its public bodies, which is vertical effect, but the Court has held that a directive cannot of itself impose obligations on private parties, so it lacks horizontal effect. The reason is that a directive is addressed to the Member States, which alone are bound to transpose it.
The picture
The postcard addressed to the town hall
A postcard arrives addressed to the town hall. It says that, from the first of the month, the town must keep the park gates open until dusk. If the town ignores it, residents can hold the town to it, since the town received the message and has not acted. The town cannot say that it never got round to complying.
The residents cannot use the same postcard against a neighbour who closes his private garden gate at noon. The neighbour was never the addressee, and it would be unfair to bind him by a message he did not receive and that no law of his own country had put in force. A directive works like this postcard. The State must act on it, and individuals may enforce it against the State and bodies that stand in its place, but not directly against other private persons.
Where the picture stops working
Postcards are plain, but the line between “the town hall” and “the neighbour” is not. The Court has treated as part of the State any body that provides a public service under State control and has special powers (Foster v British Gas), including bodies that look private. And workarounds exist: conforming interpretation, state liability and, for some general principles, effects between private parties. The picture hides how much the rule has been softened.
How it really works
- 1Know where the rule comes from. The rules on directives come from the Court’s case law, resting on Article 288 of the Treaty on the Functioning of the European Union, which says directives bind Member States.
- 2Check the conditions for direct effect: the provision is clear, precise and unconditional, and the deadline for transposition has passed without correct implementation.
- 3Identify the defendant. If it is the State or an “emanation of the State”, the usual test being a body made responsible by the State for a public service, under State control, with special powers, the directive can be relied on (vertical effect).
- 4If the defendant is a private person, a directive cannot itself create obligations (Marshall and Faccini Dori). Consider the alternatives: reading national law in line with the directive, and a damages claim against the State.
- 5Check for a general principle. Where a directive gives specific expression to a general principle of Union law, such as non-discrimination on grounds of age, the Court has allowed the principle to be relied on in a dispute between private parties (Kücükdeveci).
Why people get it wrong
- Saying that directives never have direct effect. They can, against the State, once the deadline has passed.
- Equating “the State” with central government. The category covers many public bodies, and the Court has used a functional test.
- Thinking horizontal effect is open to all Union law. Treaty articles aimed at private conduct, regulations and some general principles can operate between private parties.
- Forgetting that the State cannot rely on its own failure to implement the directive. This is the usual explanation for vertical effect.
- Treating the lack of horizontal effect as leaving the individual with no remedy. Indirect effect and state liability often supply one.
A worked example
The facts are invented
A directive requires employers to give workers a written statement of their terms of employment within a set period, and the deadline passes without the Member State transposing it. Tomasz works for the State health service, which gives him no statement. He can rely on the directive against the health service, because it is part of the State, and the national court will apply it directly.
His friend Irena works for a small private firm that also gave no statement. She cannot rely on the directive itself against her employer, since the directive is not addressed to private firms. But the court must try to read national employment law in a way that fits the directive, and if that is impossible Irena may have a claim against the State for failing to implement the directive. The two friends end up with different routes but not necessarily different outcomes.
Try it
A directive’s deadline has passed without transposition. A worker employed by a private company wants to rely on a clear provision of the directive directly against the company. What is the usual position?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Marshall v Southampton and South-West Hampshire Area Health Authority, Case 152/84, 1986
- Foster v British Gas, Case C-188/89, 1990
- Faccini Dori v Recreb, Case C-91/92, 1994
- Kücükdeveci v Swedex, Case C-555/07, 2010
Where to go next
More hard concepts in European Union law
- Direct effect (Union law in national courts)
- Supremacy and national constitutional courts (Union law in national courts)
- Indirect effect and conforming interpretation (Union law in national courts)
- State liability for breach of Union law (Union law in national courts)
- Effectiveness, equivalence and national procedural autonomy (Union law in national courts)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.