Showing posts from 2023

The rules on horizontal direct effect of directives have been criticized for leading to situations of unfairness and uncertainty. To what extent is the decision of the Court of Justice of the EU in Bauer (C-569/ 16) an improvement? Critically assess the decision by reference to the Court’s earlier case law.

Direct effect refers to “the obligation of a court…to apply the relevant provisions of Community law, either as a norm which governs the case or as a standard for legal review” (Prechal, 1995). Simmenthal clarified that this obligation includes disapplying or setting aside conflicting national rules. Directives produce a special case. Whilst it is “trite law” (Dashwood, 2007) that Directives have vertical direct effect, they may not be invoked in proceedings between individuals and thus have no horizontal effect. This essay will evaluate the exceptions to the ‘no horizontal direct effect’ rule and the resulting uncertainty and unfairness in the law. It will additionally consider how, in light of Bauer, the CJEU facilitated the possible horizontal effect of Directives by employing the Charter of Fundamental Rights (‘the Charter’). If confined to specific facts, the decision represents an improvement from the orthodox position concerning the horizontal effect of Directives.  The Rule: No