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From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?

Published online by Cambridge University Press:  27 October 2017

Alan Dashwood
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In an article published in 1983, Pierre Pescatore who, as a Member of the Court of Justice, exercised a powerful intellectual influence over the development of European Community law during what might be deemed the Court’s Golden Age, once described direct effect as ‘an infant disease’. What he meant was that, in the early years of the Community, it may have seemed remarkable, even dangerous, that provisions of the EC Treaty or of acts adopted under it could give rise to rights and correlative duties which national courts were called upon to recognise and enforce. But now that Community law had reached maturity, direct effect should be taken for granted, as a normal incident of an advanced constitutional order.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 9 , 2007 , pp. 81 - 109
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2007

References

1 Pescatore, P ‘The Doctrine of Direct Effect—An Infant Disease’ (1983) 8 EL Rev 155 Google Scholar.

2 Ibid, 167–71.

3 (2006) 43 CML Rev 1.

4 Case 152/84, Marshall v Southampton and South-West Hampshire Area Health Authority(Teaching) (Marshall No. 1) [1986] ECR 723.

5 Case C–144/04, Werner Mangold v Rudiger Helm [2005] ECR I–9981.

6 [1986] ECR 723, para 48.

7 Case C–91/92, Faccini Dori v Recreb [1994] ECR I–3325, para 24.

8 See, among others, Prechal, S Directives in European Community Law 2nd end (Oxford, OUP, 2005)Google Scholar; Tridimas, T ‘Horizontal Direct Effect of Directives; A Missed Opportunity?’ (1994) 19 EL Rev 621 Google Scholar; Tridimas, T ‘Black, White and Shades of Grey: Horizontality of Directives Revisited’ (2002) 21 YEL 327 Google Scholar; Coppel, J ‘Rights, Duties and the End of Marshall ’ (1994) 57 MLR 859 CrossRefGoogle Scholar; Craig, P ‘Directives: Direct Effect, Indirect Effect and the Construction of National Legislation’ (1997) 22 EL Rev 519 Google Scholar; Mastroianni, R ‘On the Distinction between Vertical and Horizontal Direct Effects of Community Directives: What Role for the Principle of Equality?’ (1999) 5 EPL 417 Google Scholar; Dougan, M ‘The Disguised Vertical Direct Effect of Directives?’ [2000] CLJ 586 Google Scholar.

9 Notably, AG Van Gerven in Case C–271/91, Marshall (No. 2) [1993] ECR I–4367; AG Jacobs in Case C–316/93, Vaneetveld [1994] ECR I–763.

10 The lack of such a requirement was mentioned by AG Slynn in his Opinion in Marshall (No. 1) as a factor militating against reliance on Directives in a horizontal dispute: [1986] ECR 723, 734.

11 Case 39/72, Commission v Italy [1973] ECR 101; Case 34/73, Fratelli Variola v Italian Finance Ministry [1973] ECR 981.

12 Case 93/71, Leonesio [1972] ECR 287, para 5.

13 Including where it is contended that a Directive which has been correctly implemented is not being correctly applied, so as to ensure that the prescribed result is actually achieved: see Case C–62/00, Marks & Spencer [2002] ECR I–6325.

14 Above n 1, at 171.

15 Case 41/74, Van Duyn v Home Office [1974] ECR 1337.

16 See now Directive 2004/38/EC, OJ 2004 L 158/77.

17 Van Duyn, above n 15, para 12.

18 Case 148/78, Pubblico Ministero v Ratti [1979] ECR 1629.

19 Mr Ratti was also being prosecuted for the infringement of national legislation on the labelling of paints. In that instance, he was unable to rely upon the relevant Community Directive because the deadline for its implementation by the Italian authorities had not been reached.

20 Ratti, above n 18, paras 19–21.

21 Ibid, para 22.

22 [1986] ECR 723, 734, referring to the application of the principle in the subsequent case of Becker (see below).

23 See above n 4.

24 Directive 76/207/EC of 9 Feb 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 L 39/40 (‘the Equal Treatment Directive’). The Directive has been amended by Directive 2002/73/EC, OJ 2002 L 269/15 and is due to be repealed by Directive 2006/54, OJ 2006 L 204/23.

25 See above n 5.

26 [1986] ECR 723, para 49.

27 Ibid, at 735.

28 Case 188/89, [1990] ECR I–3313.

29 Ibid, paras 18–20.

30 [1986] ECR 723, para 51.

31 Case C–392/93, R v HM Treasury, ex parte British Telecommunications plc [1996] ECR I–1631.

32 Case C–13/94, [1996] ECR I–2143.

33 Case 314/85, Foto-Frost v HZA Lubeck-Ost [1987] ECR 4199.

34 See below.

35 See above n 7.

36 See, among others, Case C–472/93, Spano v Fiat [1995] ECR I–4321; Case C–192/94, El Corte Ingles [1996] ECR I–1281; Case C–97/96, Daihatsu Deutschland [1997] ECR I–6843; Case C–185/97, Coote v Granada Hospitality [1998] ECR I–5199; Case C–456/98, Centrosteel Srl v Adipol GmbH [2000] ECR I–6007.

37 Joined Cases C–397 to 403/01, Pfeiffer and Others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I–8835, para 109.

38 It was not until the Francovich case in 1991 (Joined Cases C–6 and 9/90, [1991] ECR I–5357) that the ECJ first formulated its state liability doctrine. In the Faccini Dori judgment, the Court referred to state liability as a possible remedy in a horizontal situation, where it had been found that a private law Directive could not be directly invoked: [1994] ECR I–3325, para 27.

39 Case C–106/89, [1990] ECR I–4135, para 8.

40 Ibid.

41 Case C–160/01, Mau [2003] ECR I–4791, para 34; Joined Cases C–397 to 403/01, Pfeiffer [2004] ECR I–8835, para 114.

42 Case 14/83, Von Colson and Kaman v Land Nordrhein-Westfalen [1984] ECR1891.

43 Ibid, at para 28.

44 Some commentators refer to the duty of consistent interpretation as ‘indirect effect’. This implies that the Directive is being given effect, at least indirectly, whereas the whole point is that the relevant national provisions are being used to resolve the dispute between the parties.

45 The First Company Law Directive, Council Directive 68/151/EEC of 9 Mar 1968, [1968] I OJ Spec Ed 41.

46 See, eg, Faccini Dori, above n 7, para 26; Joined Cases C–240 to 244/98, Océano Grupo Editorial [2000] ECR I–4951, para 32; Joined Cases C–397 to 303/01, Pfeiffer [2004] ECR I–8835, para 119.

47 Case C–105/03, Pupino [2005] ECR I–5285, para 47.

48 Case C–212/04, Adeneler and Others v ELOG [2006] ECR I–6057.

49 Case 80/86, Kolpinghuis Nijmegen [1987] ECR 3969; Case C–168/95, Arcaro [1996] ECR I–4705.

50 [2000] ECR I–4951, para 32 (emphasis added).

51 Council Directive 93/104/EC of 23 Nov 1993 concerning certain aspects of the organisation of working time, OJ 1993 L 307/18 (‘the WTD’).

52 [2004] ECR I–8835, para 109–119.

53 Ibid, para 112 (emphasis added).

54 Ibid, para 115.

55 Ibid, para 116 (emphasis added).

56 Ibid, para 118.

57 Extra-judicially, by Lenaerts, Judge Koen, together with Corthaut, Tim, in their article, ‘Of Birds and Hedges: the Role of Primacy in Invoking Norms of EU Law’ (2006) 13 EL Rev 287 Google Scholar, 294.

58 The cases have been the subject of intense academic debate. Some writers have attempted to develop an all-encompassing rationale; others have acknowledged that the task is impossible. See the discussion of the exclusion/substitution theory, below, and the authors cited in n 75. See also Hilson, C and Downes, T ‘Making Sense of Rights: Community Rights in EC Law’ (1999) 24 EL Rev 121 Google Scholar; Dougan, M, above n 6. For a recent contribution to the debate, adopting a fresh approach, see Ward, A ‘From Direct Effect to Review of Discretion: the Impact of Directives in National Law and the End of Individual Rights?’, forthcoming in (2007) 2 Swedish Studies in European Law Google Scholar.

59 Case C–201/02, [2004] ECR I–723. See also Case 103/88, Fratelli Costanzo [1989] ECR 1839; Case C–201/94, Primecrown Ltd v Medicines Control Agency [1996] ECR I–5819; Case C–435/97, World Wildlife Fund v Autonome Provinz Bozen [1999] ECR I–5613.

60 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175/80 (‘the Environmental Impact Assessment Directive’).

61 Council Directive 83/189/EEC, OJ 1983 L 109/8, repealed and replaced by European Parliament and Council Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1998 L 204/37 (‘the Technical Standards Directive’).

62 Case C–194/94, CIA Security SA v Signalson SA and Securitel SPRL [1996] ECR I–2201.

63 See, however, ibid, the Opinion of AG Elmer, paras 71–73.

64 Case C–443/98, Unilever Italia v Central Food [2000] ECR I–7535.

65 Council Directive 85/557/EEC of 20 Dec 1985 to protect the consumer in respect of contracts negotiated away from business premises, OJ 1985 L 372/31.

66 This interpretation of the earlier cases on incidental direct effect was suggested by Dougan, M, above n 6.

67 Ibid, paras 56–58.

68 See Case C–180/95, Draehmpaehl [1997] ECR I–2195. Judgment was given in Palacios de la Villa on 16 October 2007. Other commentators take a different view of the case. The Court of Justice found on the facts that no discrimination had occurred; so there was no need for the issue as to the possible existence of a general principle of law prohibiting age discrimination, and the possible horizontal effect of such a principle, to be addressed. The hearing in Bartsch took place on 10 October 2007. See Ward, A ‘New Frontiers in Private Enforcement of EC Directives’ (1998) 23 EL Rev 65 Google Scholar and above n 58; Dougan, M, above n 6.

69 For another case on the effect of failure to notify technical regulations see Case C–159/00, Sapod Audic v EcoEmballages SA [2002] ECR I–5031.

70 Case C–77/97, [1999] ECR I–431.

71 Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member states relating to cosmetic products, OJ 1976 L 262/169, as amended and consolidated.

72 Case C-441/93 Pafitis [1996] ECR I-1347; Case C-129/94 Ruiz Bernaldez [1996] ECR I-1829, Case C-215/97 Bellone [1998] ECR I-2191.

73 Ruiz Bernaldez and Bellone.

74 Pafitis.

75 As suggested by M Dougan, n 6, above.

76 Hohfeld, WN Fundamental Legal Conceptions as Applied in Legal Reasoning (Princeton, NJ, Yale University Press, 1919)Google Scholar.

77 See above n 3.

78 A similar point is made powerfully by AG Jacobs in Unilever Italia, above n 46, at para 100 of his Opinion.

79 See Lenz, M, Sif Tynes, D and Young, L ‘Horizontal What? Back to Basics’ (2000) 25 EL Rev 509 Google Scholar; Tridimas, T ‘Black, White and Shades of Grey; Horizontality of Directives Revisited’ (2002) 21 YEL 327 Google Scholar; Lenaerts, K and Corthaut, T, above n 57.

80 Joined Cases C–240 to 244/98, [2000] ECR I–4951, at para 37 of the Opinion.

81 Council Directive 93/13/EEC of 5 Apr 1993 on unfair terms in consumer contracts, OJ 1993 L 95/29.

82 Above n 80, Opinion, para 28.

83 Ibid, Opinion, para 39.

84 Case C–343/98, [2000] ECR I–6659.

85 Joined Cases C–397 to 403/01, Pfeiffer and Others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I–8835. The AG’s initial Opinion identified the horizontal direct effect issue in the dispute, which had not been raised in the Order for Reference. This led to the re-opening of the written procedure. In his second Opinion, the learned AG put forward the strong version of the duty of consistent interpretation, which is also found in the judgment of the Court.

86 See above n 47.

87 See above n 46.

88 See comments on the case by Dougan, M ‘Legal Developments’ in Miles, L (ed) Journal of Common Market Studies Annual Review 2004–2005 (Oxford, Blackwell 2006)Google Scholar; Prechal, S (2005) 42 CML Rev 1445 Google Scholar. See also Arnull, A et al, Wyatt & Dashwood’s European Union Law 5th edn (London, Sweet & Maxwell, 2006)Google Scholar (hereinafter, ‘Wyatt and Dashwood ‘) 183–5; and the analysis of Pfeiffer and Mangold in Ross, M ‘Effectiveness in the European Legal Order(s): Beyond Supremacy to Constitutional Proportionality?’ (2006) 31 EL Rev 476 Google Scholar.

89 See above n 3.

90 See above n 4. For comments on the case see Dougan, M, above n 88; Wyatt and Dashwood, above n 88, 185; Waddington, L ‘Recent Developments and the Nondiscrimination Directives: Mangold and More’ (2006) 13 Maastricht Journal of European and Comparative Law 365 CrossRefGoogle Scholar. Not surprisingly, there has also been intense discussion of the case in the German academic literature.

91 Council Directive 2000/78/EC of 27 Nov 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303/16.

92 Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed term work concluded by ETUC, UNICE and CEEP, OJ 1999 L 175/4.

93 Case C–129/96, [1997] ECR I–7411.

94 Ibid, Opinion, para 10.

95 Ibid, Judgment, para 74.

96 Ibid, Judgment, para 77.

97 See above n 3.

98 Case C–411/05, Palacios de la Villa v Cortefiel Servios SA; Case C–427/06, Bartsch v BSH Bosch und Siemens Hausgerate Alterfursorge GmbH, both pending. On 15 Feb 2007, AG Mazak delivered an Opinion in Palacios, in which he criticises aspects of the Mangold judgment. See also the remark by AG Geelhoed, at para 56 of his Opinion in Navas, advocating ‘a more restrained interpretation and application of Directive 2000/78 than adopted by the Court in the Mangold case’: Case C–13/05, Sonia Chacon v Eurest Colectividades SA, not yet reported.

99 Above n 98, Opinion, paras 132–139.