European Union Law: The Doctrine of Direct Effect - Essay Example

Direct effect in respect of Van Gend was allowed in respect of vertical relationship. The question of the direct effect of Directives having direct effect was problematic as Directives were designed so as to be implemented and brought into effect by member states within a stipulated period of time.

Thus it had been thought Directive could not have a direct effect as the condition in Van Gend of further implementing measures could not be satisfied. In Case 41/74 Van Duyn Home Office, the court held that a directive could be relied upon by an individual, even though it had not been introduced by national law. Thus where the Member State is at fault, for failing to transpose the Directive in national law or has done so inaccurately, the individual is allowed to claim against the state the rights which would have been provided, had the Directive been (correctly) implemented.

This has been carefully thought of, as allowing vertical effect is appropriate because it is the fault of the Member State which has failed to implement the measure and not the fault of any individual.l {Case 152/84 Marshall v. Southampton & Southwest Hampshire Area Health Authority (Teaching)} . This rule had been criticized for inequality, as an action could only be brought against the state. (Advocate General’s opinion in Case C—91/92 Faccini Dori v. Recreb srl) however the same has not been followed by the Courts and the Courts have confirmed that the Directives can have a direct effect in the vertical situations between an individual and the state, moreover ECJ has extended the principle of Direct effect by allowing the incidental horizontal direct effect to directives in a triangular situation as in case 194/94 CIA Security International V Signalson, case 441/93 Panagis Pafitis and Unilever Italia V Central Food SpA In light of the question the answer is straightforward and clear that the Directive 2000/78 may not of itself impose obligations on an individual and hence cannot have horizontal direct effect and therefore not be used by Alex, the justification for this provided by the Courts and takes its roots from the Art 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to “each Member State to which it is addressed”.

It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person. However, an action against the member state may be brought.