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VERTICAL DIRECT EFFECT OF DIRECTIVES. CLARIFICATIONS IN THE RECENT CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION

Constanta MATUSESCU

One of the most complicated aspects of European Union Law is linked to the possibility that directives will have a direct effect. Without being provided for in the Treaties (unlike regulations), the possibility that in certain circumstances the provisions of a directive may have direct effect, but only in the vertical relations between individuals and the Member State (vertical direct effect) has been established by the case-law of the Court of Justice of the European Union. The same case-law excludes the possibility that a directive may be invoked in relations between individuals, prohibiting their horizontal direct effect. However, despite the rule of no-horizontal direct effect, the Court has adopted a broad definition of the scope of direct vertical effect of directives, admitting the possibility that the provisions of a directive to be opposed even an entity or a private law body, which may be considered as a "emanation of the state" under certain circumstances.
Making a brief overview of case-law on the direct effect of directives and of doctrinal opinions on this case-law, the paper focuses on identifying the conditions under which a body can be considered a "State" or "emanation of the State", especially in the context of the recent clarifications given by the Court in case Farrell (C-413/15). Underlining the importance and implications of these clarifications, we conclude that the flexible way of interpreting the criteria on which a body must meet in order to be considered an emanation of the state for the purposes of vertical direct effect of a directive are in fact assisting at the blurring of the distinction between vertical and horizontal direct effect of directives.
 

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