VERTICAL DIRECT EFFECT OF DIRECTIVES. CLARIFICATIONS IN THE RECENT CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
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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Volume XI, Issue 1, January-June 2021, posted at 8th of June 2021