European Court of Justice decision on Marshall case

Following the argument, which a directive may not rely in an action against an individual, it should be noted that according to Article 189 of the EEC Treaty, the obligatory structure of a directive that includes the ground for the probability of relying on the directive before municipal court, exists only in alliance to ‘each member state to which it is addressed’. Directive on its own may not be able to establish obligations on an individual and a provision of a directive cannot be relied upon against a person.

A number of reasons have been indicated why directives should not have horizontal but only vertical direct effect. The ECJ’s reason in Marshall was textual, on the basis of Article 288. This argument raised two problems.

The first problem is that ECJ’s rationale is controversial in textual terms. Article 288 simply indicate that a member state is obliged by a directive only if that particular Member State is mentioned to be bound, as a means of contrast to regulations that is bound on all Member States (General applicability). It has not considered whether a directive, which binds a Member State, could enforce an obligation on an individual.

The second problem is the ECJ’s textual reliability contradicts with its approach to the direct effectiveness of specified treaty articles (for instance directives) that are only addressed to the member state. Article 157, for instance, is directed to member state s only, giving that states are to insure the application of the basis of equal payment for male and female workers.

In the case of Defrenne, the ECJ held that Article 157can be relied on against the state. It was held that, the fact that ‘Article 119 is mandatory in nature, the prohibition on discrimination between men a...

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... in Wells. It is uncertain whether legal certainty is the policy reason for the textual limit considered above, or if it is a not dependent normative justification for denying horizontal direct effect. It is enough to say the following relating to the argument. First, assuming directives were capable of horizontal direct effect, it would only apply if it satisfies the Van Gend criterion. The Directive must be clear, precise and unconditional. Secondly, legal certainty meaning is unclear because the ECJ has provided no definition. Therefore, there is no credible meaning of that term which analyzes the denial of horizontal direct effect of directives. Thirdly, there are by way of comparison problem of legal certainty with the principle of indirect effect and incidental effect, which are the main essentials to the omission of horizontal direct effect of directives.