Spearheaded by the Court of Justice of the European Union (CJEU) the traditional means of enforcing a directive is through direct effect after the expiry of its transposition date; this is a judicially created principle that protects the rights of particular individuals. A directive usually has direct effect when its provisions are clear, precise and unconditional. However the enforceability of direct effect operates to the detriment of private parties. In this analysis, the aim is to reveal the development of principles surrounding the enforcement of directives for private persons, since there has been an ongoing debate concerning directives solely having vertical-direct effect, namely the individual against the state.
Nevertheless, the principles enshrined through early EU cases seek to justify such rules through legal certainty; however post-Dori cases have distorted this division and have expanded the enforcement of directives for private persons. An endeavour will be made to demonstrate that the recent developments have gone too far and that the CJEU used judicial activism in creating new means of achieving similar effects to ‘direct effect’ that can be relied on by private persons; indirect effect and directly enforceable general principles of EU law based on equality. It is conceded that there is a pressing need to eradicate the legal uncertainty in this area and introduce the concept of horizontal-direct effect as it is conceded that the traditional discrimination between individuals is intolerable in this modern day where individual rights are at the core of EU law. Though it will remain that exceedance of the transposition period would still be required, arguably this is the sacrifice to uphold t...
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...irective will have a direct effect and bind the state to grant those rights confined in it. On the contrary, if the provisions did not satisfy the Van Gend criteria or if these involved private persons, then merely indirect effect or state liability could arise. This reasoning provides persuasive justification against horizontal reform and arguably vertical-direct effect upheld the rule of law through transparency of obligations because at this time it would be unfair for a private person to be held accountable where directives were not published and therefore they would be unaware of obligations.
However, this has led to discrepancies concerning the extension of direct effect to operate horizontally. Overall arguments based on the enforcement of directives for individual rights and the constitutional traditions of the Member States, which will be considered next.
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