Introduction
The principle of direct effect in European Union law allows individuals to rely on provisions of EU law before national courts. This principle, established in the landmark case of Van Gend en Loos, is important for ensuring the effectiveness and uniformity of EU law within member states. Direct effect operates under specific conditions, requiring the provision to be clear, precise, and unconditional. The case of Marshall v Southampton and South West Hampshire Area Health Authority significantly clarified the scope of direct effect concerning directives, establishing the important distinction between vertical and horizontal direct effect. This case holds that directives, unlike regulations and treaty articles, possess only vertical direct effect.
The Facts of Marshall
Helen Marshall, employed by the Southampton and South West Hampshire Area Health Authority, was dismissed at the age of 62, while male employees could work until 65. She argued that this constituted discrimination based on sex, contrary to Directive 76/207/EEC on equal treatment. The key question before the European Court of Justice (ECJ) concerned whether Ms. Marshall could rely on the directive against her employer, a public health authority.
Vertical Direct Effect Explained
The ECJ held that Ms. Marshall could rely on the directive against her employer. This was because the health authority was an "emanation of the state," establishing the principle of vertical direct effect for directives. Vertical direct effect permits individuals to invoke a directive against the state or a public body. The rationale behind this is that member states are obligated to implement directives and should not benefit from their failure to do so. The Court reasoned that allowing individuals to invoke directives against the state would encourage proper implementation.
Horizontal Direct Effect: Why Not for Directives?
Importantly, the ECJ clarified that directives lack horizontal direct effect. This means an individual cannot invoke a directive against another individual or a private company. The Court based this distinction on the nature of directives. Unlike regulations, which are directly applicable in all member states, directives require implementation by member states. Imposing obligations on individuals based on unimplemented directives would undermine this implementation process and blur the distinction between regulations and directives. The Court found in Marshall that it would be unfair to impose such obligations on private entities without the proper legislation being put in place by the state.
The Rationale for the Distinction
The ECJ's reasoning in Marshall stems from the Treaty on the Functioning of the European Union (TFEU), which distinguishes between regulations and directives. Article 288 TFEU provides that a regulation "shall have general application" and "shall be binding in its entirety and directly applicable in all Member States." Conversely, a directive "shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods." This difference in legal nature justifies the distinction in direct effect.
Subsequent Case Law and Indirect Effect
The Marshall ruling has been strengthened and clarified by subsequent ECJ judgments, such as the case v British Gas plc. This case provided criteria for determining what constitutes an "emanation of the state," expanding the scope of vertical direct effect. While horizontal direct effect remains unavailable for directives, the ECJ has developed the principle of indirect effect, as established in Von Colson and Kamann v Land Nordrhein-Westfalen. This principle obliges national courts to interpret national law, as far as possible, in conformity with EU directives, even in horizontal disputes. This offers an alternative avenue for individuals seeking redress in cases involving private parties where the state has failed to correctly implement a directive.
Conclusion
The Marshall case stands as a key decision in EU law, clarifying the scope of direct effect for directives. The distinction between vertical and horizontal direct effect is fundamental to understanding the relationship between EU law and national law. While directives are vertically directly effective against the state, their lack of horizontal direct effect highlights the importance of proper implementation by member states. The development of indirect effect, although a separate principle, offers an additional mechanism to ensure the effectiveness of EU law in horizontal situations, further highlighting the continuing development of the jurisprudence surrounding the direct effect of directives. The Marshall ruling, alongside subsequent cases, reaffirms the essential role of the ECJ in ensuring the uniform application and effectiveness of EU law within the diverse legal systems of the member states. This principle of direct effect, refined and clarified through judicial interpretation, remains a basis of the EU’s legal order.
