Invocability of substitution and invocability of exclusion: Bringing legal realism to the current developments of the case-law of ‘horizontal’ direct effect of Directives

Article abstract:

This paper tries to show the principles used, explicitly or not, by the European Court of Justice when recognising certain effects to unimplemented directives between individuals, that is, to show the underlying rationale of the current status of the Law. The present state of the matter can only be understood by reference to the changes throughout 30 years of Case-Law. To explain these developments of the law, a reformulation of the theory of the effects of Community Law will be proposed, a reformulation that states that there is a gradation of the possibilities of invoking a Community norm, so that the effects of Community Law can no longer be explained by the twin concepts of Primacy and Direct Effect.