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Publishers Abstract:
After years of speculations and debates, the ECJ shut the door for horizontal direct effect of directives in Faccini Dori, using an argument of a constitutional nature. The acceptance of horizontal direct effect of directives would amount to recognizing a power in the Community to enact obligations for individuals with immediate effect, whereas, it has competence to do so only where it is empowered to adopt regulations. The cases in which such horizontal side effects emerge can be divided into two main categories. In certain cases, the ECJ accepted that an individual may press claims based directly on the directive against a public authority, despite the fact that this may entail consequences to the detriment of another individual. The second category relates to cases where a directive is used by way of a collateral challenge or, to use another term, an exception of illegality or an incidental plea. In any case, the denial of horizontal direct effect of directives continues to complicate the already complex case law of effects that directives may produce.
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