General Question

sarahjane90's avatar

EU directives are only capable of vertical direct effect. Do you agree?

Asked by sarahjane90 (1805points) January 16th, 2011

Direct effect is a principle of EU law which allows provisions of EU law to confer rights upon individuals. Individuals have a right to enforce these provisions before a court. Directives are obligations imposed upon Member States, which are left to be implemented by the Member State on their own accord.

However, individuals are only able to enforce directives against the state (vertical direct effect) and not against other individuals (horizontal direct effect). Do you agree with the current law, which only allows for vertical direct effect, or do you think directives should also be capable of horizontal direct effect? If so, what are your reasons?

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15 Answers

jaytkay's avatar

Can you give a specific example? It would be easier to picture.

sarahjane90's avatar

For example, there is a directive which states a certain level of pollution allowed to be emptied into the area. A company, which is not a state body, is not following the required guideline and is dumping far more than is allowed. An individual who lives nearby who makes a living from fishing in the water is no longer able to continue fishing, and his livelihood is disrupted. He is not able to bring action against this party to enforce the directive, because it is a private party and not state owned or operated. If it were a state owned operation, he would be able to take action in court (vertical direct effect). Because the individual affected is a private party, he is unable to take the private party who is infringing on the directive to court because that would be horizontal direct effect. Maybe that sheds some more light on the question =)

cockswain's avatar

In other words the fisherman has zero legal recourse against the company destroying his livelihood? Can he petition the state to take legal action to correct for externalities?

sarahjane90's avatar

There was a case, Mangold, which did allow for horizontal direct effect in order to enforce a directive. However, At its narrowest, Mangold allows the general principles of law to be directly enforced against private parties. At its widest, Mangold allowed a particular directive to be directly enforced against private parties on the basis that it embodied the general principle of non-discrimination. It is not a widely effective or reliable way around the rule that directives are only capable of vertical direct effect (Marshall), especially since that rule was subsequently confirmed in the Dori case. If the decision in Mangold was interpreted widely, it would basically undermine the current law. Other than that, I am unaware of any other methods possible to enforce a directive against a private party, in this case especially because it is not a general principle of law.

cockswain's avatar

You’re specific question is vague. Are you asking if the directives are only capable of vertical action (as the post title states) or if it should be this way (as stated in the details)?

For what it’s worth, as you’ve described it, a legal system that doesn’t allow citizens to take legal action against companies seems flawed.

bkcunningham's avatar

EU law – which has equal force with national law – confers rights and obligations on the authorities in each Member State, as well as individuals and businesses. The authorities in each Member State are responsible for implementing EU legislation in national law and enforcing it correctly, and they must guarantee citizens’ rights under these laws. Anyone may lodge a complaint with the Commission against a Member State for any measure (law, regulation or administrative action) or practice attributable to a Member State which they consider incompatible with a provision or a principle of EU law.

You do not have to demonstrate a formal interest in bringing proceedings. Neither do you have to prove that you are principally and directly concerned by the infringement complained about. To be admissible, a complaint has to relate to an infringement of EU law by a Member State.

I suppose what follows is your concern, if I’m reading you correctly.

It cannot therefore concern a private dispute.

sarahjane90's avatar

Basically I am wondering if you think that EU law should allow for individuals to bring action against another individual to enforce a directive, and if you do, what are your reasons? Or, should it remain how it is now, and only allow directives to be enforced against the state at a national level.

Regulations, decisions, and treaties of course are able to produce horizontal direct effect, but directives are a different kind of beast – due to the fact that they are not directly applicable (not implemented on every Member State, only those that the certain directive is addressed to.) Directives are implemented by the state they are addressed to, and not by the EU itself. The distinction between vertical and horizontal direct effect is important because it considerably limits the scope and the effectiveness of EU law in the case of a provision which only provides vertical direct effect.

bkcunningham's avatar

I think the whole point/goal of the directives at this point in the infancy of the EU is to bring the laws of the various states into uniformity. This will take some time. Then they may address allowing individuals to take action against other individuals, not only in that state, but within the EU.

cazzie's avatar

I follow the EU cosmetic directive, because I am a soap maker. Norway isn’t a member of the EU, but it’s part of the the EØU. As I understand it, if my products harm someone, the State steps in to see what I’ve done and to punish me, if that is warranted. There was a problem some years ago with bad moisturising creams from somewhere. They hadn’t been preserved properly and there was mould and bacteria problems. People complained to the proper regulatory agency, the manufacturers (or importers, I’m not sure which in this instance) were contacted and the products had to be take off the market. I’m not sure if there were any fines issued or if anyone was actually hurt because of the bad creams, but, unlike the USA, our judicial system isn’t flung wide open for silly civil suits.

cockswain's avatar

So people do have legal recourse, they just have to petition the correct regulatory agency to investigate their case?

cazzie's avatar

Well, they’re not going to get ‘punitive’ damages, but if they had to pay doctor’s fees or hospital visits, or need ongoing medical treatment, the person or company responsible can be ordered to pay for it, sure. My business and all my products have to be registered with an agency called Mattilsynet. They also register and approve places that serve food and make food to sell in the grocery stores. Some time ago, there was an outbreak of contaminated hamburger (E-coli, I think?) meat that was sold in the grocery stores. That meat producer was hauled onto the carpet, as they say here, and made to answer for its business practices by the GOVERNMENT, not just one or two people suing in a civil case where the end result can be hushed up with money and a gag clause in the settlement. Sure, victims of negligence have recourse here. The government works for the people, (or it should do.) In this case, even though the meat was simply ‘suspected’, the company removed 50 tonn of meat from the grocery stores at their own expense because that’s the law. You don’t see that with the meat industry in the States, do you? Nope, they take people to court (like Oprah) just for saying they are put off eating beef during the foot and mouth scare.

here’s a local article, you can google translate it if you want.

cockswain's avatar

On the surface, that sounds like a more efficient legal system. Not anyone with a minor complaint can clog the legal system, stalling more important cases from being heard. It sounds more nimble. I would guess that there are cases where something should be tried and doesn’t get to court, but what system designed and run by humans isn’t flawed. Particularly if corruption gets involved.

You learn something new every day.

bkcunningham's avatar

@cazzie in the example you gave of the contaminated meat, sure you see that in the US. We have the United States Dept. of Agriculture that enforces the testing and sale of meat in the US. The US government is involved in the meat industry from before the time cattle is sold for sale. Whether it is sold as feeder cattle or for dairy cattle or whatnot, absolutely they are involved. In the US, the Food Safety and Inspection Service, under the USDA, is set up to protect the public health.

cazzie's avatar

@bkcunningham I know about the USDA. Its power is limited. The Federal Government can’t demand a recall of food stuffs based on a strong suspicion, isn’t that right?

bkcunningham's avatar

@cazzie yes. The process in the US is called the Commodity Hold and Recall Process. It was jointly developed by the Food and Nutrition Service, the Agricultural Marketing Service,
the Farm Service Agency, and the Food Safety and Inspection Service. If someone in the US or elsewhere for that matter, suspects that a food product in the US is contaminated, they contact the State Dept. of Public Health. We have a systems of alerts in place to nofiify the public as well. Food in the US can be recalled for an mistake like improper labeling. You can get email notifications of recalls. So the answer to your question is, yes, they can recall foods on strong suspicion.

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