Vertical direct effect of directives. clarifications in the recent case-law of the court of justice of the European Union

Author:Constanta Matusescu
Position:Associate Professor, Ph.D., ?Valahia' University of Târgoviste, Faculty of Law and Administrative Sciences, Târgoviste, Romania
Pages:33-42
SUMMARY

One of the most complicated aspects of European Union Law is linked to the possibility that directives will have a direct effect. Without being provided for in the Treaties (unlike regulations), the possibility that in certain circumstances the provisions of a directive may have direct effect, but only in the vertical relations between individuals and the Member State (vertical direct effect) has been established by the case-law of the Court of Justice of the European Union. The same case-law excludes the possibility that a directive may be invoked in relations between individuals, prohibiting their horizontal direct effect. However, despite the rule of no-horizontal direct effect, the Court has adopted a broad definition of the scope of direct vertical effect of directives, admitting the possibility that the provisions of a directive to be opposed even an entity or a private law body, which may be considered as a "emanation of the state" under certain circumstances. Making a brief overview of case-law on the direct effect of directives and of doctrinal opinions on this case-law, the paper focuses on identifying the conditions under which a body can be considered a "State" or "emanation of the State", especially in the context of the recent clarifications given by the Court in case Farrell (C-413/15). Underlining the importance and implications of these clarifications, we conclude that the flexible way of interpreting the criteria on which a body must meet in order to be considered an emanation of the state for the purposes of vertical direct effect of a directive are in fact assisting at the blurring of the distinction between vertical and horizontal direct effect of directives.

 
CONTENT
Vertical direct effect of directives. Clarifications in the recent case-law... 33
VERTICAL DIRECT EFFECT OF DIRECTIVES.
CLARIFICATIONS IN THE RECENT CASE-LAW
OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
Constana MTUŞESCU
Associate Professor, Ph.D., „Valahia” University of Târgoviste, Faculty of Law
and Administrative Sciences, Târgoviste, Romania
E-mail: constanta_matusescu@yahoo.com
Abstract
One of the most complicated aspects of European Union Law is linked to the possibility that
directives will have a direct effect. Without being provided for in the Treaties (unlike regulations), the
possibility that in certain circumstances the provisions of a directive may have direct effect, but only
in the vertical relations between individuals and the Member State (vertical direct effect) has been
established by the case-law of the Court of Justice of the European Union. The same case-law excludes
the possibility that a directive may be invoked in relations between individuals, prohibiting their
horizontal direct effect. However, despite the rule of no-horizontal direct effect, the Court has adopted
a broad definition of the scope of direct vertical effect of directives, admitting the possibility that the
provisions of a directive to be opposed even an entity or a private law body, which may be considered
as a "emanation of the state" under certain circumstances.
Making a brief overview of case-law on the direct effect of directives and of doctrinal opinions on
this case-law, the paper focuses on identifying the conditions under which a body can be considered a
"State" or "emanation of the State", especially in the context of the recent clarifications given by the
Court in case Farrell (C-413/15). Underlining the importance and implications of these
clarifications, we conclude that the flexible way of interpreting the criteria on which a body must
meet in order to be considered an emanation of the state for the purposes of vertical direct effect of a
directive are in fact assisting at the blurring of the distinction between vertical and horizontal direct
effect of directives.
Keywords: Public Law, European Union Law, Directives, Court of Justice of the European
Union, direct effect, emanation of the state
1. Brief considerations about the direct effect of directives
Under article 288 of the Treaty on the Functioning of the European Union
(TFEU), directives are addressed to the Member States and shall be implemented
in the national legal order by means left to the discretion of Member States,
obliging only with respect to the result to be achieved. As such, directives directly
generate obligations just to the consignee member states, without constituting, in
principle, a direct source of rights and obligations for private natural and legal
persons in Member States, in the sense of the principle of direct effect of EU law as
Law Review vol. VII, special issue, December 2017, p. 33-42
34 CONSTANŢA MĂTUŞESCU
set out in the case Van Gend & Loos1 and developed in the subsequent case-law of
the Court of Justice of the European Union (“CJEU”/”Court”). The rights and
obligations derive from a directive become operational through national measures
for transposition of the directive, between directive and natural or legal person
always interposing a national law2.
Starting with the case Van Duyn3, the Court found, however, that, in certain
circumstances, the provisions of a directive may have direct effect, but only in the
vertical relationships between the individuals and the Member State (vertical direct
effect). Reflecting the will of the Court to ensure the full effectiveness of EU law4,
effectively guaranteeing the protection of the individual rights, this case-law
provides that the provisions of a directive which has not been transposed within
the time limits laid down or that has been improperly transposed and that has a
sufficiently precise and unconditional character5 may be invoked by an individual
against the State. Selected courting arguments aimed at the binding nature of the
directive for the Member States and the fact that non-transposition or faulty
transposition thereof constitutes a violation of the obligation of the State and the
recognition of a direct effect of the directives seeks “to prevent the State from
taking advantage of its own failure to comply with [Union] law”6.
The case-law of the Court states that no matter the exact quality of the Member
State’s acting, and a directive can be invoked against it whether acting as an
employer or public authority7.
At the same time, the Court found the interdiction on the horizontal direct effect
of a directive (between individuals) and the inverse direct effect8, establishing, in
accordance with settled case-law, that a directive which has not been transposed
into the domestic legal order of the State cannot of itself impose obligations on an
individual and cannot therefore be relied upon as such against an individual in
relations with other individuals, or in relations with the State9. Consequently,
1 Judgment of 5 February 1963, Van Gend & Loos, C-26/62, EU:C:1963:1.
2T. Ştefan, B. Andreşan-Grigoriu, Drept comunitar, C.H.Beck Publishing House, Bucharest, 2007,
p. 215.
3Judgment of 4 December 1974, Van Duyn v Home Office, C-41/74, EU:C:1974:133, paragraph 12.
4S. Prechal, Directives in EC Law, 2nd edn, Oxford University Press, 2005, p. 250.
5Judgment of 5 April 1979, Ratti, C-148/78, EU:C:1979:110.
6Judgment of 15 February 1986, Marshall, C-152/84, EU:C:1986:84, paragraph 49; Judgment of 12
July 1990, Foster, C-188/89, EU:C:1990:313, paragraph 17; Judgment of 14 July 1994, Faccini Dori,
C-91/92, EU:C:1994:292, paragraph 22; Judgment of 14 September 2000, Collino and Chiappero,
C-343/98, EU:C:2000:441, paragraph 23.
7Judgment of 12 July 1990, Foster (EU:C:1990:313), paragraph 17 and the case-law cited.
8Regarding the fact that a public authority may not apply directly the provisions of a directive
against an individual, setting or aggravating his/her responsibility.
9See, in particular, Judgment Marshall (EU:C:1986:84), paragraph 48; Judgment Faccini Dori
(EU:C:1994:292), paragraph 20; Judgment of 7 January 2004, Wells, C-201/02, EU:C:2004:12,
paragraph 56; Judgment of 19 January 2010, Kücükdeveci, C555/07, EU:C:2010:21, paragraph 46;
Judgment of 19 April 2016, DI, C-441/14, EU:C:2016:278, paragraph 30.
Vertical direct effect of directives. Clarifications in the recent case-law... 35
according to the Court, nor even a clear, precise and unconditional provision of a
directive which seeks to confer rights or impose obligations on individuals cannot
be used as such in the framework of the dispute that opposes exclusive
individuals10.
The arguments of the Court shall take into account, on the one hand, the
specific nature of the directive which, by definition, do not directly generate
obligations but to the consignee Member States pursuant to Article 288 (3) TFEU
and cannot impose obligations to individuals but through their respective national
transposition measures. The Court pointed out in this context that the extension of
the possibility of invoking non-transposed directives to the sphere of relations
between individuals would be to recognize the competence of the European
Union’s to enact obligations for individuals with immediate effect, whereas it has
competence to do so only where it is empowered to adopt regulations11. In other
words, by recognizing the direct horizontal effect, the distinction between
regulations and directives would be blurred. On the other hand, the Court has held
that “the principle of legal certainty prevents directives from creating obligations
for individuals”12 because such a situation would be legally insecure since
individuals must be able to rely on national law13.
In order to compensate the lack of horizontal direct effect of the directives, the
Court used in its case-law a number of alternative solutions, designed to give
satisfaction to any individual who considers himself injured through improper
transposition or non-transposition of a directive. They consist of: the adoption of a
broad definition of what constitutes “the State” (“emanation of the State”), the
possibility of interpreting national law in a way that conforms to the directive
(principle of consistent/harmonious interpretation) and, ultimately, state liability,
as a form of remedy.
Thus, the rules in respect of invoking directives are part of the mechanism in
stages14 developed on jurisprudential way15 in order to ensure the effective and
10In doctrine, this approach at the Court has been criticized by comparison with the provisions of
the treaties, which is addressed to the Member States too, but to which the Court has conferred a
direct horizontal effect. See in this regard P. Craig, The Legal Effects of Directives: Policy, Rules and
Exceptions, European Law Review, Vol. 34, Nr. 3, 2009, p. 349 and the following.
11Judgment Faccini Dori (EU:C:1994:292), paragraph 24.
12Judgment Wells (EU:C:2004:12), paragraph 56. However, „mere adverse repercussions” on the
rights of third parties, even if the repercussions are certain, do not justify preventing an individual
from invoking the provisions of a directive against the Member State concerned (paragraph 57).
13See S. Prechal, op. cit., p. 257.
14For a detailed explanation of this mechanism, or "three-step model", see S. Prechal, ”Direct
effect, indirect effect, supremacy and the evolving constitution of the European Union”, în C. Barnard
(ed.), The Fundamentals of EU law revisted, Oxford University Press, Oxford, 2007, pp. 35-68. With
reference only to directives, see also points 30 to 34 of the Opinion of Advocate General Sharpston
delivered on 22 June 2017 in Case Farrell (C413/15, EU:C:2017:492).
15See, inter alia, Judgment of 10 April 1984, von Colson şi Kamann, 14/83, EU:C:1984:153;
Judgment of 5 October 2004, Pfeiffer, C-397/01- C-403/01, EU:C:2004:584; Judgment of 24 January
2012, Dominguez, C-282/10, EU:C:2012:33.
36 CONSTANŢA MĂTUŞESCU
uniform application of the Union Law at Member State level. However, a part of
the doctrine16 as well as some Advocates General of the Court17 believe that
alternative solutions developed to cover the gap created by the lack of a horizontal
direct effect of directives is not satisfactory from the perspective of granting
effective protection of the rights of individuals, generating complications for the
complainants and uncertainty for the defendant. The main arguments relating to
the limits of the principle of conform interpretation (impossibility of interpretation
contra legem of national law18), with the uncertainty that is created through
extensive interpretation of national law in order to implement a directive with
regard to the scope of national law, with the possibility that (incidental direct
effect19), in this way, individuals to incur obligations which they would not have
had in the absence of the directive20, as well as the rules governing the repair of
damages21, which often involve the initiation by the applicant of two separate
procedures (against the principal defendant, and, once this will have tried and will
not be able to win the case against him, against the State)22. Accordingly, it
considers that the recognition of a horizontal direct effect of directives “in
appropriate circumstances”23 would lead to an increase in legal certainty and
coherence of the system.
Recently, in case Farrell24, the Court has had the opportunity to clarify the
concept of “emanation of the State” for the purposes of vertical direct effect of
16See, for example, A. Dashwood, From Van Duyn to Mangold via Marshall: Reducing Direct Effect to
Absurdity? Cambridge Yearbook of European Legal Studies: Vol. 9: 2006-2007, pp. 81-109; M. Dougan,
When worlds collide! Competing Visions of the Relationship between Direct Effect and Supremacy’, 44
Common Market Law Review, Issue 4, 2007, pp. 931–963; P. Craig, The Legal Effects of Directives: Policy,
Rules and Exceptions, European Law Review, Vol. 34, Nr. 3, 2009, p. 349; M. De Mol, Dominguez: A
Deafening Silence, European Constitutional Law Review, vol. 8, 2012, p. 280.
17See in this respect Opinion of Advocate General van Gerven delivered on 26 January 1993 in
Case Marshall II (C271/91, EU:C:1993:30, point 12), Opinion of Advocate General Lenz delivered on
9 February 1994 in Case Faccini Dori (C91/92, EU:C:1994:45, point 47), Opinion of Advocate General
Trstenjak delivered on 8 September 2011 in Case Dominguez (C282/10, EU:C:2011:559, point 63),
Opinion of Advocate General Sharpston delivered on 22 June 2017 in Case Farrell (C413/15,
EU:C:2017:492, point 150).
18Judgment of 13 noiembrie 1990, Marleasing, C106/89, EU:C:1990:395, paragraphs 8-14,
Judgment of 15 April 2008, Impact, C-268/06, EU:C:2008:223, paragraph 100; Judgment Dominguez
(EU:C:2012:33), paragraph 25.
19 See A. Dashwood, From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?
Cambridge Yearbook of European Legal Studies: Vol. 9: 2006-2007, pp. 81-109.
20For example, by the existence in national law of another provision (which creates obligations)
which may apply in case of suspension of the right contrary to the directive.
21See C. Mtuşescu, The extent of the state's obligation to repair the damage caused by a breach of EU
law in the EU Court of Justice, Valahia University Law Study, issue 1/2014, pp. 47-57.
22See Opinion of Advocate General in Case Farrell (EU:C:2017:492), point 33-34 and the case-law
cited.
23Opinion of Advocate General Jacobs delivered on 27 January 1994 in Case Vaneetveld
(C316/93, EU:C:1994:32), points 30-31.
24Judgment of 10 October 2017, Farrell, C413/15, EU:C:2017:745.
Vertical direct effect of directives. Clarifications in the recent case-law... 37
directives. At the same time, it reaffirmed its previous position with regard to the
interdiction on the horizontal direct effect of directives, although the Advocate
General in this case had suggested that it would be necessary a reopening of the
debate on the recognition of horizontal effect of the directives25.
2 The concept of “State” or “emanation of the State” for the purpose of
vertical direct effect of directives
The distinction between vertical and horizontal direct effect of directives make
it necessary to define the exact meaning of the “State” for this purpose. In the
absence of a definition of the notion of “State” in the European treaties, the Court
of Justice has attempted to define this concept in such a way to ensure effective and
uniform application of the Union law, which led to an assimilation of authorities
(public, and even private) bodies of the State. Thus, invoking as arguments the
binding nature of directives for the Member States and the necessity to prevent the
State from taking advantage of its own failure to comply with the Union law, the
Court retained that an individual can invoke the provisions of a directive against
the State, regardless of the quality in which it acts, as employer or as public
authority26. In the light of these considerations, the Court admitted that the
sufficiently precise and unconditional provisions of a directive can be invoked by
judiciary not only against the State as such, but also against any public authority
(such as tax authorities27 or regional and local authorities28) representing, in terms
of function, some of the apparatus of the State, which must be considered as the
State itself. Court sends directly to the need for “functional interpretations” of the
notion of the State, in order to ensure the uniformity and the primacy of the Union
law29. The directive may be invoked against such authorities without the need for
it to take effective responsibility for the failure by a Member State of the obligation
to transpose the directive in question30. As the Advocate General considers in case
Farrell, “[...] the position is that, had the Member States implemented the directive
correctly, everyone would have been required to respect the rights granted by that
directive to individuals. Therefore, at the very least, any body that is a part of the
State should be required to respect those individual rights” 31.
25Opinion of Advocate General Sharpston in Case Farrell (EU:C:2017:492), point 148.
26Judgment Marshall (EU:C:1986:84), paragraph 49; Judgment Foster (EU:C:1990:313), paragraph
17 and Judgment Collino and Chiappero (EU:C:2000:441), paragraph 22.
27Judgment of 19 January 1982, Becker, 8/81, EU:C:1982:7 and Judgment of 22 February 1990,
Busseni, C-221/88, EU:C:1990:84.
28Judgment of 22 iunie 1989, Costanzo, C-103/88, EU:C:1989:256.
29Judgment of 20 septembre 1988, Beentjes v State of the Netherlands, 31/87,
ECLI:EU:C:1988:422, paragraph 11.
30Judgment Marshall (EU:C:1986:84).
31Opinion of Advocate General Sharpston in Farrell (EU:C:2017:492), point 31.
38 CONSTANŢA MĂTUŞESCU
By judgment in case Foster32 and the subsequent case-law based on it33, the
Court has accepted the possibility that the provisions of a directive having direct
effect to be opposed even as an entity or a body governed by private law, under
certain conditions they may be qualified as “an emanation of the State”. Sending to
its previous case-law, The Court proposes in Foster an abstract definition of what
constitutes an emanation of the State for the purposes of vertical direct effect,
establishing that the sufficiently precise and unconditional provisions of a directive
could be invoked “on against organizations or bodies on which were subject to the
authority or control of the State or had special powers beyond those which result
from the normal rules applicable to relations between individuals” (paragraph 18).
As such, it can be considered as an emanation of the State ”[...] a body, whatever its
legal form, which has been made responsible, pursuant to a measure adopted by
the State, for providing a public service under the control of the State and has for
that purpose special powers beyond those which result from the normal rules
applicable in relations between individuals is included in any event among the
bodies against which the provisions of a directive capable of having direct effect
may be relied upon” (paragraph 20).
This two-steps formulation of the characteristics which must be fulfilled by an
entity in order to be considered emanation of the State - a general formula starting
from existing case-law (paragraph 18) and identification of elements that can be
relevant to such assessment (paragraph 20), created rather uncertainty about the
exact limits and implications of the Foster-test, as is shown by the diversity of
doctrinal opinions expressed and subsequent jurisprudence.
Thus, the interpretation of the criteria identified in Foster to establish what
constitutes an emanation of the State for the purpose of vertical direct effect,
respectively entrustment of public service, State control and special powers did the
subject of controversy in the literature, in particular with regard to the cumulative
or alternatively nature of those conditions. While some authors have noted that
these criteria are not cumulative34, by contrast, others argue that they must be
cumulatively met, mostly retain only two of the three criteria (in particular, public
service provision and State control)35.
At the same time, the case-law of the Court subsequent to the Foster judgment
offers some vague and sometimes contradictory indications as regards to the
elements to be considered for qualify an entity or body as an emanation of the
32Judgment Foster (EU:C:1990:313).
33Judgment of 4 decembrie 1997, Kampelmann and others, C-253/96-C-258/96, EU:C:1997:585.
34See M. Bobek, ”The effects of EU law in the national legal systems”, in C. Barnard & S Peers
(eds), European Union Law, 2-nd edition, Oxford University Press, Oxford, 2017, p. 154 (but retaining
as criteria only State control and special powers).
35See K. Lenaerts & P. Van Nuffel, European Union Law, 3-nd edition, Sweet & Maxwell, London,
2011, pp. 903-1004; R. Schütze, European Union Law, Cambridge University Press, Cambridge, 2015,
p. 100.
Vertical direct effect of directives. Clarifications in the recent case-law... 39
State36. In most decisions, the Court made reference to the criteria set out in
paragraph 20 of Foster judgment, rather than at paragraph 18 of the same
judgment, often leaving to the national court the task of checking whether a
provision with direct effect of a directive may be relied upon against the
defendant37. In cases where it considered that have information needed to provide
specific guidelines for the national court, most often the Court did not insist on the
presence of all the elements contained in paragraph 20 of the Foster decision, which
would indicate that these criteria are rated as having an alternative and not
cumulative for the determination of the status of the organism concerned38. A
different point of view is expressed by the Court in Portgás39, which requires the
presence of all elements listed in paragraph 20 of the Foster decision, making
reference to the “bodies which, under the control of [the] authorities [of the
Member States], have been given the responsibility for a public-interest service and
which have, for that purpose, the special powers”40.
If uncertainties regarding the conditions under which a body governed by
private law may be considered to be an emanation of the State and can be invoked
against him the provisions of a directive are likely to have direct effect persisted
more than two decades since the Foster judgment, recently, the Court (reunited in
the High Chamber) has the opportunity to provide the necessary clarification.
Thus, in the judgment in case Farrell41, concerning who was liable for failure to
implement EU Motor Insurance Directive properly following a car accident, it has
noted that conditions starting from Foster judgment “cannot be conjunctive”42, a
body or an organisation, even one governed by private law, can be considered an
emanation of the State if he was delegated by the State to carry out a task of
interest of the public and has, to this end, the “special powers”43, without having
36For a detailed analysis of that case-law, see points 58 to 77 of the Opinion o f Advocate General
Sharpston in Case Farrell (EU:C:2017:492).
37See, inter alia, Judgment of 19 April 2007, Farrell I, C356/05, EU:C:2007:229, paragraphs 40-41
and Judgment of 24 January 2012, Dominguez, C-282/10, EU:C:2012:33, paragraphs 39-40.
38This conclusion is quite clear from Judgment of 7 September 2006, Vassallo, (C-180/04,
EU:C:2006:518), in which it is stated that ”It has consistently been held that a directive may be relied
on not only against State authorities, but also against organizations or bodies which are subject to the
authority or control of the State or have special powers […]” (paragraph 26).
39Judgment of 12 decembrie 2013, Portgás, C- 425/12, EU:C:2013:829.
40 See paragraph 34 of the judgment.
41Judgment of 10 October 2017, Farrell, C413/15, EU:C:2017:745. This followed another
decision, Judgment of 19 April 2007, Farrell I (C-356/05, EU:C:2007:229), in which the Court decided
that that provision of the Third Motor Insurance Directive in the discussion has direct effect, stated
however that it did not have enough material before it to establish whether the body concerned
(Motor Insurers Bureau of Ireland) was an emanation of the State and therefore left that question to
the national court, leading in due course to a second preliminary reference.
42 See paragraphs 28 and 29 of the judgment.
43 See paragraph 35 of the judgment.
40 CONSTANŢA MĂTUŞESCU
necessarily to be subject to the authority or control of the State (the two conditions
therefore being alternatives).
The Court concluded that against the body of private law in question in this
case (Motor Insurers Bureau of Ireland) may by oppose the provisions of a
directive capable of having direct effect whereas it was entrusted to a public
interest mission (exclusive responsibility for compensating applicants injured in
road traffic collisions where the responsible driver is uninsured or cannot be
identified), having for this purpose, by virtue of the law, special powers (the power
to oblige insurers carrying on motor vehicle insurance in the territory of the
Member State concerned to be members of it and to fund it).
To such reasoning, the Court, following the conclusions of the Advocate
General, made his reference to contextual character of criteria adopted in
paragraph 20 of the Foster judgment and the need to that they be interpreted in
light of paragraph 18 of the same judgment, “where the Court stated that such
provisions can be relied on by an individual against organisations or bodies which
are subject to the authority or control of the State or have special powers beyond
those which result from the normal rules applicable to relations between
individuals”44.
To add even more clarity with regard to the bodies or entities which may be
considered a “emanation of the State” and to whom it may oppose the provisions
of a directive capable of having direct effect, the Court explained that these “[...]
can be distinguished from individuals and must be treated as comparable to the
States, either because they are legal persons governed by public law that are part of
the State in the broad sense, or because they are subject to the authority or control
of a public body, or because they have been required, by such a body, to perform
the task in the public interest and have been given, for that purpose, such special
powers”45.
This formulation makes it possible to identify more clearly than in the Foster
judgment the alternative criteria in consideration of which an entity might be
regarded as an emanation of the State:
a) it is governed by the public law;
b) it is subject to the authority or control of a public body;
c) it performs public interest task on the basis of special powers.
At the same time, this is a confirmation of the functionalist approach of the
Court (according to which must be considered rather than the nature of the source,
the functions exercised), having the potential to represent the new common frame
of reference in this matter, including the related fields of law, such as State aid,
public procurement or public services46. It makes it possible that the notion of
44 See paragraph 27 of the judgment.
45 See paragraph 34 of the judgment.
46See also in this regard the correlations made by the Advocate General in Case Farrel
(EU:C:2017:492), points 79-101.
Vertical direct effect of directives. Clarifications in the recent case-law... 41
emanation of the State for the purposes of vertical direct effect an autonomous
notion of Union law, which should be applied uniformly regardless of national
legal contexts (in many of them an important part of public missions was entrusted
to "foreign" bodies to the State), thus increasing the efficiency of the secondary
legislation of the European Union.
3 Conclusions
Despite the voices becoming more numerous supporting the recognition of a
horizontal direct effect of the directives, the CJEU has not been engaged in such an
approach so far, and it rather for reasons of a constitutional order (related to the
allocation of powers under the Treaty)47, than from considerations related to the
need to ensure legal certainty, which, as we showed above, can easily be combated.
However, the Court has turned to alternative solutions to enable it to ensure
the effectiveness and uniformity of Union law. One of the major developments
introduced by the Court for this purpose is the extension of the scope of the
vertical direct effect by adopting a broad definition of ”State”, which allows private
persons to be considered as an emanation of the State under certain circumstances.
It is appreciated that by accepting that a body governed by private law may be
bound to give effect to directly effective rights contained in a directive at the suit of
another private individual, ”the Court has in reality itself already countenanced a
limited form of horizontal direct effect”48.
The flexible interpretation of the criteria that must be satisfied by an entity to
be considered an emanation of the State, drawn from the recent case-law of the
Court, along with the other exceptions to the prohibition of horizontal direct effect
(the duty of consistent interpretation and incidental direct effect rulings49), seem to
confirm this appreciation, assisting in fact at the neutralization of the distinction
between the vertical and horizontal direct effect of the directives, or a horizontal
direct effect in a disguised way.
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42 CONSTANŢA MĂTUŞESCU
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