Rights, Duties and the End of Marshall

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1 Introduction Jason Coppel * In the first Marshall case, the European Court of Justice decided that European Community directives, which had in the past been enforced by individuals vertically against the state, could not also be enforced horizontally against private individuals. The denial of horizontal direct effect for directives has profound implications for the effectiveness of directives which have not been properly implemented into national law and has provoked considerable academic and judicial debate. In the recent case of Dori v Recreb, the Court of Justice was offered the opportunity to reconsider its position, but firmly declined to do so.* This article contends that the basis of the distinction between vertical and horizontal direct effect as drawn by the Court in the context of directives has been overtaken by major, although largely unnoticed, developments in Community jurisprudence. The article seeks not only to demonstrate that the Marshall distinction must at least be reformulated, if not abandoned altogether, but also to prompt a much-needed discussion about the nature of the Community law right. In investigating the concept of the right in Community law, assistance will be sought in analytical legal philosophy, a discipline which has concerned itself, from the very beginning, with the nature and foundation of legal rights. Community law has only recently begun to attract serious attention from legal theorist^.^ It is hoped that this article will demonstrate the considerable benefits which legal theory can bring to an analysis of legal policy and decision making in the Community context. A The Marshall Distinction The history of the principle of direct effect in Community law is well known, and well documented, and it shall not be rehearsed in detail at this stage. The principle, first expounded by the Court of Justice in Van Ger~d,~ entailed that under certain conditions, provisions of the Treaty of Rome could confer rights upon individuals which were enforceable before their national courts. The Community obligations of Member States could thereby be enforced at national level and the disadvantages of the cumbersome, time-consuming and often ineffective Treaty enforcement procedure of Article 169, under which the Commission brought defaulting Member States before the Court of Justice, could be avoided. Direct effect has evolved over the years in two principal directions. First, it has been extended to create directly enforceable Treaty rights between individuals *Brasenose College, Oxford. The author would like to thank Hugh Collins, John Gardner, Aidan O Neill and John Stanton-Ife for their valuable comments on an earlier draft of this article. 1 Case , Mmhall v!hthanpton and Soh-West Hampshire Area Heawl Authority [1986] ECR Case C91/92, Judgment of 14 July A major recent work is Bengoetxea, Legal Reasoning in the European Court of Justice (Oxford: Clarendon Press, 1993). See pp 1-7 for a brief history of the previous work in this field. 4 Case 26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen [ ECR The Modern Law Review Limited 1994 (MLR 57:6, November). Published by Blackwell Publishers. 108 Cowley Road, Oxford OX4 1JF and 238 Main Street, Cambridge, MA 02142, USA. 859

2 The Modern Law Review [Vol. 57 inter se; that is, certain Treaty Articles have been given horizontal direct effe~t.~ Secondly, it has been applied to directives which, under Article 189 of the Treaty, are binding only upon Member States to which they are addressed and which would not seem capable of bestowing rights and duties on individuals.6 Provisions of unimplemented directives which are clear and sufficiently precise could therefore be relied upon by individuals before their national courts. In the early cases, the justification used by the Court of Justice for the conferral of direct effect upon directives in certain circumstances was one based squarely on policy. The provisions of directives would be more effective within national legal orders if they could be invoked by individuals before national courts: it would be incompatible with the binding effect attributed to a directive by Article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. In particular, where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and the latter were prevented from taking it into consideration as an element of Community law. The relationship between the binding effect of directives, which is enshrined in Article 189, and their direct effect, which is not, is arguably not as clear as the Court suggests,* but this formula was nevertheless taken up and adopted in subsequent cases as the basis for the direct effect of directives. Later, however, the Court came up with an additional justification for direct effect based less on policy and more on principle. In Rutti, the Court stated that: Particularly in cases in which the Community authorities have, by means of directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts were prevented from taking it into consideration as an element of Community law... Consequently, a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entail^.^ The second justification, based on the inequity of a Member State profiting from its own failure to perform duties under Community law, has been labelled the estoppel argument. When an individual brings an action against her Government claiming a right under a provision of a Community directive which has not been implemented into national law, the Member State is estopped from defending itself by pointing out that national provisions as they stand do not confer the right 5 See, for example, Case 43/75, Defrenne v SABENA [I9761 ECR The application of direct effext to directives provoked some surprise and a considerable amount of academic debate. Of the many articles written on this issue, see Dashwood, The Principle of Direct Effect in European Community Law (1977) 15 JCMS 229; Easson, The Direct Effect of EEC Directives (1979) 28 ICLQ 319; Timmermans, Directives: Their Effect Within the National Legal Systems (1979) 16 CMLR 533; Wyatt, The Direct Effect of Community Social Law, Not Forgetting Directives (1983) 8 ELR 241; Pescatore, The Doctrine of Direct Effect : An Infant Disease of Community Law (1983) 8 ELR 155; Green, Directives, Equity and the Protection of Individual Rights (1984) 9 ELR Case 41/74, Van Duyn v Home Wce [1974] ECR 1337, The fact that a provision lacks direct effect, for whatever reason, does not, in theory, detract in any way from its status as a binding legal instrument. In practical terms, the conferral of direct effect may result in the more effective enforcement of binding obligations. That Member States do not always comply with their obligations is not because those obligations derive from Community provisions which are less than legally binding, but because, in many situations, the political will is lacking and the Treaty mechanisms for the supervision and enforcement of Community obligations are inadequate. 9 Case , Pubblico Minisrero v Ratti [ ECR 1629; see also Case 8/81, Becker v Finanzamt Munsrer-lnnensrudr [ ECR G4 The Modem Law Review Limited 1994

3 November claimed upon the individual. This argument rendered the Court s reasoning in Marshall (No I) relatively straightforward. Mrs Marshall, an NHS dietician, was dismissed by her employers at age 62, three years before a man would have had to retire. The United Kingdom Sex Discrimination Act 1975 did not apply to discrimination relating to retirement, but this appeared to be contrary to the terms of the Community Equal Treatment Directive Mrs Marshall therefore attempted to rely on the direct effect of Article 5 of the directive to displace the national provisions. The Court repeated that direct effect would be conferred on a suitable provision so as to prevent a Member State from benefiting from a failure to comply with its obligations under Community directives. It then stated that: With regard to the argument that a directive may not be relied upon against an individual, it must be emphasised that according to Article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis of relying on the directive before a national court, exists only in relation to each Member State to which it is addressed. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person. The Court reasoned that individuals do not have obligations under Community directives; their position is not analogous to that of Member States, so the estoppel argument cannot apply to them. Therefore, directives cannot have horizontal direct effect.l0 Mrs Marshall, however, won her case because her employer, the Area Health Authority, was held to constitute an organ of the state for the purposes of direct effect. I Employees in the private sector and indeed anyone seeking to rely on a directive against a third party were clearly going to be frustrated by the Marshall ruling. Since then, however, the Court of Justice has improved the legal position of these individuals, developing other remedies which they may rely upon in the absence of an entitlement to direct effect. First, the Court has emphasised and strengthened the obligation of national courts to interpret national law in accordance with Community law, an obligation which was originally posited before Marshall. l2 National courts must interpret national law, as far as possible, in the light of the wording and purpose of Community directives, whether the national law was adopted before or after the directive at issue. l3 Secondly, the Court has upheld the right of an individual to claim damages against the state where loss has been occasioned to them as a result of the state s failure to implement a directive.i4 Individuals unable to enforce the terms of an Marshall (No I ), n 1 above, at para 48. The Court has since defined broadly the extent of the state apparatus for the purposes of direct effect. See Case C-188/89, Foster v British Gas [1990] ECR ; see also Curtin, The Province of Government: Delimiting the Direct Effect of Directives in the Common Law Context (1990) 15 ELR 195. See Case 14/83, von Colson and Kamann v Land Nordrhein-Wesrfalen ECR Case C-106/89, Marleasing SA v La Comercial Inremacional de Alimentacidn SA [I9901 ECR ; Case C-334/92, Wagner Miret v Fondo de Garantia &larial[ ECR I. For an account of the problems faced by British courts in implementing this obligation, see de Bdrca, Giving Effect to European Community Directives (1992) 55 MLR 215, Joined Cases C-6&9/90, Francovich, Bonifaci and Others v Italian Republic [1991] ECR See Ross, Beyond Francovich (1993) 56 MLR 55; Temple Lang, New Legal Effects Resulting from the Failure of States to Fulfil Obligations Under European Community Law: The Francovich Judgment ( ) 16 Fordham Int U I ; Steiner, From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law (1993) 18 ELR 3; Caranta, Governmental Liability After Francovich (1993) CU 272; Craig, Francovich, Remedies and the Scope of Damages Liability (1993) 109 LQR 595; Lewis and Moore, Duties, Directives and Damages in European Community Law Public taw 151, The Modern Law Review Limited

4 The Modern Law Review [Vol. 57 unimplemented or imperfectly implemented directive horizontally should, it seems, pursue a more indirect course and seek damages from the state, which was responsible for its implementation. As noted above, the Court has further endeavoured to mitigate the consequences for individual claimants of the Marshall distinction by adopting a broad definition of the public sector for the purposes of providing for vertical direct effect.i5 The issue of the validity of the distinction drawn in Marshall between horizontal and vertical direct effect for directives has recently come before the Court again. l6 In Dori v Recreb, the applicant attempted to enforce horizontally the terms of a Community directive concerning the protection of consumers in dealings with door-to-door and travelling salesmen. Ms Dori had agreed to subscribe to an English language course at the instigation of a roving salesperson in Milan s central train station. She subsequently tried to back out of her agreement, as she is entitled to do under Article 5 of the directive which provides for a so-called cooling-off period. The Italian Government had not, however, implemented the directive within its time limit and, in the absence of the appropriate national law, Recreb, a company to whom the language course purveyors had assigned their claim, sought to enforce the contract. Ms Dori sought to rely, horizontally, upon the terms of the directive and, despite the apparently clear-cut terms of the Marshall principle and equally clear subsequent applications of it, I* the Italian judge felt that the issue of horizontal direct effect for directives was as yet unresolved and referred this single question to the Court of Justice. Advocate General Lenz argued that the time had come for the bar on the horizontal direct effect of directives to be lifted, although in the interests of legal certainty, this change should have prospective effect only. He gave three main reasons for his conclusions. First, economic competition may be distorted where a directive has been implemented correctly in some Member States but not in others, normally to the disadvantage of the more conscientious States.19 Secondly, that directives could have direct effect against public bodies but not against their counterparts in the private sector constituted a situation of inequality and contravened the fundamental principle of non-discrimination. This was all the more serious in the light of the precept of citizenship of the Union enshrined in the Maastricht Treaty, which gave rise to the expectation of equality before the law of the Union.*O Thirdly, the Advocate General focused on the general policy argument that directives are simply less effective when they cannot be invoked against individuals. This argument was particularly pertinent in the instant case where the directive was intended to regulate relations between individuals and to protect the weaker party to those relations. It was unacceptable, he argued, that such a directive should be deprived of its effects by the illegal behaviour of a Member State See n 11 above. 16 The problem of the denial of horizontal direct effect for directives was also discussed by Advocate General Van Gerven in Case C-271/91, Marshall v Southampton and South-West Hampshire Area Health Authority (No 2) [1993] ECR , and Advocate General Jacobs in Case 316/93, Vaneerveld, Opinion of 27 January In both instances, the Court was urged by its Advocate General to abolish the Marshall distinction, but it was able to give judgment in both cases without adverting to this issue. Directive 85/777, OJ 1985, L372/31. See, for example, Marleasing, n 13 above. 19 para paras para The Modern Law Review Limited 1994

5 November The Advocate General s arguments were not, by any means, new. The demands of coherence and uniformity which he cited were, however, considered and rejected by the Court when it originally posited the distinction between horizontal and vertical effect. In Marshall, the Court had been quite aware that an arbitrary and unfair distinction between public and private employees may have to be drawn in individual cases. Its response was, however, dismissive: Such a distinction may easily be avoided if the Member State concerned has correctly implemented the directive in national law. 22 The Advocate General s arguments were, in short, little advance upon the unsuccessful arguments which were made at the time of the first Marshall case, and which have been repeated ever since. Indeed, they may even have been undermined by judicial developments since Marshall. It would be arguably all the more difficult to justify a judicial reversal of the Marshall distinction on policy grounds at this stage, given that the Court has gone a considerable way towards helping those individuals disadvantaged by the original ruling. The Court of Justice was, as widely expected, unmoved. It reiterated the principle of Marshall that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. 23 The Court then repeated the estoppel justification for vertical direct effect: It would be unacceptable if a State, when required by the Community legislature to adopt certain rules intended to govern the State s relations - or those of State entities - with individuals and to confer certain rights on individuals, were able to rely on its own failure to discharge its obligations so as to deprive individuals of the benefits of those rights.24 Having cited two instances of vertical direct effect of directives against the State, the Court concluded its reasoning with the following paragraph: The effect of extending that case law to the sphere of relations between individuals would be to recognise 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.z The argument that the directives cannot have horizontal direct effect because there is no basis for it in the Treaty would undoubtedly appeal to many common law minds. Coming from the Court of Justice, however, it is, to say the least, disappointing. The Court has gone beyond the letter of Article 189 in the name of, inter alia, the eget utile of Community law, in order to confer vertical direct effect on directives. It seems hollow indeed to justify a rejection of horizontal direct effect with a rhetorical appeal to authority and a claim to respect the literal meaning of Article More generally, the supremacy of Community law over national law, the direct effect of Treaty Articles, both vertical and horizontal, the vertical direct effect of directives, indeed the great majority of the legal landmarks established by the Court over the years, had no obvious basis in the enumerated competences of the Community under the Treaty of Rome. They arose, rather, from a combination of a teleological method of legal reasoning and une cerfaine idde de 1 Europe. To base, at this stage, the argument against horizontal direct effect for directives on a 22 Marshall (No I), n 10 above, para para 20. The use of the words as such presumably refers to the possibility of relying upon directives indirectly against individuals, via the principle of von Colson and Marleusing. 24 para para See Bengoetxea, op cit n 3, pp The Modern Law Review Limited

6 7he Modern Law Review [Vol. 57 narrow textual interpretation of Article 189 is certainly surprising and arguably disingenuous. This article suggests that whilst there may well be, as Advocate General Lenz believed, a clear policy basis for the abandonment of the distinction between horizontal and vertical direct effect, the best and most coherent argument against the Marshall decision is one firmly grounded in principle. The adoption of this principled argument would enable at least the abandonment of the reasoning of Marshall, if not the complete removal of the distinction between horizontal and vertical direct effect of directives, to be presented not as a policy U-turn, but as a natural corollary of other developments in the attitude of the Court towards individual rights under Community directives. B Rights and Duties in Legal Theory27 The crux of my argument is an attack on the theoretical basis of the Marshall judgment; that is, that directives cannot be enforced against individuals because individuals have no duties under directives. A short account of the major strands of legal thought on the issue of the relationship between rights and duties will serve to clarify the parameters of the debate and to provide a conceptual framework within which the decisions of the Court of Justice can be assessed. The purpose of scrutinising legal theory in this context is not to choose between, or make any advance upon, existing accounts of the relationship between rights and duties. It is, rather, to facilitate an examination of the argument that the Court of Justice has made a large number of decisions, including Marshall, on a basis which is consistent with, or reflects, a certain view of this relationship. Its more recent decisions are, however, consonant with an alternative version of rights discourse and, were this latter version to be applied to the Marshall scenario, the question of horizontal direct effect for directives might well be resolved differently. (a) The Priority of Duties Over Rights28 One school of thought asserts that rights can only be identified with reference to the duties of others. Duties are prior to and ground rights, and rights are correlative to duties. Hohfeld s account of legal rights identified crucial ambiguities in the use of the term right and sought to clarify rights discourse by separating out and analysing the various notions which are inherent in the idea of a right.29 His schema treated of the generic term right as implying four different legal relationships: rights, as in claims, privileges, powers and immunities. Each of these has a correlative concept - duties, no-rights, liabilities and disabilities. According to Hohfeld, to say that one person has a right, in his narrow sense, implies that someone else owes a duty of some kind to him: Rights are nothing but duties placed on others to act in a certain manner. 30 Rights cannot exist without prior duties and we may identify what rights an individual possesses by ~ 27 No distinction is drawn in this article between duty and obligation. 28 The concept of priority can be approached from a variety of different angles. Priority may be, for example, logical, temporal or justificatory. It is justificatory priority with which this article is primarily concerned. 29 See Hohfeld, Fundamenral Legal Conceprions (Westport: Greenwood Press, 3rd reprint, 1964). See also Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld (1982) Wisconsin LR Singer, ibid p Q The Modem Law Review Limited 1994

7 November determining what duties are owed to him.3 Crucial to this view of rights is the principle of specificity. Rights cannot exist in abstructo; they are rights in relation to a given person or people, the bearer(s) of the corresponding duty or duties. The argument that in analysing rights we must look first to duties and then to the rights which they create is central to the so-called will theory of rights. This theory holds that a legal or moral right is equivalent to a legal or moral power of waiver of the enforcement of duties. The choice or will of the right holder is paramount in a given relationship; a right is, in effect, a legally protected choice.32 My right to own property, on this view, consists in my power to waive the duties of others to respect it - I may choose to authorise others to deprive me of it, to destroy it and so on. The problems associated with the broader claims of the will theory are beyond the scope of this article33; the salient point for the purposes of the present discussion is its methodology, which suggests that the existence of a right is contingent upon the prior existence of a duty in someone else - I only have a right where there is a duty whose exercise or enforcement I can waive. Certain versions of the so-called interest theory of rights, which proponents of the will theory were concerned to refute, also start from the premise that duties are prior to rights. Bentham, for example, argued that an individual can be said to have a legal right where someone else has a duty to perform some act or omission which is in the first person s benefit.34 Rights are, therefore, simply the reflex of prior duties.35 (b) The Priority of Rights Over Duties The opposing, and these days more fashionable, view is that rights are prior to duties, the existence of rights being the basis for the establishment of (most, although not all) duties. In short, duties do not ground rights but rights ground duties. This view is commonly, although not exclusively, associated with later versions of the interest theory of rights. Rights are said to be based on interests which the law protects by imposing a duty on other people to respect them. My right to own property is based on an interest in owning property which the law protects in certain ways, such as by imposing duties upon others not to steal or otherwise damage it. Interests provide some justification for rights and rights logically entail, or, on another view, provide some justification for, duties. Some writers have maintained a Hohfeldian-type view of a strict correlativity between rights and duties, although starting from the premise that rights are prior 31 Hohfeld, op cit n 29, p 38. Hohfeld cites, infer alia, Howley Park Coal, etc, Co v L & NWRailway [I9131 AC 11,25, in which Viscount Haldane LC stated: There is an obligation (of lateral support) on the neighbour, and in that sense there is a correlative right on the part of the owner of the first piece of land. See also Kamba, Legal Theory and Hohfeld s Analysis of a Legal Right (1974) 19 Juridical Review See Hart, Bentham on Legal Rights in Simpson (ed), Oxford Essays in Jurisprudence, Second Series (Oxford: Clarendon Press, 1973). 33 For an analysis of some of these problems, see, for example, MacCormick, Legal Right and Social Democracy (Oxford: Clarendon Press, 1982) ch See Hart, op cir n 32, pp Bentham, like Hohfeld after him, identified various categories of right. His interest theory of rights related primarily to what he described as rights correlative to obligations, roughly claims in the Hohfeldian terminology. He wrote also of liberty rights which are defined by an absence of obligation (to do otherwise), although which are safeguarded by a perimeter of protective, and not necessarily correlative, duties. 35 MacCormick, Rights in Legislation in Raz and Hacker (eds), Law, Morality and Society (Oxford: Clarendon Press, 1977). 0 The Modern Law Review Limited

8 The Modern Law Review [Vol. 57 to duties, rather than vice versa.36 For every right, then, there is a corresponding duty or series of duties. These writers, in common with Hohfeld and the advocates of the will theory, take rather a static view of the relationship between rights and duties. They assume that rights logically entail a certain set of duties and that an exhaustive account of a right can be given by stating those duties which it has already established. A distinction must, however, be drawn between this static view of the way in which rights give rise to duties and a more recent approach advocated by, amongst others, MacCormick and R ~ z These. ~ ~ writers reject the strict correlativity thesis and stress the dynamic character of rights. There is no closed list of duties which correspond to a particular right: [Rights] are not merely the grounds of existing duties. With changing circumstances they can generate new duties. 38 The precise list of duties to be ascribed in relation to a particular right is dependent upon the basis of the right and the considerations which justify its existence. The issue of who exactly should bear these duties is a matter of determining responsibility, and responsibility is attributed on the basis of certain value judgments which may change over time. An important aspect of this school of thought is the conviction that, far from duties giving rise to rights, the existence of rights and the consequent need to protect or realise them is precisely the reason why duties have been imposed and why, in certain circumstances, new duties may have to be imposed. The attribution of duties is, therefore, based upon instrumental considerations. MacCormick sums up his (interest) theory of rights in the following terms: I do hold that there are goods which ought to be secured to individuals, goods which it is wrong to withhold from or deny to any individual. To such goods I would say that people have rights, and accordingly I would further say that their having such rights is a good justifying reason for certain duties which I would assert to be incumbent on individuals in their conduct towards others and on the state in its conduct towards individual^.^^ To summarise, three strands of the rights-duties debate have been identified. The first holds that duties are prior to rights and that rights are correlative to these prior duties. The second holds that rights are prior to duties and that duties are strictly correlative to these prior rights. The third holds that rights are prior to duties and necessitate the establishment of a list of duties which is open-ended, and which may be added to (or reduced) as circumstances change, and according to what is necessary to secure the protection of the right in question. Having established its conceptual parameters, this discussion will now proceed to transpose the theoretical framework onto the specifics of the case law of the Court of Justice. C Prior Duties in Community Law The Court s rationale for the Marshall decision appears to be a straightforward application of the first of the analyses outlined. Individuals cannot have rights 36 See, for example, Brandt, Ethical Theory (Englewood Cliffs, NJ: Prentice Hall, 1959), Morality, Utilitarianism and Rights (Cambridge: CUP, 1992) p See MacCormick, op cit n 33. chs 7, 8, and n 35 above, p 199; Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) ch ibid p 186; see also pp MacCormick, n 35 above, p The Modem Law Review Limited 1994

9 November under directives as against other individuals because the latter have no duties under directives. Duties are prior to rights; without duties under directives there can be no rights under directives, and because only the state has duties under directives, there can only be rights as against the state. As has been noted, Marshall was a logical extension of the estoppel justification for the existence of directly effective rights under directives. Rights would be conferred upon individuals in order to prevent a Member State from profiting from its own failure to perform duties under Community law. The duties of Member States therefore provided the basis for rights in individuals.4 D Prior Rights in Community Law The principal argument against Marshall suggests that the nature of, and justification for, rights under Community directives has undergone a notable shift. Rights under directives are no longer based on the duties of others but are prior rights, which trigger the establishment of duties in others. The existence of these rights and the need to give them practical effect can then provide a reason for imposing duties upon others. The key to this argument is an understanding of the nature and legal implications of the concept of direct effect. (a) The Changing Nature of Direct Effect The basic constitutional code of the Community, the Treaty of Rome, was originally conceived as an international agreement between states binding in international law. The standpoint of classical international law was unsympathetic to the rights of individuals. International law was said to detail the rights and obligations of states; individual rights and obligations were to be laid down by national, and not international, law. This narrow definition of the subjects of international law has broadened gradually over the years and individuals can be seen to have gained rights in international law under, for example, human rights treaties, such as the European Convention on Human Rights and Fundamental freedom^.^' Nevertheless, aside from these exceptional cases, there remains much force in the ruling of the Permanent Court of International Justice in Jurisdiction of the Courts of Danzig, that: according to a well-established principle of international law, an international agreement cannot, as such, create direct rights and obligations for private individuals. But it cannot be disputed that the very object of an international agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rules creating individual rights and obligations and enforceable by the national courts.42 The Treaty of Rome may indeed have created, as the Court of Justice stated in van Gend, a new international order, but Community directives conform to the 40 The duties therefore rights reasoning of Marshall has also been applied in the situation of reverse vertical direct effect, where a state seeks to enforce the terms of a non-implemented directive against a private party: Case 80186, Oficier Van Justitie v Kolpinghuis Nijrnegen [ ECR 3969; see also Joined Cases /85, Tram [I9871 ECR See further Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States (1982) 32 Am U LR Advisory Opinion 1928, Series B, No 15, pp The Modem Law Review Limited

10 The Modern Law Review [Vol. 57 configuration of an international law instrument in the classical sense. They require the adoption by the parties of definite rules in national law creating individual rights and obligations and enforceable by national courts. They impose upon Member States not obligations of conduct, but only obligations of result in that, under Article 189, Member States are entitled to choose the form and methods by which directives are transposed into domestic law.43 The important point is that directives were not intended to create rights for individuals; individual rights were to be created by national legislation. The significance of accepting that certain provisions of directives can, in certain circumstances, have direct effect is in the move away from the international law analogue so as to confer rights directly upon individuals, rights which can be enforced in their national courts. Direct effect of directives, in its original manifestation, can be seen as conferring, or representing a condition precedent for, the conferral of rights upon individuals. In the absence of direct effect, individuals had no rights under directives; their rights were to be found, as originally intended, in national implementing legislation or not at all. The estoppel rationale for the conferral of direct effect upon provisions of directives is clearly premised upon the priority of duties over rights. Direct effect establishes individual rights under directives; direct effect for directives, and so the rights which it establishes, are based on duty or obligation; therefore, rights under directives are based upon duties. As one commentator has noted: According to [the estoppel principle], a directive does not directly confer rights upon individuals; these arise indirectly out of the obligations imposed upon Member States." This view of direct effect as constituting individual Community law rights under directives formed the conceptual environment within which the first Marshall case was decided, and the distinction between horizontal and vertical direct effect seems more justifiable in this context. An individual denied horizontal direct effect of a directive does not have a right without a remedy with which to enforce it; rather, in the absence of direct effect, she has no right at all, unless and until a right is provided to her by national implementing legislation. The argument made here is that the Court has moved on from regarding direct effect as a precondition for individual rights under directives, to a position whereby rights are directly conferred upon individuals by provisions of directives which have that purpose. Direct effect has ceased to be a determinant of the existence of individual rights under directives and has become merely one means by which those rights can be enforced. It is arguably inherent in the interpretative obligation expounded in von Colson and fortified in M~rleasing,~~ that provisions of directives which are not directly effective can nevertheless confer rights upon individuals. These rights cannot be directly enforced before national courts because they lack the quality of direct effect, for whatever reason, but individuals may instead insist that their rights be realised indirectly, through the interpretation of national law in accordance with Community law. However, the interpretative obligation is expressed not in the language of individual rights but in terms of Member State obligations. The obligation is On this distinction in international treaties, see Goodwin Gill, 'Obligations of Conduct and Result' in Alston and Tomasevski (eds), The Right fo Food (Boston: Martinus Nijhoff, 1984). Easson, 'Can Directives Impose Obligations Upon Individuals?' (1979) 4 ELR 67, 71. See ns 12 and 13 above. 868 (F) The Modern Law Review Limited 1994

11 November founded upon Articles 5 and 189 EC, both of which concern the duties of Member States. Article 189 sets out the various types of Community legislation and the legal effect which they are intended to have at national level. Article 5 lays down, for Member States, a general duty of fidelity to and cooperation with the Community in order to facilitate the achievement of Community objectives.& The Court of Justice is constrained by the international legal origins of the Community legislative system and by the nature of the directive under Article 189, and must mediate the protection of individual rights through the obligations of states to give effect to Community law in their national legal systems. The principal obstacle to the argument that the interpretative obligation envisages individual rights under directives in the absence of direct effect is that the von Colson remedy is, strictly speaking, an action in national law and any rights benefiting individuals are, strictly speaking, rights under national law. This is a strong point, but it seems equally reasonable to suggest that, in the von Colson scenario, the directive creates rights for individuals and those rights are merely enforced by means of an action focusing upon the interpretation of national law. The new jurisprudence does not seem to have been explicitly enunciated until the landmark Francovich case.47 Having set out the principle of liability in damages, the Court, speaking, it should be emphasised, in the context of directives, stated that: This principle is inherent in the scheme of the EEC Treaty. The full effectiveness of Community provisions would be affected and the protection of the rights they recognised undermined if individuals were not able to recover damages when their rights were infringed by a breach of Community law attributable to a Member State. This is particularly essential where the full effect of Community provisions is conditional on the State taking action and, in the absence of such action being taken, individuals cannot rely before national courts on the rights accorded to them by Community law.48 Both of the phrases italicised are inconsistent with the view that direct effect is constitutive of individual Community law rights under directives, that without direct effect these rights cannot exist. The first phrase indicates that Community provisions themselves recognise individual rights. The second confirms the point that individual rights are accorded by Community directives independently of the doctrine of direct effect, the importance of which is limited to determining whether these rights can be relied upon before national courts. The reasoning of Advocate General Mischo is more explicit on this point. In a summary of his argument, he states that: The absence of direct effect does not in fact mean that the desired effect of Community law is not to confer rights on individuals, but only that those rights are not sufficiently precise and unconditional to be relied upon and applied as they stand. 46 Article 5 reads: Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty. See generally Temple Lang, Community Constitutional Law: Article 5 EEC Treaty (1990) 27 CMLR n 14above. 48 paras of the judgment. 0 The Modern Law Review Limited

12 The Modem Law Review [Vol. 57 It should be noted that the Advocate General spoke in the context of rights under a directive, and of provisions which could not have direct effect because they were not sufficiently precise and unconditional, rather than because the applicant was seeking to enforce them horizontally. The argument is, however, equally applicable in the latter situation. The methodology of the Fruncovich judgment can be summarised as follows. Many Community instruments including directives confer Community law rights upon individuals, regardless of whether or not they are capable of having direct effect. The way in which those rights are realised at national level is a matter not of substance, but of procedure. The present directive gives individuals a right under Community law to arrears of salary, payable by guarantee institutions, in the event of their employer becoming insolvent. This right was primarily intended to be realised through the correct implementation of the directive in national law, but the Italian Government has failed in its obligations in this respect. Alternatively, the right may be realised through its direct enforcement in the national courts of the defaulting Member State. Direct effect was, however, not possible in this case because the directive was not sufficiently precise as to the institution which was to pay the arrears of salary. Failing this (and failing also the availability of a von Colson action), the right conferred by the directive was to be effected by means of a claim in damages against the Italian state for loss occasioned by its failure to implement the directive properly. The judgment of the Court of Justice in Fruncovich has been rightly hailed as one of major constitutional significance for the Community. The aspects of the case which deal with Member State liability in damages, the criteria for determining whether a provision of a directive can be directly effective and the obligations of national courts to provide effective national remedies have provoked extensive comment. For the purposes of this article, however, the novelty of Fruncovich is that it articulates in more or less explicit terms the principle that provisions of directives can confer rights upon individuals independently of the quality of direct effect. In summary, direct effect, and the notion of duty or obligation upon which it is founded, have ceased to be regarded as prior to, and conditions precedent for, the existence of individual rights under directives; direct effect has become merely one way, and one way among many, in which such rights may be enforced. Under the new view, the individual denied horizontal direct effect of a directive has, nevertheless, a right under the directive; her problem is one of enforcement only. (b) Duties Flowing from Prior Rights The argument so far is that direct effect, and therefore the notion of duty upon which it is based, is no longer the basis of individual rights under Community law directives. Rights are now said to be anterior to duties, arising directly out of the text of the directives themselves. A proponent of the second jurisprudential school of thought outlined above, the view that rights ground strictly correlative duties, may, however, make the point that these anterior or prior rights are nevertheless limited in the same way as the rights which were contingent upon duties. That is, they may be rights only against the state which are not enforceable against individuals because, for example, directives are simply not intended to impose, or are not suitable for imposing, duties upon individuals. She may argue that rights cannot exist in isolation and that it is meaningless to speak of a right without clarifying from the outset who exactly the right exists in The Modern Law Review Limited 1994

13 November relation to. She may point to the circularity of the rights-duties debate; in defining what a right is, one is inevitably influenced by the duties which one thinks ought to be attached to it. It is difficult to conceive of the right to inherit property, for example, without considering the duty of the executor to transfer the property of the deceased. A right under a directive, it would therefore be argued, cannot be divorced from the duty of the state, and the state only, to adjust accordingly its national law. She may also cite examples in other legal systems of rights which can only be enforced against the state. The state action requirement of the American Constitution, for instance, which dictates, broadly speaking, that actions based upon provisions of the Constitution can only be brought against emanations or agents of the state, does not stem from any conceptual reasoning about the basis of rights and obligations, but from basic political choices about the function of the Constitution, the nature of federalism and so So also in Britain, public law rights to judicial review, for example, are by definition only exercisable against public authorities (defined to include also private bodies exercising public powers). It must be said, in response, that any such argument based upon the nature of the directive deserves to be treated with a certain degree of scepticism in the light of how far the Court has moved away from a conception of the directive as it was originally set out in the Treaty of Rome; that is, as an instrument which imposed obligations of result only and did not confer rights upon individuals. Nevertheless, the force of the point is conceded in that whilst duty or obligation may no longer be the basis of individual rights under directives, nothing which has been said so far suggests that rights under directives ought to be enforceable against other individuals. The argument so far, that individual rights under directives are no longer based upon duties, has the effect of removing the barrier to horizontal direct effect for directives put up by the individuals have no duties argument of Marshall. This does not necessarily mean, however, that rights as against individuals are possible, only that the particular reasoning of the Court in Marshall has to be rejected. The justification for enforcing Community law rights under directives against other individuals must be sought elsewhere. (c) The Effectiveness Argument The third strand of legal thought outlined above held not only that rights are logically prior to duties, but that rights provide a reason for imposing duties upon others. This view asserts that, in general, rights are to be equipped with sufficient duties to enable their effective enforcement and the list of duties may change as circumstances change.50 It is arguable that it is this account of the relationship between rights and duties to which the Court of Justice has adhered in its more recent case law. This fundamental principle, that directives, and indeed other Community legal instruments, confer rights upon individuals and that, consequently, appropriate duties must be imposed in order to ensure that these rights are realised, is the basis of the extensive case law of the Court concerning the effectiveness of Community 49 This is not to suggest that the principles underlying thue state action requirement are generally agreed, nor even that they have been applied in such a coherent and consistent manner that they can be said to constitute a doctrine: see, for example, Stone, Seidman, Sunstein and Tushnet, Consfifurional Law (Boston: Little, Brown & Co, 1986) ch 10; Tribe, Consfifufional Law (Mineola, NY: Foundation Press, 1978) ch See though Raz, n 37 above, pp The Modem Law Review Limited

14 The Modern Law Review [Vol. 57 law.51 The duty to interpret national law in accordance with Community law,52 the duty to provide interim relief against the Government, suspending the operation of statutes where this is necessary to safeguard Community law rights,53 the duty to delay the start of national limitation periods until after a directive has been properly im~lernented,~~ and the duty to pay damages to individuals for loss occasioned by reason of the non-implementation of a dire~tive,~~ have all been elaborated by the Court since the beginning of the 1980s. Article 5 EC, in particular, has been used increasingly by the Court in recent years to justify the imposition of new duties upon the Member States and their courts.56 The fact that these duties are implied by Articles 5 and 189, or by the Court s previous case law on the supremacy of Community law, or the provision of national remedies, or are otherwise inherent in the scheme of the Treaty, does not mean that they are not new. The Court is imposing new duties, making new law, albeit on the ground that this is justified and required by existing law.57 As envisaged by the theories of MacCormick and Raz, these new duties were justified and required by changing circumstances in the Community legal system. As the activities of the Community increased in scope and intensity, so the willingness of Member States to implement their Community obligations in national law was tested and, in many instances, found wanting.58 The advent of limited majority voting in the Council, the Community s principal legislative body, prompted certain Member States to express their opposition to Community laws at the implementation stage. 59 Meanwhile, the contemporaneous setting of the 1992 deadline for the completion of the internal market, a project which was to be realised primarily by means of the directive, heightened the urgency of the problem of non-compliance by Member States with their Community law obligations.@ As it became clear that the primary means by which individuals were to realise their Community law rights, namely implementation of secondary legislation into national law, was not working out as planned, the Court imposed new duties to ensure that these rights became a reality. The key issue is whether, in response to changing circumstances, the Court of Justice has imposed sufficient duties to ensure the protection of individual rights in Community law. It is arguable that it has not, that the individual rights conferred by directives would be better protected, and in some situations, can only be protected, by making them directly enforceable against private parties as well as against the state ~~ ~~ ~ For a general discussion, see Snyder, The Effectiveness of Community Law: Institutions, Processes, Tools and Techniques (1993) 56 MLR 19, 41-47; Curtin, Directives: The Effectiveness of Judicial Protection of Individual Rights (1990) 27 CMLR 709; de Bdrca, n 13 above. von Colson, n 12 above; Marleasing, n 13 above. Case C213/89 R v Secretary of State for Transport, ex pane Factoname Ltd [1990] ECR Case C-208/69, Emmott v Minister ofsocial Werfare [1991] ECR Francovich, n 14 above. See generally Temple Lang, Article 5 of the European Community Treaty: The Emergence of Constitutional Principles in the Case Law of the Court of Justice (1987) 11 Fordham Int LJ 503; Temple Lang, op cit n 46. See Raz, n 37 above, p 172. See generally Anderson, Inadequate Implementation of EEC Directives: A Roadblock on the Way to 1992? (1988) 11 Boston College Int & Comp LQ 91. The Commission produces annual reports to the European Parliament on the application of Community law in the Member States: see, for example, Eighth Annual Report, OJ 1991, C338/1, and Ninth Annual Report, OJ 1992, C250/1. Snyder, op cit n 51, pp 21-24; Weiler, The Transformation of Europe (1991) 100 Yale LJ 2403, Snyder talks of the new challenge of compliance : op cit n 5 1, p The Modem Law Review Limited 1994

15 ~~ ~ ~ ~~ ~ November As Advocate General Van Gerven pointed out in Marshall (No 2), the Community law system of remedies has developed in a piecemeal fashion and is some way short of being comprehensive.61 First, direct effect is not always available, because the provision in question is not sufficiently clear and precise or because of the absence of horizontal direct effect for directives. Secondly, the von Colson obligation to read national law consistently with Community directives may clash with national rules of statutory interpretation. In Britain, the House of Lords, adopting a traditional view of statutory interpretation orientated towards the will of Parliament, refused to apply von Colson to national legislation which had been passed before the advent of the directive in question.62 The Court of Justice in Marleasing sent a clearly worded message to the House of Lords that national legislation was, as far as possible, to be interpreted in accordance with Community law, regardless of which is the former in time.63 There remains a doubt, however, as to whether von Colson, as developed in Marleasing, requires national courts to interpret legislation contra legem, against its ordinary or natural meaning, in order to give effect to directives. The House of Lords in its first judgment in Webb v EM0 insisted that it did not, and that the directive would only be given effect where the national legislation was ambiguous, having at least one meaning which was consistent with the directive.w This view accords with that of Advocate General Van Gerven in Marleasing itself, who argued that the obligation to interpret national legislation in conformity with a directive arose only 'whenever the provision in question is to any extent open to interpretation. '65 The von Colson obligation may also conflict with general principles of legal certainty and non-retrospectivity.66 In Kolpinghuis Nijmegen, for example, the Court held that penal legislation could not be subjected to sympathetic interpretation where the effect would be to create or aggravate criminal liability.67 Similar objections could be raised in relation to the interpretation of civil statutes where their wording is distorted in order to give effect to Community rules. Furthermore, the operation of the interpretative obligation is contingent upon the existence of some national legislation which can be suitably construed; where, as in Francovich, the Member State has failed to provide any such legislation, either before or after the adoption of a directive, the von Colson action is redundant. Thirdly, the Francovich damages action cannot be regarded as an all-purpose remedy for people denied their rights under Community directives. In Francovich itself, the Court laid down the criteria of liability to be applied where a Member State has completely failed to implement a directive, whilst stating that the criteria for other types of breach of Community law would not necessarily be the same. The important question in this context is whether Fruncovich will extend to cover all instances of disparity between national legislation and Community directives. Much recent academic comment has suggested that, in order to avoid imposing 61 See n 16 above, at paras Duke v GEC Reliance [1988] 1 All ER n 13 above. 64 Webb v EM0 Air Cargo [1993] 1 WLR 49 (House of Lords); Case C-32/93, Judgment of 1 July The House of Lords has, however, adopted a more imaginative approach to the interpretation of national legislation which was introduced specifically to implement a Community directive: Lirsrer v Forth Dry Dock [1989] 1 All ER See n 13 above, p See also Advocate General Lenz in Don, para ibid p Kolpinghuis Nijmegen, n 40 above. 0 The Modern Law Review Limited

16 The Modern Law Review [Vol. 57 unlimited financial liability upon Member States, the action should be limited to serious, obvious or flagrant breaches of Community law (such as total failure to implement a directive), excluding cases of bonu 3de misconstruction by Member States of the requirements which Community law imposes upon them.68 It does indeed seem unlikely, given the potentially enormous damages bills which some Member States would face, that the Court will settle upon a standard of strict liability for Fruncovich claims. Advocate General Mischo in Fruncovich itself argued that the action ought to be limited by analogy with actions for damages against Community institutions under Article 215 EC.69 Since the criteria of Article 215 are notoriously difficult to satisfy,70 such a limitation would be a substantial barrier to the effectiveness of rights under Community directives. The Court of Justice in Dori pointed out that the remedies of sympathetic interpretation of national law and Fruncovich damages were available to achieve the result intended by the directive, even though horizontal direct effect was not.71 This optimism was well-placed in Dori, which, the Court was at pains to point out, was a straightforward case for the application of Fruncovich, but will not be valid in all cases. There remains, in summary, a significant category of people who may be unable to rely upon the interpretation of national legislation, or a Fruncovich action, to enforce their rights under Community directives. The only way to enable these citizens of the European Union to give effect to their rights under directives which remain unimplemented, or imperfectly implemented, in their home state is to allow them to claim horizontal direct effect. This argument, the effectiveness argument in favour of horizontal direct effect, is well known and, as noted above, was rejected in broad terms by the Court in Marshall. Nevertheless, the analytical framework outlined in this article facilitates a clearer and more principled view of the matters at issue. Having adopted a particular view of the relationship between rights and duties under directives, it is argued that the Court should now pursue this reasoning to its logical conclusion. (d) Duties Under Directives The previous discussion has attempted to rebut the argument that rights under directives are, ipsofucto, rights only against the state. That argument was set out in the context of the theory that rights logically entail a closed list of correlative duties and was addressed by demonstrating that the Court of Justice has in fact shown a preference for the alternative, instrumentalist theory of duty allocation, that rights ground such duties as are necessary to ensure their effectiveness. However, the argument that directives, by definition, will ground duties only in the state could also be made by an instrumentalist of the MacConnick and Raz school of thought. She would argue that directives are concerned with the implementation of laws at the national level, a matter which is the exclusive preserve of the state; there can be no circumstances in which the protection of the rights conferred by directives 68 See, for example, Steiner, op cit n 14, pp 17-19; Craig, op cit n 14, pp paras of his Opinion. A similar argument appealed to Parker LI in Eourgoin v MAFF QB 716 in the pre-francovich era. 70 For an account of Article 215 case law, see eg Weatherill and Beaumont, EChw (London: Penguin, 1993) pp paras Q The Modern Law Review Limited 1994

17 November will instrumentally require the imposition of duties upon private parties, because private parties cannot involve themselves in matters of national legislative implementation. The essence of this view, that directives concern only state and not individual actions, is at the root of the estoppel theory and the Marshall objection to horizontal direct effect for directives. This argument in fact reveals crucial ambiguities in the way in which rights and duties under directives are characterised. The concept of duties under directives encompasses at least two very different types of duty. The first type is the duty of Member States to implement the terms of directives in national law, under Articles 5 and 189 EC. These articles are addressed only to states and it is clear that the duty to adopt national legislation is one which only the state, and not the private individual, can have. To that extent, the point is conceded. Nevertheless, where a directive has not been implemented in national law and a private party relies, vertically, on the direct effect of its provisions against the terms of national law, the duty of the state attributed in this kind of case is, to take the Marshall example, not a duty to pass a national law which guarantees equal treatment - this duty is normally reinforced in Article 169 enforcement actions. Rather, it is a duty to treat the individual equally, as laid down by the directive, in the particular case. In the absence of a national law on non-discriminatory retirement ages, the Health Authority was bound by the terms of the directive to treat Mrs Marshall equally or, as actually happened, to compensate her for failing to do so. This kind of duty, the duty in the absence of proper implementation to treat an individual according to the terms of Community law, is not one which, by definition, could only be attributed to the state. It could, on the contrary, be borne additionally by each and every individual citizen, by private sector as well as public sector bodies. The estoppel argument against horizontal direct effect, which tells us simply that individuals do not have duties under directives, obscures the distinction between these different types of duty and justifies the non-imposition of duties which individuals could bear with reference to other duties which they plainly could not. Accordingly, the instrumentalist view of the rights - duties relationship advocated by Raz and McCormick, and favoured by the Court of Justice, does not require that the list of potential duty-holders in respect of rights under directives be limited to public bodies. Directives and the rights which they confer concern not only the activities of states, but also those of individuals and private bodies. The nature of rights under directives as explained, and the goal of making those rights effective, arguably demand at least the possibility that they may ground duties in other individuals as well as in public bodies. E The End of Marshall? The discussion has aimed to articulate a strong and widely recognised theoretical foundation for the various past judicial developments with respect to the effectiveness of Community law. Its implications for the future may, however, be more significant. The argument suggests that the general justification for the direct effect of directives, the estoppel argument of Rutti which was applied in Marshall, is no longer viable. Its basic premise, that rights under directives are founded in the duty of others, namely the Member States, has been displaced by an alternative view of 0 The Modem Law Review Limited

18 'Ihe Modem Law Review [Vol. 57 the rights-duties relationship. This latter view implies that the true justification for the direct effect of directives is that it enables the enforcement of the individual rights conferred by directives, in the event that transformation into national law, the primary way in which those rights are intended to be realised, has not occurred. This is similar to the original, e#et utile, justification for direct effect which was used in van Duyn and other of the earlier cases, although it is now more clearly focused upon individual right than upon Member State duty. With regard to horizontal direct effect, it has been argued that there is nothing in the analytical nature of Community law rights under directives which should prevent their enforcement against individuals; and certain reasons have been set out as to why they should be so enforced. The major proponents of the form of rights discourse which the Court of Justice has adopted acknowledge, however, that whilst the existence of a right is a good reason for imposing duties upon others in order to protect it, it is not the only factor to be considered. In many situations there may be more important reasons for not holding a person to be subject to a duty which seems necessary for the realisation of the right. Various other policies of the Community system could be invoked in support of the argument that duties to respect the rights conferred by directives should not be imposed upon individuals. If these policy-based justifications are found to be coherent, the conclusion to be drawn is not that the distinction between horizontal and vertical direct effect should necessarily be abandoned, but that if the distinction is to remain, its expressed basis must be reformulated. The decision in Dori is unfortunately of no assistance in this regard, for the Court makes no reference to the underlying policy considerations which were undoubtedly in its mind and which, in some instances, were put before it by various Member States and by the Commission during the oral and written submissions in the case. The general principle of legal certainty is one such conflicting policy. Horizontal direct effect would, it is said, impose a heavy burden upon individuals who could be penalised despite having acted completely in accordance with their national law. In appraising themselves of their legal position, individuals would have to refer not only to national laws but also to Community legislation and, moreover, to come to an independent conclusion as to whether national law faithfully reflected Community law. If they concluded that it did not, they would then have to assess whether the Community provision was sufficiently precise and unconditional to be capable of direct effects in their regard. Ultimately, if they decide that the rule expressed in the Community document is the one to be followed, they may have to face the legal and financial consequences of acting in a way which is incompatible with national law. This argument has been weakened somewhat by the reforms to Article 191 in the Maastricht Treaty which now make it obligatory for directives to be published in the Oficiul Other criticisms can be made, however. It is, of course, not individuals who must determine their position with regard to Community law, but their legal advisors, and there is considerable strength in the view that lawyers in the Member States should be familiar by now with Community legal methods. Provisions of directives which are vague and uncertain ought not, in any event, to be capable of having direct effect. Indeed, Advocate General Lenz envisaged that only a tiny proportion of provisions of directives would be susceptible to 72 This point was prominent in the reasoning of Advocate General Lenz in Dori: see paras The Modem Law Review Limited 1994

19 November horizontal enforcement.73 Moreover, where there is a conflict between a directive and national law, the correct course to be adopted in Community law is clear and certain - the directive is to be preferred. Another possible justification for the distinction between horizontal and vertical direct effect is the Community constitutional principle of subsidiarity, codified in Article 3(b)(2) of the Treaty on European Union.74 Subsidiarity, which aims, broadly speaking, to reduce the amount of centralised regulation in the Community, establishes that decisions in the Community are to be taken, where possible, at Member State rather than at Community level. The directive, which lays out only a regulatory framework and provides for an element of interposing Member State discretion, can be seen as an expression of subsidiarity at a legal level, as compared with the regulation which is directly applicable and leaves no discretion to Member States.75 The Commission has described the directive as an original instrument which typifies subsidiarity. 76 One of the arguments which has always been used against horizontal direct effect for directives is that it would, in many cases, have the effect of assimilating directives to regulations which are directly applicable, horizontally and vertically. Such a project would always have been questionable with regard to the clear distinction posited between the two instruments in Article 189. Now, it would also conflict with the important constitutional principle which is subsidiarity and with decisions taken at the Maastricht and Edinburgh European Council meetings to preserve the basic characteristics of the directive. Whilst much detail concerning the subsidiarity principle remains to be clarified, the objection can be made at this stage that its principal function is to guide decisions as to which matters are suitable for legislation by the Community and, arguably, to militate in favour of the directive as the means chosen to legislate. Once the decision has been taken to produce a directive, subsidiarity may then dictate that the directive is worded broadly rather than narrowly, leaving more rather than less discretion to the Member States. However, once a directive has been adopted, it is hard to see how subsidiarity could justify any move to make its terms less effective at national level. Horizontal direct effect for directives is about giving effect to Community law rights which the Member States have already agreed, and agreed following an examination of the implications of subsidiarity. That is not to say that subsidiarity has no relevance to the question of direct effect. Its true importance may lie in tempering the process of determining whether a provision is capable of having direct effect. Provisions which confer a real choice of method of implementation on Member States, which preserve to the Member States a real measure of discretion, should not be considered sufficiently clear and precise to be relied upon directly. The Court of Justice has in the past, in cases such as McDermott and Cotter and Marshall (No 2), arguably departed from this basic principle77; subsidiarity may prevent such a broad-brush approach in the future. 73 para See Toth, The Principle of Subsidiarity in the Maastricht Treaty (1992) 29 CMLR 1079; Constantinesco, Who s Afraid of Subsidiarity? (1991) 11 Yearbook of European Law 33; Coppel, Edinburgh Subsidiarity (1993) 44 NILQ Dehousse, 1992 and Beyond: The Institutional Dimension of the Single Market Programme (1989) Legal Issues of European Integration 109, See 7he Principle of Subsidiarity, Communication from the Commission to the Council and the European Parliament, SEC(92) 1990 final, 27 October 1992, p Case , McDennottand Cotter v Ministerfor Social Welfare [1987] ECR 1453; Marshall (No 2), n 16 above. 0 The Modern Law Review Limited