Law

This is an essay which reconsiders the existing legal effects of Directives coupled with the complex qualification to the proposition. The interpretation has been that there is a significant legal uncertainty. This is quite influential to all private parties within the Community law. This has become a vexed issue and has even generated a significant academic commentary in the European law. All exceptions and qualifications to the basic propositions that directives are not meeting horizontal direct effects are still continuing to grow, and thereby rendering the overall area more and more complex than it hitherto used to be. The essay will therefore seek to shed more light on the topic by undertaking a critical analysis and scrutiny of the policy that denies the horizontal direct effect to Directives.

Direct effect has been a long used principle of EC law. This principle applies to the specific aspects of the EC law that can be directly enforced by the European Union citizens from their Member States. This is regardless if the State has in one way or the other introduced a number of national laws in implementing the necessary provisions. This term direct effect, was initially used by the ECJ, European Court of Justice. By the time, the term was attributed to given Treaty articles giving legal quality of direct effect in a case that was heard in 1963. In the case, the ECJ came up with three main situations which would be necessary in the establishment of Direct Effect for primary EU law. These three situations were the provision should be precisely stated and clear, it should also be unconditional, and finally, it must confer specific rights with which a citizen will be able to base his claim.

Once the above conditions have been met, the Treaties provisions will then be given similar Legal Effects as the other Regulations, as under Article 249 EC. However, in terms of employment and industry relations, there is very little legislation that can be found apart from in the EU primary law or in the Regulations governing the movement of workers in the states. By its virtue of the EC law supremacy, the Community law provisions with direct effect have taken precedence over the domestic laws. EU laws on labour therefore have the rules taking precedence over the existing national law and labour rules. When taken together, these principles of supremacy and direct effect mean that the provisions of the Treaty can be used in making claims in domestic courts and can also override the domestic laws. If the EC law provision has horizontal direct effect, then the citizens can be able to entirely rely on the actions against one another.

However, it is necessary for one to note that horizontal direct effect will not really apply to the EC directives, since these are basically enforceable only against any State. This, therefore, brings us to the issue of discussion here as noted by Craig. He argues that the rejection of the horizontal direct effect of directives, together with the complex qualifications to the proposition has greatly brought a great legal of uncertainty in the law.

Rejection of Horizontal Direct Effect of Directives Legal Uncertainty
Directives, known as the measures of legislation as addressed to the Member States, and which provide the deadlines for States in implementing their specific provisions, have direct effect due to the ECJ law (Griffith, 1993). It was during the Ratti v Pubblico Ministero case when the Court decided that the Directives would be directly effective so long the stated time limit had expired. Limitations which imposed on the doctrine of direct effect in ensuring all national courts had no single difficulty in the application of Community law have never been strictly applied. Since then, the legal basement of the direct effect of Directives has always remained a controversial issue. Looking from the legality point of view, the challenge to this legitimacy in its concept is what has failed to give the necessary effect to it.

From the rejection of horizontal direct effect of directives, and the complex qualifications to the proposition, this issue has been a long-debated dispute which has been causing publication of a great deal of literature with a number of cases. During the Marshall case, a number of arguments invoked towards the direct horizontal effect was derived from the manner in which the directives have been defined by article 249 (9), from the Treaty. This establishes that the EC, and the constitution in the directives have not been for the benefit of the private practitioners, and this is an indication that it cannot be easy to impose obligations on specific individuals or private businesses. A number of theorists have been calling for the Courts jurisprudence in the stipulations of these Treaties.

Also, the opponents of the effect of directives have been indicating that, as from the definition in Article 249, it is quite explicit when it comes to the allowance of analogies. All the cases that have been handled with regard to the direct effect have clarified that when trying to determine legal effects, the measures content is extremely decisive. The other argument which we can give against this rejection of the horizontal effect of directives is in the difference between the directives and regulations. Going by Article 249, only the former will be the one who can directly be enforced, hence resulting in imposition of obligation on the private firms or individuals. This means that, any acknowledgement for the direct horizontal effect for directives will result in assimilation into regulations, thereby depriving the directives of the status they hold and also result in the contravention of Article 249.

It appears that, when the Court interpreted the Treaty with the aim of giving effect to the perceptions it had on the EU constitution, there was also the need to ensure effectiveness in the entire Community law. The usefulness of this effect of directives is likely to be weakened should individuals not be given the power of invoking them before any national court in order to ensure all national authorities can be kept in their discretions limits. Even more controversies have occurred on the question whether the directives have both horizontal and vertical direct effects. That is whether they have the power of being invoked against both the State and private individuals. The bottom line here, therefore, is that while this horizontal direct effect as a concept definitely added some further and better protections to the individuals Community law and rights, it also in a very great way breached the principle of legal certainty.

Some other issues that have been raised by different individuals concern the rejection of these horizontal effects in that it will not be possible to have a restricted form which will consist of lawful measures as far as any dispute involving two private firms or individuals is concerned. Therefore, without having this enforcement for stipulations in the already given directives, the concerned will always be unable to invoke respective provisions before the court, thus rendered unable to oppose enforcement in a domestic law. This is so because there is absolutely no correspondence to the horizontal relations of jurisdiction. This reason has been seeing a number of individuals advocating for the exclusion of the existing restrictions on horizontal effect. The outcome with this restriction is that it has brought jeopardy on the legal stability thereby resulting in an inconsistent enforcement in the EC law.

Thus, since we have been able to prove that there is a big uncertainty in law with the rejection of the horizontal direct effect, it would be necessary to suggest an immediate reform in all case laws in regard to consistent interpretation by the maximum involvement of the States actions versus the individuals. There should also be ways of providing or offering explanations in these extremely inconsistent natures of issues and cases that have been producing horizontal impact of directives. This has been happening despite the fact that there has been lack of horizontal direct effect. These are also known as the incidental effects. By ensuring that there is consideration of whether these doctrines will give rise to any unacceptable legal uncertainties, an appropriate comparison against the interpretive obligations under the Human Rights Act should be made in order to bring about similar results. It has been noted that the juridical construction in reference to the existing domestic effects of directives has been quite complex for the individuals and the national courts as well, thereby jeopardizing the legal processes.

Conclusion
In conclusion, we will agree that the rejection of the horizontal direct effect of directives, together with the complex qualifications to the proposition, have greatly brought a great legal uncertainty in the law. This is because of a number of issues which have been discussed above. This principle in ensuring there is effectiveness in the Community law is something which has to be given redress and be in a position of solving the problems being experienced. It will also be noted that these principles of direct effect have been seen to only apply to the European Community law, as it is supposed to apply to the European Union law in total. The ECJ therefore lacks the jurisdiction over this second and most important pillar in the Union due to lack of appropriate judicial enforcements. The real basis in these direct principles and the States liability is the reasoning which is employed by ECJ in agitating its interests and aims in the Community. Therefore, this continued rejection of the horizontal direct effect of Directives by the ECJ has basically limited the potentialities and efficacies of its doctrine.