The problem of horizontal effect is becoming tiresome

For decades the European Court of Justice has flirted with the idea of giving horizontal direct effect to directives (their effect between private individuals). It is not hard to see why. In the absence of such effect, EU law is unable to guarantee uniform application throughout the union. Over the years, the ECJ has devised various doctrines (vertical direct effect, the obligation to attempt to interpret national law to give effect to directives). The trouble with these things is that their operation is piecemeal and unpredictable.

Two individuals who are, for all practical purposes, in identical positions end up with different rights because one happens to be asserting them against a public body (even though the 'public body' really has no more to do with making national law than you or me). Or rights depend on whether a national law, perhaps drafted decades before the directive was ever even contemplated, happens to be capable of 'consistent interpretation' or not.

The next step?

From time to time the courtship has looked close to consummation. I recall, shortly after Marleasing introduced the principle of consistent interpretation, a lecture at which an Advocate General confidently predicted that the court would shortly take the next step, and announce full horizontal direct effect. But it has never happened, not least because it is apparent to all that such a step - however desirable in practical terms - lacks juridical logic, disregarding what the Treaty says about a directive's effects. And so, in the end, in each case, at the final moment the ECJ's nerve has failed, and horizontal direct effect has been rejected.Now it has happened again.

A few years ago, in Case C-55/07 Kücükdeveci [2010] ECR I-365, the ECJ appeared to hold that one could somehow combine general principles of EU law (not directly effective) with directives (not horizontally directly effective) to produce horizontal direct effect. At the time, this column described that decision as "hard to make sense of" (23 February 2010).

Another chance

In Case C-176/12 AMS (Grand Chamber, 15 January 2014), the issue resurfaced. Directive 2002/14 gave employees rights of consultation, but only in businesses of a certain size, measured by the number of employees. French law impermissibly excluded some employees from the 'count', so that AMS was able to avoid according its employees rights to which they ought to have been entitled under the directive.

Vertical direct effect could not apply, because AMS was a private entity. Consistent interpretation was impossible: French law was crystal clear. But the employee argued that one could follow Kücükdeveci: Article 27 of the Charter of Fundamental Rights of the European Union says that "workers '¦ must '¦ be guaranteed '¦ consultation". So, it was argued, one could put together this "right" (not, manifestly, itself sufficient to have direct effect) with a directive, and achieve horizontal effect.

Advocate General Cruz Villalón agreed with this. But the court did not, holding that the directive had no effect. It did not overrule Kücükdeveci. Instead it distinguished that case, on the ground that whereas non-discrimination on grounds of age is apparently sufficient to confer individual rights, the right for workers to be consulted was not. No further explanation is given. Perhaps the court really thinks that the only question is whether the charter provision, viewed on its own, has direct effect. That would make sense, but it is not what Kücükdeveci seemed to say. The heresy, introduced by Kücükdeveci, that two instruments neither of which is capable of having horizontal direct effect can be combined to produce such an effect needs clear repudiation.

The endless dance around the problem of horizontal effect is, so far as EU law is concerned, a tale as old as time. But it is becoming tiresome. AMS could have clarified the law, one way or another. For the moment, however, it looks as if Kücükdeveci is a tree that will not bear fruit, at least in the short term.