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Horizontal effect of directives

den 15 november 2018, kl. 15:00

Stefan Enchelmaier is Dr iur (Bonn) habil (Munich) LLM (Edinb) MA (Oxon), Professor of European and Comparative Law at the University of Oxford, and Fellow of Lincoln College, Oxford. His research and teaching is in EU law, especially the internal market, and in English and comparative private law.

When: Thursday, November 15th, 15-16 (refreshments will be served after the seminar)
Where: Stockholm University, Universitetsvägen 10, building C, 8th floor, Faculty room

Stefan Enchelmaier’s presentation considers the recent case law of the Court of Justice of the European Union on the question that is commonly referred to as ‘direct effect’. In issue is the relationship between EU law and national law, especially between Directives (Art. 288 TFEU) and national measures for their implementation. The traditional position, first set out in Marshall, is that one individual cannot derive rights against another from an unimplemented Directive. The case law beginning with the judgments in Mangold and Küçüdeveçi, however, enabled general principles of EU law to ‘leapfrog’ over Directives. As a consequence, the limitation established in Marshall was weakened. This development culminated in Egenberger, in which the Court declared suitable provisions of the Charter of Fundamental Rights of the European Union to be applicable between individuals without the need for implementing measures. In very few words and based on precedent of ambiguous value, the Court thus took position on a question that has for decades been controversial in some Member States. At the same time, in Smith v Meade, the Court held that national law cannot be set aside, in proceedings between individuals, on account of its being incompatible with a Directive. This is different only where national law is affected by a procedural defect as recognised in CIA and similar subsequent cases. The Court’s reasoning in all these judgments will be subjected to a critical review, and found wanting in several instances.

Moderator: Claes Granmar Associate Professor at Stockholm University


Detta seminarium ägde rum den den 15 november 2018