Poimanje horizontalnog neposrednog dejstva izvora prava Evropske unije
Understanding horizontal direct effect in the context of the sources of the EU law

Summary/Abstract: Although the doctrine of horizontal effect is not unique to Union law, it is undoubtedly most comprehensively explored beyond its conceivable scope while examining the effect of EU treaty provisions, general principles, decisions and, ultimately, directives, before the Court of Justice of the European Union. This is understandable considering that the legal system created by the European Union can only add up to the already complicated relationship between international and national law. This paper examines the three sources of Union law suitable for observation under the horizontal direct effect doctrine with the aim to demonstrate that the question of the exact legal effect of directives remains unanswered. The first part deals with the way the horizontal direct effect is understood in terms of its scope while identifying certain aspects that are unclear. It examines the closely related effects of Union law in order to present the horizontal direct effect doctrine in all its complexity. Secondly, a selection of CJEU decisions of fundamental importance for this issue is presented with the aim to tackle the main arguments in favor of denying the horizontal direct effect to directives, namely legal certainty, legitimate expectations and preserving the distinction between regulations and directives. Lastly, it is argued that the only viable argument in favor of denying the horizontal direct effect to directives is to preserve the distinction between them and regulations as provided for by Article 288 TFEU and, therefore, the legislative autonomy of the Member States although this may be at the expense of both legal certainty and equality before the law. A careful analysis of the horizontal direct effect doctrine under Union law leads to a conclusion that persistence in denying directives their full legal effect is, in fact, the last resort in an effort to protect the distinction between directives and regulations since the Member States do not seem to be ready for another major legislative change. However, expanding the effect of directives introduces a powerful control mechanism for EU institutions to be able to make sure the Member States are transposing efficiently and in a timely manner, by endowing individuals with an instrument to have control over how Union law is implemented and applied in their respective countries of residence.

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