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Examine the view that the distinction between the vertical and horizontal direct effect of directives is more theoretical than real and that, in the interests of reinforcing the rule of law, the Intergovernmental Conference ought to amend the Treaties so as to give full direct effect to directives that are unconditional and sufficiently precise.
The first part of this paper illustrates that although the distinction between horizontal and vertical direct effect is not purely theoretical, by virtue of the numerous devices created to circumvent the distinction, it is well on its way thereto. The second part aims to argue that the distinction ought to be done away with: first, by exposing the problems and inconveniences that the circumventive devices create; and secondly, by engaging, countering, and ultimately rejecting the arguments that favor retaining treating horizontal and vertical claims differently.
I In Van Duyn v Home Office the European Court of Justice ("the Court") confirmed that Directives are capable of having direct effect. In Marshall No.1 the Court, interpreting then Art. 189 EC (now Art. 288 TFEU), enunciated that 'vertical' direct effect, i.e, direct effect invoked by a private party against the state, is permissible, whereas 'horizontal' direct effect, i.e, direct effect invoked by a private party against another, is not. Against the backdrop of this general denial of horizontal direct effect, i.a, three key developments emerged that whittle down the restriction on horizontal direct effect and carve substantial conceptual inroads into its underlying rationale.
First, the broadening of 'the state' concept. Foster v British Gas created a wide notion of what
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