With reference to the case law on direct effect, critically discuss the extent to which this concept (direct effect) is an effective means of protecting an individual’s European Union Law rights.

IntroductionDirect opinion seeks to ensure that the rights of individuals are creation defend to a lower place EU equity1. This is non always achievable since EU natural rectitude is ecumenicly only this instant effective against issue authorities. As such, individuals cannot usually invoke EU fairness against other individuals unless the EU police force nourishment are naiantly moldly effective. This suggests that the concept of discipline effect is not that effective in protect an individuals European Union jurisprudence rights. In flicker of recent representative law, the judgeships are now using vertical hold effect as a way of invoking EU legal philosophy by demonstrating that the provision cut into effect to general teachings of EU law. This essay leave critically discuss the extent to which individual rights are being protected by reviewing the case law in this celestial sphere.European Union LawParliamentary sovereignty renders Parliament the most supreme sanctioned potential in the UK. The courts are unable to overrule any terminations made by Parliament and no Parliament is capable of passing laws that future Parliaments result be unable to change2. Since the UKs entry into the European Union (EU) in 1972 and the implementation of the Human Rights Act 1998, the sovereignty of parliament has been significantly weakened. This is in the main due to the fact that EU Law has postulate effect below the European Communities Act 1972. EU Law can be score to dis-apply acts of parliament and overturn previous decisions3. This protects individual rights by allowing them to use the direct effect commandment to invoke EU Law. The principle of direct effect confers rights on individuals which all Member States must recognise and enforce and although the principle is not explicitly provided for low any of the Treaties of the EU, it has been recognised through confused case law such as Van Gend en Loos v Netherlands upcount ry Revenue Administration4. Here, it was made clear that in the event of a confliction amid EU Law and national principle, EU Law pull up stakes always prevail. This decision recognised for the first time that the supremacy of the EU would always be upheld through the principle of direct effect.Direct sumThe decision in Van Gend en Loos focused upon the rights of individuals against the state and not against other individuals. This issue was subsequently addressed in Defrenne v SABENA5 when it was noted that there exists two different types of direct effect vertical and even. The bankers bill between the two would depend upon the person or entity the right was being enforced against. Vertical direct effect is bear on with the relationship between EU Law and national law, whilst crosswise direct effect is concerned with the relationship between individuals6. It was identified in the case that if a grumpy provision of EU Law is horizontally at one time effective, then indiv iduals bequeath be able to rely upon that provision to enforce EU Law against another individual. Although this is necessary in ensuring that the rights of individuals are being protected by all, there are only limited EU Law provisions that are horizontally directly effective. The rights of individuals may put away be violated by other individuals and companies. This shows that the principle of direct effect may not always be an effective means of protecting an individuals EU Law rights. Consequently, the principle is only effective when it comes to EU regulations and is not that effective when trying to enforce directives. This is due to the fact that directives are not generally given horizontal direct effect.The lack of directives that have horizontal direct effect was identified by AG Jacobs in Nicole Vaneetveld v Le Foyer SA7 when he argued that there would exist greater legal certainty and a more coherent system if the provisions of a guiding were held in appropriate circu mstances to be directly enforceable against individuals. Arguably, because directives do not always have horizontal direct effect, it cannot be said that the rights of individuals are being fully protected under EU law as violations can still occur. In Van Duyn v Home Office8 the courts made it clear that vertical direct effect would apply to Directives if individuals were prevented from taking it into consideration as an element of Community law. In addition, it is declared under Article 249 EC (now Art 288 of the Treaty on the Functioning of the European Union) that Directives should be binding upon Member States, though the decision is left for the courts to decide based upon the particular facts and circumstances of the case. Individuals thus have the ability to invoke Directives before the courts, however their rights cannot always be guaranteed. Furthermore, if the Directive is sufficiently clear and precise, unconditional, leaving no room for discretion in implementation9 it is unlikely that the courts will be able to make a decision by weighing up the particular circumstances of the case. only if if a Directive is not sufficiently precise and deemed unworkable by the court, will national authorities be able to intervene.Essentially, it is evident that direct effect will not always apply to directives and as insist by Tovey some policy decisions needed to be developed and articulated for Directives to be accorded direct effect10. In Marshall v Southampton and southwestward Hampshire arena Health Authority (Teaching)11 it was held that a Directive cannot be directly enforceable against individuals, however in Grad v Finanzamt Traunstein12 it was signified that because Directives compel obligations which were to achieve a desired result, they could be directly effective. Moreover, in Pubblico Ministero v Ratt13 it was stated that Directives would not have direct effect if Member States had not implemented the Directive within the time allowed for it s implementation. The conflicting case law decisions in this area are likely to cause confusion as to whether directives are capable of having direct effect, though it seems as though the decision will be made on a case by case basis. Whether this limits the protections under EU Law is likely as the provisions will not always be able to be invoked. upstart case law surrounding the direct effect of EU Law has prompted even more confusion. This is because, whilst the courts have made many attempts to reject extending horizontal direct effect to directives (Faccini Dori v Recreb Srl14), it is now questionable whether this is still the case since the decisions of Mangold v Helm15 and Kucukdeveci v Swedex GmbH & Co KG16.Individuals EU Law Rights In Mangold the court held that national courts were under a avocation to comprehend the provisions of a Directive and set aside conflicting national law even if the time limit for transposition had not yet expired. It seemed that a new princip le was being established by the court as Directives were originally only capable of having direct effect after the transposition date. In Kucukdeveci it was held that although Directives did not have horizontal direct effect, they were not prepared to apply national legislation as this would infringe the individuals rights under EU Law. Instead, it was prepare that the principle of non-discrimination was a general principle of EU Law and that the national court was therefore under a duty to dis-apply national legislation that violated this principle. This case seemed to suggest that even when a directive is not horizontally directive effective, an individual can still invoke EU Law against another individual by applying the general principles of EU Law. The court in Re Honeywell17 questioned whether the Mangold decision was radical vires, yet because age discrimination fell within the competencies of EU Law, it was found that no new competencies had been created. Consequently, whil st it generally depends upon the nature of the case as to whether direct effect will be applicable, it is capable of being used as an effective means of protecting an individuals rights whether this be via horizontal or vertical direct effect. The case law in this area suggests that if a Directive gives effect to general principles of EU law, national legislation which conflicts with the Directive must be dis-applied by national courts.ConclusionIn light of recent case law decisions, the protection that is being afforded to individuals under EU Law is now more effective through the principle of direct effect than it ever was. Previously, if an EU Law provision did not have horizontal direct effect, individuals could not invoke EU Law against another individual such as their employer. This resulted in discriminatory intervention and prevented individuals from relying upon their rights under EU Law. Since Mangold and Kucukdeveci, individuals will be capable of invoking Directives tha t give effect to general principles of EU law against other individuals.BibliographyText Books Alina Kaczorowska, European Union Law (Routledge 2013).John Fairhurst, Law of the European Union (Pearson Education, 2010).Lorna woodwind and Phillipa Watson, Textbook on EU Law, (12th Edn, Oxford University Press, 2014).Nigel Foster, Foster on EU Law (OUP Oxford 2011) 219.Online Journal Articles Gwyn Tovey, European Union Law (2011) EU Law and theme Law, accessed 02 December 2014.Parliament, Parliamentary Sovereignty (UK Parliament) accessed 01 December 2014Case Law Defrenne v SABENA Case 2/74 1974 ECR 631 Grad v Finanzamt Traunstein Case 9/70, 1970 ECR 825Faccini Dori v Recreb Srl Case 91/92 1995 All ER (EC) 1Kucukdeveci v Swedex GmbH & Co KG 2010 All ER (EC) 867)Mangold v Helm 2006 All ER (EC) 383Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) 1986 ECR 723 Nicole Vaneetveld v Le Foyer SA Case 316/93, 1994 ECR 1-793 290Pubblico Ministero v Ratt Case 14 8/78, 1979 ECR 1629Re Honeywell 2011 1 CMLR 1067 Van Gend en Loos v Netherlands Inland Revenue Administration 1963 ECR 1