5.4 The nature of the parties to the legal relationship

247. In Dominguez the Court of Justice takes into account that it may be impossible for the Cour de cassation to interpret French law in conformity with the Working Time Directive. The Court states that in that event it is necessary to inquire whether the very provision in the Directive has direct effect and, if so, whether Dominguez may rely on that direct effect against her employer “in view of their legal nature”.1 The Court concludes that the relevant provision of the Working Time Directive has direct vertical effect because it is unconditional and sufficiently precise and recalls that a private party cannot rely on a directive vis-à-vis another private party to have its rights effectuated.2 The Court continues:

In light of this, the Court notes that the CICOA is a body operating in the field of social security. As a result, the CICOA could potentially be included in the European Union’s umbrella term ‘State’. The Court leaves this assessment to the Cour de cassation, which is in a better position to examine the legal nature of the CICOA.

248. If consistent interpretation appears to be impossible, the national court should determine whether or not the relevant provision of the Directive has direct vertical effect and, if so, whether, in the light of their legal nature, the aggrieved party (Dominguez) may rely on that direct effect against her employer (the CICOA). In case the Cour de cassation would determine that the CICOA is indeed a State body responsible for public services under the control of the State4, Dominguez may rely on the Directive against the CICOA. The direct vertical effect of the directive would result in the disapplication of any provision of national origin – including contractual clauses in the collective agreement – that is incompatible with the Directive in the vertical legal relationship.5 Subsequently, the national court should ensure that the right that the Directive seeks to confer upon the private party is effectuated or protected.

249. Alternatively, in relation to the possibility that the Cour de cassation decides that the CICOA cannot be brought under the term ‘State’, the Court of Justice recalls that directives cannot of themselves impose obligations on private parties and cannot therefore be relied on as such against a private party6 and states that “in such a situation, the aggrieved party as a result of domestic law not being in conformity with European Union law can nonetheless rely on the judgment in Francovich in order to obtain, if appropriate, compensation for the loss sustained”.7 Interestingly, in the final ruling to the case of Dominguez the Cour de cassation has not said a word about the legal nature of the CICOA. Instead it took a different route, which seems more shaky and legally complicated than the assessment of the legal nature of the CICOA would have been.8

250. To put it briefly, in Dominguez the Court of Justice underscores that the legal nature of the parties to the proceedings determines whether a national court can apply Union law and how it can do so. In 2018 the Court of Justice delivered a number of rulings that, again, stress the relevance to distinguish between vertical and horizontal legal relationships as regards the effect of a rule of Union law.9 National courts should thus always assess whether the parties are private parties or whether one of them can be qualified as a state entity. In that respect, a private party that brings a claim against a state entity has a bigger chance of protection of the right conferred on him by a directive – by way of direct vertical effect – than a private party that brings a claim against another private party.10