5.1 Introduction

220. Pursuant to Article 288 TFEU a directive “shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. Directives are thus not addressed to private parties. According to the Court of Justice it follows from Article 288 TFEU “that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person” even if the rights and obligations they confer upon private parties are unconditional and sufficiently clear.1 Consequently, in principle, private parties are dependent on the transposition of a directive by a Member State in order for them to be able to invoke the rights that the respective directive seeks to confer upon them. The necessity to be implemented is thus the characteristic of directives that distinguishes them from the other instruments of Union law. The fact that directives are addressed to Member States and not to private parties is one of the reasons why their effect in horizontal legal relationships is more complicated compared to the other common instruments of Union law: directives are the odd one out.

221. This chapter discusses the diverse ways in which directives that confer rights upon private parties can have effect in horizontal legal relationships. Also, it illustrates that it is no sinecure to connect infringements of rights conferred by directives to remedies in national private law. The complex position of directives in horizontal legal relationships asks for a setup that is different to the setup of the preceding case studies. Instead of departing from the cases as such, this chapter focuses on two scenarios national courts can be confronted with in horizontal proceedings in which a directive is the source of the particular right or interest infringed. The two scenarios are illustrated by the cases of Dominguez2 and Test-Achats3. Because the national case law in these cases provided barely any interesting insights or moves, less attention is paid to these judgments in comparison to the other case studies. Therefore, this chapter primarily focuses on the case law of the Court of Justice and subsequently explores the legal consequences of infringements of directives in horizontal legal relationships.

222. As this study focuses on subjective rights that Union law confers upon private parties, this Chapter, in the same vein, focuses on directives that confer subjective rights upon private parties. Therefore, directives that stipulate procedural rules for Member States fall outside the scope of this study. This does however not at all mean that procedural rules of Union law are irrelevant or impactless in horizontal legal relationships. For example, the Notification Directive is a procedural directive which imposes upon Member States the obligation to notify certain intended legislative measures to the European Commission prior to their adoption.4 The Notification Directive does not impose subjective rights upon private parties.5 In for example CIA Security, Unilever Italia, and Sapod Audic the Court of Justice has however held that when a Member State has failed to comply with the duty to notify, the particular legislation must be set aside, also in horizontal proceedings.6 According to the Court, such measures may not be enforced against private parties.7 This may have an impact on the horizontal legal relationship in question. Because this study focuses on subjective rights that Union law confers on private parties, an analysis of that precise impact does not form part of this study. The same goes for other procedural rules that are laid down in Union law or case law of the Court of Justice.