Drect effect Essay Example | Topics and Well Written Essays - 1500 words

Drect effect - Essay Example The Court of Appeal referred two question to the ECJ and this are whether a different retirement age for men and women in breach of Directive 76/207 and if so whether Directive 76/207 to be relied on by Mrs. Marshall in the circumstances of the case. The Equal Treatment Directive 76/207, which is based not on Article 141 of the EC treaty but on the institutions general powers under Article 308 (ex 235), lays down the principle of equal treatment for men and women in Article 1(1). 1 (iii) The logic of this reasoning is that a Directive can only be invoked vertically, by an individual against the state, and not horizontally, by one individual against another, because individuals are not to blame for the non-implementation of the Directive. This view was EC law and national law confirmed in this case. In Marshall the issue of the horizontal effect of directives was, it seemed, finally laid to rest. In favour of horizontal effects is the fact that directives have always in fact been published, that Treaty provisions addressed to and imposing obligations on, MS have been held to be horizontally effective that it would be anomalous, and offend against the principle of equality. If an individual’s rights to invoke a directive were depend on the status, public or private, of the party against whom he wished to invoke it, that the useful effect of Community law would be weakened if individuals were not free to invoke the protection of Community law against all parties. Although ECJ imposed limitation on the HDE of directives, it also creates other strategies or ways to advance the domestic enforcement of these meaner which broadening the concept of state, indirect effect, incidental horizontal effect and state liability. However, the ECJ is expanding the concept of public sector in the case law and thus including more individual capable of protection of community law [Johnson v RUC2 and Foster v British Gas3] Part b) (i) The