European Papers (Jun 2022)
Thelen Technopark and the Legal Effects of the Services Directive in Purely Internal and Horizontal Disputes
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 305-326 | European Forum Insight of 11 June 2022 | (Table of Contents) I. Introduction. - II. The judgment of the Court of Justice. - II.1. Factual and legal background. - II.2. Duty to ensure the full effect of directives, but no horizontal direct effect. - II.3. State liability as a remedy for harmed individuals. - II.4. Purely internal situations and the scope of art. 49 TFEU. - III. The legal effects of directives: normative impact and (in)direct effects. - III.1. The prohibition of horizontal direct effect and the "normative impact" of invoking a directive. - III.2. The central role of the doctrine of consistent interpretation. - III.3. Horizontal effects of directives and the Charter of Fundamental Rights. - III.4. Is state liability enough? - IV. The road not taken: the opinion of AG Szpunar. - IV.1. Horizontal direct effect of the Services Directive and art. 49 TFEU in purely internal situations. - IV.2. Horizontal direct effect of the freedom of contract within the scope of the Services Directive. - V. Conclusion. | (Abstract) In Thelen Technopark (ECLI:EU:C:2022:33), the Court of Justice held that art. 15 of the Services Directive cannot be invoked against a conflicting national law in a horizontal dispute, even though the Court had already definitively established the incompatibility of this national law with the Services Directive in an earlier judgment. In view of the purely internal nature of the dispute - making art. 49 TFEU itself inapplicable - the individual harmed by the violation of the Services Directive could only recover his losses through a separate action for damages against the Member State. This Insight analyses Thelen Technopark in light of the logic and extent of the prohibition of horizontal direct effect of directives, the central role and limits of the doctrine of consistent interpretation, and the direct effect of the Charter of Fundamental Rights. It argues that the Court rightly did not extend the Man-gold case law on directives giving concrete expression to a general principle or fundamental right to directives giving concrete expression to a fundamental freedom. This Insight also elaborates on the two proposals of AG Szpunar to allow for horizontal direct effect of the Services Directive either as a specification of art. 49 TFEU, or as a legislative harmonisation of the proportionality of an interference with art. 16 of the EU Charter of Fundamental Rights (CFR). While thought-provoking and worthy of critical analysis, the Court in my view rightly did not follow AG Szpunar's opinion, which likely would have resulted in a doctrinal minefield.
Keywords
