ON THE EROSION OF THE LIMITS OF THE DIRECT EFFECT OF EU DIRECTIVES
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Abstract
The article identifies and assesses the different ways in which the Court of Justice of the EU (CJEU)
has eroded its own general limits of the direct effect of EU directives. The article argues that while these
different ways of erosion extend the admissibility of the direct effect of EU directives, they do so at the cost
of significantly weakening legal certainty of the persons concerned, making these erosions highly questionable.
The article highlights and criticises the most questionable form of such erosion, that emanating
from the Mangold and Kücükdeveci line of case law of the CJEU. The article concludes that an adequate
response to these questionable erosions should not be the acceptance of a general admissibility of the horizontal
direct effect of EU directives. Rather, the response should be based on various efforts to reduce the
occurrence of situations of improper transposition of EU directives – the main trigger for the direct effect
of EU directives. These efforts should be accompanied by a comprehensive review of the Mangold and Kücükdeveci
line of case law and a further clarification by the CJEU of the limits of the (in)admissibility of
the direct effect of EU directives, which would considerably increase legal certainty for the persons concerned.
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