COULD THE BROAD DEFINITION OF “STATE” FOR THE PURPOSES OF DIRECT EFFECT BE JUSTIFIABLE UNDER THE EU’S AIM OF PROMOTING A FULLY LIBERALISED INTERNAL MARKET?
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Abstract
In general, in the case of late transposition of the EU directives, they may be invoked vertically
against a State only. Therefore, it became relatively early necessary to define the State for the purposes of direct
effect. The Court of Justice of the EU adopted a broad notion of the State. However, could this emanation of
the State be still justifiable under the EU’s aim of promoting a fully liberalized Internal Market? The Article
first defines the State for the purposes of direct effect, as evolved in the decisions of the Court of Justice of the
EU. Subsequently, it analyses the Advocate General Sharpston’s opinion in the Farrell case. With this analysis
it sets out the areas of her opinion that the author of this Article does not concur with. The Article further
argues that the deeper liberalisation of the Internal Market reduces the justification for the need to distinguish
between public and private undertakings in relation to the emanation of the State for the purposes of direct
effect. Based on the analysis provided in the Article, the author concludes with a proposal how a State should
be defined in order to achieve the desired objective whilst taking into account the ongoing liberalisation of
the Internal Market.
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