7 - European private law by directives

Summary

Introduction

Directives have been the main legislative instrument used by the EU when acting in areas affecting private law. Directives are addressed to the Member States and leave to them the choice as to the form and method of achieving the end established by the directive (Article 249(3) EC [Article 288(3) TFEU]). The use of directives invariably entails a complex interaction between different actors at national and Union level because, unlike regulations, directives do not, generally speaking, have direct effect. To have direct effect they require transposition into national law; and even where certain provisions of a given directive have been held to be capable of having direct effect, in the field of private law this will be of little assistance to claimants, given the traditional position that directives do not have horizontal direct effect (that is, against other private parties). Directives offer some clear advantages in achieving their goals, but also suffer from certain defects: both sides of this equation are due to the nature of directives and the roles that they provide for the EU and national legislators, and the EU and national courts. First, we will discuss these matters in general, before considering the different types of harmonisation of private law sought through directives and then conclude with a discussion of the practical implementation and enforcement of such directives in the EU.