The magical mystery of words: "direct effect" and all that

A number of terms immediately come to mind when we think about how rights flowing from European Union law can be asserted in the Member States’ legal systems: “direct effect”, “indirect effect”, “Francovich liability”, “procedural autonomy of the Member States”. Latterly, “incidental direct effect”, with its variants “exclusionary” and “substitutionary”, has entered the vocabulary of EU law. These terms are not found in the jurisprudence of the Court of Justice of the European Union (‘the Court’), but they are dominant in the literature in the English language. The multiplication of terms purports to reflect ever-new twists in the case law of the Court. The very words record the stages of an unfolding ‘story’: they lay open and make sense of what the Court is doing implicitly if not downright surreptitiously. At its barest, the orthodox narrative is that the Court on spurious grounds denied Directives so-called “horizontal” direct effect, that is, the ability before implementation through national law to confer rights on individuals vis-à-vis other individuals. Nevertheless, the Court almost immediately set out to develop various ways to mitigate this – hence the increasing complexity, even contradictions, in this area. I shall take a critical look at the dominant account, and sketch a coherent alternative.

Stefan Enchelmaier studied law, philosophy, and Latin in Cologne, Hamburg, and Edinburgh; wrote his doctoral thesis on European competition law at the University of Bonn, and his habilitation thesis in Munich on proprietary transactions regarding intangibles in English and German private law. After a time in practice, he held posts in Oxford and York, and has been back in Oxford since 2013, teaching Roman law, contract, company, and EU law.

The meeting will be held in the Lower Lecture Room, Garden Building, Lincoln College. A sandwich lunch will be available from 12.30.