Sybil has been made redundant by her employer, the period of notice had taken into account her work withthe business over the past 5 years and the provision of State X’s employment legislation which she haslearnt, may have discriminated against her on the grounds of age. Sybil wants to use an EU Directive to helpher in her situation and possibly gain compensation. State X’s employment legislation states that “incalculating the length of employment, periods prior to the completion of the employee’s 25th year of age arenot to be taken into account”. Nevertheless, Sybil has discovered that there is a EU Directive, Directive2008/01 which states that “Member States (MS) shall not permit discrimination on the grounds of age in anyemployment context, including conditions of remuneration and termination of employment”. However, theDirective has not been implemented into national law so there is concern that it cannot be used. To tackle this Sybil may be able to resort to direct effect which is a method that can be conducted by the ECJto give a citizen the ability to use EU law to their favour.1 For direct effect to be applicable the ECJestablished criteria in Van Gend en Loos (Case C-26/62) (1963) which held that the provision must besufficiently clear, precisely stated and the provision must also be unconditional or non-dependent.
If thesecriteria are met, then the rights in doubt can be enforce by national courts. Article 288 Treaty on the Functioning of the European Union (TFEU) states that Directives are to be”binding as to the result to be achieved” but “leave to the national authorities the choice of form andmethod”. This means that Directives have separate objectives but function to establish duties on MS to passnational law within a set time to achieve those objectives.2 This consequently means that Directives cannotcreate substantive rights spontaneously, that citizens such as Sybil can be able to enforce as Directives arenot directly applicable and also fail one of the criteria in Van Gend en Loos,3 as they are conditional and arecompletely dependent on implementation by the Member State. Van Duyn V Home Office (Case C-41/75) (1974) recognised that it would be conflicting with the bindingnature of a Directive in Article 288 TEC if they could not be enforceable. The date of implementation haspassed4 for EU Directive 2008/01 so it should be directly effective however it has not been implemented intolaw by State X so it could therefore not be directly effective especially if it is being imposed against anindividual.
Nevertheless, Sybil could therefore rely on the principle of indirect effect as it can be useful inavoiding the of the absence of horizontal effect of Directives. 1 Van Gend en Loos (1963) (Case C-26/62) (1963)2 Tony Storey and Chris Turner, Unlocking EU law (unlocking the law) (2nd edn, Philip Allan Updates2011)3 ibid n.14 Pubblico Ministero V Ratti (Case 148/78) (1978) Von Colson and Kamann V Land Nordhein-Westalen,5 held that “the duty under Article 4(3) TEU ( exArticle 10 TEC) to ensure fulfilment of an obligation was binding on all national courts, it follows thatcourts are required to interpret their national law in the light of the wording and purpose of the Directive”.Marleasing (Case C-106/89) (1990) also held that courts in Member States have the duty of interpretingnational legislation in light of implemented EU Directives. This could consequently present Sybil with theability to gain compensation for discrimination as the courts in State X will have to interpret the Directive inlight of the national legislation on age discrimination in employment. The ECJ has also e
