Thelen Technopark and the Legal Effects of the Services Directive in Purely Internal and Horizontal Disputes

• Justin Lindeboom ^[1]
  1. [1] University of Groningen

     University of Groningen

     Países Bajos

     
• Localización: European papers: a journal on law and integration, ISSN-e 2499-8249, Vol. 7, Nº. 1, 2022, págs. 305-326
• Idioma: inglés
• Enlaces
  • Texto completo (pdf)
• Resumen

  • In Thelen Technopark (ECLI:EU:C:2022:33), the Court of Justice held that art. 15 of the Services Directive cannot be invoked against a conflicting national law in a horizontal dispute, even though the Court had already definitively established the incompatibility of this national law with the Services Directive in an earlier judgment. In view of the purely internal nature of the dispute – making art. 49 TFEU itself inapplicable – the individual harmed by the violation of the Services Directive could only recover his losses through a separate action for damages against the Member State. This Insight analyses Thelen Technopark in light of the logic and extent of the prohibition of horizontal direct effect of directives, the central role and limits of the doctrine of consistent interpretation, and the direct effect of the Charter of Fundamental Rights. It argues that the Court rightly did not extend the Mangold case law on directives giving concrete expression to a general principle or fundamental right to directives giving concrete expression to a fundamental freedom. This Insight also elaborates on the two proposals of AG Szpunar to allow for horizontal direct effect of the Services Directive either as a specification of art. 49 TFEU, or as a legislative harmonisation of the proportionality of an interference with art. 16 of the EU Charter of Fundamental Rights (CFR). While thought-provoking and worthy of critical analysis, the Court in my view rightly did not follow AG Szpunar’s opinion, which likely would have resulted in a doctrinal minefield.