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Robert Schütze. European Union Law 2 ed. 2018. p. 101. All emboldenings are mine.

Transcribing everything takes too long, thus I'll transcrible just the gag line. See my red arrow.

      Vertical direct effect would thus not only apply to private parties exercising public functions, but also to public authorities engaged in private activities.116 This double extension of the doctrine of vertical direct effect can be criticised for treating similar situations dissimilarly, for it creates a discriminatory limitation to the no-horizontal-direct-effect rule. However, the Court has recently confirmed that both extensions are an integral result of the Foster doctrine.117

How does this "double extension of the doctrine of vertical direct effect"

  1. treat "similar situations dissimilarly"?

  2. create "a discriminatory limitation to the no-horizontal-direct-effect rule"?

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The general rule with Directives, is that there is no horizontal direct effect, i.e. private parties cannot use Directives in lawsuits against each other (they instead must use national laws). However, vertical direct effect allows private parties to sue the State on the basis of Directives.

Often, it is legally convenient for the State to act as a private party, or for the State to delegate public functions to private parties. The cases referenced show that either of these actions is still subject to vertical direct effect. In essence, as long as the State is involved to some degree, this arrangement allows lawsuits involving private matters to be based on Directives as if there was horizontal direct effect.

In a sense, this is discriminatory to the State (though I would not have used that word), as it may place additional legal obligations on usually private matters. It is also in this sense that similar situations are treated differently, as it allows use of Directives in lawsuits in private matters, where usually this would not be the case.

  • +1. Thanks. "this is discriminatory to the State (though I would not have used that word), as it may place additional legal obligations on usually private matters" Can you pls elaborate by editing your answer? – Mark da Silva Dec 6 at 6:36
  • @MarkdaSilva What's unclear about it? – DPenner1 Dec 10 at 15:42
  • Why is "this" "discriminatory to the State"? What's discriminatory with "may place additional legal obligations on usually private matters"? – Mark da Silva Dec 11 at 8:17
  • @MarkdaSilva Like I said, I don't think "discriminatory" is a good word for describing what's going on here. It's just that the State may have additional legal obligations imposed by Directive, whereas completely private parties do not due to lack of horizontal direct effect. – DPenner1 Dec 11 at 16:05

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