Sybil be achieved” but “leave to the national

Sybil has been made redundant by her employer, the period of notice had taken into account her work with
the business over the past 5 years and the provision of State X’s employment legislation which she has
learnt, may have discriminated against her on the grounds of age. Sybil wants to use an EU Directive to help
her in her situation and possibly gain compensation. State X’s employment legislation states that “in
calculating the length of employment, periods prior to the completion of the employee’s 25th year of age are
not to be taken into account”. Nevertheless, Sybil has discovered that there is a EU Directive, Directive
2008/01 which states that “Member States (MS) shall not permit discrimination on the grounds of age in any
employment context, including conditions of remuneration and termination of employment”. However, the
Directive 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 ECJ
to give a citizen the ability to use EU law to their favour.1 For direct effect to be applicable the ECJ
established criteria in Van Gend en Loos (Case C-26/62) (1963) which held that the provision must be
sufficiently clear, precisely stated and the provision must also be unconditional or non-dependent. If these
criteria are met, then the rights in doubt can be enforce by national courts.

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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 and
method”. This means that Directives have separate objectives but function to establish duties on MS to pass
national law within a set time to achieve those objectives.2 This consequently means that Directives cannot
create substantive rights spontaneously, that citizens such as Sybil can be able to enforce as Directives are
not directly applicable and also fail one of the criteria in Van Gend en Loos,3 as they are conditional and are
completely 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 binding
nature of a Directive in Article 288 TEC if they could not be enforceable. The date of implementation has
passed4 for EU Directive 2008/01 so it should be directly effective however it has not been implemented into
law by State X so it could therefore not be directly effective especially if it is being imposed against an
individual. Nevertheless, Sybil could therefore rely on the principle of indirect effect as it can be useful in
avoiding 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 Updates
2011)
3 ibid n.1
4 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 ( ex
Article 10 TEC) to ensure fulfilment of an obligation was binding on all national courts, it follows that
courts 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 interpreting
national legislation in light of implemented EU Directives. This could consequently present Sybil with the
ability to gain compensation for discrimination as the courts in State X will have to interpret the Directive in
light of the national legislation on age discrimination in employment. The ECJ has also e