A missing piece in the horizontal effect “jigsaw”: Horizontal direct effect and the free movement of goods

Abstract

Whether and to what extent private actors are directly bound by the provisions on free movement of the EU Treaties, also known as horizontal direct effect of the freedoms, has in the last years been subject to intensive and controversial academic debate. The Court of Justice of the European Union has attributed horizontal direct effect to the free movement of persons, under Articles 45, 49 and 56 TFEU. In sharp contrast, the Court has refused to apply the free movement of goods, Article 34 TFEU, directly to the conduct of private actors, not explaining the reasons for this different approach. This article aims to contribute to understanding the Court's approach and seeks answers to a number of key outstanding questions, namely what role horizontal direct effect does play currently, what role it can and should play in the free movement of goods, and whether a uniform approach to fundamental freedoms is desirable. In doing so it will be tried to assign the free movement of goods an appropriate place in a coherent overall approach to horizontal direct effect in free movement law. This approach, it is argued, should respect the nature of the different free movement provisions, their genesis and the Court's case-law on horizontal direct effect.