Could the broad definition of “State” for the purposes of direct effect be justifiable under the EU’s aim of promoting a fully liberalised internal market?

Kunertová, Tereza

Abstract

In general, in the case of late transposition of the EU directives, they may be invoked vertically against a State only. Therefore, it became relatively early necessary to define the State for the purposes of direct effect. The Court of Justice of the EU adopted a broad notion of the State. However, could this emanation of the State be still justifiable under the EU's aim of promoting a fully liberalized Internal Market? The Article first defines the State for the purposes of direct effect, as evolved in the decisions of the Court of Justice of the EU. Subsequently, it analyses the Advocate General Sharpston's opinion in the Farrell case. With this analysis it sets out the areas of her opinion that the author of this Article does not concur with. The Article further argues that the deeper liberalisation of the Internal Market reduces the justification for the need to distinguish between public and private undertakings in relation to the emanation of the State for the purposes of direct effect. Based on the analysis provided in the Article, the author concludes with a proposal how a State should be defined in order to achieve the desired objective whilst taking into account the ongoing liberalisation of the Internal Market.

Citation

Kunertová, T. (2024). Could the broad definition of “State” for the purposes of direct effect be justifiable under the EU’s aim of promoting a fully liberalised internal market?. The Lawyer Quarterly, 14(1), 82-90

• Journal Article Type: Article
• Acceptance Date: Jan 3, 2024
• Online Publication Date: Mar 5, 2024
• Publication Date: 2024
• Deposit Date: Apr 2, 2024
• Print ISSN: 1805-8396
• Electronic ISSN: 1805-840X
• Publisher: Ústav státu a práva Akademie věd České republiky (ÚSP AV ČR)
• Peer Reviewed: Peer Reviewed
• Volume: 14
• Issue: 1
• Pages: 82-90
• Series ISSN: 1805-840X
• Keywords: Emanation of the State, Vertical Direct Effect, Farrell, Foster, Liberalisation of the Internal Market
• Public URL: http://researchrepository.napier.ac.uk/Output/3585005
• Publisher URL: https://tlq.ilaw.cas.cz/index.php/tlq/article/view/583