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28 October 2011 / Trevor Tayleur
Issue: 7487 / Categories: Features , EU , Commercial
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Through the back door?

Trevor Tayleur analyses confusing case law surrounding the direct effect of EU Directives

It is a basic tenet of EU law that Directives are not capable of horizontal direct effect. The European Court of Justice (ECJ) has decisively rejected extending horizontal direct effect to Directives (Faccini Dori v Recreb Srl: C-91/92 [1995] All ER (EC) 1). However, subsequent judgments of the court have clouded the issue (Mangold v Helm: C-144/04 [2006] All ER (EC) 383, and Kücükdeveci v Swedex GmbH & Co KG: C-555/07 [2010] All ER (EC) 867).

Mangold

Mangold, aged 56, was employed on a fixed-term employment contract. He subsequently brought proceedings in the German courts against his private sector employer, challenging the fixed-term nature of his contract. He argued that the contract breached Directive 2000/78 (the Directive), which prohibits various types of discrimination, including age. The discrimination occurred because a German law introduced in 2002 only permitted fixed term contracts for employees younger than 52 in exceptional circumstances; this restriction did not apply to employees

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Litigators digesting Mazur are being urged to tighten oversight and compliance. In his latest 'Insider' column for NLJ this week, Professor Dominic Regan of City Law School provides a cut out and keep guide to the ruling’s core test: whether an unauthorised individual is ‘in truth acting on behalf of the authorised individual’
Conflicting county court rulings have left landlords uncertain over whether they can force entry after tenants refuse access. In this week's NLJ, Edward Blakeney and Ashpen Rajah of Falcon Chambers outline a split: some judges permit it under CPR 70.2A, others insist only Parliament can authorise such powers
A wave of scandals has reignited debate over misconduct in public office, criticised as unclear and inconsistently applied. Writing in NLJ this week, Alice Lepeuple of WilmerHale says the offence’s ‘vagueness, overbreadth & inconsistent deployment’ have undermined confidence
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