The Familiapress dilemma: the horizontal application, horizontal direct effect and horizontal enforcement of the free movement provisions

Barend van Leeuwen

Chapter 2 in Dilemmas of EU Free Movement Law, 2026, pp 12-38 from Edward Elgar Publishing

Abstract: What do we mean when we talk about the "horizontal direct effect" of the free movement provisions? While some EU lawyers speak of horizontal direct effect when the free movement provisions are applied in a dispute between private parties (a procedural approach), other EU lawyers only refer to horizontal direct effect when the rule or conduct that is being challenged is of a private nature (a substantive approach). This chapter will analyse these different interpretations of the concept of horizontal direct effect through the lens of the “Familiapress dilemma”. It will be argued that a distinction should be made between horizontal direct effect cases and horizontal enforcement cases. The problem with a procedural approach to horizontal direct effect is that no connection is made between direct effect and the question of who is held responsible (and liable) for breaches of the free movement provisions. Therefore, it will be argued that the CJEU should develop more explicit techniques or “formulas” to allocate responsibility in free movement cases. In parallel, the CJEU should improve the effectiveness of the remedies of State liability and private liability for breaches of the free movement provisions.

Keywords: Free movement law; Horizontal direct effect; Horizontal enforcement; State liability; Private liability (search for similar items in EconPapers)
Date: 2026
ISBN: 9781839107825
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