Horizontal direct effect of the
Charter of Fundamental Rights
of the European Union
Master Thesis by Kristina N. Karanikolova
Date: 01.07.2015
Student number: 10562885
Master programme: European and International Labour Law University of Amsterdam
2
Introduction:
With the judgement in Association de médiation sociale v Union locale des syndicats CGT
and Others (AMS) delivered by the Court of Justice in 2014,1 the possibility to use the
Charter of Fundamental Rights2 (CFR) in private disputes was established.3 This is a
highly relevant decision taking into account the different rights and guarantee as promoted by the Charter. This is especially so for the sphere of employment where the provisions in the Equality and Solidarity Chapter of the Charter have the potential to ensure that the weaker party - the employee can use the protection of the Charter and enforce their rights directly against their employer, rather than seeking redress from the State for incomplete or incorrect implementation of EU rules.4
Before the Kücükdeveci and Mangold cases, only discrimination on grounds of sex and nationality were to be applied in horizontal, private situation and only in circumstances involving the free movement provisions.5 However, after this
landmark case law, there is uncertainty as to the application of EU non-discrimination principle, given expression through Community Directives, in horizontal situations6 which also poses questions about division of competences
between the EU and the national governments. The situation was arguably clarified to an extent by the recent decision of the ECJ in the AMS case. The ECJ ruled that article 27 of the EU Charter was not sufficiently clear and specific to allow for its application between private parties. Yet, by distinction, the ECJ held that article 21 of the CFR was sufficient enough in itself to grant individuals a right that they can invoke among themselves. Thus it is not clear which rights from the CFR have horizontal direct effect and if the same line of argument as in Kücükdeveci should or could be followed.7 Additionally, there appears to be some confusion as to the
distinction between principles and fundamental rights and how these can be invoked
1 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2; hereafter referred to as AMS case
2 Charter of Fundamental Rights of the European Union [2002] OJ C 326/391; hereafter referred to as
„the Charter‟ or „CFR‟
3 Matteo Fornasier, “The Impact of EU Fundamental Rights on Private Relationships: Direct or Indirect
Effect?”, European Review of Private Law, Issue 1, 2015, p. 41
4 Saša Sever, “Horizontal Effect and the Charter”, Croatian Yearbook of European Law and Policy, Volume
10, 2014, p. 41
5 Mirjam de Mol, “The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU
Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?”, Maastricht Journal, Volume 18, Issue 1-2, 2011, p. 110
6 Thomas Papadopoulos, “Criticizing the horizontal direct effect of the EU general principle of
equality”, European Human Rights Law Review, Issue 4, 2011, p.3
7 Cian Murphy, “Using the EU Charter of Fundamental Rights against private parties after Association
3 in private disputes.8 The paper will therefore attempt to structure and clarify the
approach taken by ECJ and apply its guidance to find out which Charter‟s social rights are likely to have a horizontal direct effect.
Based on case analysis of some of the more controversial cases by the ECJ- Mangold, Kücükdeveci, and AMS, the thesis will to answer the question: Which social rights are likely to be directly effective in horizontal situations? To begin with, the more basic, but essential, question of the scope of the Charter and its suitability for horizontal application will be discussed (section 2). Following, the paper will describe the case-law with which the ECJ has introduced the possibility for horizontal direct effect of some of the Charter rights (section 3). After the presentation of the AMS case (section 4), which holds a central part in this paper analysis, the paper will examine if there is a difference between the approach of the ECJ in the pre-AMS case-law and outcome of the AMS case. In order to ensure completeness and to guarantee that all possible arguments affecting the horizontal application of the Charter are taken into account, the paper will investigate if the grouping of fundamental rights in generations is still significant despite the proclaimed indivisibility of the Charter (section 5). Furthermore, the categorization of Charter provisions of being „rights‟ or „principles‟ and how this affects the horizontal direct effect of these provisions will be examined (section 6). After distilling a set of criteria to evaluate which Charter provisions with relevance to labour law have direct effect, the paper will proceed to determine which Charter provisions could have horizontal effect (section 7).
Scope and application of the Charter of Fundamental Rights:
Before turning to the status of the different rights in the Charter, it is necessary to determine when the Charter is applicable and whether it provides for direct application of its provisions in horizontal situations.
Direct horizontal effect refers to the legal effect that a public EU provision can have on a private dispute between natural or legal individuals.9 However, the Charter
provides that “The provisions of this Charter are addressed to the institutions and bodies of the Union […] and to the Member States only when they are implementing Union law”.10 This has led a number of commentators consider that the Charter has a
8 Eleni Frantziou, “Case C-176/12 Association de Médiation Sociale: Some Reflections on the
Horizontal Effect of the Charter and the Reach of Fundamental Employment Rights in the European Union”, European Constitutional Law Review, Volume 10, Issue 02, p. 333
9 Eric Engle, “Third Party Effect of Fundamental Rights (Drittwirkung)”, Hanse Law Review, Volume 5,
No. 2, p. 165
4 limited scope of application to only the EU and national public authorities.11 Such an
interpretation of Article 51(1) CFR precludes the horizontal application of the Charter, since it has been the intention of the Member States to only address the provisions to the public authorities and not private individuals. Thus, by applying the Charter to private parties, the ECJ may overstep its jurisdiction and ultimately expand the scope of the Charter and EU law.12
While the textual interpretation is not faulty, it should be reminded that EU legislation should be interpreted in the spirit of the law, taking into account the objectives of the rules13 and ensuring their effectiveness,14 while balancing “the
principle of effective judicial protection and, on the other, the principles of inter-institutional balance and of mutual sincere cooperation”.15
Consequently, the fact that the Charter does not mention explicitly its application to individuals does not necessarily rule out that its obligations and rights are directed towards them.16 Some authors argue that such a position is already supported by the
case law of the ECJ regarding the economic freedoms enshrined in the Treaty on the Functioning of the European Union (TFEU).17 Besselink proposes a provocative
analysis on the internal market freedoms as fundamental rights which “fundamentally operate in function of the social rights as codified in international human rights treaties and in Member State constitutions; they contribute to the realisation of such social rights”.18 The author finds that there is a parallel between
11 Opinion of Advocate General Trstenjak in Case C‑282/10 Maribel Dominguez v Centre informatique du
Centre Ouest Atlantique and Préfet de la région Centre delivered on 8 September 2011,paragraph 128
12 Eleni Frantziou, “The Horizontal Effect of the Charter of Fundamental Rights of the EU:
Rediscovering the Reasons for Horizontality”, European Law Journal, to be published in 2015, p. 3; Article 51(2) of the Charter specifically mentions that the Charter does not establish new powers of the Union. It has been included due to the fear of some Member States that through it, the Union will assume more than the already delegated to it competences.
13 Case C‑156/98 Germany v Commission [2000] ECR I‑6857, paragraph 50
14 Case C-162/09 Secretary of State for Work and Pensions v Taous Lassal [2010] ECR I-09217, paragraph
31
15 Koen Lenaerts and José A. Gutiérrez-Fons, “To Say What the Law of the EU Is: Methods of
Interpretation and the European Court of Justice”, EUI Working Paper, Academy of European Law, 2013/9, 2013, p. 4
16 See Preamble of the Charter of Fundamental Rights of the European Union, which reads that
“Enjoyment of these rights entails responsibilities and duties with regard to other persons”.
17 See Eleni Frantziou, “The Horizontal Effect of the Charter of Fundamental Rights of the EU:
Rediscovering the Reasons for Horizontality”, European Law Journal, to be published in 2015, p. 3; Leonard F.M. Besselink, “General report”, in J. Laffranque (ed.), Reports of the FIDE Congress Tallinn
2012. - Vol. 1: The protection of fundamental rights post-Lisbon: the interaction between the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and national constitutions,2012, available at http://www.fide2012.eu/General+and+EU+Reports/id/217/, p.19
18 Leonard F.M. Besselink, “General report”, in J. Laffranque (ed.), Reports of the FIDE Congress Tallinn
2012. - Vol. 1: The protection of fundamental rights post-Lisbon: the interaction between the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and national constitutions,2012, available at http://www.fide2012.eu/General+and+EU+Reports/id/217/, p.19
5 the Treaty provisions on the internal market freedoms and the Charter and considers that if the first have been given direct horizontal effect, one may dare and conclude that the particular expression of the Charter of these freedoms should also have horizontal effect.19 Additionally, according to Pech, at least “some horizontal effect”
should be given to the Charter and since fundamental rights expressed as general principles or found in primary law have already been given horizontal effect in cases such as Angonese20 even before the entry into force of the Charter and to prevent
their horizontal application simply because these rights are now enshrined the Charter “would be a backward step”.21
From the above analysis it can be concluded that Article 51(1) CFR should not be considered as an obstacle to the direct application of (at least some of) the Charter provisions in purely horizontal cases.
Nonetheless, it is relevant to note that the Charter is only applicable to cases that fall within the scope of EU law. Indeed it can be argued that the Charter limits its own scope by clarifying that it applies to the Member States “only when they are implementing Union law”.22 It has however been argued that Article 51(1) CFR
actually means that the Member States are bound by the fundamental rights when the situation falls within the scope of EU law,23 without there being an implementing
act.24 While the purpose of this paper is not to enter into a discussion on the
situations when the case would fall within the scope of EU law, most academics agree that there are at least three different situations in which fundamental rights and the Charter will be deemed to be applicable.
19 Leonard F.M. Besselink, “General report”, in J. Laffranque (ed.), Reports of the FIDE Congress Tallinn
2012. - Vol. 1: The protection of fundamental rights post-Lisbon: the interaction between the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and national constitutions,2012, available at http://www.fide2012.eu/General+and+EU+Reports/id/217/, p.19; Besselink compares the freedoms to Article 15(2) and 45 of the Charter of Fundamental Rights of the European Union; For opposing opinion on the similarities between economic freedoms and
fundamental rights, see Matteo Fornasier, “The Impact of EU Fundamental Rights on Private Relationships: Direct or Indirect Effect?”, European Review of Private Law, Issue 1, 2015, pp. 38-39
20 Case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR 2000 I-04139
21 Laurent Pech, “Between Judicial Minimalism and Avoidance: The Court of Justice‟s Sidestepping of
Fundamental Constitutional Issues in Römer and Dominguez”, Common Market Law Review, Volume 49, 2012, pp. 1873-1874; see also Eleni Frantziou, “The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality”, European Law Journal, to be published in 2015, p. 4
22 Article 51(1) Charter of Fundamental Rights of the European Union
23 Case Case C-617/10 Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:280, paragraphs
19-21
24 Laurent Pech, “Between Judicial Minimalism and Avoidance: The Court of Justice‟s Sidestepping of
Fundamental Constitutional Issues in Römer and Dominguez”, Common Market Law Review, Volume 49, 2012, pp. 1863-1864; also Saša Sever, “Horizontal Effect and the Charter”, Croatian Yearbook of
6 The first situation is when the Member States adopt a measure implementing the EU legislation.25 Secondly, a case will fall within the scope of EU law if the Member State
is limiting a Union right or uses a derogation to limit the effect of the freedoms granted to individuals by EU law.26 The third situation, according to Pech, is when
“national rules, whose subject-matter is “simply” governed by substantive provisions of EU law” are concerned.27 This third category also encompasses
situations in which a Member State has failed to implement a Directive within the transposition period but the national legislation in question is affected by the matter governed by the Directive.28
It can therefore be concluded that provided that the national measure falls within the scope of EU law, a term that needs to be interpreted broadly, a Charter right is not precluded from having a horizontal effect.
Background: Mangold & Kücükdeveci:
In order to determine whether the Charter of Fundamental Rights can have horizontal effect, and if so, what the conditions are, one should examine the development that led to the recent AMS case. In this way, the evaluation criteria according to which a decision on the horizontal effect of articles will be distilled. To begin with, it is important to see how the general principle of non-discrimination was established and applied in disputes purely between private parties. This is an important step since, after the entry into force of the CFR, Article 21 of the Charter prohibiting discrimination, was quoted as enshrining the general principle of non-discrimination when applied in horizontal situations. Furthermore, some authors have argued that since the entry into force of the Charter and the reaffirmation of its status as primary law in Article 6(1) TEU, the Charter became the principle standard
25 Mirjam de Mol, “Dominguez: A deafening silence Court of Justice of the European Union (Grand
Chamber). Judgment of 24 January 2012, Case C-282/10, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la region Centre”, European Constitutional Law Review, Volume 8, 2012, p. 301
26 Eleanor Spaventa “The horizontal application of fundamental rights as general principles of Union
Law”, in Anthony Arnull, Catherine Barnard, Michael Dougan, Eleanor Spaventa (eds), A
constitutional order of states: essays in honour of Alan Dashwood, Oxford: Hart Publishing, 2011, available
at core.ac.uk/download/pdf/1458995.pdf, accessed on 28.06.2015
27 Laurent Pech, “Between Judicial Minimalism and Avoidance: The Court of Justice‟s Sidestepping of
Fundamental Constitutional Issues in Römer and Dominguez”, Common Market Law Review, Volume 49, 2012, p. 1864
7 for fundamental rights within the Union, making the general principles of EU law “ancillary”.29
The Mangold case:
It all started long before the CFR came into effect in 2009. For the first time in 2005, the ECJ ascertained that there is an EU general principle of non-discrimination based on age enshrined in the constitutional traditions of the Member States.30 More
importantly, the ECJ argued that the general principle can also be applied in horizontal situation between private parties31 – Mr Mangold, who was hired on
fixed-term contract as he fell within an older age group, and his employer.
The judgment caused an uproar and widespread criticism32 since it circumvented the
application of Article 6(1) of Directive 2000/78 and claimed that in order to ensure the effectiveness of the general principle, a national law, which falls into the scope of Union law, should be set aside even if the transposition period of the Directive has not expired. Therefore, it appeared that the ECJ provided for a horizontal effect of general principles, “even before the expiration of the transposition period of a directive that gives effect to the principle”.33 The judgement led to the theory that
general principles and fundamental rights could be used in horizontal situations provided that they fall within the scope of EU law.34 Others however, have
considered that the case did not constitute an actual horizontal direct effect since private litigants could not use the general principles to challenge national measures only based on the general principle itself but needed to establish that this principle has been developed in secondary legislation, thus also establishing that the case falls within the scope of EU law.35
The Kücükdeveci case:
The existence and importance of the general principle of non-discrimination based on age was further confirmed in the landmark Kücükdeveci case.36 The case concerned
Ms Kücükdeveci who challenged the calculation of the notice period for dismissal
29 Xavier Groussot, Laurent Pech & Gunnar Thor Petursson, “The Scope of Application of
Fundamental Rights on Member States‟ Action: In Search of Certainty in EU Adjudication”, Eric Stein
Working Paper, No 1/2011, 2011, at footnote 6
30 Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-09981, paragraph 75
31 Nicole Lazzerini, “(Some of) the fundamental rights granted by the Charter may be a source of
obligations for private parties: AMS”, Common Market Law Review, Volume 51, 2014, p. 909
32 Lorna Woods and Philippa Watson, Steiner and Woods EU Law, Oxford University Press, 2014, p.123 33 Cian Murphy, “Using the EU Charter of Fundamental Rights against private parties after
Association de Mediation Sociale”, European Human Rights Law Review, Volume 2, 2014, p. 173
34 Thomas Papadopoulos, “Criticizing the horizontal direct effect of the EU general principle of
equality”, European Human Rights Law Review, Issue 4, 2011, pp. 4-5
35 Xavier Groussot, Laurent Pech & Gunnar Thor Petursson, “The Scope of Application of
Fundamental Rights on Member States‟ Action: In Search of Certainty in EU Adjudication”, Eric Stein
Working Paper, No 1/2011, 2011, p. 27
8 she received from her former employer. According to the German legislation at the time, periods of employment before the age of 25 were not part of the calculation of the notice period for dismissal. Ms Kücükdeveci argued that the national regulation allowing for the different treatment of calculation based on age was contrary to EU law.
In the ruling, the ECJ reaffirmed that there is a general principle of non-discrimination based on age and that Directive 2000/78 was a specific expression of this general principle.37 Furthermore, to ensure the effectiveness of the EU general
principle, the national courts were to disapply the German provision, even when the case concerns only private parties.38 It is important to note that it was the general
principle that the ECJ used to disapply the national law and the Directive was only an expression, a reflection, of the general principle and does not establish it by itself.39 De Mol argues that while the general principle was the ground for review of
the national provision, Directive 2000/78 was the “de facto standard of review”. Thus the provisions expressing the general principle were used to interpret the said general principle.40 This is quite extraordinary, taking into account that general
principles are usually quite broad and not codified and are generally used to interpret the specific legislation enacted in the EU legal order.41 Commentators also
warned that by being an expression to the general principle, the provisions of the Directive become independent of it, opening the possibility that they can be used outside the scope of the specific Directive, namely in cases outside employment.42
Such a conclusion of unconditional horizontal effect is supported by the wording of the ECJ in Kücükdeveci, where no restriction is made to the application of the general principle of non-discrimination to only in labour law cases.43 The limitation
mentioned by the ECJ for the application of the general principle is that the national provision needs to fall within the scope of EU law.44
What is interesting for the purposes of this paper is that the ECJ specifically mentioned that the general principle of non-discrimination was also enshrined in
37 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. [2010] ECR I-00365, paragraph 50 38 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. [2010] ECR I-00365, paragraph 51
39 Matteo Fornasier, “The Impact of EU Fundamental Rights on Private Relationships: Direct or
Indirect Effect?”, European Review of Private Law, Issue 1, 2015, p. 41
40 Mirjam de Mol, “Kücükdeveci: Mangold Revisited – Horizontal Direct Effect of a General Principle
of EU Law: Court of Justice of the European Union (Grand Chamber) Judgment of 19 January 2010, Case C-555/07, Seda Kücükdeveci v.Swedex GmbH & Co. KG”, European Constitutional Law Review, Volume 6, 2010, p. 300
41 Ibid, p. 301 42 Ibid, pp. 303 - 304
43 Mirjam de Mol, “The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU
Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?”, Maastricht Journal, Volume 18, Issue 1-2, 2011, p. 120
9 Article 21(1) which prohibits discrimination based, among others, on age. Even though the Court did not go into detail of the application of the Charter, its mere mention in the case, combined with the fact that the Charter had recently become fully effective, led some authors to speculate that fundamental rights have direct effect not only against the Member States but also in horizontal situations.45 Other
commentators have argued that the importance of the general principle of non-discrimination stressed by the Court in Kücükdeveci may actually mean that Article 21 of the Charter is only an expression to the general principle, rather than a source, much the same way as the Directive was proclaimed to be.46 Some insight at this
debate seems to have been given in the Association de Mediation Sociale case (AMS) before the ECJ.
The AMS case:
47The case concerned an association in France - AMS - governed by private law which objected to the appointment of a trade union representative at the association.48
According to French law, any firm with more than 50 employees has to be appointed a union representative. However, according to the French Labour Code, certain categories of employees can be excluded from the calculation of the staff members.49
AMS argued that it had less than 11 full-time employees who should be calculated as staff members as all other employees fall within the exclusions established by the Labour Code.50 The union representative argued that the French Labour Code
provision in question was counter to EU law and consequently brought the number of employees above 50, thus reaffirming the need for a union representative.51 In a
preliminary ruling procedure before the ECJ, the Cour de cassation raised the question of whether private parties can invoke the Charter of Fundamental Rights in order to assess the compliance of, and if necessary disapply, a national provisions incorrectly implementing Directive 2002/14.
45 Mirjam de Mol, “Kücükdeveci: Mangold Revisited – Horizontal Direct Effect of a General Principle
of EU Law: Court of Justice of the European Union (Grand Chamber) Judgment of 19 January 2010, Case C-555/07, Seda Kücükdeveci v.Swedex GmbH & Co. KG”, European Constitutional Law Review, Volume 6, 2010, p. 304
46 Cian Murphy, “Using the EU Charter of Fundamental Rights against private parties after
Association de Mediation Sociale”, European Human Rights Law Review, Volume 2, 2014, p. 174
47 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2
48 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraph 13
49 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraph 12
50 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraph 15
51 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
10 Firstly, the ECJ determined that the national measure excluding certain categories of employees from the calculation of the staff of undertakings was counter to Article 3(1) of Directive 2002/14.52 Furthermore, the ECJ found that the wording of Article
3(1) of Directive 2002/14 is unconditional and sufficiently precise in order to have direct effect53 but that it cannot, by itself, apply to purely private disputes.54 Since the
wording of the French provision in the Labour Code could not be interpreted within the meaning of the Directive without the interpretation being contra legem, it had to be determined whether the Charter of Fundamental Rights, alone or together with Directive 2002/14, can be used in horizontal situations to preclude the national legislation implementing the Directive.55
The ECJ argued that unlike Article 21 of the CFR, Article 27 does not have horizontal direct effect since, to be fully effective, it requires further specification either on EU or national level56 and one cannot infer from its wording that there is a prohibition
towards the Member States to exclude certain categories of employees in the counting of the staff.57 Thus, the only possibility for the trade union will be to seek
Francovich liability against France.
Distinction between AMS and Kücükdeveci – material difference of the rights or new interpretation of the Court?:
As it can be seen from the above analysis, the ECJ reached different conclusions in the AMS and Kücükdeveci cases. However, is this difference born from the fact that the right to consultation and information is not a general principle? Does the AMS judgment offer a new line of interpretation by the ECJ? To answer these questions and find out whether the difference in the cases is relevant for the evaluation of the horizontal effect of other Charter provisions, this sections will discuss the distinction of the ECJ between AMS and Kücükdeveci. According to some authors, there is no difference as to the reasoning of the Court, rather the difference stems from the “nature of the fundamental right at stake”.58
52 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraph 29
53 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraph 35
54 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraph 36
55 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraphs 39-41
56 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraph 45
57 Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT and Others [2014]
ECLI:EU:C:2014:2, paragraph 46
58 Luísa Lourenço, “General Principles of European Union Law and the Charter of Fundamental
11 It is true that in Kücükdeveci, the ECJ is concerned with a general principle of EU law, while in AMS the discussion is focused on the Charter. However, such a distinction does not appear significant when one considers the reference to Article 21 of the Charter that the ECJ uses in AMS. It is also true that in Kücükdeveci the Court focused more on whether the provisions of the Directive as an expression to the general principle of the general principle allow for direct effect, while such expression seems not to suffice in the case of Article 27 CFR. Indeed, in this new judgement, it becomes clear that in Kücükdeveci the Court did not use the general principles as a way to sidestep previously established rule against direct horizontal effect of Directives. Instead, the Court seems to establish that the defining factor is whether the Charter provision, or in the case of Mangold - the general principle, in itself is capable of conferring rights.59 Thus, it appears that indeed the line of
reasoning of the Court has not deviated from its Kücükdeveci/ Mangold path.
Lazzerini considers that the different outcome in the AMS and Kücükdeveci is more evident if textual analysis is performed on the French text of the judgement. The author notes that in Kücükdeveci, the general principle is made “concrétiser” by the Directive, meaning that it is concretized, given more concrete aspect by the Directive. On the other hand, the ““préciser” means „making something more precise‟, and refers to a responsibility bearing on public authorities”.60 It thus appears that the
Court‟s distinction is born out of the different nature of the Charter provisions. Lourenço argues that in the case of Kücükdeveci, the Directive could only stipulate that it is meant to apply in the field of labour law and the non-discrimination principle would still be able to be applied without any further stipulations.61
Discussion of AMS:
What is important in the AMS case is that the ECJ appears to have accepted that the CFR can, in principle, have direct horizontal effect.62 However, only certain Articles
can be used against private individuals and Article 27 does not fall within that category. It appears from the judgment that as far as the Articles of the Charter do not need to be given more specific expression, it can be used in private disputes. Thus, only “legally perfect” provisions can have horizontal effect.63 Provisions which
59 Steve Peers, “When does the EU Charter of Rights apply to private parties?”, EU Law Analysis, 15
January 2014
60 Nicole Lazzerini, “(Some of) the fundamental rights granted by the Charter may be a source of
obligations for private parties: AMS”, Common Market Law Review, Volume 51, 2014, at footnote 58
61 Luísa Lourenço, “General Principles of European Union Law and the Charter of Fundamental
Rights”, European Law Reporter, № 11-12/ 2013, p. 306
62 Nicole Lazzerini, “(Some of) the fundamental rights granted by the Charter may be a source of
obligations for private parties: AMS”, Common Market Law Review, Volume 51, 2014, p. 921
63 Nicole Lazzerini, “(Some of) the fundamental rights granted by the Charter may be a source of
12 do not provide an answer for „how‟ the right is to be applied cannot be used in horizontal situations.64
Another point is that initially in Kücükdeveci, the ECJ expanded the impact of fundamental rights by ruling that secondary EU legislation which gives expression to a general principle can have horizontal direct effect.65 However, from the reading of
AMS one can perceive that the direct effect in Kücükdeveci stems from Article 21 of the Charter. This is somewhat confusing taking into account that the Charter was only briefly mentioned in Kücükdeveci, while now the ECJ seems to suggest that Article 21, by itself, creates rights and obligations for private disputes.66 According to
Papa, this inconsistency, coupled with the reliance on Directive 2000/78 in Kücükdeveci, should preclude the ECJ from using the case as an illustration of horizontally applicable provision of the Charter.67
The confusion surrounding the use of Article 21 as an illustration of the ECJ of the horizontal effect is further supported by the explanations of the Charter, according to which Article 21 is not meant to be applied between private parties.68 While the
wording of Article 21 supports its clarity and unconditional character, as well as ensuring that a right of non-discrimination is enforceable by itself, the explanations read that: ”the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action […] Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law”.69
Therefore, the AMS case appears to add a new test before the national courts. In determining whether a Charter Article can have horizontal effect, it should be determined if it confers rights to individuals.70 It is however not entirely clear how
one should assess the extent to which an Article is right-granting. Most analysts
64 Nicole Lazzerini, “(Some of) the fundamental rights granted by the Charter may be a source of
obligations for private parties: AMS”, Common Market Law Review, Volume 51, 2014, p. 927
65 Elise Muir, “The Fundamental Rights Implications of EU Legislation: Some Constitutional
Challenges”, Common Market Law Review, Volume 51, 2014, p.230
66 Case C-176/12 AMS [2014], paragraph 47 reads as follows: “the principle of non-discrimination on
grounds of age at issue in that case, laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such”
67 Veronica Papa, “The dark side of fundamental rights adjudication? The court, the Charter, and the
symmetric interpretation of fundamental rights in the AMS case and beyond”, Social Justice Conference 46, 2014, pp. 12-13
68 Mirjam de Mol, “The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU
Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?”, Maastricht Journal, Volume 18, Issue 1-2, 2011, pp. 133-134
69 Explanations Relating to the Charter of Fundamental Rights [2007] OJ C 303 70 Eleni Frantziou, “Case C-176/12 Association de Médiation Sociale:
Horizontal Effect of the Charter and the Reach of Fundamental Employment Rights in the European Union”, European Constitutional Law Review, Volume 10, Issue 02, 2014, p. 334
13 agree that to be able to have a horizontal effect, the Article would not require further legislative implementation, and most likely imposing a negative obligation.71
Furthermore, in determining the effect of an Article, one should take into account its wording and its explanation.72
In an attempt to determine more indications which point to rights having horizontal effect, the following section will examine the classical grouping of rights in accordance to the period of their development, followed by an examination of the difference between „rights‟ and principles.
Generations of Fundamental Rights:
It has been suggested that in determining whether a provision from the Charter has direct horizontal effect, the categorization of the provisions according to different generations may have some significance.73 Therefore, examination of how the
generations may influence the direct effect of a provision need to be examined. The Charter of Fundamental Rights integrates economic and social, political and civil rights into one legally binding document.74 However, historically, these various
types of rights developed at different periods. There are three generations of fundamental rights enshrined in the Charter75 - first generation consisting of civil and
political rights, which are designed to protect the individual from the state power and are often perceived as negative rights since they require inaction on the side of the state.76 Such rights are the right to life or integrity. On the other hand, second
generation rights, social rights, require the action of the state in order to ensure that these rights are accessible to the individual.77 An example will be right to education.
71 Eleni Frantziou, “Case C-176/12 Association de Médiati
Horizontal Effect of the Charter and the Reach of Fundamental Employment Rights in the European Union”, European Constitutional Law Review, Volume 10, Issue 02, 2014, pp. 345-346; see also Cian Murphy, “Using the EU Charter of Fundamental Rights against private parties after Association de Mediation Sociale”, European Human Rights Law Review, Volume 2, 2014, p. 176
72 Nicole Lazzerini, “(Some of) the fundamental rights granted by the Charter may be a source of
obligations for private parties: AMS”, Common Market Law Review, Volume 51, 2014, p. 926
73 See Veronica Papa, “The dark side of fundamental rights adjudication? The court, the Charter, and
the symmetric interpretation of fundamental rights in the AMS case and beyond”, Social Justice Conference 46, 2014
74 European Commission, “Fundamental Rights”, accessed on 09.05.2015, available at http://ec.europa.eu/justice/fundamental-rights/index_en.htm
75 It should be noted that some authors, such as Fabbrini, considers that there are four generations.
The division then is first generation- civil, second generation- political, third generation- social and fourth generation- new right connected to ethical issues. See Federico Fabbrini, Fundamental Rights in
Europe, Oxford University Press, 2014, p.48
76 Pascale Lolrber, “Labour Law”, in Steve Peers and Dr Angela Ward (eds), The European Union
Charter of Fundamental Rights, Hart Publishing, 2004, pp.212-213
14 As a third generation, academics refer to the newly emerged rights, such as collective bargaining or family and professional life.
The Charter is one of the newer codifications of a bill of human rights and as such contains third generation rights that go beyond what one can find in the European Convention of Human Rights for instance.78 The Charter itself proclaims that there
are no distinctions based on generations or otherwise: “the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity”.79
However, the indivisibility of the Charter has been questioned, even leading to conclusions that there might be a hierarchy of the different provisions.80 Indeed, Papa
argues that while the classical civil and political rights receive strong support from the ECJ, the Court has been too hesitant to apply social rights such as the right to annual paid leave.81
Principles vs Rights:
Building onto the previous section, it should be mentioned that the Advocate General in the AMS case did make a distinction between „rights‟ and „principles‟ in the Charter and the different legal effect that these can have.82 Such separation
however is not new. Kenner notes that while the wording of the Charter provisions may not show such distinction, some of the economic and social rights are in effect principles which cannot be used unless a further implementation is undertaken by the Member States or the Union where it has competence.83 Furthermore, this
distinction and the nonjusticiable nature of the principles support the argument that, despite the declaration to the opposite, there is a hierarchy of norms in the Charter. It therefore appears that most of the second generation rights are usually considered principles, thus proving them more difficult to use in horizontal situations.
Advocate General Cruz Villalón distinguishes between rights which can have full justiciability and other rights which “are (social) „rights‟ by virtue of their subject-matter, or even their identity, and „principles‟ by virtue of their operation” and
78 Viviane Reding, “The importance of the EU Charter of Fundamental Rights for European legislative
practice”, Lecture given at the German Institute for Human Rights, Berlin, 17 September 2010, p. 2
79 Charter of Fundamental Rights of the European Union [2002] OJ C 326/391, preamble
80 Jeff Kenner, “Economic and Social Rights in the EU Legal Order: The Mirage of Indivisibility”, in
Tamara K. Hervey and Jeff Kenner (eds) Economic and Social Rights Under the EU Charter of Fundamental
Rights: A Legal Perspective, Hart Publishing, 2003, p.16
81 Veronica Papa, “The dark side of fundamental rights adjudication? The court, the Charter, and the
symmetric interpretation of fundamental rights in the AMS case and beyond”, Social Justice Conference 46, 2014, pp. 16-17
82 Opinion of Advocate General Cruz Villalón in Case C-176/12 Association de médiation sociale v Union
locale des syndicats CGT and Others delivered on 18 July 2013
83 Jeff Kenner, “Economic and Social Rights in the EU Legal Order: The Mirage of Indivisibility”, in
Tamara K. Hervey and Jeff Kenner (eds) Economic and Social Rights Under the EU Charter of Fundamental
15 which enjoy only a reduced or limited justiciability.84 At several points, the analysis
of the Advocate General can be compared with the idea of generations of rights. For instance, the Advocate General reasons that „principles‟ establish an obligation towards the public authorities to take a legislative action in order to implement and give concrete form to the intended fundamental right.85 On the other hand, the
Advocate General determines rights as governing a specific situation which must be upheld by the authorities. Taking into account the above distinction, the Advocate General concludes that the there is a presumption that Title IV of the Charter, which contains a number of social rights, is composed of „principles‟.86 Accordingly, these
„principles‟ are so undetermined that they only call for an action of the public authorities and implementation through secondary legislation, meaning that these articles could not be used directly in horizontal situations.87
The Advocate General‟s presumption that all of the provisions of the Solidarity Chapter, which includes mainly employment provisions such as working conditions and collective actions, fall within the „principle‟ provisions has caused some critique. It has been argued that some of these provisions have already been established as rights by the ECJ and labeling them „principles‟ will be against current status of the case-law of the ECJ.88
Additionally, the description and analysis of the AG provides for a complicated system of distinction. It is also apparent that the ECJ is strongly against such a distinction between rights and principles as evidenced by intentionally not making use of or reference to the AG analysis. While this has been seen as a missed opportunity to clarify the distinction of „principles and rights‟ in the Charter by some critics,89 it should be noted that the reasoning of the Advocate General is quite
complex and the Court might have considered that labeling the provisions of the Charter by being principles would have created more confusion than clarity. The Court might have refrained from differentiating between rights and principles in
84 Opinion of Advocate General Cruz Villalón in Case C-176/12 Association de médiation sociale v Union
locale des syndicats CGT and Others delivered on 18 July 2013, paragraph 45
85 Opinion of Advocate General Cruz Villalón in Case C-176/12 Association de médiation sociale v Union
locale des syndicats CGT and Others delivered on 18 July 2013, paragraph 50
86 Opinion of Advocate General Cruz Villalón in Case C-176/12 Association de médiation sociale v Union
locale des syndicats CGT and Others delivered on 18 July 2013, paragraph 55
87 Opinion of Advocate General Cruz Villalón in Case C-176/12 Association de médiation sociale v Union
locale des syndicats CGT and Others delivered on 18 July 2013, paragraph 54
88 Massimiliano Delfino, “The Court and the Charter: A „Consistent‟ Interpretation of Fundamental
Social Rights and Principles”, European Labour Law Journal, Volume 6, No. 1, 2015, p. 90; an example of rights that would create problems if being considered principles are the rights of collective action as discussed in Case 438/05 Viking [2007] and the right to annual leave as discussed in Joined Cases C-229/11 and C-230/11 Heiman [2012]
89 Eleni Frantziou, “Case C-176/12 Association de Médiation Sociale: Some Reflections on the
Horizontal Effect of the Charter and the Reach of Fundamental Employment Rights in the European Union”, European Constitutional Law Review, Volume 10, Issue 02, p. 337
16 order to avoid any presumed hierarchy of fundamental rights and running the risk of implying that some rights are inferior to others. This would appear a prudent approach especially taking into account the aim of the Charter to ensure indivisible, universal values throughout the Union.
Despite these differences in the reasoning and reaching opposite conclusions as to the direct effect of Article 27 of the Charter, it appears that the reasoning of the Court and the Advocate General do have some similarities. Both consider that Charter provisions are, in principle, capable of having horizontal direct effect as far as they create a right to the individual without needing further clarification by EU or national legislation and are rights directed towards individuals, rather than obligation towards the state.90 Thus, even though the minimalistic approach of the
Court in ASM does not allow much insight into the Court‟s reasoning, on closer look one can see the distinction between principles and rights as well as the differences among generations of rights.
Evaluation of the Charter provisions with relevance to employment
relations:
The following section will attempt to determine whether the provisions of the Charter with the most influence to lablour law are capable of having horizontal direct effect. The section will cover most of the „Solidarity‟ chapter of the Charter, as well as some of the Articles under the „Equality‟ chapter since these have a strong relation with employment law, usually exemplified by the introduction of secondary legislation in this area. The criteria described below serve to create some consistency in the evaluation process.
Evaluation criteria:
As mentioned above, the Charter Articles will need to be right conferring in order to apply in horizontal situations. Therefore, the first criteria will check if the wording of the Article provides for a right which is by itself sufficient to be applied in a court. It will be taken into account if the Article is clear and precise. While these are the criteria for horizontal direct effect of Directives, the criteria appear relevant in evaluating the direct effect of the Charter simply because an Article cannot by itself be expected to confer a right, and a respective obligation, on individuals if it is not clear, precise.91
90 Alison Young, “Horizontality and the EU Charter”, U.K. Const. L. Blog, 29 January 2014, accessed
on 09.05.2015, available at http://ukconstitutionallaw.org
91 See Paul Craig, “The Legal Effect of Directives: Policy, Rules and Exceptions”, European Law Review,
17 Secondly, it will be evaluated if further action from the Member States or the EU institutions is required. Thus it will be checked if the provision is unconditional on further implementation – a requirement usually mentioned in connection to horizontal direct effect of Directives.
According to Young, however, another criterion – suitability – should also be taken into account.92 Since the Advocate General in the AMS case argues that “there are
rights whose relevance in relationships governed by private law it would be inconceivable to deny”93 and which need to be applied by private parties in
“complying with the provisions of the public authority”,94 this paper will evaluate if
the measure is suitable or appropriate to be used between individuals.
Where possible, the paper will refer to cases in which the ECJ has already dealt, at least partially, with the matter of horizontal application of the Charter provision in question.
Article 21: How far-reaching is the general principle of non-discrimination?
After reading Mangold and Kücükdeveci a question as to the scope of the general principle of non-discrimination emerges.95 In both cases the ECJ stated that the
non-discrimination based on age can be used in courts to challenge the validity of the national measure. From the AMS case we can also conclude that Article 21 of the Charter, at least in relation to discrimination on grounds of age, is capable of conferring horizontal direct effect, since it is “sufficient in itself to confer on individuals an individual right which they may invoke as such”.96 The formulation
prohibiting discrimination is clear and precise, does not need any further implementation from the authorities. Furthermore, the non-discrimination provision clearly has relevance in the private interrelationships, thus making Article 21 of the Charter suitable for having horizontal effect.
However, is this applicable for all grounds of discrimination mentioned in Article 21 of the Charter? To answer this question some of the ECJ‟s case-law on the different grounds of discrimination will be discussed.
92 Alison Young, “Horizontality and the EU Charter”, U.K. Const. L. Blog, 29 January 2014, accessed on
09.05.2015, available at http://ukconstitutionallaw.org
93 Opinion of Advocate General Cruz Villalón in Case C-176/12 Association de médiation sociale v Union
locale des syndicats CGT and Others delivered on 18 July 2013, paragraph 38
94 Opinion of Advocate General Cruz Villalón in Case C-176/12 Association de médiation sociale v Union
locale des syndicats CGT and Others delivered on 18 July 2013, paragraph 40
95 See Mirjam de Mol, “The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU
Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?”, Maastricht Journal, Volume 18, Issue 1-2, 2011
18
Discrimination on grounds of sexual orientation:
This ground for discrimination has evoked different opinion regarding its horizontal effect. It has been clearly contrasted with discrimination based on age and the Mangold decision, thus creating some uncertainty on whether the different grounds of discrimination have an equal position and ensure the same level of protection. In their criticism relating to the establishment of general principle of non-discrimination based on age established in Mangold, a number of academics, including Advocate Generals, have discussed that it should not be inferred from the case that there is a general principle of equal treatment, which would have a much broader scope and would confuse individuals of their legal position.97 According to
Papadopoulous, the TFEU provisions and Directives concerning discrimination also do not support such an all-encompassing scope of the non-discrimination principle on all possible grounds.98 In particular, discrimination on grounds of age and sexual
orientation are different in nature. This view Papadopoulous supports with the decision in Grant where the ECJ could not extend the scope of Article 119 TFEU since “Community law as it stands at present does not cover discrimination based on sexual orientation”.99
It is however, apparent from a more recent case that the ECJ is widening the application of non-discrimination to the grounds of sexual orientation. It has been argued that in Römer, discrimination on sexual orientation is also a general principle of Union law.100 This case shows that the ECJ gradually extends its application of
non-discrimination on more and more of the grounds of discrimination mentioned in Article 21 CFR.
Discrimination on grounds of nationality:
One of the first grounds to be granted protection was discrimination on grounds of nationality that we can also find in Article 18 TFEU. Nonetheless, the scope of this prohibition is limited to situations relating to citizenship or the proper functioning of the internal market.101 The ECJ has accepted that the horizontal application of the
prohibition against discrimination based on nationality is possible in the field of free movement between workers of the Member States as regards employment relations.
97 Mirjam de Mol, “The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU
Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?”, Maastricht Journal, Volume 18, Issue 1-2, 2011, p. 131
98 Thomas Papadopoulos, “Criticizing the horizontal direct effect of the EU general principle of
equality”, European Human Rights Law Review, Issue 4, 2011, p. 7
99 Case C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd [1998] ECR I-00621, paragraph 47 100 Case C-147/08 Jürgen Römer vs. City of Hamburg [2011] ECR I-03591, paragraph 59
101 Dorota Leczykiewicz, “Horizontal Effect of Fundamental Rights: In Search of Social Justice or
Private Autonomy in EU Law?”, University of Oxford Legal Research Paper Series Paper, No 38/2013, also in U. Bernitz, X. Groussot and F. Schulyok (eds), General Principles of EU Law and European Private Law, (Kluwer Law International) 2013, p. 173
19 In Angonese,102 the Court of Justice ruled that it is against Article 45(2) TFEU to
require a proof of language proficiency exclusively by means of one particular diploma issued only in one particular province of a Member State.103 The case
concerned Mr Angonese who in the recruitment process of a private bank was required to prove his bilingual abilities. The ECJ held that even though Article 45 TFEU was addressed towards Member States, this did not preclude the obligation to also be conferred on private parties, thus establishing the direct horizontal effect of this particular expression of the general principle of equality. While the case concerned a Treaty Article rather than the Charter, it will be logical that the Charter Article stipulating the same prohibition will be granted the same effect. This is even more convincing when one looks at the similarity of the wording of the Charter – “any discrimination on grounds of nationality shall be prohibited”104 – and the
Treaty provisions – “freedom of movement shall entail the abolition of any discrimination based on nationality”105 and “any discrimination on grounds of
nationality shall be prohibited”106. It can therefore be concluded that Article 21 will
be granted a horizontal direct effect if it concerns discrimination based on nationality.
Discrimination on grounds of sex:
In the case of Test-Achats ASBL,107 the Court of Justice also confirmed that the
principle of equal treatment of men and women can be used to assess the validity of secondary legislation which may have consequences for private parties. The case challenged the right of insurance company to consider the gender of customers when calculating the insurance installments for their policies. According to the plaintiffs, the national provision implementing Directive 2004/113 infringed the principle of equal treatment in the sphere of access to services. However, the national court drew the attention to Article 5(2) of the Directive which allowed for such difference of treatment and asked ECJ to assess its validity.
The ECJ evaluated the secondary law provision in light of Articles 21 and 23 of the Charter and established that the Directive provision was incompatible with the prohibition against discrimination and declared it invalid.108 The case showed the
willingness of the Court to use the Charter when evaluating EU legislation but also
102 Case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR 2000 I-04139
103 Case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR 2000 I-04139,
paragraph 46
104 Article 21(2), Charter of Fundamental Rights of the European Union 105 Article 45(2), The Treaty on the Functioning of the European Union 106 Article 18, The Treaty on the Functioning of the European Union
107 Case C-236/09 Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt and Charles
Basselier v Kingdom of Belgium (Conseil des ministres) [2011] ECR I-00773
108 Case C-236/09 Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt and Charles
20 resulted in having a direct effect on the all insurance companies, including private legal entities. After the decision insurance companies were not allowed to take into account gender when calculating their policies and private parties could use Articles 21 and 23 of the Charter to enforce this right.109
Discussion on the principle of non-discrimination:
To start with, there are two distinct primary sources of EU law where one can find non-discrimination provisions. Combating discrimination has been mentioned in both the Treaty of the European Union and the Treaty on the Functioning of the European Union. Article 2 TEU stipulates that the Union shall be established on values such as discrimination. Articles 10 and 19 of the TFEU provide more detail by elaborating on the prohibited grounds of discrimination: sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.110
With the entry into force of the Charter of Fundamental Right,111 however, we have a
second source of primary law which prohibits discrimination. What is interesting is that the Charter provides for an unexhausted list of prohibited grounds of discrimination. Among the listed ones, we can already see an expansion of those grounds that one can find in the Lisbon Treaties. For instance, genetic features, language, political or any other opinion, membership of a national minority, property, birth, have been added as enumerated grounds. Are those additional grounds of discrimination also covered by the reasoning in Kücükdeveci?
According to de Mol, the likely answer is yes. Even if not specified in secondary legislation, it is likely that by broadening the scope of non-discrimination beyond the free movement provisions, and making it a general principle applicable to the whole of EU legal order, the additional grounds might also be applicable in horizontal situations “that qualify as measures of implementation or as derogation from an EU obligation”.112 Such conclusion is also supported by the development in
discrimination on grounds of sexual orientation. Lazzerini also does not preclude the possibility that the other grounds mentioned in Article 21 CFR may also be given horizontal effect depending however on their “legal perfection”.113
109 Saša Sever, “Horizontal Effect and the Charter”, Croatian Yearbook of European Law and Policy,
Volume 10, 2014, p. 50
110 Article 19, The Treaty on the Functioning of the European Union 111 Article 6(1), The Treaty on European Union [2010] OJ C83/15
112 Mirjam de Mol, “The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU
Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?”, Maastricht Journal, Volume 18, Issue 1-2, 2011, p. 131
113 Nicole Lazzerini, “(Some of) the fundamental rights granted by the Charter may be a source of
21
Article 23 CFR - Equality between men and women:
It is important to point out at the onset that this Article of the CFR limits its own scope to only situations relating to employment relationships, including pay. The Article is also closely connected to Article 21 of the Charter which prohibits discrimination on several grounds.
The article is clearly and unconditionally framed and it clearly is suitable to place an obligation and a right on the private parties since without a horizontal effect, the objectives of the provision to ensure equality would not have been realized. Furthermore, it appears that no implementation either of the Member States or the EU is required to make this provision actionable before the courts hearing private disputes.
Additionally, Article 23 CFR has a horizontal effect as a consequence of the Defrenne II case.114 The ECJ established that the principle of equal pay has a horizontal direct
effect. Since the Charter was not effective at the time the decision was taken, the Court of Justice based its decision on the Treaties (Article 157 TFEU). Following the case, the national courts were supposed to declare void the contracts in which discrimination was recognized. The case is considered founding case which showed that some Union provisions can have „real‟ horizontal direct effect.115
Article 29 CFR:
It appears from the formulation of the rights that they do in fact provide for a subjective right. After all, „Everyone has the right of access to a free placement service‟ does not leave room for specification, nor does the article stipulate any restrictions of the right to be dependent on national or EU legislation. However, the right appears to be effective only against the Member States since they are the ones that need to ensure that such free service is available. Therefore, it is not suitable to award direct horizontal effect of this article. It is rather addressed towards the Member States which should take action to safeguard this right.
Article 31(1) CFR:
One of the rights receiving some attention has been Article 31 of the Charter. Article 31(1) provides for the right to „working conditions which respect his or her health, safety and dignity‟. When considering if this formulation of the provision grants horizontal direct effect, one can notice that the provision stipulates the “if” of the
114 Case 43-75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR 1976
00455, paragraph 1 of operative part
115 Xavier Groussot, Laurent Pech & Gunnar Thor Petursson, “The Scope of Application of
Fundamental Rights on Member States‟ Action: In Search of Certainty in EU Adjudication”, Eric Stein
22 right, but not the “how” of it.116 The provision does not confer a right that can, by
itself, be invoked by private parties. It appears that it needs further specification and is more of a demand toward the legislator to act and ensure that health and safety of workers. The provision cannot be said to create direct obligations to private employers, since it is not entirely clear, nor is it precise, how broad the obligation to „respect‟ workers‟ health is – is it enough that safety instructions are given or does it involve the constant supervision of safety experts?
Even though the provision may have relevance in the relationship of private parties, based on the above concerns, it is concluded that the Article does not have direct horizontal effect.
Article 31(2) CFR:
The situation is different for the second part of the article, though. Judging from the formulation of the provision, it appears that it grants a right which can be used in horizontal situations. The provision clearly stipulates that workers have the right to annual leave and rest periods. What is more, the Advocate General in the Dominguez case argued that the fact that annual leave was an important principle of EU law does not mean that the provision is a principle in accordance with Article 51(1) CFR. Rather, the Advocate General argued that the provision is sufficiently clear to bestow a subjective right to individuals.117 Even though the details, as to the
amount of leave awarder to workers, there is Directive 2003/88 clarifying the details. However, it can be argued, that the specification of the Directive that the right to annual leave should be of at least four weeks are just that – details since the right itself remains the same. It would appear baffling if the technical details added by secondary legislation prevent an otherwise clear and precise fundamental right to be horizontally applicable.118
Yet, the right to annual leave has been considered by the ECJ which refused to acknowledge it as a general principle of EU law similar to the line of cases of Kücükdeveci. The Court has also managed to evade the question whether the
116 According to Advocate General in the AMS case, this precludes horizontal inviolability of the right.
See further, Nicole Lazzerini, “(Some of) the fundamental rights granted by the Charter may be a source of obligations for private parties: AMS”, Common Market Law Review, Volume 51, 2014, p. 927
117 Opinion of Advocate General Trstenjak in Case C‑282/10 Maribel Dominguez v Centre informatique
du Centre Ouest Atlantique and Préfet de la région Centre delivered on 8 September 2011, paragraph 76
118 Mirjam de Mol, “Dominguez: A deafening silence Court of Justice of the European Union (Grand
Chamber). Judgment of 24 January 2012, Case C-282/10, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la region Centre”, European Constitutional Law Review, Volume 8, 2012, p. 300
