Table of Contents
2. Incorporated Concept of Horizontal Effect in the Charter?
3. The Trio of CJEU cases: Mangold, Kücükdeveci, Dominguez
4. The Association de médiation sociale Case
a) The Ruling of the Court
b) Reactions and Conclusions
c) Searching for reasons for the Courts attitude
The growing importance of fundamental rights within the European Integration becomes especially noticeable in their increasing textualization. In 1969 the European Court of Justice in Cases (now the Court of Justice of the European Union – CJEU) showed for the first time sensitivity for Fundamental Rights in the Stauder-Case.1 In the following years the court recognized Fundamental Rights in the form of unwritten general principles developed by case law as an integral part of Community law.2 Then in December 2009 the Treaty of Lisbon entered into force and the Charter of Fundamental Rights of the European Union (‘the Charter’ / CFR) became legally binding. According to Art.6 (1) TEU, the Charter has ‘the same legal value as the Treaties’ and is thus part of EU primary law. Five years later, it can be observed that European fundamental rights gained more attention than ever before in legal scholarship but also in case law of the CJEU and national courts.3
One of the most controversial issues of recent years is the horizontal application of EU fundamental rights. It is questionable whether fundamental rights can have an impact on private law relationships and more precisely, to what extent they are directly applicable in relations between private individuals. This topic is not just of theoretical interest, but also matters in practice. If there is no European or domestic legislation implementing fundamental rights, individuals may have problems to enforce their rights in private relationships unless those rights are directly applicable.4
This paper tries to answer the question about the horizontal effect in a first step by looking on specific provisions, exploring if the concept of horizontally is incorporated in the Charter (1). Secondly it offers a short overview of the content and conclusions drawn from the trio of the most important cases in view of the horizontal effect and development of the Charter (2). In a next step is given particular attention to the content of the recent Court ruling C-176/12 Association de médiation sociale (AMS case) and the Opinion of Advocate General Villalón (3). The focus of the next part will be on the question whether the provisions of the CFR in the light of the Court’s ruling produce horizontal effect (4). Finally possible reasons for the approach of the Court are presented (5).
2. Incorporated Concept of Horizontal Effect in the Charter?
Why seek far afield when the good could not be any closer by?5 According to this maxim, the search for indications of horizontal effect shall begin in the Charter itself. Charter provisions have already been successfully invoked before the CJEU to challenge EU law6 and national law7 in vertical situations. Even if the Court did not use the term ‘direct effect’, the vertical direct effect of the Charter has been confirmed.8
However it is controversial whether Charter provisions can also have horizontal effect. According to Art.51 (1) the Union and the Member States should respect the rights and observe the principles of the Charter. Some argue with regard to this article which mentions only the duties of the Union and the Member States but not those of private parties. They argue that the provisions of the Charter are not addressed to individuals and thus that there is no horizontal effect of Charter provisions.9 However Art.51 CFR does also not exclude horizontal effect. The ECJ has generally declared that Treaty provisions addressed to Member States could impose obligations on individuals.10 With regard to the ruling of van Gend en Loos one can assume that a clear, precise and unconditional provision of the Charter which is not dependent on any national implementing measure, would have direct effect like Treaty provisions.11 In Defrenne the Court stated in a ruling about the right of equal pay between men and women (Art.119TEEC =157TFEU) that if certain provisions are ‘formally addressed to the Member States [this] does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties [...] laid down’.12 As the preamble of the Charter refers to duties of individuals and the community for the enjoyment of the rights by other persons13, the wording of Art.51 CFR should not be taken too strict. For the openness of the Charter to horizontal effect speaks furthermore the content of some Charter rights e.g. the rights to human dignity (Art.1 CFR) and non discrimination (Art.21 CFR) which do not specifically address to public authorities.14 Thus Art.51 CFR has ‘limited interpretive value in respect of horizontality’15 but it makes an important distinction of two types of guarantees which can be found in the Charter provisions: Rights and principles. There are no more particulars about the rights. The characteristics of the principles are eloborated in Art.52 (5) of the Charter:
The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.
The Explanations of the Charter which ‘shall be given due regard by the courts of the Union and of the Member States’ (Art.52 (7)) state that principles ‘become significant for the Courts only when such acts are interpreted or reviewed. They do however not give rise to direct claims for positive action by the Union’s institutions or Member States authorities’.16 This amendment of Art.52 (5) could be interpreted as a comeback of the original distinction in Human Rights Law between enforceable civil and political rights because of negative state obligations and economic and social rights with positive state obligations which mainly were not be justiciable.17 Thus just reading the Charter one would assume that it provides for principles only a concept of indirect horizontal effect. This means that there is always an implementing act nessecary for the enforcement of those principles.18 Some evidence might be found in the Rulings of the CJEU.
3. The Trio of CJEU cases: Mangold, Kücükdeveci, Dominguez
Before the recent AMS case, the possible horizontal direct effect of general principles or Charter provisions has already been raised in a trio of cases (Mangold, Kücükdeveci, Dominguez) before the CJEU. In the Mangold case19 which has been often criticized because of the unclear enunciation of the ruling,20 the CJEU had to answer, inter alia, the question of whether the former section 14(3) of the German Teilzeit- und Befristungsgesetz (TzBfG) was compatible with the EU antidiscrimination law (Directive 2000/78). The aim of the article was to facilitate the conclusion of fixed-term employment contracts with employees aged 52 and older. The plaintiff had been employed by the defendant for a fixed term on the basis of section 14(3) TZBfG and argued that this provision was contrary to Directive 2000/78 and therefore void. Hence, he pled in court that his employment relationship was of unlimited duration. The Court found also that Art. 14 (3) TzBfG is incompatible with the Directive but it could not rely on the Directive as the deadline for implementation into national law had not yet expired and Directives cannot be given direct effect in a dispute between private parties.21 However the Court held that the Directive only reflects the general principle of non-discrimination on grounds of age in EU law. The national courts have to set aside national law which conflicts with that principle.
The Case Kücükdeveci22 was also about an employment dispute. Section 622(2) Bürgerliches Gesetzbuch (BGB), a German employment provision, was held to be contrary to the EU rules prohibiting discrimination on the ground of age (Directive 2000/78). The Art.622 (2) forbid to take periods of employment completed by the employee before the age of 25 in account for calculating the notice period for termination of the employment contract by the employer. That means that an employee under 25 is disadvantaged because he or she can be given notice after a shorter period of time than someone older than 25 years who had an employment for the same time or even a briefer one. The employer in the case dismissed the plaintiff after more than ten years of employment starting at the age of 18. When terminating the employment contract, the employer had met the short notice period of 622(2) BGB. The plaintiff argues that 622(2) BGB is incompatible with EU law and therefore the notice period had to be calculated without regard for section 622 (2) BGB. The Court confirmed the statements about the general principles from the Mangold ruling.23 The Court made reference to Art. 21 CFR which contains the principle of non-discrimination and determined that the general principle of the non-discrimination on grounds of age has the status of a fundamental right.24 From these rulings it is clear that general principles of law can have direct horizontal effect if a Directive reflects the principle.
After Mangold and Kücükdeveci the question arose whether the invocation of rights and principles on the Charter is to a level equivalent to that of general principles. It has been suggested to extend the line of reasoning to other fundamental rights of the Charter.25 The issue of possible horizontal effect appeared again in Dominguez26 with regard to the fundamental right to paid which may be given horizontal direct effect. However the Court did not address the issue and instructed the national court to decide whether Ms Dominguez’ employer was a public authority,27 so that the affected Directive 2003/88 would have direct effect.28 From this ruling it is obvious that if the national court arrives at the conclusion that the employer is not a public entity, the plaintiff may not invoke Art.31 of the Charter directly but the national court is obliged to apply its domestic law in accordance with Art.31 of the Charter. A conclusion about horizontal effect cannot be made.29 Some clarity may be given by the recent AMS case.
4. The Association de médiation sociale Case
a) The Ruling of the Court
In the Association de médiation sociale (AMS) preliminary ruling30 the court had to deal with two questions of the French Cour de Cassation with regard to Art.27 of the Charter, the fundamental right of workers to information and consultation. The dispute arose between, on the one hand, the Association de médiation sociale (AMS) and, on the other hand, the trade unions Union locale des syndicats CGT, the Union départementale CGT des Bouches-du-Rhône, Mr Laboubi, and the Confédération générale du travail (CGT).31 The association AMS which was engaged in reintegrating unemployed people into the job market, claimed that the appointment of a representative for the section of the trade union created within AMS was against national law (Art.L.1111-3 Code du travail). The AMS took the view that there is no duty for a representative because its number of staff members, calculated in accordance with Art.L1111-3 Code du travail, does not reach the threshold to take measures for the representation of employees. Under this provision certain categories of employees such as apprentices or ‘employees with assisted contracts’ were not taken into account.32 However the trade unions and Mr Laboubi argued that Art.L.1111-3 Code du travail is contrary to EU law (Directive 2002/14).33
The relevant first question was whether ‘Article 27 of the Charter, and as specified in the provisions of Directive 2002/14, [may] be invoked in a dispute between private individuals in order to assess the compliance (with European Union law) of a national measure implementing the directive.’34
On the occasion of the AMS case the Advocate General Villalón also gave an assessment on the problem of horizontal application. He stated with regard to Art.27 that it ‘would be inconceivable to deny’ ‘the relevance of this provision’ ‘in relationships governed by private law’35 and qualified Art.27 CFR as a principle in the light of Art.52 (5) CFR: In his opinion rights protect ‘directly defined individual legal situations’, whereas principles contain ‘obligations upon the public authorities’.36 He determined to which extend principles are justiciable by categorizing two different acts adopted in order to implement Charter principles: legislative acts that ‘give substance and direct expression to the content of the principle’ and remaining legislative acts and individual implementing acts.37 With regard to Art.3 (1) of the Directive he stated that if the provisions giving specific content to a principle are contained in a directive, individuals may rely on them also in horizontal disputes, in order to review national acts belonging to the second category because otherwise the choice to legislate by a directive would ‘deprive individuals [...] of the judicial review of validity that the Charter guarantees them’.38 As a result Art.L1111-3 would be incompatible with Art.27 CRF as specified in Art.3 (1) of the Directive. Consequently, in his view the national provision should not have been applied.39
The Court argued differently and did not even mention the distinction between principles and rights of Art.51 (1) CRF. The Court concluded first under reference to statements of its judgment in Confédération générale du travail and Others40 that Art.L.1111-3 is contrary to Art.3 (1) of the Directive 2002/14.41
Secondly the Court examined whether the Directive 2002/14 and particular Art.3 (1) can produce direct effect between the defendants in the main proceedings and AMS. With regard to the Pfeiffer42 judgment the Court concluded that Art.3 (1) fulfils the criteria of being unconditional and sufficiently precise to be relied upon before national courts against the state in the case of wrong- or non-implementation after the deadline for the implementation has expired.43 But then the court emphasized that AMS is a private party and that there cannot be horizontal direct effect to the Directive in relation between AMS and the trade union.44 It rejected also the possibility of direct effect as an EU-conform interpretation of Art.L-1111-3 would be contra legem.45
1 Case 29/62 Erich Stauder v. City of Ulm-Sozialamt , ECR 419 para.7.
2 E.g.Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel , ECR 1125 para.935f.; Case 44/79 Lieselotte Hauer v. Land Rheinland-Pfalz, para.15.
3 Annual reports from the European Commission, recent COM (2013) 271 final.
4 Fornasier, ‘The Impact if EU Fundamental Rights on Private Relationships: Direct or Indirect Effect?’, 1 European Review of Private Law (2015), 29, 46.
5 based on Johann Wolfgang von Goethe, Erinnerung (1827).
6 E.g. Cases 293 and 594/12 Digital Rights Ireland v Minister for Communications et al.
7 E.g. Case 617/10 Åklagaren v Hans Åkerberg Fransson.
8 P. Craig/ G. de Búrca, EU Law – Text, Cases and Materials, (Oxford, 2015), 196.
9 De Mol, ‘Kücükdeveci: Mangold Revisited – Horizontal Direct Effect of a General Principle of Law’, 6 European Law Review (2010), 302; Hatje, in Schwarze, EU-Kommentar, (Nomos, 2009), 2324, Art.51 n.20; Lenaerts,‘Exploring the Limits of the EU Charter of Fundamental Rights‘, 8 European Constitutional Law Review, 375; AG Trstenjak in Case 282/10 Maribel Dominguez v. Centre informatique du Centre Ouest Atlantique and Préfet de la Region Centre , para.80-83.
10 e.g Case 281/93 Angonese v.Cassa di Risparmio di Bologna , ECR I-4134; Case 43/75 Defrenne v. Sabena , 455.
11 Case 26/62 van Gend en Loos v. Nederlandse Administratie der Belastingen , ECR 1, 26f..
12 Case 43/75 Defrenne v. Sabena (No.2)  ECR 455, para.31.
13 Charter Preamble, recital 6.
14 OJ 303/17 Explanations to the Charter of Fundamental Rights, 17 (Art.1), 24 (Art.21, para.2); Frantziou, ‘The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality‘ 21 European Law Journal (2015), 660.
15 Frantziou, 21 European Law Journal (2015), 661.
16 Explanations of the CFR, O.J. C 303, 14 Dec. 2007, 17, 35.
17 P. Craig/ G. de Búrca, EU Law, 399.
18 Leczykiewicz, , ‘Horizontal Application of the Charter of Fundamental Rights’, 38 European Law Review (2013), 488; Fornasier, 1 European Review of Private Law (2015), 37.
19 Case 144/04 Werner Mangold v. Rüdiger Helm .
20 AG Mazák in Case 411/05 Félix Palacios de la Villa v. Cortefiel Servicios SA  ECR 14,29; Roman Herzog and Lüder Gerken, ‘Stoppt den Europäischen Gerichtshof’, FAZ 08.09.2008.
21 Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority (Teaching)  ECR para.48; Case 91/92 Paola Faccini Dori v.Recreb Srl. , para.20.
22 Case 555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG .
23 Fontanelli, ‘General Principles of the EU and a Glimpse of Solidarity in the Aftermath of Mangold and Kücükdeveci’ 17 European Public Law (2011), 225.
24 Case 555/07 Kücükdeveci, para.22.
25 Murphy, ʻUsing the EU Charter of Fundamental Rights against private parties after Association de Mediation Sociale‘ European Human Rights Law Review (2014), 670; Wiesbrock, ‘Case Note-Case C-555/07, Kücükdeveci v. Swedex, Judgement of the Court (Grand Chamber) of January 19, 2010’ 11 German Law Journal, 539.
26 Case 282/10 Maribel Dominguez v. Centre informatique du Centre Ouest Atlantique and Préfet de la Region Centre .
27 Case 282/10 Dominguez, para.40.
28 Case 397/01 to 403/01 Pfeiffer and Others v. Deutsches Rotes Kreuz, Kreisverband Waldshut e. V , para.103.
29 Fornasier, 1 European Review of Private Law (2015), 42.
30 Case 176/12 Association de médiation sociale (AMS) v. Union locale des Syndicats CGT and Others .
31 Case 176/12 AMS, para.2.
32 Ibid, para.15f..
33 Ibid, para.19.
34 Ibid, para.22.
35 AG Villalón in Case 176/12 AMS, para.38.
36 AG Villalón in Case 176/12 AMS,para.50.
37 Ibid, para.64.
38 Ibid, para.74.
39 Ibid, para.79f..
40 Case 385/05, Confédération générale du travail and Others v. Premier ministre, Ministre de l’Emploi, de la Cohésion sociale et du Logement , ECR I-611.
41 Case 176/12 AMS, para.24-29.
42 Case 397/01 to 403/01, Pfeiffer and Others.
43 Case 176/12 AMS,para.30-35.
44 Ibid, para.36f..
45 Ibid, para.38-40; N.Foster, Foster on EU Law, (Oxford, 2015), 177.
- Quote paper
- Miriam Rehbein (Author), 2015, Do the provisions of the EUCFR produce a horizontal effect?, Munich, GRIN Verlag, https://www.grin.com/document/313617