Horizontal direct effect of the Charter of Fundamental ...

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

Supervisor: Dr. B.P. ter Haar

Kristina Karanikolova, Master Thesis

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 de Mediation Sociale”, European Human Rights Law Review, Volume 2, 2014, p. 174


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 10 Article 51(1), Charter of Fundamental Rights of the European Union


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

http://www.fide2012.eu/General+and+EU+Reports/id/217/



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 European Law and Policy, Volume 10, 2014, pp. 45-46



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 28 Ibid, pp. 1864-1865


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 36 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. [2010] ECR I-00365


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 44 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. [2010] ECR I-00365, paragraph 53


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:47

The 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] ECLI:EU:C:2014:2, paragraphs 19-20


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 Rights”, European Law Reporter, № 11-12/ 2013, p. 306


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 obligations for private parties: AMS”, Common Market Law Review, Volume 51, 2014, p. 925


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 MédiatiHorizontal 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 77 Ibid

http://ec.europa.eu/justice/fundamental-rights/index_en.htm


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 Rights: A Legal Perspective, Hart Publishing, 2003, p.16


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 C-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,

Volume 34, 2009, pp.375 and 353

http://ukconstitutionallaw.org/


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 96 Case C-176/12 AMS [2014], paragraph 47



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 Basselier v Kingdom of Belgium (Conseil des ministres) [2011] ECR I-00773, paragraph 32


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 obligations for private parties: AMS”, Common Market Law Review, Volume 51, 2014, p. 928


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 Working Paper, No 1/2011, 2011, pp. 24 & 27


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


23

provision if horizontally applicable. Instead, the right to annual leave has been

proclaimed to be a „particularly important principle of European Union social law‟.119

In Heimann/ Toltschin v. Kaiser GmbH,120 the ECJ used the Charter, in combination

with Article 7 of the Working Time Directive as a reference to evaluate the national

legislation in a private dispute between Kaiser and its employees Heimann and

Toltschin. Thus, the Court of Justice is apparently prepared to use the Charter

provisions as a benchmark when evaluating the compatibility of national legislation

with it. This shows the increasing importance of the Charter and maybe in the future

we will see a decision regarding this provision in which the ECJ actually deals with

the horizontality of Article 31(2), rather than avoiding it.121

According to the criteria set in this paper however, it will appear that Article 31(2)

should be granted horizontal direct effect since the provision is clear and precise. It

does not require the implementation of a national or EU measure for the national

courts to establish that there is a right to paid annual leave or weekly rest. If the right

is denied to individuals, they should be able to enforce it even if some of the details

on how long the rest needs to be are not provided. Furthermore, it is hard to deny the

relevance of the right in private law dealings.

Article 32 CFR:

Given the prohibitive nature of the provision concerning child labour as well as the

clear, precise and unconditional prohibition of employment of the children it can be

concluded that the first paragraph of the Article could be horizontally applied. The

provision provides for a subjective right which the national courts can easily apply

the rule in the same formulation as in the Charter without any more specifications or

clarifications being needed. Additionally, Article 32 of the Charter is clearly tailored

to address not only Member States but also private parties since without their

compliance the objective of the right will not be reached. The provision can be seen

as a variation of Article 31 CFR which is specifically tailored to protect the interests of

younger workers.122

119 Case C-282/10 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique, Préfet de la région Centre [2012] ECLI:EU:C:2012:33, paragraph 16 120 Joined cases C-229/11 and C-230/11 Alexander Heimann (C-229/11) and Konstantin Toltschin (C-230/11) v Kaiser GmbH [2012] ECLI:EU:C:2012:693 121 See Case C-282/10 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique, Préfet de la région Centre [2012] ECLI:EU:C:2012:33; For an analysis of the case see 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. In her paper the author also offers a number of possible reasons for the decision of the ECJ not to apply the Kücükdeveci approach and avoid the question of horizontal effect of Article 31(2). 122 Steve Peers, Tamara Hervey, Jeff Kenner, Angela Ward (eds.), The EU Charter of Fundamental Rights: A Commentary, Bloomsbury Publishing, 2014, paragraph 32.10


24

Article 33CFR:

According to the Charter Explanations, some provisions such as Article 27 and 33

CFR are a mixture of both rights and principle,123 thus making it more difficult to

categorize them as provisions having horizontal effect or not.

The first paragraph is clearly addressed towards the Member States since it is not in

the competence of individuals to ensure social and legal protection of others.

However, this more general obligation of the authorities to ensure family protection

is followed by a more concrete and unconditional „right‟ that everyone shall be

protected from dismissal connected to maternity.124 The second part of the provision

thus appears to provide for an individual right which private parties can enforce in

courts. The right is clear and precise and it is not dependent on implementation

measures by the Member States. Furthermore, the protection of dismissal due to

maternity can also be said to be addressed to private individuals since it is likely that

the issue will emerge in situations governed by private law.

Articles 34 – 38 CFR:

While it has been debated over time whether Article 27 CFR should be regarded as a

„principle‟ or a „right‟,125 it appears that Articles 34 – 38 CFR are clearly to be

regarded as principles which call for an action of the institutions and are not

sufficient in themselves to establish a subjective individual right capable of being

enforced by the courts.126 There are several arguments leading to this conclusion.

Firstly, these rights are formulated in a more abstract way, thus lacking clarity and

unconditionally usually required for horizontal application. Expressions such as that

the Union “recognizes” and “respects”, clearly point to the obligation of the

authorities to take action, rather than an obligation that can be directly enforced in

horizontal situations. It should be mentioned that Article 34(2) does exhibit some

characteristics of a right of social security. However, this is right which can only be

enforced against the State, rather than in private disputes.

Furthermore, after AMS some authors have questioned whether it is at all possible

for any provision which refers to national rules to have horizontal effect.127 Thus,

123 Explanations Relating to the Charter of Fundamental Rights [2007] OJ C 303/02, p. 35 124 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. 92 125 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 126 See Jasper Krommendijk, “After AMS: remaining uncertainty about the role of the EU Charter‟s principles”, EUtopia Law, accessed on 09.05.2015 127 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, at footnote 27


25

phrases such as “under the conditions established by national laws” and “in

accordance with the rules laid down by Community law”, point to the fact that

further specification of these provisions is needed either on national or EU level.

Furthermore, Article 38 CFR clearly articulates that the provision is addressed to the

authorities, which shall ensure that the rights are given expression in and protected

through secondary legislation. The Articles appear to demand intervention by the

institutions before they can be applied.

Taking all this into account, it is concluded that Articles 34 to 38 of the CFR do not

have horizontal direct effect which individuals can use in their national courts.

Conclusion:

Based on the case-law of the Court of Justice, the paper attempted to determine

which provisions from the Charter of Fundamental Rights may be used in horizontal

situations concerning employment. It is argued that in the aftermath of the AMS case,

it is clear that the Charter can have horizontal effect. Charter provisions can be used

in private disputes in which the national courts will have to disapply the national

measure which does not conform to the standards of the Charter.

It has been shown in the paper that the horizontal effect of the Charter provisions has

been a rocky development with the Court only recognizing the possibility of

horizontal effect of a Charter provision in AMS. While the Court has concluded that

Article 27 CFR cannot be applied horizontally, the established possibility of such

effect for other provisions such as Article 21 CFR proves that Fundamental Rights

form an integral part of the European Union and can have a direct consequence for

the individual citizen.

It is true that the reasoning of the Court in AMS has been so scarce as to cause some

confusion and uncertainty regarding the exact test of evaluating a provision before

pronouncing it horizontally effective. Yet, for the moment we know that to be

horizontally effective a provision needs to be “sufficient in itself to confer on

individuals an individual right which they may invoke as such” and not to require a

“more specific expression in European Union or national law” to be effective. Thus,

the Court has established that self-sufficient provisions creating a subjective right can

be invoked by individuals. The paper argues that there is a clear development in the

use of Charter and recognition of its importance and that more and more of its

provisions would find their way in private disputes.

This has a significant impact, especially in the employment sphere, where workers

will now be able to rely on (some) of the provisions of the Solidarity chapter, as well

as Article 21 CFR on non-discrimination. The affirmation of a horizontal effect of the


26

Charter can be seen as a strengthening of the social rights enshrined in it and a

further strengthens the fundamental rights in Europe.

Yet, one should not forget to mention the criticism surrounding the Court‟s

reasoning as well as the use of complicated and, at points confusing, set of Treaty

provisions, secondary legislation, Charter rights and general principles used by the

ECJ in cases such as Mangold, Kücükdeveci, Dominguez and AMS. The paper has

tried to make sense explain and apply this reasoning to the different Charter Articles.

Whether the conclusions of the paper will be confirmed by the Court of Justice,

however, remains to be seen in the next preliminary rulings which are bound to be

submitted before the ECJ.

It has been argued that Article 21, as confirmed in Kücükdeveci is capable of having

horizontal direct effect and that this approach is likely to eventually extend to all

grounds of discrimination mentioned within the provision. Furthermore, applying

the criteria set in this paper, it has been argued that Articles 23, 32 and 33 CFR appear

to confer individual rights which are stuffiest by themselves to be applied by

national courts even in horizontal situations. Despite the fact that the ECJ decided

not to address the horizontal effect of Article 31(1) in Dominguez, it has been argued

that the article is formulated clearly and precisely enough to confer rights on

individuals without any implementation measures by the authorities. Therefore,

according to the used criteria, Article 31(2) is likely to be given horizontal direct

effect.

On the other hand, taking into account the set of criteria, it is argued that Articles 34 -

38 and Article 31(1) do not confer a right which can be directly invoked in a

horizontal situation. For these rights, further specification of the national or EU

institutions is needed. Article 29 is also not suited to be horizontally applicable.

The paper has been limited to the Solidarity Chapter and the most relevant Charter

Articles in relation to labour law. However, future research is needed to evaluate

whether other provisions of the Charter will also have horizontal direct effect.

Particularly interesting will be a discussion on Article 16 – freedom to conduct

business – and Article 8 – protection of personal data.

Furthermore, since the European Union is supposed to accede to the European

Convention of Human Rights, a comparative analysis of the approach of the

European Court of Human Rights and the ECJ regarding the horizontal direct effect

of fundamental rights will give an overview of the factors that each of the tribunals

takes into account in determining whether a fundamental right can be applied vis-à-

vis another private party. Moreover, the experience of the European Court of Human

Rights might shed some insights into what the position of the more controversial

Charter rights should be.


27

Bibliography

Articles:

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,

accessed 24.06.2015, available at


Paul Craig, “The Legal Effect of Directives: Policy, Rules and Exceptions”,

European Law Review, Volume 34, 2009

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

Eric Engle, “Third Party Effect of Fundamental Rights (Drittwirkung)”, Hanse

Law Review, Volume 5, No. 2, 2009

Matteo Fornasier, “The Impact of EU Fundamental Rights on Private

Relationships: Direct or Indirect Effect?”, European Review of Private Law, Issue

1, 2015

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

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

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

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

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

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



28

Luísa Lourenço, “General Principles of European Union Law and the Charter

of Fundamental Rights”, European Law Reporter, № 11-12/ 2013, accessed

09.05.2015, available at:

http://www.academia.edu/6759614/General_Principles_of_European_Union

_Law_and_the_Charter_of_Fundamental_Rights_European_Law_Reporter_11

-12_p.305

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

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

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

Elise Muir, “The Fundamental Rights Implications of EU Legislation: Some

Constitutional Challenges”, Common Market Law Review, Volume 51, 2014

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

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

Thomas Papadopoulos, “Criticizing the horizontal direct effect of the EU

general principle of equality”, European Human Rights Law Review, Issue 4,

2011

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

Saša Sever, “Horizontal Effect and the Charter”, Croatian Yearbook of European

Law and Policy, Volume 10, 2014

Books:

Federico Fabbrini, Fundamental Rights in Europe, Oxford University Press, 2014

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

http://www.academia.edu/6759614/General_Principles_of_European_Union_Law_and_the_Charter_of_Fundamental_Rights_European_Law_Reporter_11-12_p.305




29

Social Rights Under the EU Charter of Fundamental Rights: A Legal Perspective,

Hart Publishing, 2003

Pascale Lolrber, “Labour Law”, in Steve Peers and Dr Angela Ward (eds), The

European Union Charter of Fundamental Rights, Hart Publishing, 2004

Steve Peers, Tamara Hervey, Jeff Kenner, Angela Ward (eds.), The EU Charter

of Fundamental Rights: A Commentary, Bloomsbury Publishing, 2014

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

Lorna Woods and Philippa Watson, Steiner and Woods EU Law, Oxford

University Press, 2014, p.123

Case-law:

Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-09981

Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. [2010] ECR I-00365

Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT

and Others [2014] ECLI:EU:C:2014:2

Case C-282/10 Maribel Dominguez v Centre informatique du Centre Ouest

Atlantique, Préfet de la région Centre [2012] ECLI:EU:C:2012:33

Joined cases C-229/11 and C-230/11 Alexander Heimann (C-229/11) and

Konstantin Toltschin (C-230/11) v Kaiser GmbH [2012] ECLI:EU:C:2012:693

Case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR

2000 I-04139

Case C-147/08 Jürgen Römer vs. City of Hamburg [2011] ECR I-03591

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

Case 43-75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne

Sabena [1976] ECR 1976 00455

Case C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd [1998] ECR I-00621

Case C‑156/98 Germany v Commission [2000] ECR I‑6857

Case C-162/09 Secretary of State for Work and Pensions v Taous Lassal [2010]

ECR I-09217

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


30

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

Legislation:

Charter of Fundamental Rights of the European Union [2002] OJ C 326/391

Explanations Relating to the Charter of Fundamental Rights [2007] OJ C

303/02

The Treaty on European Union [2010] OJ C 83/15

The Treaty on the Functioning of the European Union [2010] OJ C 83/49

Other:

European Commission, “Fundamental Rights”, accessed on 09.05.2015,

available at http://ec.europa.eu/justice/fundamental-rights/index_en.htm

Jasper Krommendijk, “After AMS: remaining uncertainty about the role of the

EU Charter‟s principles”, EUtopia Law, 29 January 2014, accessed on

09.05.2015, available at http://eutopialaw.com/2014/01/29/after-ams-

remaining-uncertainty-about-the-role-of-the-eu-charters-principles/

Steve Peers, “When does the EU Charter of Rights apply to private parties?”,

EU Law Analysis, 15 January 2014, accessed on 09.05.2015, available at

http://eulawanalysis.blogspot.nl/2014/01/when-does-eu-charter-of-rights-

apply-to.html

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

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

http://ec.europa.eu/justice/fundamental-rights/index_en.htm

http://eutopialaw.com/2014/01/29/after-ams-remaining-uncertainty-about-the-role-of-the-eu-charters-principles/

http://eutopialaw.com/2014/01/29/after-ams-remaining-uncertainty-about-the-role-of-the-eu-charters-principles/

http://eulawanalysis.blogspot.nl/2014/01/when-does-eu-charter-of-rights-apply-to.html

http://eulawanalysis.blogspot.nl/2014/01/when-does-eu-charter-of-rights-apply-to.html


Horizontal direct effect of the Charter of Fundamental ...

Documents

Transcript of Horizontal direct effect of the Charter of Fundamental ...