Horizontal Effect of Fundamental Rights in EU Law 9789089521828, 9789089521811

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Horizontal Effect of Fundamental Rights in EU Law

Europa Law Publishing, Groningen 2016

Horizontal Effect of Fundamental Rights in EU Law Sonya Walkila

Europa Law Publishing is a publishing company specializing in European Union law, international trade law, public international law, environmental law and comparative national law. For further information please contact Europa Law Publishing via email: [email protected] or visit our website at: www.europalawpublishing.com. All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, or stored in any retrieval system of any nature, without the written permission of the publisher. Application for permission for use of copyright material shall be made to the publishers. Full acknowledgement of author, publisher and source must be given. Voor zover het maken van kopieën uit deze uitgave is toegestaan op grond van artikel 16h t/m 16m Auteurswet 1912 juncto het Besluit van 27 november 2002, Stb. 575, dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3060, 2130 KB Hoofddorp). Voor het overnemen van (een) gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatiewerken (artikel 16 Auteurswet 1912) dient men zich tot de uitgever te wenden. © Europa Law Publishing, Sonya Walkila, 2016 Typeset in Scala and Scala Sans, Graphic design by G2K Designers, Groningen/Amsterdam NUR 828 ISBN 978-90-8952-181-1 (paperback) ISBN 978-90-8952-182-8 (ebook)

Acknowledgements This book owes much to the diligence and industriousness of several extraordinary professionals who have given me both academic as well as practical insights into the field. These quite naturally include Professor of European Law Ulf Bernitz (Stockholm University), who acted as the opponent in my doctoral defence in early 2015 and has imparted of his immense experience and insider knowledge in the sphere of both political and legal affairs. I am likewise extremely grateful for the extraordinary skill and observations of Judge Allan Rosas (Court of Justice of the European Union) and Professor Jukka Snell (University of Turku) whose comments and observations have relentlessly spurred and pushed me forward. Professor Leonard Besselink (University of Amsterdam) and Professor Juha Raitio (University of Helsinki) have greatly contributed with their valuable views and comments on earlier versions of this study. I also want to extend my warmest expression of gratitude to Judge and VicePresident of the General Court of the European Union, Heikki Kanninen, for his inspiration, encouragement and support for research endeavours in EU law as well as to the first European Ombudsman, Mr. Jacob Söderman, for his views and sharp visions. There is an immense number of friends to thank. These obviously include all those with whom I have had the privilege of working closely both at the University of Helsinki, in legal practice and more recently in the Ministry of Justice, Finland. Your professional example and enthusiasm has constantly spurred and influenced my work. On the editorial side, I want to thank the skilled personnel at Europa Law Publishing, especially Drs. Jacqueline Lensink for her diligence, promptness and attentiveness in making this book come a reality. My warmest gratitude is owed to my dear Tommy, with whom I have over all these years had the immense privilege of sharing the same interests and passions, whether work, academic or cultural. Most of all, it is a particular privilege to share the same values and goals in life. Your support for and part in this project has been immense. Sonya Walkila Helsinki, September 2015

v

contents

Acknowledgements Contents Abbreviations

v vii xii

Introduction

3

part i From Treaty Regime to Constitutional Order chapter 1 The Role of the Court of Justice in the Constitutional

Law-Making



1.1 1.1.1 1.1.2 1.2 1.2.1 1.2.2 1.3

chapter 2



2.1 2.2 2.2.1 2.2.2 2.3

The Court’s Methods and Tools ‘The Spirit, the General Scheme and the Wording’ The General Principles of EU Law Doctrinal and Constitutional Foundations The Concept of Direct Effect Unpacking Direct Effect Interim Conclusions

10 11 15 19 20 23 26

Horizontal Application of EU Law Construing Horizontal Effect Horizontal Effect in the Court’s Case Law Early Signs of Horizontality Evolving Jurisprudence on the Horizontal Effect Interim Conclusions

30 33 33 37 41

chapter 3 The Concept of Horizontal Effect in the Union’s

Constitutional Order

part ii  The Protection of Fundamental Rights as Part of ‘the Very

Foundations of the Union Legal Order’

chapter 4 Fundamental Rights: Universality and Historical

Perspective

chapter 5



chapter 6



Fundamental Rights in the Union’s Legal Order

5.1 A Contextual Perspective 60 5.2 Gradual Incorporation of Fundamental Rights into EU Law 62 5.3 Fundamental Economic Freedoms as Fundamental Rights? 69

Current Fundamental Rights Protection in the EU

6.1 The Significance of the European Convention on Human Rights for the Fundamental Rights Protection in the EU

vii

78

horizontal effect of fundamental rights in eu law



6.2 The Charter of Fundamental Rights of the European Union: The Union’s Own Bill of Rights 83 6.2.1 The Contents and Structure of the Charter 89 6.2.2 The Nature of the Charter Provisions: ‘Rights, Freedoms and Principles’ 91 6.2.3 Member State Specific Concerns over the Scope of the Charter 93 6.2.4 Post-Lisbon Status and Use of the Charter 96 6.3 Interim Conclusions 100

chapter 7 The Scope of Application of Fundamental Rights in the

Union’s Legal Order



7.1 The General Scope of Application of EU Fundamental Rights 7.2 The Scope of Application of the Charter of Fundamental Rights 7.3 National Constitutional Identity and Divergent Rights Standards: Where Do the Limits Go? 7.4 Interim Conclusions

106 112 121 126

part iii  The Horizontal Effect of Fundamental Rights: A

Comparative Constitutional Inquiry and the Union Way

chapter 8 Horizontal Effect of Fundamental Rights Penetrating the

Public-Private Dichotomy in Law



8.1 8.2

The Public-Private Dichotomy in Law Public-Private Distinction Within the Context of EU Law

134 136

chapter 9 Comparative Constitutional Inquiry into the Concept of

Horizontal Effect of Fundamental Rights

9.1 German Drittwirkung: Radiating Effect of the Basic Rights 146 9.2 Application of Fundamental Rights on the British Isles: Towards Horizontality 150 9.3 Further European Constitutional Traditions 152 9.4 Meet the Dividing Line: The State Action Doctrine of the US Constitutional Jurisprudence 154 9.5 On Canadian Soil: Fundamental Rights as Interpretative Parameters 156 9.6 Law under Constitutional Scrutiny: South African Approach 157 9.7 Effective Protection, Cautious Terminology: Jurisprudence of Regional Human Rights Courts 159 9.8 Conclusions on the Comparative Constitutional Inquiry: ‘There Lies a Common Interest’ 164

viii

contents

chapter 10 The Union Way – The Horizontal Effect of Fundamental

Rights in EU Law



10.1 Rationale of the Horizontal Effect of Fundamental Rights 174 10.2 The Approach of the Court of Justice to Horizontal Effect of Fundamental Rights 176 10.2.1 Guiding Features in the Court’s Reasoning 176 10.2.2 The Horizontal Effect of Fundamental Rights in the Court’s Case Law 177 10.3 Adjudicating ‘Rights’ and ‘Principles’: An Analysis of the Content and Context 181 10.3.1 A Content-Based Analysis 183 10.3.2 A Context-Based Analysis 186 10.4 In Sum: Horizontal Effect of Fundamental Rights in EU Law188 10.5 Interim Conclusions 192

part iv  Conclusions: Horizontal Effect of Fundamental Rights

Contributing to ‘the Primacy, Unity and Effectiveness of European Union Law’ and Beyond

chapter 11





Conclusions

11.1 The Horizontal Effect of Fundamental Rights: An Implication of a Stronger Fundamental Rights Protection in the Entwined Public-Private Sphere 198 11.2 Implications of the Horizontal Application of Fundamental Rights: Towards a Strengthened Judicial Protection and Constitutional Structure of the EU? 201

Epilogue

208

Bibliography Table of Cases Table of Legislation

212 258 282

ix

Abbreviations

horizontal effect of fundamental rights in eu law

AFSJ Area of Freedom, Security and Justice AG Advocate General BGB Bürgerliches Gesetzbuch (German Code of Civil Law) BGHZ Entscheidungen des Bundesgerichtshofs in Zivilsachen (Decisions of the Federal Court of Justice in Civil Cases) BVerfG Bundesverfassungsgericht (German Federal Constitutional Court) BVerfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court) CFI Court of First Instance CFR Common Frame of Reference CFSP Common Foreign and Security Policy CJE Court of Justice of the European Union CST Civil Service Tribunal DG Directorate General EC European Community ECB European Central Bank ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice ECR European Court Reports ECSC European Coal and Steel Community EEA European Economic Area EEC European Economic Community EFTA European Free Trade Association EP European Parliament EPC European Political Community EU European Union EURATOM European Atomic Energy Community GC General Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ILO International Labour Organisation JO Journal Officiel nyr. not yet reported OJ Official Journal SEA Single European Act TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UDHR Universal Declaration of Human Rights UN United Nations

xii

Introduction

horizontal effect of fundamental rights in eu law

We are in a burgeoning era of international courts concurrently promoting the establishment of the rule of law and securing fundamental and human rights in various jurisdictions throughout the world. The Court of Justice of the European Union (‘the Court of Justice’ or ‘the Court’)1 is similarly confronted with an increasing number of cases involving arguments on human and fundamental rights and attempts to enforce those rights even in disputes between private parties. The evolution of EU law has manifested a public understanding that the values protected by the Union are not only binding on public authorities, but increasingly extend into the realm of private law and need to be respected also by private parties. Accordingly, the case law of the Court of Justice seems to suggest that fundamental rights may at least to a certain extent be applicable and effective even in cases between private parties, i.e., in a horizontal relation.2 From the point of view of individuals, this would imply a possibility to invoke fundamental rights in direct support for their legal actions against other private parties. However, at present, the concept of horizontal effect of fundamental rights is both ambiguous and doctrinally contested in European Union (EU) law even if the issue has recently gained particular momentum in the Union’s legal order.3 Following the entry into force of the Lisbon Treaty, not only did the Union avail itself with its own ‘Bill of Rights’, i.e., the Charter of Fundamental Rights of the European Union (‘the (EU) Charter’), but is also preparing for its accession to the European Convention on Human Rights (‘ECHR’). By the same token, the EU Charter was elevated to the same level as other primary EU law. Given that most European states have already established national constitutional guarantees for the protection of fundamental rights, ensuring the protection of human rights in Europe is a truly multifaceted practice. Prior to the entry into force of the Treaty of Lisbon, there was no catalogue of formally binding fundamental rights at the Union level. As for the current postLisbon state of affairs, the EU Charter now enjoys a formally binding status and for its part strengthens the significance of fundamental rights protection in the Union’s legal order. This is evident already from the growing number of cases being brought before the Court of Justice concerning fundamental rights and the EU Charter. Admittedly, this post-Lisbon increase of normative sources of fundamental rights in the Union’s legal order has also led to more uncertainty 1

The Court of Justice of the European Union consists of three courts (‘the EU Courts’): the Court of Justice, the General Court (1988) and the Civil Service Tribunal (2004). In this study the term Court of Justice (‘CJEU’) is used also when referring to the same court under its previous name, the European Court of Justice (‘ECJ’). Correspondingly, the term General Court is used also when referring to the same court known prior to the entry into force of the Lisbon Treaty on 1 December 2009 as the Court of First Instance (‘CFI’).

2 3

In the present study case law has been followed up to 1 May 2015.

In spite of abundant literature on the legal issue of horizontal effect the concept has not been explored extensively by EU constitutional scholars. See Alexy 2002 and Schwabe 1971. Particularly in the context of EU law, Joerges 1997.

2

introduction

over the manner of interpreting and applying fundamental rights in the EU. A substantial challenge for the protection of fundamental rights in the EU is that Member States disagree on the appropriate level for the protection of these rights. Controversies have emerged over issues such as the contents and nature of rights as well as the correct way of interpreting and applying them both at the Union and Member State level. This state of affairs calls for a clarification of the contents, status and appropriate manner of application of fundamental rights within the Union’s legal order. The historical roots of the European integration process distinctively lie in the creation of an economic Community. Accordingly, the main concern of European integration during its early days was in shaping and expounding the relationship between the Union and its Member States, thus putting the focus on the public law character of the Union. However, the proliferation of Union competences in new areas following the entry into force of the Maastricht Treaty and the gradual intensification of individual’s rights have necessitated the recognition and inclusion of non-market and public interest objectives in EU law. This development has in turn contributed to building up a case law increasingly relating to issues which focus on private parties. Many interests of the current phase of the integration process lie in the private sphere, thereby requiring a clear understanding of the manner in which Union law is applicable in relations between private parties. While this judicial development might mark a shift from the focus primarily on the character of public law to policy areas increasingly of a private law nature, it has also contributed in blurring the distinction between public and private domains and the manner in which the EU fundamental rights operate therein. As not even many national constitutions make clear whether or in which manner fundamental rights influence relations in the sphere of private law, the strengthened significance of fundamental rights in the Union’s legal order requires a renewed examination on the scope of application, reach and extent of fundamental rights in EU law. This is even more pressing in the context of EU law, since neither the EU Treaties nor other Union legislation unequivocally determine the manner in which fundamental rights are applied in horizontal relations. Given the strong constitutional connotations and potential implications touching upon, inter alia, the allocation of democratically set powers, separation between the private and public spheres as well as issues on the constitutional legitimacy of the Union, a decision to grant explicit recognition to the horizontal effect of fundamental rights within EU law requires a careful and prudent assessment. And yet, its seems that the problem does not so much relate to the concept itself, but rather the proper understanding of its concrete effects in the context of EU law. 4 Not only does the subject of this book pertain to the role of human and fundamental rights of the Union citizens, it also relates to issues of the political 4

Cf. Opinion of AG Cruz Villalón of 18 July 2013 in Association de médiation sociale (AMS), C-176/12, EU:C:2013:491, point 36.

3

horizontal effect of fundamental rights in eu law

and constitutional status and structure of the European Union and its interaction with society. All public power in democratic polities governed by the rule of law is subject to the adherence to fundamental rights. The observance of those rights constitutes a basic element of constitutionalism and demonstrates why the issue of fundamental rights protection is of importance for the European Union as a legal and political entity.5 Even though EU law benefits and draws inspiration from different legal and constitutional traditions from other jurisdictions, it retains its own method of systematisation of law developed over time and in a specific historical context. That is why general studies on horizontal effect of fundamental rights may only at their best prove helpful in providing legal stimulus and contextual and historical information, but do not succeed in clarifying the issue in the particular context of Union law. Moreover, the Court of Justice has only rarely made any general statements on constitutional issues. Instead it has chosen to pronounce itself on a case-by-case basis through individual judgments. The practice has not generated any consistent constitutional theory within EU law, but has rather led to a series of evolving and even complex concepts on constitutional questions. The recently strengthened legal status of the EU Charter and its enhanced role in the recent adjudication of the EU Courts has only intensified the need for an up-to-date view of the development of horizontality and the horizontal effect of fundamental rights in EU law. Moreover, it demands a reasoned suggestion for a current methodology to be applied to fundamental rights in EU law. The running theme of the book, the horizontal effect of fundamental rights in EU law, comprises a number of sub-issues which require prior examination before embarking on the principal question itself.6 The book unfolds as follows. The first part is devoted to exploring the features which have paved the way for horizontal application of EU law and to illustrate how horizontal application of EU law gradually emerged and evolved in the Court’s jurisprudence. As the application of norms under a treaty regime characteristically of public law nature is distinctly vertical, the gradual transformation of that public law regime into a more encompassing constitutional order increasingly exerting its influence on private citizens has extended the application of norms also into legal relations between private actors. The second part explores the way fundamental rights were first recognised and subsequently developed in EU law. It considers the role which they currently hold within the Union’s legal order. Particular attention will be paid to the scope of application of fundamental rights. It will specifically examine the EU Charter, which has recently acquired a legally binding force. The part introduces a ‘triggering rule’ which should determine the ambit of EU law. The growing reach of EU legislation requires a more apt and flexible, yet sufficiently unambiguous and clear, rule to ascertain the scope of application of EU law in practice. 5

Besselink 2012, 63.

6

For reasons of space, e.g. the issue of liability and damages incurred from a breach of fundamental rights is not addressed in this study.

4

introduction

The third part examines constitutional aspects related to the horizontal application of fundamental rights. It will shed light on the manner in which fundamental rights are applied horizontally in a comparative constitutional practice. It presents similarities and draws comparisons to be employed when considering the nature and the manner of the application of fundamental rights in EU law. The third part brings the previous parts together and aims to answer the question of the horizontal effect of fundamental rights in EU law. It proposes a distinguishing logic which would serve the practical interpretation and application of EU fundamental rights, thereby contributing to the debate on the concept of horizontal effect in EU law. The central issue relates to the particular method of applying fundamental rights even in horizontal relations. Finally, the conclusions support the contention that there are compelling arguments for attributing horizontal effect to fundamental rights in EU law under certain circumstances. It demonstrates how fundamental rights and in particular their horizontal application permeates the public-private divide in law thus illustrating the constraints and difficulties associated therewith which ultimately turn the issue into a constitutional question on the legitimacy and competence to rule on questions touching on all spheres of law and the society. The importance of human and fundamental rights rests on the argumentative force and on the constitutional understandings they reflect. In line therewith, the aim of this book is not only to illustrate how the Union’s fundamental rights are connected to and benefit its citizens, but to link findings to their wider context, which also entail the so-called constitutionalisation process of the Union as a political entity. What follows is an attempt to provoke discussion of the reasons behind the present understanding of the state of development of the Union and on the legal and the political factors shaping the evolution of the integration process as well the Union’s legal order and its laws.

5

part i

From Treaty Regime to Constitutional Order

chapter 1

The Role of the Court of Justice in the Constitutional Law-Making

horizontal effect of fundamental rights in eu law

Commonly, judges exert an influence over the polity which in turn could potentially proceed to judicialisation. This is dependent on three conditions. First, judges must have a caseload. Second, they must rule on their cases and justify their reasoning. This results in the production of case law, a formal record of how the law has been interpreted and applied. Third, the decision addressees should accept the decisions as valid and binding so they are able and willing to plan their future actions accordingly. Judicialisation is also influenced by the legislature, which can overturn judicial decisions. In a classic system of parliamentary sovereignty systems the legislature is the final arbiter in the judicial realm of society. In the context of the European Union, gradual judicialisation was made possible mostly because the ‘Masters of the Treaty’ were blocked from acting out their role, as they often lacked the required unanimity to do so. Overturning certain types of decisions such as constitutional rulings by a constitutional court is difficult even in systems of parliamentary sovereignty, if at all possible. In the context of EU law overturning the rulings of the Court of Justice is practically defunct. Much of the case law of the Court of Justice relates to the interpretation of the Treaties, which cannot easily be changed. Hence, the Court of Justice’s constitutional law-making often substitutes the Union legislature’s role. As a result, the Court has accrued even greater judicial, and thereby also political, power.1 Accordingly, one of the striking features of European integration and governance is the significance and centrality of its Court of Justice.2 The functions of the Court of Justice resemble those of a national supreme court or a constitutional court. Yet, the Court is not national, nor is it international. It is legitimately referred to as being supranational in character. It has shaped the integration process of a vast array of policy outcomes. Gradually through its case law, the Court has transformed a marginal treaty regime into an expansionary and progressing legal order oriented towards deeper integration.3



1.1 The Court’s Methods and Tools

The majority of cases referred to the Court of Justice during the 1960s related either to the formula for calculating social security benefits for migrant workers or the classification of customs categories. Its work was largely of a technical and trivial nature and thereby of limited interest to a wider audience. Many of the first cases were technical and isolated in substance and did not lead to wider doctrinal development. These cases represented how the 1

Cf. Stone Sweet 2010, 8-9.

2

There is abundant literature on the Court of Justice. See Arnull 2006, Brown – Jacobs 1994, Alter 2009 and Tamm 2013, 9-35.

3

Weiler 1991, 2403-83, Shapiro 1992, 123-56, Stone Sweet 1999, 147-84 and Stone Sweet 2004.

10

chapter 1

the role of the court of justice in the constitutional law-making

European legal system was originally intended to work – national courts would refer to the Court technical questions based on Community rules. 4 The technical nature of most early cases reflected in the Court’s style of interpretation appeared to stay close to the literal and semiotic meaning of the texts. Only where the wording of the Treaties or other written material did not succeed in providing a clear answer did the Court proceed to systemic criteria of interpretation. Placing the norm in its wider context and deriving interpretational direction from the objectives of the Treaties, the Court sought to find a solution which would best fit into the existing legal framework and efficiently safeguard its consistency and coherence. Literal, systemic and contextual methods of interpretation were thus frequently used by the Court.5



1.1.1 ‘The Spirit, the General Scheme and the Wording’

In spite of the seemingly technical nature of much of its caseload, the Court cited constitutional terminology already in its early judgments, mentioning – although admittedly in passing – ‘constitutionality’,6 later referring to the Treaty as ‘the basic constitutional charter’.7 However, the early judgments laid the foundation for the new legal order. This was much due to two factors. The first concerned the open nature of the provisions of the Founding Treaties and the second, the Court’s distinct method of interpreting law. The open nature of the provisions of the Founding Treaties is best understood in relation to international treaties in general. As explained by Advocate General Lagrange, the common will is in most cases difficult to establish with certainty in the case of documents such as international agreements. These are generally the result of compromises reached with difficulty and in which obscure or imprecise wording often conceals fundamental disagreements.8 This holds true for the EEC Treaty, which was mainly concerned with creating a loose framework while leaving the creation of policy to the institutions. As a result, the institutions and the Court in particular, had a more creative role in establishing the rules in the EEC Treaty and interpreting the often-ambiguous provisions to fill in legal lacunae. The second factor concerned ‘the idea of Europe’; i.e., the fundamental vision of constructing ‘an ever closer union among the peoples of Europe’.9 It established the telos which in turn formed the basis for the Court’s famous adjudica4 5

Alter 2009, 73.

In the context of the development of case law pertaining to EU citizenship, see Sankari 2013, 282-3.

6

Judgment in Fédération Charbonnière de Belgique, 8/55, EU:C:1956:11, at 258. See, Rasmussen 2008, 77-98 and Rasmussen 2010, 69-86.

7

Judgment in Les Verts, 294/83, EU:C:1986:166, para. 23; ‘the Charter of the Community’ in the Opinion of AG Lagrange in Fédération Charbonnière de Belgique, 8/55, EU:C:1956:11, at 277.

8

Opinion of AG Lagrange of 25 October 1956 in Fédération Charbonnière de Belgique, 8/55, EU:C:1956:8.

9

The famous expression from the Preamble to the EEC Treaty which is today found in the Preamble to the TFEU.

11

horizontal effect of fundamental rights in eu law

tion method, the teleological interpretation.10 Although frequently cited by scholars, commentators and parties to an action before the Court, explicit references to the ‘teleological interpretation’ by the Court itself are rare. Instead, the Court has preferred to use the language of its famous judgment in the Van Gend en Loos case, which enunciated the essence of the Court’s interpretational method and referred to ‘the spirit, the general scheme and the wording’ of the Treaties.11 This formulation has commonly been associated with teleological (‘spirit’), systemic (‘general scheme’) and textual (‘wording’) methods of interpretation.12 Individual members of the Court have been more open with the method(s) employed by the Court. Judge Giuseppe Federico Mancini explained how the expression ‘une certaine idée de l’Europe’ captures the ‘synergy produced by the coming together of men who, though steeped in different cultures and legal traditions, shared a common set of values’.13 Judge Fernand Schockweiler referred to the teleological method of interpretation when he wrote that by favouring this method ‘the Court gave preference to the interpretation best fitted to promote the achievement of the objectives pursued by the Treaty’ and that ‘the Court has acted as an engine for the building of the autonomous Community legal order.14 The concept of ‘effectiveness’, often referred to by its French equivalent ‘effet utile’ is the principal corollary to the teleological method. It signifies that once the purpose of a provision is clearly identified, its expressions will be interpreted ‘so as to ensure that the provision retains its effectiveness.’15 The Treaties also provide some legitimacy for the Court’s judicial methodology. The original Article 164 EEC (now Article 19 TEU) stated that ‘the Court of Justice shall ensure observance of law and justice in the interpretation and application of this Treaty.’ Besides indicating that the Union is bound by the rule of law,16 and thereby accepting the democratic principle of separation of powers, the word ‘law’ used in this Treaty Article seems to refer to something other than the written legal texts; something ‘over and above the Treaties’ themselves.17 The Founding Treaties compelled the Court to adhere to ideas of justice and integrity without offering any further direction as to the content of this ‘law’.18 Political 10

Brownlie 2008, 636. In the context of EU law see Beck 2012, 207-10, 286-7, Fennelly 1996, 656-79, Bengoetxea 1993, 250-1, Arnull 2006, 607 ff. and Tridimas 1996, 205.

11

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1, at 12. In subsequent cases the word ‘context’ has been added. For examples in recent case law, see, judgments in FIAMM, C-120/06 P and 121/06 P, EU:C:2008:476, para. 108; and Italy v Commission, C-482/98, EU:C:2000:672, para. 49.

12 13

Cf. Sankari 2013, 64 and fn. 236 and Lasok – Millett – Howard 2004, 376.

Mancini 1995, 125.

14 15

Schockweiler 1995, 73-4. See also Kakouris 1994, 273.

Judgment in Grad, 9/70, EU:C:1970:78, at 837, para. 5.

16

Article 2 TEU. Judgment in Les Verts, 294/83, EU:C:1986:166, at 1365, para. 23 and opinion the European Economic Area, 1/91, EU:C:1991:490, at 6102, para. 21.

17

Lenaerts – Gutiérrez-Fons 2011, Hartley 2010, 143.

18

Koopmans 1991, 495 and Tridimas 2006, 20.

12

chapter 1

the role of the court of justice in the constitutional law-making

and other extra-legal elements could not be entirely separated from the Court’s endeavours to ensure ‘the observance of law’.19 Moreover, the Founding Treaties indicated the Court had been entrusted with a certain task to accomplish when referring to ‘l’accomplissement de sa mission’.20 When entrusting the Court with adjudicating powers, Member States may be understood to have at least implicitly granted the Court latitude and room to manoeuvre to fulfil its ‘mission’ in practice. The Court could form a coherent and self-sufficient system of law by formulating norms founded on the objectives of the Union. Using the Founding Treaties as the source of law, the Court considered its task to assist in the attainment of the Treaty objectives expressly set out and sought after by its authors. The method differs from that of the ordinary courts, which function as neutral arbiters in legal disputes.21 Through its interpretation of law the Court of Justice strengthened the status and importance of EU law and furthered its development in times when the abilities and aspirations of Member States to enforce and realise the integration objectives of the Treaties have been weak. Although the Court’s active and purposive interpretation method has at times aroused strong criticism, it is evident that the Union could not have achieved its legal solidity without the Court’s active role, which has only been possible through the application of the Court’s dynamic teleological method of interpretation.22 Some scholars have asserted that instances where real dynamic or purely teleological criteria of interpretation have proved decisive on their own have been rare. Indeed, the legal reasoning of the Court of Justice seems, at least in some areas, to remain close to applying primarily the literal or semiotic criteria of interpretation. Only where it has proved inadequate has the Court made use of systemic and contextual criteria. Dynamic reasoning has often been offered as a supportive reason for an interpretation already premised on other criteria.23 The author holds that the Court has always seemed eager to develop its case law in a coherent and consistent manner, while safeguarding the special characteristics of the Union’s legal order. While traces of many different interpretation methods may be detected in the Court’s jurisprudence, the open framework nature of the Treaties coupled with an undeveloped case law in the early Community years were liable to put emphasis on the significance of and need for the teleological and dynamic methods of interpretation. After the core constitutional doctrines had been established and in pace with maturing jurisprudence, the approach of the Court can be characterised as emphasising the systemic method of interpretation, stressing a consistent, effective and coherent build-up of its case law. 19

Similarly Sankari 2013, 12.

20 21

Article 166 of the EEC Treaty.

Fennelly 1996, 672.

22 23

Jääskinen 2007, 79.

Cf. Sankari 2013, 282-3.

13

horizontal effect of fundamental rights in eu law

In a system governed by a mission to secure the accomplishment of ‘the idea of Europe’ marked by the open nature of its legal provisions and a dynamic and teleological interpretation method employed by its Court, the general principles of law found a fruitful ground.24 EU law is only to a limited extent capable of laying down written norms. Even these pertain for the most part to economic and social matters. Also, in comparison with many national legal systems, travaux préparatoires do not play a crucial role in the sphere of EU law,25 since legislative history of various acts of EU law is often disassembled, partly discordant and not even always available. In such a legal order the system of law has instead matured on the basis of general principles of law, which form one of the most important sources of law in the Union.26 The Court made use of the open nature of Treaty provisions (especially those of the EEC Treaty) and interpreted them broadly, developing new principles of law on their basis. The Founding Treaties instructed the Court to act ‘in accordance with the general principles common to the laws of the Member States’ in one area only, i.e., in connection with non-contractual liability of the Community.27 At the same time, the Court was given a mandate to ensure ‘the law is observed’ and thus recognised ‘the law’ as a source of Union law.28 While this implies an implicit principle of rule of law, the task assumes the existence of a perfect legal order without providing any further substantive guidance as how the ‘observance of law’ is to be carried out by the Court. Since no legal order can be solely composed of written rules, nor can written sources of law offer a valid solution in all eventual situations to be resolved by the judges, other instruments are needed in the course of the decision-making process.29 Within the context of EU law, the general principles provided the Court with practical tools to create and develop ius commune europaeum: to maintain the rule of law and protection of individual rights as well as to safeguard the effectiveness and coherence of the Union’s legal order. The importance of the general principles closely relates to the specificity of the EU legal order. The incomplete character of Community law, especially during the initial phase of the integration process, offered fertile grounds for the creation, development and use of general principles of law.30 The inclusion 24

Salmond 1924, 39 and 61-3. The general principles of EU law are distinct and differ from the general legal principles of public international law. Brownlie 1998, 15, Rosas 2009, 311. The term ‘general principles of EU law’ is used throughout in this study to reflect the situation after the entry into force of the Treaty of Lisbon, even though references to the general principles pre-Lisbon mostly concerned the Community (first) pillar.

25

Cf. judgment in Van Gend en Loos, 26/62, EU:C:1963:1.

26

The notion of ‘sources of law’ within the context of EU law transcends national borders and does not confine itself to being considered commands loaded by sanctions. A source of law can be any norm or standard which courts may rely on in argumentation. Bengoetxea 1993, 42.

27

Article 215 EEC, now Article 340 TFEU.

28

Judgment in Brasserie du Pêcheur, C-46/93 and C-48/93, EU:C:1996:79, paras. 24-30.

29 30

Schermers – Waelbroeck 2001, 28 and Hartley 2010, 141, referring to ‘judicial psychology’.

Rosas – Armati 2012, 43.

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of general principles provided much needed coherence and structure to the early legal order. As flexible rules, general principles present themselves as a useful tool for the judiciary to be employed in evolutive interpretation of law. The principles of non-discrimination and proportionality were among the first general legal principles invoked in early case law in the 1950s. These principles were used in assessing market regulation measures.31 Staff cases represent another area in which the general principles have often been invoked.32 The significance of the general principles of EU law for the present study derives from the fact that the inclusion of fundamental rights into EU law was practically realised by incorporating fundamental rights as part of the general principles of EU law. This made it possible to integrate the substance of the rights into Union law while at the same time maintaining its independence. The use and application of the general principles of EU law has also paved the way for an analogous application of fundamental rights.33



1.1.2 The General Principles of EU Law

Legal principles may be perceived both as a methodological as well as an instrumental aid for interpretation.34 Also, as Neil MacCormick has noted, legal argumentation on the basis of legal principles – as to its ‘force and function’ – is similar regardless of whether it is based on legislation or case law, even if the most obvious setting for principle-based argumentation would be the context of argumentation from and by analogy of a leading case. Therefore, even if views on legal principles both of Civil Law as well as the origin of Common Law will be considered as one category in the following that should neither be taken as a hindrance for a meaningful study of the role of principles in law, not in general nor within the meaning of EU law. The aspiration to secure legitimacy for a court’s decisions is the most important function of all principles of law.35 This legitimating function is two-fold: formal and substantial. By binding their reasoning to certain pre-set structures, courts strive to achieve more objectively reasoned judicial outcomes which appear less arbitrary or subjective. This is the formal point of view according to which principles of law are used in court adjudication as a tool to rationalise decision-making. In this sense, principles of law are used to provide judicial decisions a degree of neutrality and to assure the objective nature of the decision-making process. As many problems of concrete 31

On proportionality, see, judgment in Fédération Charbonnière de Belgique, 8/55, EU:C:1956:11, at 292 and on equality judgment in Pont-à-Mousson v High Authority, 14/59, EU:C:1959:31.

32 33

See e.g., on the right of defence in judgment in Alvis, 32/62, EU:C:1963:15.

Besselink 2012, 72.

34

The accounts of Ronald Dworkin and Robert Alexy are among the most well-known analyses on the nature and role of legal principles. Dworkin 1977, Alexy 1979, Alexy 1985. See also Bengoetxea 1993, Tuori 2003, 348 and Tuori 2010, 195.

35

Maccormick 1978, 194.

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cases find their solution in a principle of law, the courts may use principles as a basis when solving concrete cases within a more structured framework and a more limited scope of arguments. Principles thus lend decision-making more efficiency and predictability and, as a result, more rationality.36 Principles of law also increase legitimacy through their substantial leverage. Under the rule of law in a democratic society – at least under its current interpretation – valid law must conform to certain substantial requirements which in, the liberal concept of law, view individual (human) and fundamental rights and principles of law as a strong legitimising factor. The distinction between rules and principles is one of the basic fundamental questions within legal theory. There exists abundant literature and several suggested criteria for distinguishing rules from principles.37 However, many theoretical notions and distinctions on legal principles and rules do not fully correspond to the distinction between the general principles of EU law and other norms of Union legislation, since these take more or less varied and mixed forms. For instance, principles of Union law may be of general applicability, but in a concrete situation they may also function as rules and thereby allow, authorize or prohibit certain conduct in a rule-like fashion.38 Moreover, the general principles are not formally defined in EU law. ‘Principles’ within EU law may be grouped in several ways. Two main categories may be distinguished; first, principles which may be derived from the rule of law and second, structural principles which underlie the structure of the Union’s legal order.39 The latter group covers a set of norms which define the Union’s legal order and its interaction with the Member States and denote its essential characteristics. The principle or concept of direct effect, which is examined in more detail below, is an apt example of this category as are primacy, subsidiarity and Member States’ duty of sincere cooperation. Many of the ‘principles’ of this category do not find express ground in the Treaties. They have instead been ‘discovered’ by the Court of Justice. They render the Union’s legal order its peculiar nature and have assisted in establishing its constitutional foundations. The former category of ‘principles’ of EU law has likewise been created and developed by the Court although majority of them stem from the legal orders and traditions of the Member States. They bear close resemblance to many of the principles governing the use of power in the public sphere and come close to the German notion of Rechtsstaat or the notion of the rule of law. 40 Examples of this category include equality, proportionality, legal certainty and fundamental rights. These principles have provided the Court an important and powerful, 36

What is regarded as rational or irrational is clearly a question of a political and philosophical nature. Aarnio 1986.

37

Alexy 2002, 45-6.

38

Rosas – Armati 2010, 160.

39

Tridimas 2006, 4-5.

40

Herdegen 2000, 3.

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yet flexible judicial tool in developing the Union’s legal order and the Court has proved creative in using them both in its methodology as well as its decisions. 41 In this study ‘the general principles of EU law’ are referred to in this latter meaning. Hence, the general principles are to be understood as (typically) unwritten general legal principles which in the hierarchy of norms are nevertheless part of the primary law of the Union. Even if the general principles of EU law irrefutably play a particular role in the case law of the Court of Justice, the concept of general principles is not a settled issue. 42 The terminology is inconsistent both in case law and in legal literature. There are some nuanced differences regarding the choice of words. The Court of Justice and the Advocates General have referred to a ‘generallyaccepted rule of law’, 43 a ‘principle generally accepted’, 44 a ‘basic principle of law’, 45 a ‘fundamental principle’, 46 a ‘principle’, 47 a ‘rule’, 48 a ‘general principle [of equality] which is one of the fundamental principles of EU law’, 49 or a ‘particularly important principle of European Union social law’.50 In the context of the present study, the word ‘general’ refers first of all to the fact that the respective general principle of EU law is inherent in a series of infinite applications of the law.51 The ‘general’ nature of the principle also refers to its universality, or at least to its ‘europeanness’, since the general principles of EU law find their basis in the Members States’ legal orders. The general principles of EU law fulfil a triple role. Firstly, they fill normative gaps in the EU legislation and are thus used in ensuring the autonomy and coherence of the Union’s legal system. Secondly, they serve as an aid to interpretation, as both EU secondary law and national law within the scope of application of EU law must be interpreted in light of the general principles of EU law. Thirdly, the general principles may be relied upon to provide grounds for judicial review. EU legislation in breach of any of the general principles is considered void. Correspondingly, national law within the purview of EU law and inconsistent therewith must be set aside.52 41

Tridimas 2006, 4.

42 43

See Schwarze 2006, 65 and Sariyiannidou 2006, 145.

Judgment in Fédération Charbonnière de Belgique, 8/55, EU:C:1956:11, at 299.

44 45

Judgment in Wirtschaftsvereinigung Eisen- und Stahlindustrie, 13/57, EU:C:1958:10, at 304.

Judgment in SNUPAT, 42/59 and 49/59, EU:C:1961:5, at 84.

46 47

48

Judgment in Hoogovens, 14/61, EU:C:1962:28, at 272.

49 50 51

Judgment in Hoffmann-La Roche, 85/76, EU:C:1979:36, at 511.

Judgment in Von Lachmüller, 43/59, 45/59 and 48/59, EU:C:1960:37, at 475. Judgment in Ruckdeschel, 117/76 and 16/77, EU:C:1977:160, para. 7.

Judgment in Dominguez, C-282/10, EU:C:2012:33, para. 16.

Emiliou 1996, 115 and Harbo 2010, 159.

52

Well-known works on general principles of EU law include, Tridimas 2006, Groussot 2006, Bernitz – Groussot – Schulyok (eds.) 2013, Bernitz – Nergelius – Cardner (eds.) 2008, Bernitz – Nergelius (eds.) 1998 and Usher 1998.

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The process of the creation and formation of the general principles of EU law may however question their legitimacy, existence and usage. The coming into existence of the general principles of EU law is a dual process. It entails both an empirical induction as well as a theoretical deduction. First, the Court derives a general principle from the ‘sources of inspiration’, e.g., from Treaty provisions or the constitutional traditions of the Member States. Second, it applies the general principle to a certain case in order to arrive at a specific conclusion; i.e., it deducts a judicial standard from a general principle. The process of discovery of the general principles is far from mechanical. The Court does not compare the laws of Member States to a search for an identical formulation of a given principle. Rather, it seeks to find the most appropriate solution and considers national legal traditions as practical sources for useful guidance, inspiration and ideas. The process entails a synthesis of principles found in national legal systems rather than any mechanical applications of statistically predominant rules.53 Table 1. The methodology employed by the Court of Justice in the process of discovery and application of the general principles of EU law.

The methodology somewhat resembles the age-old tradition of Common Law, long-established customary law within the special cognizance of the judges. A Common Law judge derives a rule necessary to decide a certain case from ‘principles’ which are extrapolated from a body of precedents.54 This phase is characterised by deduction in contrast to the discovery of general principles in EU law in their first phase. These operate through induction as European judges identify a principle ‘common to the laws of the Member States’ as a basis for constructing a legal rule in a specific case.55 At the EU level, deduction appears when the general principles are applied to a given case. This comes close to an 53

Tridimas 2006, 57. Cf. Thirlway 1990, 110.

54

Dworkin 1977, 14-80, De Smith – Woolf – Jowell 1995, 833.

55

Herdegen 2000, 3 and 17.

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exercise of judicial law making. The Court makes use of teleological interpretation in seeking direction from the objectives and values of the Treaties. The Court thus deducts a practical judicial outcome from a general principle of EU law. Thus, both the creation and the application of general principles are creative processes based on ‘inspiration’ rather than a scientific process.56 In spite of being fundamental to the proper functioning of EU law, the general principles do not operate in the abstract.57 They may only be relied on or national measures reviewed on the basis of their compliance with such principles when the issue in question falls within the scope of EU law.58 It follows that where no applicable substantive rule of EU law governs the situation on which a general principle could be attached, it is not possible to rely on that principle to create an applicable substantive rule of EU law or to determine how that rule should be applied.



1.2 Doctrinal and Constitutional Foundations

The Founding Treaties were silent on many core constitutional issues relating to the relationship between the Community vis-à-vis its Member States. Yet, it was inevitable that the Community Treaties would at some point come across and even be at odds with provisions of national law. Already in an early staff case regarding the ECSC Treaty the Court had confronted the issue on the role of Community law vis-à-vis national law. Even though stating that Community law took ‘precedence over national law’, the way in which this was to be realised in practice was left to the Member States to decide according to rules on public international law.59 By way of an example, the Vienna Convention requires parties to a treaty to implement it in good faith and prevent parties from justifying a failure to perform a treaty by reference to its internal law. Nevertheless, the Convention does not aim to change the basic principle according to which the application of a treaty is governed by rules of domestic law.60 As a result, the same treaty may produce different effects depending on the state implementing it. Different legal systems also hold different views on the question of whether a treaty takes precedence over national law and how it is to be applied domestically. Needless to say, these differing approaches to international treaties by individual states would be liable to create structural problems in a system based on a treaty regime. This would hold true particularly when private parties seek to 56 57

Herdegen 2008, 347.

Opinion of AG Sharpston of 22 May 2008 in Bartsch, C-427/06, EU:C:2008:297, point 69. Tridimas 2006, 36-42 and Temple Lang 1991, 23-35.

58

Judgments in Demirel, 12/86, EU:C:1987:400, para. 28, and in Kremzow, C-299/95, EU:C:1997:254, paras. 15-19. The scope of application of EU law will be dealt with more in detail in Part II of this book.

59

Judgment in Humblet, 6/60, EU:C:1960:48, at 569.

60

Articles 26 and 27 of the Vienna Convention. See Brownlie 2008, 607 ff.

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rely on treaty provisions before a national court. The view that individuals can directly benefit from the Community regime can be backed up by two provisions of the Founding Treaties; namely those on the preliminary ruling procedure and the nature of regulations.61 On one hand, the preliminary ruling procedure seeks to guarantee a uniform application of Union law which would inescapably require the identical implementation of EU law in all Member States.62 On the other, regulations are binding in their entirety and directly applicable as such in all the Member States. Hence, their effect and status do not depend on further domestic measures but are to be instantly and per se complied with. In a series of early but far-reaching judgments, the Court undertook to define the nature of the Community’s legal order and to establish the fundamental principles of European law, thus shedding light on many fundamental issues regulating the status and effect of Community law within national legal orders. Thus, the substantive development of EU law and the so-called constitutionalising process of the Community/Union, laying also the basis for the development of fundamental rights therein, may be linked to the seminal judgments of Van Gend en Loos and Costa v ENEL, which established the concepts of direct effect and primacy of Community/Union law, respectively.63 For the purposes of the present subject direct effect is examined in more detail below.



1.2.1 The Concept of Direct Effect

The logic behind the concept of direct effect is familiar to problems of any judicature, i.e., choosing a relevant norm, interpreting and applying it correctly and considering the potential implications of a certain decision. Some norms may not be enforceable in the courts because they are either not meant to give private individual enforceable rights, or because their being too vague or incomplete to admit of judicial application.64 The early Community legal order faced a similar dilemma. The Founding Treaties had not directly dealt with the issue on the status of the Treaties and their direct application within the sphere of national legislation of the Member States and the lack of travaux préparatoires of the Founding Treaties has made it impossible to reconstrue the exact original intention of the Treaty framers. Still, it is interesting that the Court employed almost the exact wording in the Van Gend en Loos case as is found in the official memoranda of the German government accompanying ratification of the Founding Treaties in the 1950s, i.e., ‘supranational Community equipped with sovereign powers.’65 61

Articles that are now 267 and 288(2) TFEU.

62

Article 41 of the ECSC Treaty provided a preliminary reference procedure concerning questions on the validity of acts of the High Authority. See Boerger-De Smedt 2012, 339-56.

63

Regarding the ECSC Treaty the question of primacy had already been dealt with by the Court in judgment in Humblet, 6/60, EU:C:1960:48, at 569.

64 65

Winter 1972, 436.

 Erläuteringen der Bundesregierung (1957) Bundestags-Druksache No. 3440 (2. Legislaturperiode), p. 108.

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Even less was there any guidance on whether the ‘traditional’ rules of public international law would be applied within the Community legal order. The Members States evidently proceeded on the assumption that they had concluded international agreements in a classic sense so that these would not have any direct implications on their domestic legal systems or on individuals.66 The Court of Justice was hence soon confronted with the issue of how the Community law would be applied vis-à-vis conventional international law and domestic law of the Member States.67 The idea of direct effect was not entirely strange to the EEC Treaty.68 Council regulations had direct effect and the early Articles 85 and 86 on competition policy were considered to apply with direct effect until a common competition policy had been established.69 The notion of direct effect had also already appeared in the early rulings of the Court of Justice.70 Especially during the early years the Court of Justice used the terms ‘direct applicability’ and ‘direct effect’ interchangeably,71 both denoting direct enforceability which only made the distinction between the two concepts more perplexing. Even though in practice ‘direct effect’ and ‘immediate applicability’ go hand in hand, as in case with Regulations, in the context of EU law direct effect is to be understood as a separate concept from that of immediate applicability. The use of the term ‘directly applicable’ originates from the sphere of public international law according to which a provision of international law is in force and applicable in a national legal system without a need first to be transposed into national law. A separate question from this is whether that provision may then be invoked and enforced by an individual.72 That function, in turn, is described under the term ‘direct effect’. 66

This is clear e.g., from the observations submitted by the Dutch, Belgian and German Governments to the Court in the Van Gend en Loos case (26/62, EU:C:1963:1, at 8). Historical Archives of the Commission: HAC.BAC.371/1991.621, Stellungnahme der Regierung der Bundesrepublik Deutschland. E 2, 11 01 98; HAC.BAC.371/1991.621, Mémoire du Gouvernement du Royaume des Pay-Bas. Affaire 26/62, n 71; HAC.BAC.371/1991.621, Mémoire de l’Etat Belge. Réf. D. 123/E.L./N.126/S.F.1; HAC.BAC 371/1991.622, Rapport d’audience Dans l’affaire 26/62.

67

Edward 2004, 5.

68

The term ‘direct effect’ does not appear in the Treaties but the words ‘automatic legal effect’ appear in the Declaration on Article 8a of the EEC Treaty which was later annexed to the Single European Act.

69 70

Historical Archive of the Council of Ministers CM3.179. Historique des négociations.

See judgment in Groupement des Industries Sidérurgiques Luxembourgeoises, 7/54 and 9/54, EU:C:1956:2. Boulouis 1956, 441-52.

71

Cf. also judgments in Reyners, C-2/74, EU:C:1974:68 and Defrenne II, C-43/75, EU:C:1976:56.

72

The same legal phenomenon is also referred to as ‘self-executing norms’ which term originates from the US constitutional law. Iwasawa 1986, 627 and 635, Paust 1988, 760, Buergenthal 1992, 303, 317 and 320, Vásquez 1995, 695-723. Cf. Foster & Elam v. Neilson 27 US (2 Pet.) 253, 311, 314 (1829), United States v. Percheman 32 US (7 Pet.) 51 (1833), United States v. Postal 589 F.2d 862, 875 U.S. Court of Appeals, (5th Cir.1979), cert. denied, 444 V8 832, Linder v. Portocarrero 747 F. Supp. 1452, 1463 (S.D. Fla 1990), Edye v. Robertson 112 US 580, (1884). Shawn 2003, 147-8.

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It took a long time for the terminology to settle down. Jan Winter was the first to analyse the difference between the two concepts in the context of Community law.73 He considered the difference as late as 1972, which demonstrates that the idea of ‘direct effect’ was still not entirely clear. It was not until the same year that ‘direct effect’ formally entered the vocabulary of the Court in AG Mayras’ Opinion in the International Fruit case. In his Opinion, the AG used the terms ‘effet direct’ ten times and, a few lines later, ‘la theorie de l’effet direct’, even though the terminology used in the contemporary translations of the Opinion is not as consistent.74 Winter had held that the nature of the applicability of a norm depends on the provision being complete and legally perfect. These characteristics would in turn depend on three prerequisites which have since become the classic standard of the concept of direct effect; i.e., the provision being clear, unconditional, and not requiring further legislative measures on the part of Member States or EU institutions.75 Subsequently, two notions of the concept of direct effect – one broader, the other narrower – are nowadays quite commonly agreed upon. The narrower meaning of direct effect is defined in terms of the capacity of a provision of EU law to confer rights on individuals.76 In a broad sense the concept of direct effect means that provisions of binding EU law which are clear, precise and unconditional enough to be considered justiciable can be invoked and relied on by individuals before national courts. The broader notion is clearly derived from the Court’s seminal judgment in the Van Gend en Loos case.77 Even if the Court has still sporadically referred to direct effect along the lines of its ability to ‘create rights’, the notion of direct effect should no longer be inextricably linked to the creation of subjective rights to individuals.78 The latter definition seems thus more readily accepted and also more common in usage.79 The initial rationale of ‘direct effect’ was to secure the effectiveness (effet utile) of EU law by enabling individuals to rely on Union law against Member States that fail to implement or comply with EU law. The Article which is now 73

Winter 1972, 425-38.

74

Opinion of AG Mayras of 25 October 1972 in International Fruit Company, 21-24/72, EU:C:1972:89, at 1234, 1235, 1237-1239. The index of European Court Reports for that year contains only the coy reference, ‘Community law: application: direct’. Edward 1998, 427.

75

Cf. judgment in Demirel, 12/86, EU:C:1987:400, at para. 14. Other well-known analyses of the concepts, Steiner 1982, 229 and Pescatore 1983, 155.

76

Cf. Craig – De Búrca 2011, 180 ff. This classic definition of direct effect is sometimes referred to as ‘subjective’ direct effect. Another current definition of the concept of direct effect is put forward in Prechal 2006, 241.

77

The broader notion is also sometimes referred to as ‘objective’ direct effect. See Edward 1998, 423 and Craig – De Búrca 2011, 181.

78

Pescatore 1983, 176-7, Lenaerts – Corthaut 2006, 311, Craig – De Búrca 2011, 188 and Prechal 2005, 100. AG van Gerven suggested that the test for direct effect is whether a provision of Community law is ‘sufficiently operational’ to be applied by a court. Cf. Opinion of AG van Gerven of 27 October 1993 in Banks, C-128/92, EU:C:1993:860, at 1237.

79

Cf. Hartkamp 2013.

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258 TFEU (ex Article 226 EC; ex Article 169 EEC) expressly provided a mechanism for public enforcement by giving the Commission power to sue a Member State which it considered to have failed to fulfil an obligation under the Treaties. However, that Article could not be used against private individuals, which left the mechanism rather weak and narrow. It also burdened the Commission with the sole responsibility for policing the enforcement of Community law. Even proceedings under Article 259 TFEU (ex 227 EC, ex Article 170 EEC) originally initiated by Member States, require the Commission’s involvement.80 However, the doctrine of direct effect gradually paved the way for private enforcement.81 Direct vertical effect, i.e., in legal relations between individuals and a state, was gradually extended to allow individuals to rely on Treaty provisions also horizontally against other private individuals (direct horizontal effect), e.g., requiring respect for the principle in what is now Article 157 TFEU on equal pay for men and women.82 Through subsequent judgments the Court accepted either a full direct effect (i.e., a horizontal and vertical direct effect) or a partial direct effect (only a vertical direct effect).83 The distinction relates to the question whether EU law is of significance only in a vertical situation between the individual and the State, or whether it also applies horizontally in legal relations between private parties inter se.84



1.2.2 Unpacking Direct Effect

The doctrine of direct effect and the early conditions set out for its application are best known from the Court’s seminal judgment in the Dutch Van Gend en Loos case, which still remains one of the most significant of the Court’s rulings to date.85 The legal dispute in the case arose from an increase of import duties on certain chemicals from 3 per cent to 8 per cent following a change in their tariff classification. The tax increase affected the duty charged also on ureaformaldehyde imported by a Dutch Company Van Gend en Loos from 80 81

Craig 1992, 453-5.

Other reasons speaking in behalf of the private enforcement include, inter alia, the problem with conflict of interest as well as remedies. See Craig 1992, 454-7, Pescatore 1983, 155 and 158 according to which ‘[i]n the Opinion of the Court, the Treaty has created a Community not only of States but also of peoples and persons and that therefore not only Member States but also individuals must be visualized as being subjects of Community law.’

82 83

Judgment in Defrenne II, C-43/75, EU:C:1976:56.

Opinion of AG Geelhoed of 13 December 2001 in Fruiticola, C-253/00, EU:C:2001:697. The division between horizontal and vertical relations has a clear correlation to the distinction between public and private -legal spheres. The public-private dichotomy will be considered more in detail in Part III of this book.

84

E.g., Hartley 1994, 216-22, Stein 1981, 17-20, Weiler 1981, 274. Distinguishing yet further, the concept may be divided into full direct effect as well as into partial direct effect. Cf. Opinion of AG Trstenjak of 29 March 2007 in Case C-80/06, Ecorad [2007] ECR I-4473, point 56.

85

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1.

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Germany into the Netherlands. Article 12 of the EEC Treaty contained a standstill clause 86 in respect of any increase of duties as it prohibited Member States from introducing or increasing any new customs duties or charges with equivalent effect between themselves from the date of the Treaty entering into force. Hence, Van Gend en Loos challenged the legality of the tariff re-classification before the Dutch Tax Administration (Nederlandse administratie der belastingen), where its claim was rejected. The company appealed to the specialized Dutch customs court (Tariefcommissie) which had final jurisdiction in revenue cases. In turn the customs court referred to the Court of Justice two questions for a preliminary ruling concerning the application of Community law by national courts and the possibilities for individuals to invoke it directly against the Dutch Government. The Dutch legal system in particular, offered fruitful grounds for establishing the doctrine of direct effect, since the 1953 Dutch Constitution allowed for the supremacy of international law in permitting certain provisions of international treaties to be regarded as self-executing and as such directly applicable in domestic courts.87 This also explains the way Tariefcommissie formulated the preliminary questions. The first questions inquired whether Article 12 EEC (now Article 30 TFEU) could have direct application.88 In other words, whether it could be applied as a self-executing provision in national law, in the sense that nationals of Member States could on the basis of the article lay claim to rights which the national court must protect. The Netherlands Government, the Advocate General Karl Roemer as well as the intervening parties were not inclined to accept such far-reaching of the provisions of the Treaty. The Court arrived at the conclusion that the Treaty was more than an agreement creating mutual obligations between Contracting States. Rather, according to the words which later became famous, the Court perceived the Community as constituting ‘a new legal order of international law for the benefit of which the States have limited their sovereign rights - - and the subjects of which comprise not only Member States but also their nationals’.89 The Court began with examining the overall objective of the EEC Treaty which was of direct concern to interested 86

The term ‘standstill clause’ was the original wording of Article 12 of the EEC Treaty in 1957. It has since been replaced by Article 25 EC (now Article 38 TFEU).

87

Articles 65-67 of the 1953 Dutch Constitution.

88

 Interne werking in the original Dutch version. The preliminary question was clear, but the terminology used was not. In different language versions the term was translated to unmittelbare Wirkungen (German), effets directs, effets immédiats (French), atto a produrre direttamente degli effetti sui rapporti, avendo valore precettivo (Italian).

89

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1, p. 12. ‘Un nouvel ordre juridique de droit international, au profit duquel les etats ont limité - - leurs droits souverains, et dont les sujets sont non seulement les états membres mais egalement leurs ressortisants.’ Arrêt Van Gend en Loos, 26/62, EU:C:1963:1, p. 23. Although the English version of the judgment – produced much later – is used here for the sake of linguistic coherence, the French text of the judgment is frequently quoted and referred to, its wording being the original text used and agreed upon by the Judges of the Court.

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parties in the Community’, thus also encompassing private individuals.90 The Court stressed the important role of individual citizens and the democratic character of the Treaty. In addition to ‘States’ the preamble also makes reference to ‘citizens’ and that individual nationals are called upon to cooperate actively in the functioning of the Community. Community law not only imposes obligations on individuals; the same obligations also entail rights ‘which become part of their legal heritage.’91 Even the preliminary ruling procedure established by Article 177 EEC (now Article 267 TFEU) intended to give individuals the possibility to protect their rights within the realm of EU law. Accordingly, the Court held that the Treaties were different, so individuals could derive rights therefrom and enforce them at national level. In principle, every norm of Community law might thus be liable to confer enforceable rights and duties on individuals. Although not entirely new, the Court’s pronouncement was nevertheless innovative, since provisions of international treaties in countries which have adopted a dualist approach typically do not give rise to rights or interests which individual citizens can invoke before their respective national courts.92 The novelty of the judgment was not the discovery that Community law could have direct effect.93 In fact, the Netherlands already had a monist legal system and would most likely not have had any difficulties with the outcome of the ruling. The more intriguing part of the argumentation relates to the Court’s early use of a teleological argument in its reference to ‘the spirit, the general scheme and the wording of those provisions’ (‘l’esprit, l’economie et les termes’).94 The Court thus reasoned on the basis of the central objectives of the integration project. Community objectives were primarily economic in nature. They sought to ensure an optimal allocation of resources within the Community by enabling factors of production to move and circulate freely in an internal European market. The relevant norm at issue in Van Gend en Loos, being primarily of economic concerns, was closely related to the core aims of the Treaty. An efficiently functioning private enforcement mechanism would inevitably render the entire legal system more effective since it would encourage the Member States to actively adhere – not only to their rights – but also their obligations. That kind of legal system would ensure that tasks intended for the achievement of the economic and political goals of the Treaties would be efficiently carried out. The reasoning in the judgment indicated that judges had ‘une certain idée de l’Europe’ 90

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1, p. 12; arrêt Van Gend en Loos, 26/62, EU:C:1963:1, p. 23: ‘Un marche commun dont le fonctionnement concerne directement les justiciables de la communaute.’ Cf. Article 9 of the EEC Treaty: ‘The Community shall be based upon a customs union - - comprising both the prohibition - - of customs duties - - and all charges with equivalent effect...’.

91

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1, p. 12. ‘Qui entrent dans leur patrimoine juridique.’ Arrêt Van Gend en Loos, 26/62, EU:C:1963:1, p. 23.

92 93

Brownlie 2008.

De Witte 2010, 10.

94

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1, p. 12; arrêt Van Gend en Loos, 26/62, EU:C:1963:1, p. 23.

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of their own, which, instead of the arguments based on technicalities, proved decisive.95 Ultimately, the ruling asserted it was the Court of Justice’s responsibility to decide whether certain provisions of Community law were to have direct effect. In this sense, the Court also made a strong statement of itself and its role in shaping the European legal order.



1.3 Interim Conclusions

The Court indicated in Van Gend en Loos that the obligations imposed on individuals or Member States or Union institutions may give rise to rights for the benefit of individuals.96 Referring to a former Advocate General Van Gerven writing extra-judicially a general definition of a ‘right’ is made here in order to circumvent normative debates on the nature and state of rights: ‘the concept of rights refers - - to a legal position which a person recognized as such by the law - - may have and which in its normal state can be enforced by that person against - - others before a court of law..’.97 It appears that the normaddressee is not decisive for the creation or existence of a right, since the Court’s statement implies an obligation of (any) one subject of Union law correlates with a right of another.98 Moreover, when stating that ‘Article 12 must be interpreted as producing direct effects and creating individual rights’ the Court implied the latter followed from, but was not necessarily a condition for, the former. However, the same passage has contributed to the frequent equating of an individual right with direct effect.99 Even if the notion of the norm’s ability to confer a subjective right on individuals is commonly viewed as forming a part of the consideration of its direct effect, the latter concept is arguably much broader. A substantive individual right may be, and often is, the result of direct effect. However, a norm may also be directly effective without creating substantive individual rights,100 95

Pescatore 1983, 157 and Craig 1992, 458.

96 97

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1, p. 12.

Van Gerven 2000, 507.

98

In this sense it is possible to detect a Hohfeldian tone in the Court’s parlance in Van Gend. Hohfeld 1913. On applying the Hohfeldian scheme to EU law, a doctrinal discussion which disregards the Hohfeldian elements of ‘power’ and ‘liberty’, see Hilson – Downes 1999, with regard to direct effect, Bengoetxea – Jääskinen 2010, Jääskinen 2008 and Jääskinen 2008a. A Hohfeldian construction regarding liability under EU law Aalto 2011, and EU Fundamental Rights Walkila 2015.

99

In Van Gend en Loos: ‘Article 12 must be interpreted as producing direct effect and creating individual rights which national courts must protect’. The Court’s holding was subsequently only affirmed, e.g., in the judgments in Salgoil, 13/68, EU:C:1968:54, Ferwerda, 265/78, EU:C:1980:66, para. 10 and Dansk Denkavit, C-200/90, EU:C:1992:152, paras. 16-18.

100

Cf. German writers have sought to accommodate the existence of a right as an element of the concept of direct effect. Ruffert 1997.

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the role of the court of justice in the constitutional law-making

since directly effective norms may be relied on for several purposes in order to create a substantive individual right or to form a defence. To illustrate, an employee could rely on the provisions of the Equal Treatment Framework Directive101 to demand he or she should have equal access irrespective of age to certain occupational services, thus claiming an individual right. On the other hand, the employer, having employed persons over fifty years of age, could rely on the same Directive in his or her defence against the (hypothetical) national law prohibiting employment of persons over fifty years of age. In the former situation an EU legal norm creates a positive individual right for the person concerned to claim some act, good, or service. In the latter scenario the EU law functions as a shield or defence or an entitlement to noninterference, which excludes the application of contravening rules but does not create a substantive individual right to the person concerned. While often coinciding, direct effect and an individual right should not be regarded as synonymous or equivalent, since directly effective norms are capable of producing various effects depending on the content of the norm and the factual situation in which it is interpreted and applied. For example, the directive at issue in the Francovich case created rights to individuals, but since the provisions on the identity of the debtor were not deemed to fulfill the prerequisites for direct effect (sufficiently clear and unconditional), and in the absence of implementing measures, the individuals could not enforce the right-creating provisions of the directive.102 The direct effect of a provision is thus not dependent on the existence of a substantive individual right contained in the norm or the intention thereof. A provision may be directly effective in that it may be relied upon even if not creating individual rights. Hence, the question whether a norm has direct effect relates to its invocability; i.e., whether the norm is sufficiently clear, precise and unconditional to operate as a judicial standard. Direct effect has more of a procedural character, whereas the issue of whether a norm creates ‘rights’ pertains to its content and substance. Direct effect should thus be seen as a quality which enables the norm to be judicially recognised and invoked by those concerned within a legal system.103

101

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16-22.

102 103

Judgment in Francovich, C-6/90 and C-9/90, EU:C:1991:428.

Similarly e.g., Prechal 2007, 37 and Prechal 2005, 105-6.

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Horizontal Application of EU Law

horizontal effect of fundamental rights in eu law



2.1 Construing Horizontal Effect

Although the Court of Justice has, at least so far, never used the term horizontal effect, the concept is nonetheless not uncommon in EU law. The Court has often sought to circumscribe the issue by formulating the concept by alternative and more understated notions, such as ‘a provision which is capable of conferring rights on private actors and which may be relied on against other private actors’,1 a fundamental freedom applying to a private actor,2 or a certain conduct of a private actor.3 The mere possibility to invoke a norm of EU law does not necessarily clarify the vast array of effects of the horizontal application of norms or the degree of their directionality. Whereas the European parlance has mainly distinguished between the concepts of ‘direct horizontal effect’ on the one hand, and ‘indirect horizontal effect’, 4 on the other, it is also possible to identify a third construction of the horizontal effect; one mediated by rights against the public authority.5 Some consider horizontal effects without making any further distinctions as to their nature.6 The situation is further complicated by the fact that the horizontal effects, especially those of fundamental rights, do not only present themselves in varying terms and definitions in legal theory and literature, but are also dependent on the legal culture, state or jurisdiction, and even on the scholarly approach. National private law has only rarely been reviewed against EU law, for which reason a private law scholar would rather be inclined to consider whether norms of higher ranking (European) law would directly influence the validity, substance or interpretation of legal relationships between individuals.7 In private law the focus is on the contents of a horizontal relationship either directly or indirectly influenced by public (EU) law. In EU law the focus is on the concept of direct effect, which precedes the question of whether it can have horizontal effect. The direct effect of a norm is subsequently qualified either as being vertical in nature, or as being capable of having horizontal effect. The possible horizontal effect is then either direct or indirect in nature. In light of the above, the horizontal effect of EU law is understood here to pertain to the application, either directly or indirectly, of a norm of EU law by a court deciding a legal action between private parties. The direct horizontal effect is referred to in this study so as to imply that a provision of EU law is directly applicable to legal relationships between private parties so that it creates, modifies or extinguishes their subjective rights and obligations.8 A norm of EU law 1

Judgment in Viking Line, C-438/05, EU:C:2007:772, para. 66.

2 3

Judgment in Raccanelli, C-94/07, EU:C:2008:425, para. 46.

Judgment in Bosman, C-415/93, EU:C:1995:463, para. 87.

4 5

Streinz – Leible 2000, 459-67.

Alexy 2002, 355-6.

6 7

Steindorff 1993, 575-90.

Cf. Hartkamp 2013.

8

Also in De Mol 2011, 110.

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is thus applied as an autonomous ground for review before a national court,9 so transactions would be impossible if contravening a particular provision of EU law. All other cases where EU law affects private law in some other ways may be categorized under the concept of ‘indirect effect’. In this case a norm of EU law guides the interpretation without directly creating separate grounds for a decision. Where this effect takes place in a legal relation between private parties, it is considered an ‘indirect horizontal effect’. The notion of indirect effect, also referred to as ‘consistent interpretation’10 – is used to reconcile two at least seemingly conflicting rules. Other examples of the terminology used to denote the same phenomenon include terms such as, ‘concurring or concurrent interpretation’, ‘conciliatory interpretation’, ‘interpretative interpretation’, ‘principle of purposive interpretation’, ‘von Colson principle’, ‘uniform interpretation’, ‘invocabilité d’interprétation’, and ‘harmonious interpretation’. The latter is based on the language used in the von Colson case.11 Nevertheless, the term ’indirect effect’ seems to be the expression most often used.12 Indirect effect stems from the general rule of constitutional construction under which lower ranking norms must be interpreted, as far as possible, so as to comply with higher ranking norms of the constitutional order.13 Even if the concept of indirect effect is thus not unknown in general jurisprudence, the requirements, modalities and scope of its application are considerably different in the context of EU law.14 The Court of Justice has emphasised the obligation of national courts to interpret national law whenever and to the extent possible in harmony with EU law. National courts and authorities must strive to achieve the aim pursued by EU law and take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation.15 Indirect effect thus relates to a norm’s interpretative force. A provision of national legislation is rendered an interpretation, which corresponds as closely as possible to EU law in force. 9

Cf. De Witte 2003, 178-213 and Prechal 2005, 226-70.

10 11

The term preferred inter alia in Prechal 2005, 181.

Judgment in Von Colson, 14/83, EU:C:1984:153. Prechal 2005, 181.

12 13

Hartkamp 2012, 12 ff.

Cf. judgments in Commission v Council 218/82, EU:C:1983:369, para. 15 and Rauh, C-314/89, EU:C:1991:143, para. 17.

14 15

Torres Pérez 2009 and Prechal 2005, 184.

Cf. judgments in Pfeiffer, C-397/01 to C-403/01, EU:C:2004:584, para. 116, Mono Car Styling, C-12/08, EU:C:2009:466, para. 61, Adeneler, C-212/04, EU:C:2006:443, para. 110, Kolpinghuis Nijmegen, 80/86, EU:C:1987:431, para. 13 and Österreichischer Rundfunk, C-465/00, C-138/01 and C-139/01, EU:C:2003:294, para. 68. In connection with fundamental rights, see Brems 2008.

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These situations include circumstances where EU law affects the interpretation of national law, e.g., in cases with incorrectly or non-implemented directives.16 They may also relate to an obligation on the part of the Member States to protect the Treaty based rights of their citizens (cf. the concept of ‘positive obligations’),17 and a review of compatibility of national law provisions with EU law in proceedings between individuals.18 Situations suggesting indirect horizontal effect include circumstances where an individual relies on a directive in a vertical relation,19 which carries adverse implications on other individuals in a so-called ‘triangular situation’.20 In this scenario an individual bases a challenge to national law on a Directive or practice and directs it at the State authorities. However, while doing so, the challenge adversely affects another individual. Hence, the effects are also described as ‘incidental’ or ‘triangular’.21 Also, certain rules contained in a directive – while not in themselves having direct horizontal effect – may be binding on individuals through another norm of EU law; e.g., a regulation expressly referring to a directive or a general principle of EU law.22 Directly effective norms may be relied on for several purposes for which reason they also create varying effects. These effects may correspond to substantive individual rights or lead to exclusion from the application of another norm. Accordingly, some Advocates General have referred to the positive and negative effects,23 while other scholars have discussed the same or related phenomenon by referring to a norm’s substitutive or exclusionary effects.24 The former relates, e.g., to a review of a norm of national legislation for its consistency with EU law, whereupon EU law may have an effect of substituting any provision of national legislation by directly creating obligations, modifying or extinguishing them or otherwise regulating legislative provisions.25 Norms of EU law is thus applied instead of national rules which have been found incompatible with EU law. The 16

EU directives have expressly been denied direct horizontal application, as held by the Court of Justice in judgment in Marshall I (152/84, EU:C:1986:84) and confirmed e.g. in Faccini Dori (C-91/92, EU:C:1994:292, para. 20). Prechal 2005, 255-70.

17

For more on the concept of ’positive obligations’ and of its use e.g. in the jurisprudence of the ECHR, see Part III of this book.

18

Cf. judgment in Delhaize, C-47/90, EU:C:1992:250.

19

On direct effect of directives see Prechal 2005.

20

See also judgments in Arcor, C-152/07 to C-154/07, EU:C:2008:426, Lemmens, C-226/97, EU:C:1998:296 and CIA Security, C-194/94, EU:C:1996:172.

21

This line of case law may be traced back to the Wells case (C-201/02, EU:C:2004:12).

22 23

Cf. judgment in Viamex, C-37/06 and C-58/06, EU:C:2008:18.

Notably to describe the implications of directives in horizontal situations. Cf. opinion of AG Alber of 18 January 2000 in Collino and Chiappero, C-343/98, EU:C:2000:23, points 29-31, opinion of AG RuizJarabo Colomer of 6 May 2003 in Pfeiffer, C-397/01 to C-403/01, EU:C:2004:245, point 58, and opinion of AG Bot of 7 July 2009 in Kücükdeveci, C-555/07, EU:C:2009:429, points 63 and 70.

24

The terminology correlates with the French terms ‘l’invocabilité d’exclusion’ and ‘l’invocabilité de substitution’. Galmot – Bonichot 1988.

25

Hartkamp 2011, 249.

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‘exclusionary effect’, on the other hand, can only set aside a norm originating from national legislation, in case the norm would be found to contradict EU law. However, it must be noted that in practice, the distinction between the ‘exclusionary’ and ‘substitutive’ effects could be more theoretical than concrete, since a case where national or Union secondary law would be disapplied, i.e., excluded from being applied, would nevertheless require other normative basis for its outcome. And most likely the substitutive norm(-s) would at least correspond to the norm(-s) that was first found to have been breached. The concept of direct effect, especially its direct horizontal form, has been defined and further sub-defined in various nuanced ways which are useful when categorising and systematising the concept and clarifying the type and nature of the effects in question. Nevertheless, the distinctions are admittedly formalistic and may be difficult to establish in practice.26 Strict categorisation and stern conceptualising may also prove unnecessarily theorised and formalistic, thus locking the development and practical flux of the concept. Excessively stern formalism should be avoided and not overly relied upon. Regardless of the rigorous and theoretically defined nature of the effects, the direct horizontal effect ultimately relates to a situation where a legal issue between private parties is determined in a way where national or Union measure must yield before the effects of EU law.



2.2 Horizontal Effect in the Court’s Case Law



2.2.1 Early Signs of Horizontality

As noted above, the Court indicated in the Van Gend en Loos that Community law was intended to confer rights upon individuals ‘which become part of their legal heritage’.27 Just how far this ‘Community legal heritage’ was to be extended remained unclear until 1974, when the Court delivered its judgment in Walrave and Koch which is the first case that concerns the question of horizontal applicability of a Treaty Article on the free movement rights.28 The case concerned a decision of the Union Cycliste Internationale (UCI) to amend its rules on motor-paced races in the World Championships in 1970, so as to provide that from 1973, a pacer should be of the same nationality as his

26 27

Cf. Dashwood 2007, 103 and Dougan 2007, 937-40.

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1, 12.

28

Judgment in Walrave and Koch, 36/74, EU:C:1974:140. Prior to the Walrave and Koch case only two cases, namely BRT-I (127/73, EU:C:1974:25), and Sacchi (155/73, EU:C:1974:40) may be deemed to concern horizontal application of provisions of Community law. Both cases related to competition law and implied that Articles which are now 101, 102 and 106 TFEU have direct effect and may be applied in horizontal relations.

33

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stayer in all races.29 According to the UCI the reason for the amendment was that the World Championships are intended to be competitions between national teams. However, two Dutch plaintiffs in the proceedings, Mr. Walrave and Mr. Koch, were among the best professional pacers in the world and also wished to work with non-Dutch teams. The plaintiffs saw in the new rule adopted by the UCI a threat to their occupation, or in any event a severe constriction of the market in which they could sell their skill.30 The Court sided with the plaintiffs when holding that the discriminatory nationality rules set up by the sporting federations were in breach of Community law as they restricted the free movement of workers and services. The Walrave and Koch case also represents the first case involving sport to come before the Court of Justice. In its judgment, the Court held that the practice of sport is subject to EU law ‘in so far it constitutes an economic activity’.31 As a consequence, private sporting organisations came under the scope of application of EU law in their capacity of being capable of ‘regulating in a collective manner gainful employment and the provision of services’.32 The rules set up by sporting federations were considered to have a quasi-legislative character. By collectively regulating or affecting rules in labour and employment sectors they were capable of exerting power of public law character. The Court explained that the free movement of workers and services do not just apply to the actions of public authorities but extend ‘likewise to rules of any other nature aimed at collectively regulating gainful employment and services’, since otherwise organizations not under public law could compromise the achievement of the free movement rights.33 Although the Walrave and Koch case predated the Defrenne II case, it was not cited in the latter. Nevertheless, by already arguing in the same direction with the subsequent Defrenne, Walrave and Koch must have prepared the line of argumentation for the judicial outcome in Defrenne. The Court thus affirmed its approach to the direct horizontal effect of norms of EU law in the Defrenne II case.34 The Court found that the principle of equal pay for men and women applies not only to the actions of public authorities, but extends to all agreements intended to regulate paid labour collectively as well as contracts between individuals. The principle of equal pay applied in Defrenne II was by way of a 29

Each team consists of a man on a motorcycle, known as a ‘pacemaker’ or ‘pacer’, followed by one on a bicycle, known as the ‘stayer’.

30 31

Opinion of AG Warner of 24 October 1974 in Walrave and Koch, 36/74, EU:C:1974:111.

It was soon followed by other cases concerning issues relating to sport, e.g., judgments in Donà, 13/76, EU:C:1976:115, Bosman, C-415/93, EU:C:1995:463, Lehtonen, C-176/96, EU:C:2000:201, Deliège, C-51/96 and C-191/97, EU:C:2000:199, Kolpak, C-438/00, EU:C:2003:255, Simutenkov, C-265/03, EU:C:2005:213, and Meca-Medina, C-519/04 P, EU:C:2006:492. See Van Den Bogaert – Vermeersch 2006, 821-40.

32 33

Judgment in Walrave and Koch, 36/74, EU:C:1974:140, para. 17.

Ibid.

34

Judgment in Defrenne II, C-43/75, EU:C:1976:56. Van Gerven 1977, 131-43. Critical of the judgment, Rasmussen 1986, 29 and Rasmussen 1998, 324-5. Also, Allott 1977, 7-10.

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horizontal application of eu law

directive explicitly addressed to Member States and implied an obligation for them to enforce the said principle in their respective national jurisdictions.35 As this was not done, the principle of equal pay was not efficiently implemented by all Member States even by the end of 1975. Since the original deadline for transposition had expired already in 1961, the Court reacted towards the failure of Member States’ (and the Commission) to uphold their clear obligations arising from the Treaty.36 The main issue at stake in the Defrenne II case was whether Article 119 EEC on equal pay for men and women (ex Article 141 EC, now Article 157 TFEU) had direct effect and could be invoked by those concerned in the case. Ms. Gabrielle Defrenne was an air-hostess and was paid less than her male colleagues who performed the same duties. On this ground she brought an action for discrimination against her employer, the Belgian airline company Sabena. In fact she initiated two separate actions. The first action was brought before the Tribunal du travail of Brussels on the grounds that air-hostesses and male members of the cabin crew performing identical duties did not receive equal compensation. The second action concerned national provisions on the right to pension by aircrew in civilian aviation, which was lost before the Conseil d’Etat. Tribunal du travail likewise dismissed Ms. Defrenne’s claims in the former case as unfounded. However, she further appealed to the Cour du travail of Brussels. Well over four years later the Cour du travail similarly dismissed her claims in respect of termination allowance and pension entitlement, thus upholding the earlier judgment of the Tribunal du travail. Nevertheless, the Cour du travail made a reference to the Court of Justice regarding the arrears of salary and the case became known as the Defrenne II case. Article 119 EEC admittedly appeared to lack sufficient precision to be directly enforced by national courts. Its wording seemed rather vague (e.g., ‘pay’, ‘equal work’) and the exact meaning of the word ‘principle’ contained in the Article lacked clarity. However, in his Opinion, Advocate General Trabucchi held that although the form of words used in Article 119 EEC might have seemed vague and the word ‘principle’ used not specific, the purpose of the Article was nonetheless very clear.37 The Advocate General held that ‘the decisive factor in determining what the effects of a Community provision are in national law is not the identity of those to whom it is addressed but its nature, which the Court defines on the basis of “the spirit, the general scheme and the wording” of the provision itself’.38 In the Opinion of the Advocate General the purpose of Article 119 EEC was very clear; i.e., to prohibit any discrimination regarding pay between male and female workers. 35

Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, OJ L 45, 19.2.1975, p. 19-20.

36 37

Judgment in Defrenne II, C-43/75, EU:C:1976:56, esp. paras. 39 and 61. Van Den Bogaert 2002, 138.

Opinion of AG Trabucchi of 10 March 1976 in Defrenne II, 43/75, EU:C:1976:39, at 486.

38

Ibid., at 488.

35

horizontal effect of fundamental rights in eu law

The Court followed the Advocate General’s Opinion. It held that the prohibition on discrimination applied irrespective of whether the work was carried out in private or public service and that Article 119 EEC was also applicable to ‘contracts between individuals’. The Court explained that even though certain Treaty provisions were addressed to the Member States, this did not prevent rights from being conferred at the same time on individuals. Also, regarding the word ‘principle’ used in connection with Article 119 EEC, the Court stated that the term was only used in order to indicate the fundamental nature of certain provisions.39 Consequently, Article 119 EEC imposed an obligation on the Member State to bring about certain result. 40 For Ms. Gabrielle Defrenne this meant a positive outcome to her case. Although the Court has indicated that Article 34 TFEU (prohibition of quantitative restrictions on goods) only applies to state measures, and not to measures by private parties, 41 the Court has nevertheless made clear that Article 45 (free movement of workers), Article 49 (right of establishment) and Article 56 TFEU (free movement of services) may also be applied to restrictive private rules adopted in a collective manner42 – and in Angonese with regard to current Article 45 TFEU, even to discriminatory private rules without it necessarily being a question of the nature of collective action as previously held in Walrave and Koch. 43 In the case carrying his name, Mr. Angonese had challenged a requirement imposed by a private bank concerning a specific language certificate needed for a recruitment competition. As a preliminary reference made in the case ended up before the Court of Justice, the Court noticed that the Community Regulation implementing the principle of free movement of workers could not be applied in the given circumstances. This fact did not prevent it from examining the case solely in light of the Treaty Article on free movement of workers. 44 Building on its previous case law, 45 the Court held that the Article was to be 39

The Court’s emphasis on the fundamental nature of certain provisions bears resemblance to its earlier reasoning in Reyners concerning Article 52 EEC on the right of establishment (2/74, EU:C:1974:68).

40 41

Judgment in Defrenne II, 43/75, EU:C:1976:56, paras. 35-9.

E.g., judgments in Van de Haar, 177-178/82, EU:C:1984:144, paras. 11-12, Vlaamse Reisbureaus, 311/85, EU:C:1987:418, para. 30 and Bayer and Hennecke, 65/86, EU:C:1988:448, para. 11.

42

Judgments in Walrave and Koch, 36/74, EU:C:1974:140, para. 20, Donà, 13/76, EU:C:1976:115, para. 18, Haug-Adrion, 251/83, EU:C:1984:397, paras. 14-18, Bosman, C-415/93, EU:C:1995:463, paras. 82-83, Lehtonen, C-176/96, EU:C:2000:201, para. 35, Deliège, C-51/96 and C-191/97, EU:C:2000:199, para. 47 and Wouters, C-309/99, EU:C:2002:98, para. 120.

43

Judgments in Angonese, C-281/98, EU:C:2000:296, esp. paras. 29-36 and Walrave and Koch, 36/74, EU:C:1974:140. A critical comment on the Court’s approach, see Oliver – Roth 2004, 426.

44

Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, OJ L 257, 19.10.1968, pp. 2-12, English special edn.: Series I Volume 1968 (II), pp. 475-484. The Regulation concerned only actions and practices of the Member States, not private parties. Judgment in Angonese, C-281/98, EU:C:2000:296, paras. 22-27.

45

Notably, judgments in Walrave and Koch, 36/74, EU:C:1974:140, Defrenne II, 43/75, EU:C:1976:56 and Bosman, C-415/93, EU:C:1995:463.

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horizontal application of eu law

considered a specific enunciation of the general principle of non-discrimination on grounds of nationality, after which it unequivocally maintained that the requirement set up by the bank constituted discrimination on grounds of nationality contrary to the clear Treaty provision on the freedom of movement of workers. 46 Although the legal dispute took place solely between two private parties, and thus in a pure horizontal relation, the Court held that the prohibition of discrimination must be regarded as applying to private persons as well. Hence, the Court chose to render a Treaty provision on the free movement of workers a practical effect by way of granting it direct horizontal effect with the effect that it precluded the application of contravening national rules. Consequently, in both Defrenne II and Angonese the provisions of EU law in question were considered to have a sufficiently concretized content in the given circumstances and being capable of horizontal application in a legal relation between private parties. On the basis of primacy of EU law they precluded the application of conflicting national measures.



2.2.2 Evolving Jurisprudence on the Horizontal Effect

The Court has more recently only confirmed its earlier position concerning direct horizontal effects. This is evident e.g., in the Viking Line and Laval cases 47 which, inline with the Walrave, indicate that the employment sector can be regulated by private organisations besides legislation and rules emanating directly from public authorities. The International Transport Workers’ Federation (’Viking Line’) case48 concerned a direct dispute between two private parties without any connection to public measures and therefore demonstrates a clear example of direct horizontal effect. The facts of the case relate to a Finnish operator of ferry services which wished to change its place of establishment to Estonia in order to benefit from lower wage levels and provide its services from there. A Finnish trade union, supported by an international association of trade unions, sought to prevent this from happening and threatened to undertake strike action and boycotts if the company were to move without maintaining its current wage levels. The case thus concerned a conflict between the economic freedoms (freedom of establishment) under EU law, on the one hand, and the (fundamental) right to collective action by trade unions, on the other. The Court accepted direct horizontal effect both of the right to strike, as guaranteed by Article 28 of the EU Charter, as well as of the economic freedom at issue which had to be balanced against each other. 49 46 47

Judgment in Angonese, C-281/98, EU:C:2000:296, paras. 35-36, 45. Article 48 EC, now 45(2) TFEU.

Judgments in Viking Line, C-438/05, EU:C:2007:772 and Laval, C-341/05, EU:C:2007:809.

48

Judgment in Viking Line, supra, and the opinion of AG Poiares Maduro thereto of 23 May 2007 (EU:C:2007:292). Ladenburger 2012, 35.

49

Only a week later the Court delivered its judgment in a similar Laval case (C-341/05, EU:C:2007:809).

37

horizontal effect of fundamental rights in eu law

In both Viking Line as well as subsequent Laval the opposing parties invoked norms of primary EU law which belong to the same hierarchical rank as fundamental rights and general principles of EU law. For that reason the Court could not resolve the case by way of simply setting aside or disapplying the conflicting norms. Instead it had to reach an outcome through balancing the conflicting norms. In this respect Viking Line and Laval distinguish themselves from many other cases relating to the horizontal application of EU legal norms – also those discussed above – where fundamental right norms have been considered in their relation to national measures. Based on primacy of EU law these have resulted in setting aside conflicting national measures and practices. The Mangold and Kücükdeveci cases50 represent and develop the same line of cases. Both cases concerned age discrimination and related to a legal dispute between two private parties.51 In Mangold the issue related to a fixedterm contract made between an employee and private employer pursuant to German employment law.52 This allowed for concluding fixed-term contracts without further justifications with employees over 52 years of age. Mr. Mangold considered the national law to be in breach of EU law, in particular, Directive 2000/78.53 However, the transposition period of the relevant Directive in the light of which national law was to be considered, had not expired for Germany and the case concerned a dispute in a horizontal relation. The chances for Mr. Mangold to succeed with his case were deemed slim. However, the Court noted that Directive 2000/78 ‘merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal treatment.’54 The Court thus held that it was the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive had not yet expired.55 The Court thus accorded direct horizontal effect of exclusionary nature to the general principle of non-discrimination on the grounds of age so as to prevent a private employer from relying on a provision of national law in a legal relationship with his employee. The general principle of non-discrimination on the 50 51

Judgments in Mangold, C-144/04, EU:C:2005:709 and Kücükdeveci, C-555/07, EU:C:2010:21.

Discussion on the cases, e.g., Schmidt 2006, Masson – Micheau 2007, Walkila 2009 and Walkila 2010.

52

The German legislation at issue sought to implement Council Directive 1999/70/EC (of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, OJ L 175, 10.07.1999, p. 43–48) for which reason the Court held that the situation fell within the scope of application of EU law.

53

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16-22.

54 55

Judgment in Mangold, C-144/04, EU:C:2005:709, paras. 74-76.

Ibid., para. 78.

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grounds of age was thus deemed sufficient in itself, i.e., both sufficiently clear and unequivocal to have direct effect, as well as capable by its content to confer an individual right to a private party even in a horizontal legal relation with other private party. In the subsequent Kücükdeveci case the Court strove to further clarify its approach in Mangold, which had encountered heavy criticism; the Court being accused, inter alia, of acting ultra vires.56 Kücükdeveci was likewise a German case concerning a legal dispute between an employee and a private employer over a period of notice for dismissal. The period of notice was calculated on the basis of the employee’s length of service. German national law did not take into account periods of service prior to the employee’s 25 years of age. Consequently, Ms. Kücükdeveci’s employer calculated her notice period as if she had earned only three years’ length of service, although in fact she had been employed for ten years. Ms. Kücükdeveci contested her dismissal and argued that the practice resulted in discrimination on grounds of age and that her period of notice should have corresponded to her full ten years of service.57 Distinct from the earlier and related Mangold case where the (extended) implementation period of the Directive 2000/78 had not yet ended, Ms. Kücükdeveci’s dismissal on 19 December 2006 took place after the implementation period had expired and Germany had transposed the same directive into its domestic law. Subsequently, the referring national court enquired on the relevant point of reference, i.e., whether the question should be examined by reference to the general principle of non-discrimination on grounds of age, or to Directive 2000/78. Referring to its previous judgment in Mangold, the Court indicated that ‘the need to ensure the full effectiveness of the principle of nondiscrimination on grounds of age, as given expression in Directive 2000/78, means that the national court, faced with a national provision falling within the scope of European Union law which it considers to be incompatible with that principle, and which cannot be interpreted in conformity with that principle, must decline to apply that provision’.58 Interestingly the facts in Mangold differed from those which gave rise to Bartsch in which case the central factual element, the death of Mr. Bartsch, took place before the expiry of the time period set for the transposition of the directive.59 In Kücükdeveci the Court also made a reference to the EU Charter of Fundamental Rights which had at the time of the delivering the judgment – though not during the facts of the case taking place – acquired a legally binding status giving thus further weight to the Court’s reasoning.60 The right at issue in 56

E.g., Editorial Comments, ‘Horizontal direct effect – a law of diminishing coherence?’ (2007) 43 Common Market Law Review 1, pp. 1-8.

57

Pursuant to point 4 of the second sentence of Paragraph 622(2) of the BGB that period should have been four months from 31 December 2006; that is, to 30 April 2007.

58

Judgment in Kücükdeveci, C-555/07, EU:C:2010:21, para. 53. Italics by the present author.

59

Judgment in Bartsch, C-427/06, EU:C:2008:517.

60

Judgment in Kücükdeveci, C-555/07, EU:C:2010:21, para. 22.

39

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the case, i.e., the principle of non-discrimination on grounds of age, is also enshrined in the legally binding EU Charter. The Kücükdeveci case could therefore be viewed to grant horizontal effect to a provision of the EU Charter. An important element for the purposes of this book both of the Kücükdeveci as well as of the Mangold case lies precisely in the fact that the Court relied on a general principle of EU law of a fundamental right nature in a case between two private litigants, thus granting a fundamental right norm direct horizontal effect.61 Both cases appear as an analogical continuum of the Defrenne II case which first applied the principle of non-discrimination in a horizontal relation between two private parties. In all those cases the Court indicated that a norm of a fundamental right nature could be invoked before a national court in order to challenge the validity of conflicting national measures.62 It appears that the decisive criteria relate to the norm’s remedial force; whether it fulfils the criteria for direct effect so that its content is defined with a requisite degree of specificity for a private party to invoke it. Finally, an example of a horizontal effect mediated by rights against the public authority is found in the Schmidberger case.63 The structure of the case relates to a triangular situation, since the dispute took place between a private party (a transport company) and a state authority relating to a public measure addressed to another private party. The case called for weighing the relevant fundamental rights and economic freedoms in the context of a permissible demonstration sought by a private environmental organisation Transitforum Austria Tirol which blocked the transport route and caused losses for Eugen Schmidberger’s transport company. The case juxtaposed the freedoms of expression and assembly (guaranteed e.g., in Articles 10 and 11 of the ECHR), on the one hand, and the freedom of the movement of goods, on the other. Since the Austrian demonstrators had duly sought permission for their actions from the authorities which had also considered the lawfulness of the intended actions, the Court held that the effect of the demonstration did not unduly restrict the free movement of goods of Schmidberger’s transport company. Under those circumstances an advantage granted to one private party (Transitforum Austria Tirol) had factual and adverse effects on another private party (Schmidberger’s transport company), thus implying effects, even if consequential, of a horizontal nature. It is plausible that because of the triangular construction of the case the Court did not argue on the basis of the concept of horizontal effect in its judgment even if seeking to balance competing interests.64

61

Ibid., para. 43 and judgment in Mangold, C-144/04, EU:C:2005:709, paras. 77-78.

62 63

Cf. Opinion of AG Kokott of 6 May 2010 in Álvarez, C-104/09, EU:C:2010:254, point 55.

Judgment in Schmidberger, C-112/00, EU:C:2003:333.

64

Similarly in the judgment in Familiapress, C-368/95, EU:C:1997:325. Weatherill 2003, 35.

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horizontal application of eu law

2.3 Interim Conclusions

Both Defrenne and Mangold seem to represent an analogical extension of Van Gend in that they turn an analogous situation which took place in a vertical relation in the Van Gend into a horizontal one in the Defrenne and Mangold. Accordingly, both in Defrenne and Mangold a private applicant sought to rely directly on a provision of Community/Union law against another private party and the provision served as a ground for the outcome of the case. Mangold seems to entail elements both of Van Gend and Defrenne. Since in Mangold the private party sought to rely on a norm of EU law which resulted in setting aside the contravening provisions of national law, the effects are analogous with those both of Van Gend and Defrenne. The factual situation however took place in a horizontal legal relation between two private parties, thus linking Mangold closer to Defrenne. However, in contrast to Van Gend, the provisions at issue both in Defrenne as well as Mangold relate to norms of a clear fundamental right nature and were both applied in a horizontal relation.65 The difference between Defrenne and Mangold concerns the form of norms which appear to be comparable (the principle of non-discrimination on the grounds of gender in Defrenne; and the principle of non-discrimination on the grounds of age in Mangold). However, while in Defrenne the private litigant invoked the principle of non-discrimination on the grounds of gender in form of a Treaty Article, Herr Mangold relied on an unwritten general principle of EU law, since such a principle could not be found amidst the written law of the Union. As demonstrated above, both norms were nevertheless capable of producing comparable effects as regards the private party. This signifies that the form of the norm, i.e., whether it is codified in the Treaties or found among the unwritten general principles of EU law, is not, or should not, be a decisive criterion when considering whether a norm is able to create direct horizontal effects and affect the legal relationship between parties to a dispute. Consequently, provisions both of primary law as well as general principles may create direct horizontal effects. The method of applying general principles in horizontal situations is nonetheless of special significance in this study, since the same methodology could analogically be applied in the context of fundamental rights in EU law, the latter constituting a part of the former on the basis of Article 6 TEU. Moreover, even the apparent vagueness or impreciseness of the provision at stake has not hindered the Court from according it horizontal effect. At first sight, all of the provisions described in the above cases Defrenne II, Mangold and Reyners seemed too vague and imprecise to be enforced by courts. In Reyners the terms of Article 52 EEC (now Article 49 TFEU) clearly envisaged further imple65

The Court equates the right not to be discriminated against on grounds of sex to a fundamental human right e.g., in the judgments in Defrenne III, 149/77, EU:C:1978:130, paras. 26 and 27, Razzouk and Beydoun, 75/82 and 117/82, EU:C:1984:116, para. 16 and P v S, C-13/94, EU:C:1996:170, para. 19.

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menting measures, while in Defrenne II Article 119 EEC (now Article 157 TFEU) seemed to lack sufficient precision to be directly enforced by a national court. In Mangold the time limit for implementation of the Directive had not yet expired and the general principle in question seemed too broad-spectrum and imprecise to bring about any concrete results. Mangold and Kücükdeveci evince the remedial force of the general principles of EU law. The general principles are part of the Union’s primary law and in this respect distinct from, e.g., directives which are not capable of producing a direct horizontal effect. Whether the content of a general principle can be deemed sufficiently precise to enable it to be fully enforced is for the Court to determine in light of the specific circumstances of the case. It also appears that the content of the general principle may find additional support from other EU legislation which covers the same field. Both in Mangold and Kücükdeveci the principle of non-dicrimination on grounds of age could infuse further normative content from existing secondary legislation designed to guarantee equal treatment in employment and occupation. However, while secondary legislation may inform the Court of the contents of a general principle it also melds sources of primary and secondary law in a way which makes it difficult to follow the results, and therefore does not contribute to legal certainty.

42

chapter 3

The Concept of Horizontal Effect in the Union’s Constitutional Order

horizontal effect of fundamental rights in eu law

The history the European Union can be described as a gradual transformation from a treaty regime into a constitutional order. The Treaty establishing the European Community encompassed nearly entirely provisions of a public law character. The early Community resembled a public law organisation having its origins in a treaty of a public international law nature. Under such a treaty regime the application of norms takes distinctly place in a vertical relation. However, the gradual transformation of such a regime into an all-encompassing constitutional order which increasingly exerts its influence on private citizens, also extends and strengthens the application of norms in relations between private actors. As the Union’s constitutional legal order began more and more extend into private law, EU law increasingly touched on relations solely between private parties. The horizontal application of EU legal norms could thus be seen as a plausible consequence of the gradual change in nature and maturation of the Union from a treaty regime towards a constitutional legal order. The European integration process started with the idea that economic integration through economic cooperation would inevitably lead to social cohesion and the steady improvement of living conditions. Economic freedoms from the very beginning of the European integration process were considered an important means to realize the establishment of an internal market in practice.1 They have had a strong influence on the jurisprudence of the Court and the Court has come to recognise and understand them along the lines of subjective rights which seek to offer effective and immediate protection to individuals and which are directly enforceable before national courts of the Member States;2 attributes which also make them apt for horizontal application. The Court has expressly linked the free movement rights to the principle of non-discrimination, especially on the basis of nationality. The original raison d’être for the free movement rights was to ensure that factors of production (i.e., workers, the self-employed and service providers, goods and services) would be able to move freely within the internal market of the Union. The practical realisation of the freedom of movement of persons (and similarly that of establishment and services) engendered a close relationship with the principles of equality and, in particular, non-discrimination on grounds of nationality. This is evident in the Court’s case law which reveals the principles of equality and non-discrimination to be understood in general terms. They are thus not only directed at the Member States or other ‘public’ entities, but have been gradually extended to cover the actions of private parties.3 The economic freedoms came gradually close to being materially categorised as fundamental rights – at least in so far as they lay down prohibitions on 1

Already Article 3(1)(c) EEC provided that the Community aspired to ‘the abolition, as between Member States, of obstacles to freedom of movement for persons.’

2

Judgments in Salgoil, 13/68, EU:C:1968:54, Reyners, C-2/74, EU:C:1974:68, Van Duyn, 41/74, EU:C:1974:133, Royer, 48/75, EU:C:1976:56, para. 31 and Bosman, C-415/93, EU:C:1995:463, para. 94. Ehlers (ed.) 2003, 150.

3

Judgment in Angonese, C-281/98, EU:C:2000:296.

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discrimination, e.g., being considered as a specific means of the general principle of equality before the law. 4 The Court of Justice has in its jurisprudence even referred to the freedom of movement of workers along the lines of a fundamental right.5 The EU Charter has recently reaffirmed this stand by including in its catalogue of fundamental rights the right for freedom of movement of persons as Article 45.6 Hence, the legal framework built on the basis of economic cooperation between states and thus primarily of a public law nature gradually opened up the possibility for private parties to invoke rights when defending their stance in matters relating to Community law. As a result, the concept of direct effect gradually enabled Treaty obligations directed towards the Member States to also be translated into rights for individuals. The principles of equality and nondiscrimination were habitually relied upon as individuals sought to realise equal treatment in the labour market and in employment relations, often entailing a horizontal relation. Given their close connection to the smooth operation of economic freedoms, the principles of equality and non-discrimination were primarily applied in cases concerning discrimination on grounds of nationality. The equal pay provision has nevertheless had an important effect on establishing the principle of equality in a wider context and on its basis the Court has also come to consider other forms of non-discrimination.7 Cases relating to the horizontal application of EU law have been categorised in different ways. Some categorisations have emphasised certain dominant characteristics of cases relating to the horizontal application of Treaty provisions. According to one recent study8 the first category concerns provisions of mandatory nature (such as the principle of non-discrimination in Defrenne II). The second relates to situations where public authority is being delegated (e.g., Walrave). The third covers situations where an obligation on the part of the State to act may be detected (Schmidberger), and the fourth relates to a purely private application of the fundamental freedoms (such as Angonese). All categories – apart from the first – emphasize the particular context of the case or focus on certain characteristics inherent in its structure. However, such categorisations – and perhaps apart from the first category mentioned above – do not explain why certain other and similar norms have not been capable of horizontal application in an analogous setting. Also, the above-mentioned categorisation only relates to Treaty provisions, although even 4 5

Kadelbach – Petersen 2003, 693.

Barnard 2010, 223 ff., Weiss – Wooldridge 2007 and Oliver – Jarvis 2003, 11.

6

This is the only freedom of the economic freedoms expressly codified in the Charter, even if Articles 15(2) and 16 of the Charter closely connect with the freedoms of establishment and services.

7

Cf. judgments in Defrenne II, 43/75, EU:C:1976:56, and Defrenne III, 149/77, EU:C:1978:130, paras. 26-27. See Ellis 2005. With regard to non-discrimination on grounds of age, see judgment in Mangold, C-144/04, EU:C:2005:709.

8

E.g., Petursson 2014, 69-70.

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general principles of EU law have proved capable of horizontal application as demonstrated, e.g., by the Mangold case. In all cases involving horizontal application of EU legal norms, the Court has at least tacitly examined whether a norm’s content is sufficiently concretized to be directly applied in a horizontal relation in given circumstances. The Court has often found this to be the case with regard to the economic freedoms and the principles of equality and non-discrimination. Thus, besides the obvious horizontal character of the competition provisions laid down in Articles 101 and 102 TFEU, 9 cases where the Court of Justice has most frequently recognised a direct horizontal effect have either related to the economic freedoms or to the right to equality with its corollary, the principle of non-discrimination.10 Table 2. Some of the landmark cases depicting the development of the horizontal effect of EU legal norms. In all these cases the horizontal effect relates to either the right to equality/non-discrimination or economic freedoms, or both. Walrave

Defrenne

Bosman

Angonese

Mangold

Viking Line

Kücükdeveci

1974

1976

1995

2000

2005

2007

2010

The capability of a norm to confer an individual right has often been inherent in the analysis of whether it has direct effect. Accordingly, in several cases the latter examination has, at least implicitly, also implied the former.11 The two conditions are arguably not clear-cut. As both conditions are manifest as regards the economic freedoms and the principles of equality and non-discrimination, these norms have provided a suitable normative basis to resolve a case in which more detailed secondary legislation has either not been available or applicable in given circumstances. In this sense, the economic freedoms and principles of 9

In the context of Articles 101 and 102 TFEU horizontality applies quite readily, since those provisions are expressly intended to regulate the conduct of private parties and are even addressed thereto. Therefore, Articles 101 and 102 TFEU may be distinguished from other Treaty provisions, e.g., the economic freedoms, since the latter are addressed to the Member States and other public authorities. For that reason, competition law or examples based thereon are not considered more in detail in this study. Cf. in the Van de Haar case the Court drew a clear distinction between the rules on free movement of goods and those relating to competition (177-178/82, EU:C:1984:144, paras. 11-12).

10

Barnard 1996, 321-34, Craig 2006, 585-6. Cf. judgment in Phil Collins, C-92/92 and C-326/92, EU:C:1993:847. The terms ‘equality’, ‘equal treatment’, ‘anti-discrimination’ and ‘non-discrimination’ are used here interchangeably.

11

E.g., judgment in Savas, C-37/98, EU:C:2000:224, para. 68. However, in the same judgment the Court also uses a much broader defi nition of direct effect when referring to its quality of being ‘sufficiently operational’ (para. 54).

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equality and non-discrimination align with Petursson’s first category of norms of ‘mandatory nature’.12 As it may also be noted, situations implying a horizontal effect of EU legal norms are rarely identical or uniform but rather manifest themselves in different variants in the Court’s case law.13 Rosas and Armati have thus presented three variants of cases involving horizontal application of EU law. First, direct disputes between private parties without any connection to public measures (Viking Line; Laval); second, legal disputes between a private party and a state authority relating to a public measure addressed to another private party (Schmidberger); third, disputes between two private parties in which one of the parties claims a national measure to be in breach of EU law (Mangold; Kücükdeveci). The categorization is helpful and instructive. Yet, apart from the second category which relates to a triangular situation, the first and the third categories could be considered together in the sense that both of them relate to a ‘pure’ horizontal legal relation between private parties where at least one of the parties invokes EU law. Whether the outcome of the case has resulted in the setting aside of conflicting measures or whether it has been reached through balancing has directly followed from the nature of the norms which the opposite party has invoked. This results either from the primacy of EU law or the hierarchical status of the relevant norms relied upon. In both Mangold and Kücükdeveci the private applicant sought to preclude the application of national measures by relying on EU law. Since the Court considered their claims well-founded both disputes were resolved on the basis of primacy of EU law by setting the conflicting national measures aside. Since it appears the majority of cases involving horizontal application of EU law relate to situations where the other party seeks to preclude the application of national measures or provisions of EU secondary legislation, the effects of a horizontal application of EU law has often led to setting aside, i.e., disapplying, the contravening measures stemming from either national law or secondary Union law. For this reason the effect which follows from the horizontal application of EU law has often been of an exclusionary nature. On the other hand, where, as in Viking Line and Laval, both parties to a dispute invoke norms of primary EU law, the Court cannot simply set aside some of the norms but has to balance the conflicting norms and interests at stake.14 12 13

Petursson 2014, 69.

Rosas – Armati 2012, 179-80.

14

In Viking Line the opposite arguments of the parties were all based on norms emanating from EU law, i.e., on the economic freedoms, on the one hand, and on the other hand the right to take collective action, recognised as a fundamental right and enshrined in Article 28 of the EU Charter. Since the case could not be resolved on the basis of primacy of EU law and neither did the Court find any hierarchy between the different norms at stake, it sought to balance the different interests through the use of the proportionality principle.

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It is of particular significance that in all cases relating to horizontal application of EU legal norms the primary objective of the Court has been to reach an outcome which would best conform to a coherent build-up of case law and a consistent legal system which at the same time guarantees a high protection of fundamental rights.

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part ii

The Protection of Fundamental Rights as Part of ‘the Very Foundations of the Union Legal Order’

chapter 4

Fundamental Rights: Universality and Historical Perspective

horizontal effect of fundamental rights in eu law

Human societies from early civilization onwards have had views on propriety and justice, and created their own particular systems by way of establishing rules and standards on human conduct and activities. Greek philosophy (e.g., Plato, 427-347 B.C.E.; Aristotle, 384-322 B.C.E.) and many world religions touch upon the idea of good and appropriate human conduct – the underlying notions of human rights. Some of these conceptions have been translated into written codifications of rules aiming to promote certain types of behaviour which, in modern terminology, could be described as norms seeking to protect rights. In some communities ‘human rights’ include a specific set of laws and legislation.1 One of the oldest records of human rights in Europe, the Statute of Kalisz (‘General Charter of Jewish Liberties’, 1264) was founded to confer a number of privileges on the Jewish minority in the Kingdom of Poland.2 The first document of human rights in Europe, The Twelve Articles (1525), was part of peasant claims against the Swabian League during the Peasants’ War in Germany.3 Other documents upholding individual rights, such as the Magna Carta (1215), 4 the English Bill of Rights (‘An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown’, 1689), the French Declaration on the Rights of Man and of the Citizen (‘Déclaration des droits de l’homme et du citoyen’, 1789), the US Constitution and the Bill of Rights (1791) reflect in varying degrees the ideas of proper human behaviour. They are regarded as written precursors to many contemporary human rights catalogues. This is so despite many of these documents did not precisely guarantee human rights to individuals by the virtue of their humanity. Instead certain groups were excluded on the basis of sex, race, ethnicity, social or economic class, religion, or political adherence. Still, these documents constituted a form of limited political and legal agreement to address specific political circumstances.5 The term ‘human rights’ appeared for the first time in the above-mentioned French Declaration on the Rights of Man and of the Citizen. In spite of a wide array of views and ideas on proper and good conduct, the ancient world did not possess a concept of universal human rights.6 While it is true that Aristotle termed universal and particular as two different but related senses of ‘justice’, his term universal did not carry a modern meaning of universality of rights. Instead it denoted ‘lawfulness’, which pertained to the common advantage and happiness of the political community.7 Aristotle’s conceptions of 1

Donnelly 2013, 71 and Petman 2012.

2 3

Lewin 1985, 19.

‘Die Zwölf Artikel’. See Franz 1939, 195-213.

4

In a strict sense, the Magna Carta Libertatum was not a charter of the fundamental rights of citizens but a treaty made between the king and his barons.

5

Freeman 2002, 18-9.

6 7

Freeman 2002, 15-7, where it is argued that there is no word for ‘right’ in any language before 1400s.

See Nicomachean Ethics, book V, 1.1129b11–19. Cf. Politics III.12.1282b16–17. Aristotle develops his theory of justice in Nicomachean Ethics, book V. For further on the subject see Macintyre 1988, Crowe 1977, Kraut 2002 and Miller 1995.

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rights were later developed further by Thomas Aquinas (1225-1274) in his Summa Theologiae,8 according to which there exist behaviours which are naturally right owing to being based on God’s will. Hugo Grotius (1583-1645) elaborated on Aquinas’ notion of right behaviour in his De iure belli ac pacis libri tres (1625), in which he held that the moral authority of natural right was assured by virtue of its divine authorship.9 Indeed, all subsequent natural law theoreticians adhered to the principle of God’s authorship over nature, humans and the law by which they should live – until David Hume (1711-1776).10 The views relying on or revolving around theological argumentation were subsequently challenged by rationalism, when political philosophers argued for a new a basis for natural rights.11 The earliest conceptualisation of human rights derived from the notion of natural rights according to which some rights are naturally given and both universal, i.e., the same for everyone, inalienable in the meaning that they cannot be taken away from us.12 The notion was based on the belief in an instinctive human ability to distinguish right from wrong. Among prominent natural law thinkers, Thomas Hobbes (1588-1679), John Locke (1622-1704), Jean-Jacques Rousseau (1712-1778) and Immanuel Kant (1724-1804) suggested that human beings have some basic fundamental rights simply for being born human. In the Age of Enlightenment the concept of human rights arose as an explicit category. A human being came to be regarded as an autonomous individual, endowed by nature with certain inalienable fundamental rights seen as elementary preconditions for an existence worthy of human dignity.13 The origins of human rights in their modern understanding is linked to European modernity, the rise of civil society and the notion of the nation-state at the end of the 18th and beginning of the 19th centuries. During this period, philosophers such as Thomas Paine, John Stuart Mill and G.W.F. Hegel developed their philosophy on human rights.14 Even at present, contemporary (mainstream) notions of human rights draw deeply from the natural rights tradition and are by further extension often viewed as arising essentially from the nature of humankind itself. Although the development of human and fundamental rights can be traced a long way back in man’s history, the term ‘human rights’ came into common usage only in the 20th century in response to atrocities experienced during the 8

Also known as Summa Theologica.

9

Cf. Grotius 1925 (first published in 1625), Vol. II, Book I, Chapter I, Section X, Subsection 1, at 38-9. Grotius is considered the founder of a systematic modern doctrine of international law and is accordingly called the ‘Father of International Law’. Haggenmacher 1983 and Haggenmacher 2012, 1098-101.

10 11

Petman 2012, 31 and Haakonssen 1985, 247-53.

E.g., Hobbes 1985 (first published in 1651), and the writings of Immanuel Kant (1724-1804).

12

A persistent opposition to this view builds on the criticisms of Burke, Bentham and Nietzsche, and even from contrary views expressed by Rousseau regarding civil society.

13

Van Banning 1999, 13.

14

E.g., Mill 1869 and Hegel 1821.

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World Wars.15 In this context, human rights are commonly referred to as universal and inalienable individual rights. As such, they embrace moral value with the capacity of limiting State power.16 A common characteristic to these rights relates to their aim to protect human dignity. In this sense fundamental rights are held universal, comprising the widest scope of application ratione loci with the widest scope of application ratione personae, hence something belonging to all persons.17 The principle of universality is closely linked to those of equality and non-discrimination, which in practical terms guarantee human rights’ universal nature. As in most intellectual debates, conceptual confusion both generates and intensifies the controversy over the universality of human rights, which have as a result sometimes been referred to as an ‘elliptical notion’.18 Indeed, even the question of what is meant by a ‘right’ is already in itself a controversial notion and subject to philosophical debate.19 For that reason, human rights are basically seen as a philosophical conception of human beings. They make a deontological claim linked to ethics and morality, and form an ethical yardstick used to assess a government’s way of treating its people.20 The rights become concretized when a state embraces them as part of its constitutive and essential obligations and contribute to the existence of the society in which human rights form part of the social system. Presently human and fundamental rights seem to comprise elements of both a subjective and objective nature. Regarding the former, fundamental rights are understood as creating and upholding the individual’s liberty-entitlements against the state. Discussions of human rights protection are often linked to the underlying idea of democracy, perceived as a basic tenet guaranteeing humane treatment and according freedoms and values deemed fundamental and inherent to every human being by virtue of his or her humanity. Thus, it is not surprising that many human rights documents have been formed in direct response to historical experiences which involved manifest disregard to human 15

An excellent and thorough account on the origins and development of human rights Petman 2012, 22-123.

16

Sepúlveda – Van Banning – Gudmundsdóttir – Chamoun – Van Genugten 2004. Cf. Article 1 of the United Nations Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’

17

The idea of human rights as universal rights is firmly established in many seminal texts of international human rights, such as in Articles 1 and 2 of the Universal Declaration of Human Rights (UDHR). The same holds true of most of the academic writings. See Cumaraswamy 1997, 476. On the universality as a normative concept, see Brems 2001, 4 and 295 ff.

18

Brems 2001, 3 and Alston 1987, 51-64.

19

Shaw 2008, 265.

20

Deontology in connection with human rights may be understood in various ways. A substantive neoArtistotelian or neo-Thomist philosophy of an analytical nature considers human rights as part of an objective order of goods, see Finnis 1980. Also Perry 1998, 56 who refers to an axiom of ‘what ought not to be done and what ought to be done for human beings.’

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rights. For example, the end of the Second World War saw the creation of the United Nations and marked the beginning of drafting the Universal Declaration of Human Rights, which are perhaps the best-known examples of the emerging global system of international human rights law.21 In Europe, the post-war era was marked by endeavours for enhanced human rights protections with two objectives in mind. First, there was a pressing need to repair the European economy. This was to be coupled with the aim to ensure that serious human right violations such as those experienced during the World Wars would not happen again.22 As a result, it became the task of the Council of Europe under the control of the European Court of Human Rights (‘ECtHR’) to protect the rights selected for inclusion to the Convention. Another entity, the European Community – the predecessor of the European Union – was to enhance economic cooperation, although political cooperation and reconciling the relations between European states also lay close to its primary objectives. Objective elements of human and fundamental rights have become much more prominent in the modern world, where fundamental and human rights are perceived more than just as legal guarantees for protecting the freedom of the individual against excesses of political power.23 At present, human rights are collectively seen as seeking to secure a good life and employed as a yardstick against legitimate measures of public power. They aim to ensure the ‘fair value’ of rights by acting as maxims or guidelines of a good life. In this sense, human and fundamental rights also provoke societal debate – they encourage continual critique for their value-laden contents and exert a powerful symbolic influence on society.24 Both the subjective as well as objective side of human and fundamental rights interact together as an objective value-statement which guides the interpreter and indicates the category of legitimately possible outcomes. The traditional modern view regards human and fundamental rights as safeguards from the excessive interference of public power. For this reason they are commonly invoked in a vertical relationship between individuals and states (the so-called ‘vertical effect’ of human rights). Nonetheless, several rights also have implications in the relationships between individuals, referred to as the so-called ‘horizontal effect’. Conceptually and terminologically, ‘human rights’ are often linked to natural law, while civil rights and liberties are more closely related to positive law. Some countries associate ‘fundamental rights’ strictly with those listed in a constitutional text, such as the ‘basic rights’ (Grundrechte) described in the German Constitution of 1949. Some jurisdictions make a distinction between the fundamental rights contained in their Constitutions and those in inter21

Cf. Goldsmith 2001, 1202.

22

The Council of Europe was also concerned with protecting Europe from Communist subversion. This partly explains the recurrent reference to values and principles ‘necessary in a democratic society.’ Ovey – White 2006, 2.

23

Gerstenberg 2004, 769.

24

Chalmers 2010, 140, on the three dimensions of fundamental rights.

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national instruments. In the context of EU law fundamental rights draw on several different legal sources and encompass rights to a far greater extent than in any human rights catalogue alone.25 The focus of this study is thus on the term fundamental rights, since the term is used to denote human rights in a particular social context – commonly within a state or a state-like entity and its constitution.26 Therefore, this study agrees with Robert Alexy when he stated that ‘human rights are institutionalized by means of their transformation into positive law. If this takes place at a level of hierarchy of the legal system that can be called “constitutional”, human rights become fundamental rights.’27 Arguably, fundamental and human rights acquire different meanings over the course of time and reflect various interpretations and values.28 Hence, they may be approached from different angles and using varying terminology. For this reason, some authors do not make any significant distinctions between the various terms.29 Nonetheless, the most common categorisation of human and fundamental rights at an international level has been to divide them firstly into civil and political rights (the so-called ‘classic rights’ or the ‘first generation’ human rights) 30 which define the political and civic status of citizens and reflect the concept of natural rights, and secondly, into economic, social and cultural rights (the so-called ‘second generation rights’), as a consequence of industrialisation and technical evolution.31 The first category commonly denotes powers which are either used to restrict governmental authority in the individual sphere of autonomy (civil rights) or convey to individuals an opportunity to participate in public affairs and contribute to constituting, forming and deciding the common rules of a given society (political rights). The second category, mainly covering social rights, entails actions aiming to create suitable conditions for human life 25

These sources include constitutional traditions and international obligations common to Member States, the EU Charter, the Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and the Council of Europe and the case law of the Court of Justice of the European Union, as well as the case law of the European Court of Human Rights.

26

Cf. Fleiner-Gerster 1980. On the conceptual distinction between human and fundamental rights, see Palombella 2004, 61-106 and Palombella 2006.

27

Alexy 2010, 22.

28

Bobbio 1990.

29

Terms ‘human rights’ and ‘fundamental rights’ are used synonymously in Von Bogdandy 2000. For the opposite view, see Palombella 2007, Palombella 2002 and Palombella 2006, 3.

30

The categorisation of human rights into (three) generations was proposed in 1979 by Karel Vasak at the International Institute of Human Rights in Strasbourg. His categorisation follows the catchphrase Liberty, Equality, Fraternity of the French Revolution. Additionally, a third categorisation is proposed, the so-called ‘third generation rights’ relating to collective-developmental rights. See Vasak 1977.

31

 Civil and political rights are enshrined in Articles 3 to 21 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Civil and Political Rights (ICCPR). Economic, social and cultural rights are contained in Articles 22 to 28 of the UDHR and in the International Covenant on Economic, Social and Cultural Rights (ICESCR). See Tomuschat 2003, 24.

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and development, promotion of well-being and social solidarity and comprise economic, social and cultural rights and the free development of personality.32 However, some commentators have referred e.g., to property rights, trade union rights and minority rights when noting that many rights are in fact difficult to categorise according to the dichotomy of the ‘old but not always accurate or relevant distinction’ to civil and political, on the one hand, and economic, social and cultural rights, on the other.33

32

Alexy 2002, 288 and 334 ff. Interestingly, while the classic human rights had been acknowledged long before social rights, the latter were first embodied in international regulations. Cf. the International Convention respecting the Prohibition of Night Work for Women in Industrial Employment (1906), and the International Labour Organisation (‘ILO’), founded in 1919. The so-called social constitutional rights, such as those to welfare, work, education and housing, have been described as the individual’s rights against the state which a person could obtain from other individuals if they had sufficient financial means and there were sufficient offers on the market.

33

Rosas – Armati 2012, 172, also Eide – Krause – Rosas (eds.) 2001.

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horizontal effect of fundamental rights in eu law



5.1 A Contextual Perspective

The post-war years were marked by endeavours to guarantee the establishment and observance of human and fundamental rights. Their importance was well recognised in Europe. However, human and fundamental rights never had an indefeasible quality within the original plans for the European Community,1 and the Community initially took a nonchalant approach towards recognising fundamental rights.2 During this period European integration was first and foremost concerned with economic integration and with establishing an internal market, as is suggested by the institution’s original name, the European Economic Community. Neither the original Member States nor the Court of Justice considered human rights to lie at the core of the interests for the European integration process or deemed incremental thereto. The Founding Treaties did not contain a single reference to fundamental or human rights which the Court could have applied in its decision-making process or even as a direct aid for interpretation. The Founding Treaties were only seen to relate to areas and policies which could not be anticipated to raise concerns regarding human rights. Also, the activities of the Communities at that time comprised only a few policy areas so there did not seem to exist any real potential for human rights violations. An additional factor contributing to the Community’s initial nonchalance on the human rights front might lie in the fact that the EEC Treaty was written only a few years after the failure of the European Defence Community Treaty 3 and the European Political Community Treaty. 4 The latter treaty contained provisions on human rights. However, in light of the failure of the Treaty, the drafters of the EEC Treaty could conceivably have wished to eschew any implicitly political elements.5 Furthermore, Community law was to be implemented by Member States, who were already subject to various national and international human rights mechanisms. Only a few years earlier the responsibility for protecting human rights in Europe had been assigned to another organisation, the Council of Europe. The same Community Member States had thus concluded a convention whose sole purpose was to guarantee the fulfilment of human and fundamental rights in Europe. 6 The same rights were perhaps not considered necessary to be protected simultaneously by two separate European mechanisms. 1

See Part I of this book.

2

It is interesting to note that a reference to fundamental rights protection is to be found e.g., in Article 3 of the Treaty to establish the European Defence Community (1952). Article 2 of the Draft Treaty embodies the Statutes of the European Community (1953), but never entered into force.

3

Treaty instituting the European Defence Community (1952). For more on the subject, see Trybus 2007, 13-42.

4 5

On the European Political Community see Griffiths 2000.

Craig – De Búrca 2011, 5 ff.

6

The Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’, 1950).

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For some time, the Court declined any opportunity to further analyse the question of fundamental rights. They pointed out the validity of Community acts was entirely conditional upon the rules of Community law itself and there were no reasons for examining arguments based on the internal law of the Member States regardless of the rank of the norms in question.7 The Court’s stand became clear from the very first cases involving appeals and arguments based on human rights protection. In the Stork case8 concerning an annulment action against the High Authority9 the Court stated in clear terms that the applicant’s arguments based on the German Constitutional law (in particular regarding Article 2 on ‘Personal Freedoms’ and Article 12 on ‘Occupational Freedom’) were unfounded. The Court explained that the High Authority was only required to apply Community law and lacked the competence to apply the national law of Member States; the Court was only required to interpret and apply the Treaty and ensure ‘the law is observed’ in accordance with Article 31 of the ECSC Treaty. For these reasons the Court held the High Authority was not empowered to examine any grounds for complaint which would require it to rule on provisions of national law.10 The ruling sought to delineate the boundaries between the ECSC and Member States. At the same time, it opened the way for discussion on the status of fundamental and human rights in Community law and their significance for the European legal order. Nevertheless, in a judgment rendered the following year in the Geitling case the Court declined in identical terms to interpret or apply German fundamental rights when examining the matter in question. 11 A third case demonstrating the Court’s similarly reluctant attitude towards the application of human and fundamental rights in Community law is found in the Sgarlata case. 12 Applicants of the case sought locus standi by objecting, inter alia, that if recourse to Article 173 EEC (now Article 263 TFEU) was to be refused by reason of a restrictive interpretation of its wording, individuals would consequently be deprived of all protection by the Courts both under Community law and under national law. This would then be contrary to ‘the fundamental principles governing all the member states’. 13 In spite of this direct and straightfor7

See Iglesias 1995, 171.

8

Judgment in Stork, 1/58, EU:C:1959:4.

9

‘The High Authority’ was the executive branch of the former European Coal and Steel Community (ECSC). Its duties were later taken on by the Commission of the European Communities. See more Spierenburg – Poidevin 1994.

10 11

Judgment in Stork, 1/58, EU:C:1959:4, para. 4.

Judgment in Geitling, 36–38/59 and 40/59, EU:C:1960:36, esp. 437-439. The applicants of the case had attempted to support their claims relying on Article 14 of the German Basic Law which protects private property.

12

Judgment in Sgarlata, 40/64, EU:C:1965:36. The case concerned an annulment action relating to three Commission regulations which sought to fix the prices for lemons, mandarins, clementines and sweet oranges respectively (Regulations Nos. 65/64/EEC, 66/64/EEC and 74/64/EEC of the Commission of 16 and 26 June 1964). Cunha Rodrigues 2010, 90.

13

Judgment in Sgarlata, 40/64, EU:C:1965:36, 227.

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ward plea based on fundamental rights protection, the Court did not accept the applicants’ argumentation based on the principle of access to justice. Only in passim did it note that these considerations could not be allowed to override the clearly restrictive wording of Article 173 EEC (now Article 263 TFEU). It was clear from the beginning of the integration process that the formulation of the Community’s legal basis was left for the Court to establish. After the ruling in Van Gend en Loos in 1963 establishing the concept of the direct effect of Community norms, it became clear those provisions should be granted priority over conflicting provisions of national law.14 By establishing the doctrine of primacy in the milestone Costa v ENEL case the Court sought to guarantee a uniform application of Community law in all Member States.15 Still, something essential – especially in the post-war context – was not directly addressed in this structure: no provision was made for human rights concerns.16 Here lay the seed for greater judicial developments to come. With the establishment of the European Communities, the Court of Justice had been given the task to ‘ensure the law is observed in the interpretation and application of the Treaties’. Based on this mandate which is now codified in Article 19 TEU, the Court was thus obliged to develop effective mechanisms for the protection of fundamental rights through recourse to the existing legal instruments of Community law; i.e., fundamental economic freedoms and general principles.17 This was originally initiated by Member State courts which referred to the Court of Justice preliminary questions on issues which expressly sought to ensure human and fundamental rights were also guaranteed in the context of the Community.18



5.2 Gradual Incorporation of Fundamental Rights into EU Law

The inclusion of fundamental rights into the Union’s legal order is almost entirely the result of the Court’s case law. This case law reflects the growing intensity and weight of human and fundamental rights considerations in the Court’s jurisprudence. In this study the gradual development of the 14 15

Judgment in Van Gend en Loos, 26/62, EU:C:1963:1.

Judgment in Costa v ENEL, 6/64, EU:C:1964:66, in which the Court stated that ‘the law stemming from the Treaty – an independent source of law – could not, because of its special and original nature, be overridden by domestic legal provisions, however framed.’

16 17

Henckaerts 1994, 230.

This view was accepted even by Justices Rupp, Hirsch and Wand in their otherwise dissenting opinion in the Solange I case of the German Federal Constitutional Court of 29 May 1974 (BVerfGE 37, 271, point 49 ff; 2 BvL 52/71). See Oppenheimer (ed.) 1994, 453.

18

Besselink 2012, 65. This is especially so with regard to the case law of German courts and it may well be maintained that the first judgments in the development of fundamental rights was a result of a judicial dialogue with German courts and influenced by their case law.

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fundamental rights protection in EU law is considered through six sequential advancements which all point towards a more intensive use of fundamental rights in the EU legal order.19 The Treaty of Lisbon marks a distinction in this categorisation so that the first four advancements focus on the era prior to the entry into force of the Treaty of Lisbon, whereas the remaining two advancements, i.e., the binding nature of the EU Charter and the planned accession of the Union to the ECHR, mark developments in the post-Lisbon era. Originally, human and fundamental rights considerations were not considered to lie at the core of the integration process in the early years of Community law. Instead, they were to fall outside the competences of the Court altogether.20 While those rights as such were not mentioned in the original Founding Treaties, the Treaties did contain provisions which reflected fundamental values, most notably the principle of non-discrimination and that of equal pay for men and women.21 When tracing the existence of fundamental rights in the jurisprudence of the Court of Justice over the years, the year 1969 marks a notable break. Prior to that date fundamental rights were considered either not of relevance to the issue at hand, or simply falling outside the scope of application of Community law. However, once the autonomous nature of the Community legal order (in the form of the concepts of direct effect and primacy) and a system of protection based thereon had been established, mechanisms were in place to consider individual rights which that order could protect. German courts in particular played a significant role in this process. The first judgment in which the Court of Justice applied a rule which could be deemed a fundamental right appears to be the Max Gutmann case rendered in the mid-1960s. 22 The rule at issue – in fact very well known in the context of penal law – ne bis in idem, followed quite naturally from the subject matter of the case. The issue had arisen from disciplinary measures taken against a staff official of the European Atomic Energy Authority. The Court explained that under the rule ne bis in idem, not only was the imposition of two disciplinary measures for a single offence prohibited, but also the holding of disciplinary proceedings more than once with regard to a single set of facts. That case was soon followed by the Stauder case of 1969 in which the Court carried out the first review in terms of fundamental rights. 23 The case concerned a Community decision which aimed to reduce an accumulated butter surplus and thus allowed Member States to sell butter at a considerably reduced price to certain categories of people in need. In order to prevent double-dealing or deceit in the system, the beneficiaries had to verify their entitlement by presenting a special identity card containing the beneficiary’s full name. A citizen of 19

The first five steps follow in some degree the categorisation presented in Rosas 2009.

20 21

Rosas 2009, 457, Rosas 2007, 33, Cunha Rodrigues 2010, 93-4 and Pescatore 1968, 629.

De Vries 2012, 10.

22 23

Judgment in Max Gutmann, 18/65 and 35/65, EU:C:1967:6.

Judgment in Stauder, 29/69, EU:C:1969:57. See also, judgment in Köster and Berodt, 25/70, EU:C:1970:115, para. 22.

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the German city of Ulm took this practice to be contrary to his fundamental rights (especially, human dignity) under German Basic Law and challenged the validity of the whole scheme. The Stauder case marks the first advancement in the development of fundamental rights protection in the EU, as it recognises fundamental rights as general principles of EU law.24 Because of the clear Community nature of the scheme, the case was referred to the Court of Justice by the national Administrative Court (Verwaltungsgericht Stuttgart) for a preliminary ruling. The Court of Justice managed to avoid considering the fundamental rights conflict by interpreting the Commission’s action in such a way that it could find that German constitutional rights had not been breached. 25 The Court then added a significant statement when holding that ‘interpreted in this way, the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.’26 The importance of the judgment expressly lies in the finding that fundamental rights protected in the national constitutions of Member States are also recognised in Community law as being part of its general principles. The Community charter denotes that rights are ensured and interpreted explicitly within the framework of the structure and objectives of the Community. The finding was innovative. Despite the claims to the contrary of the Advocate General Römer in his Opinion to the case, ‘extensive legal material’ on which to base that view did not in fact exist at the time.27 No one had successfully argued this in international law – i.e., to suggest that human rights could be considered as general principles of law. The Court of Justice could neither rely on the advanced human rights jurisprudence of Member States, since of all Member States at the time, only in Germany and Italy could human rights be employed by constitutional courts to review legislation and thus be used as subject matter for litigation. Not even the European Convention for Human Rights was at the time a significant part of the Member States’ legal culture.28 The subsequent Internationale Handelsgesellschaft case was a logical continuation for the gradual development of recognising fundamental rights as part of Community/Union law. It also clearly marked a break with the Court’s practice of refraining from considering issues on fundamental rights.29 There was a 24 25

Cf. Rosas 2009, 457.

In reality, the whole case could have been resolved by methods of interpretation, since it appeared that there was an error in the German (also in Dutch) language version of the decision which set out the requirement of revealing the full name of the beneficiary.

26 27

Judgment in Stauder, 29/69, EU:C:1969:57, para. 7.

Opinion of AG Römer of 29 October 1969 in Stauder, 29/69, EU:C:1969:52. The ‘extensive’ legal literature consisted more or less of an article written by a then judge of the Court of Justice, Pierre Pescatore. Pescatore 1968, 629.

28

E.g., France ratified the Convention only five years after the judgment, on 3 May 1974, and the declaration opening the way for individual complaints was made in the country only in 1981.

29

Judgment in Internationale Handelsgesellschaft, 11/70, EU:C:1970:114.

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strong incentive for the Court to change its prior dispassionate approach. At that time the jurisprudence of the Court of Justice had been challenged by some Member State courts, particularly by the German Federal Constitutional Court, and to a lesser extent, by the Italian Constitutional Court, which at the time were the only Member States with a fully developed system of constitutional review. The German and Italian Courts questioned the Court of Justice’s legitimacy, and in particular its primacy doctrine. In their view the Community lacked a coherent approach to fundamental rights, a view also shared in domestic doctrines.30 Even in the absence of any concrete examples of insufficient human rights protection at the Community level, the transfer of supranational power to a system which seemed to lack an equivalent level of protection posed a problem of such a degree that the Court of Justice decided to act upon it. The Court ‘decided to fill a threatening gap in the legal protection of individuals by formulating its own doctrine of the protection of fundamental rights as an unwritten part of the Community legal order’.31 The referring German Administrative Court (Verwaltungsgericht Frankfurtam-Main) which requested the preliminary ruling in the case had a clear view on the significance of the German constitutional rights, even in the Community law context. This can be discerned from the wording of the order of reference itself. The referring court emphasized that in their view the system of export licences and deposits attached thereto would be contrary to certain structural principles of German constitutional law, with the result that the primacy of Community law should yield before the principles of the German Basic Law if the Court of Justice were not to recognise such fundamental rights in EU law. The referring court also noted that Community regulations should respect the elementary, fundamental rights guaranteed by national constitutions.32 Although the judgment in Internationale Handelsgesellschaft was a response to doubts expressed by the German Federal Constitutional Court, it was not warmly welcomed in Germany. The German Federal Constitutional Court directly conditioned the judicial supremacy of the Court of Justice in its subsequent judgment in its seminal Solange I case.33 The German Court maintained that as long as (‘so lange’) the integration process had not progressed so far that Community law had received its own catalogue of fundamental rights decided on by a parliament and of settled validity which would be adequate in comparison with the catalogue of fundamental rights contained in the German Basic Law, the Federal Constitutional Court would exercise judicial review over the norms of Community law with German Basic Rights. With the judgment in Internationale Handelsgesellschaft the Court’s understanding of human rights underwent a shift. The first advancement, the protection of fundamental rights as general principles was considered paramount for 30 31

Von Meibom 1969, 437, Pescatore 1970, 344 and Alter 2001. See also Ipsen 1972, 716.

De Witte 1999, 863.

32 33

Judgment in Internationale Handelsgesellschaft, 11/70, EU:C:1970:114, para. 2.

BVerfGE 37, 271; 2 BvL 52/71; 29 May 1974 (Solange I).

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safeguarding the primary status of Community law in Member States. Human rights would not merely be relied on against dictatorships and the worst kind of human right violations. Instead they were seen as significant and applicable from the moment the law restricted individual liberty even in more mundane matters.34 While it is easy to subscribe to these arguments, the fact remains that the Court’s prevailing view of the time was that the protection of fundamental rights ‘would never become a question of paramount importance in the Communities’, and that ‘on the modest scale on which the problem could arise, the Community system already contained all the necessary means to construct an efficient system for the protection of these rights.’35 A turning point came with the Nold case which at the same time marks the second advancement in the development of EU fundamental rights. 36 In that judgment the Court of Justice for the first time mentioned the ECHR (or any other international human rights instrument).37 In Nold the applicant had sought to annul a Commission decision authorising new terms of business by Ruhrkohle AG. The applicant claimed the decision to infringe certain fundamental rights enshrined in national constitutions, especially with regard to the right of property ownership protected by Article 14 of the German Basic Law and by the constitution of the Land of Hesse. The applicant also invoked the right to free development of the personality, the right to freedom of economic action and the principle of proportionality and referred to several Member State and international treaties, including the ECHR. The Court held it could not ‘uphold measures which are incompatible with fundamental rights recognised and protected by the constitutions of those States.’38 Even though that postulate was made in the specific factual context of the case, it nevertheless laid the foundation for the review of compliance with fundamental rights to national measures in connection with the implementation of Community rules.39 The Court also provided guidance as to the hierar34 35

Kumm 2010, 107.

The view was especially expressed by a Judge of the Court of Justice at the time, Pierre Pescatore, who had also personally been involved in deciding the Stauder and Internationale Handelsgesellschaft cases (even acting as Judge Rapporteur in the latter). Cf. Pescatore 1970, 346.

36

Judgment in Nold, 4/73, EU:C:1974:51, para. 12. After the Nold case the standard wording with regard to the fundamental rights used by the Court of Justice may be found e.g., in judgments in National Panasonic, 136/79, EU:C:1980:169, para. 10, Johnston, 222/84, EU:C:1986:206, para. 18, Dow Benelux, 85/87, EU:C:1989:379, para. 24 and Hoechst, 46/87 and 227/88, EU:C:1989:337, para. 13.

37

Rosas 2009, 457. The first reference to the text of the ECHR, explicitly to Articles 8-11 thereof, was made in the Rutili case (Case 36/75, EU:C:1975:137, para. 32). See also judgment in Hauer, 44/79, EU:C:1979:290, para. 17. The first reference to the ECtHR’s case law can be found in the judgment in P v S, C-13/94, EU:C:1996:170, para. 16. On (alleged) inconsistencies in the case law of the two courts see Spielmann 1999, 757 and Philippi 2000, 97-126. For the CJEU’s justification for relying on ECtHR’s case law, see Harpaz 2009, 105 and 109 ff.

38

Judgment in Nold, 4/73, EU:C:1974:51, para. 13.

39

Later confirmed and consolidated e.g., in the judgments in Cinéthèque, 60/84 and 61/84, EU:C:1985:329, para. 26 and Wachauf, 5/88, EU:C:1989:321, para. 19. The Institutions recognised the

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chical status of the sources when holding that it is ‘bound to draw inspiration from constitutional traditions common to the Member States’, whereas ‘international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories’, can only ‘supply guidelines which should be followed within the framework of Community law’. 40 The specific formulation ‘collaborated or of which they are signatories’ in connection with international treaties relates to the fact that France succeeded in ratifying the ECHR only a view days prior to the delivering of the judgment on 3 May 1974, whereas the judgment was given on 14 May 1974. 41 Aptly following the Court’s newly adopted approach in the Nold case, the third advancement in the line of incorporating fundamental rights considerations in Community/Union law is marked by the Court’s statement in the Hoechst case of 1989, according to which the ECHR is of ‘particular significance’. 42 The Court’s practice since the 1990s of making express references to individual judgments of the ECtHR marks the fourth advancement pointing again towards a more intensive use of fundamental rights in EU law. 43 Hence, the gradual incorporation of fundamental and human rights into Community law began through a series of cases by the Court of Justice. The judgments fulfilled a two-tiered purpose. First, respect for fundamental rights was considered part of the common European heritage and thus was an indispensable part of the foundations of the Union. Second, until the entry into force of the Lisbon Treaty and subsequent binding legal character of the EU Charter, the Union did not possess a catalogue of constitutional or legislative value over fundamental rights, for which reason the elaboration of those rights in the EU law context was entirely left to the Court. The Internationale Handelsgesellschaft and Nold cases stand up as emblematic of their era when an autonomous and supranational framework of Community law had been established and sought to be grounded on principles inherent in the rule of law. 44 Seen from another – and perhaps a more pragmatic, if not critical – angle, the explicit recognition which fundamental rights started to gain within the Community legal order, resulted at least to some extent, from competition over judicial power. According to this view, fundamental rights were imported and developed in the Union legal order as a response to fears that the transferral of Court’s case law in their Joint Declaration by the European Parliament, the Council and the Commission Concerning the Protection of Fundamental Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, OJ C 103, 27.4.1977, p. 1. 40 41

Judgment in Nold, 4/73, EU:C:1974:51, para. 13.

The declaration opening the way for individual complaints was made in the country only years later, in 1981.

42

E.g., judgments in Hoechst, 46/87 and 227/88, EU:C:1989:337, para. 13 and ERT, C-260/89, EU:C:1991:254, para. 41. Rosas 2009, 457.

43

E.g., judgments in P v S, C-13/94, EU:C:1996:170, para. 16 and Krombach, C-7/98, EU:C:2000:164. Rosas 2009, 457.

44

Cunha Rodrigues 2010, 93.

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powers from Member States to the European Community would result in the diminution of the level of protection enjoyed by individuals in national legal systems. As an attempt to ensure the primacy of its position as the final legitimate adjudicator on Community law and against allegations by Member States over inadequate protection of human rights within the Community legal order, the Court of Justice began to develop a rich jurisprudence on fundamental rights. This gradually laid the basis for Community human rights protection at a time when the Community had not acceded to the European Convention of Human Rights and did not have its own written ‘bill of rights’, at a time when even the EC Treaty was entirely silent on the matter. 45 For the first time the notion of protecting fundamental rights was referred to and the principles set out in case law on fundamental rights reaffirmed in the Preamble to the Single European Act. 46 Yet, it was the Treaty of European Union (The Treaty of Maastricht)47 which first included an explicit confirmation of the status of fundamental rights within the Community legal order. This was done by introducing Article F(2) (renumbered as Article 6(2) TEU by the Treaty of Amsterdam, now Article 6(3) TEU) which closely followed the previous wording, and was consistently used in the case law of the Court of Justice. 48 However, the Treaty of Maastricht did not contain any precise catalogue of these rights, nor did it specify in any other way which rights and freedoms in particular were to be respected. 49 It was still unclear for Union citizens which rights they could eventually invoke in support of their claims or in defence. Years later, the Treaty of Amsterdam did not lead to any explicit recognition of fundamental rights, although it marked a decisive step on the way to a clearer recognition of the principle of fundamental rights protection by the Union.50 Article 6(1) of the Treaty of Amsterdam amended ex Article F by introducing the Union’s commitment to respect human rights and fundamental freedoms. It explicitly confirmed the Union’s attachment to fundamental social rights in the fourth recital of the Preamble. This affirmation was however made by the previous system of references, i.e., by referring to the European Convention on 45

Alston – Weiler 1999, 46, Weiler 1991, 581 and Kühling 2006.

46 47

Signed in Luxembourg on 28 February 1986, OJ L 169, 29.6.1987.

Treaty on European Union, OJ C 191, 29.7.1992; Treaty on European Union (consolidated version), OJ C 340, 10.11.1997, p. 145-172.

48

‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.’

49

Article 6 TEU is worded as follows: ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’

50

Affirming Fundamental Rights in the European Union: Time to Act, Report of the Expert Group on Fundamental Rights (European Commission. Employment, Industrial Relations and Social Affairs, Brussels, February 1999), 6.

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Human Rights and the constitutional traditions of Member States (Article 6(2) of the Amsterdam Treaty), and as regards fundamental social rights, by pointing to the 1961 European Social Charter and to the 1989 Community Charter, respectively. Despite the appeal of the Comité de Sages and the wide support it was given, the Amsterdam Treaty did not come to contain any coherent set of fundamental civil and social rights in the form of an explicit ‘Bill of Rights’.51 The demand for an explicit recognition and respect of individal rights and freedoms in the Union grew in parallel with the expanding growth of competences and legislation. This was important, since the Union was not party to the ECHR, unlike its Member States, and was not directly bound by the provisions of the Convention. And yet, the wide range of Union powers needed to be controlled by a respect for fundamental rights in the same way as the legislatures and administrators of Member States. This was the message the Court of Justice had developed and intensified through its jurisprudence in the preceding years.52



5.3 Fundamental Economic Freedoms as Fundamental Rights?

The focus on the original economic goals of the Union and the establishment of an internal market have afforded the Union’s economic freedoms a special status within Union law. Along with guarantees of equal treatment and prohibition of discrimination, these freedoms are strongly associated with direct horizontal effect.53 Because of the original emphasis on economic goals and the establishment of an internal market for the Union, direct horizontal effect have more readily been accepted in connection with the freedom of movement of workers, understood as a prohibition on discrimination, and as such perceived as furthering (economic) integration.54 The jurisprudence of the EU courts illustrates a close nexus between the EU fundamental rights and economic freedoms. The basis for and centrality of their role in the EU legal order becomes evident from Article 3(3) TEU (ex Article 2 EC) which accords a particular significance to the establishment of ‘an internal market’. Economic freedoms play a special role in achieving this objective and thus in building Europe’s economic constitution. In line with this role, the case law of the EU Courts contains several references to the fundamental character of 51

In March 1996 the Comité des Sages appointed by the European Commission presented a report on the need to recognise a series of fundamental civil and social rights and incorporate them into the Amsterdam Treaty.

52 53

E.g., judgment in Stauder, 29/69, EU:C:1969:57.

The fundamental right which the Court of Justice has most often accorded horizontal effect to, is the right to equality on grounds of sex. More specifically, the right to equal pay between men and women. Brüggemeir – Colombi Ciacchi – Comandé (eds.) 2010, 16-7.

54

Ferreira – Krzemińska-Vamvaka – Russo 2010, 37.

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economic freedoms.55 Such freedoms have in various instances been described as ‘fundamental Community provisions’,56 ‘one of the foundations of the Community’,57 ‘one of the fundamental principles of the Treaty’,58 a ‘fundamental freedom’,59 and so on. Since the days when the Court of Justice began to view economic freedoms as subjective rights of the individual, there has been constant inquiry into the connection with and convergences between economic freedoms and fundamental rights in EU law. 60 To date – and still in the absence of an authoritative statement of the Court on the matter – the issue is not yet entirely settled and the academic views expressed are mixed.61 The convergence is nonetheless most apparent in respect of the free movement of workers, which the Court has directly treated as a fundamental right.62 This is only plausible when taking into account how the right of free movement of persons has often been linked to Article 18 TFEU on prohibition of discrimination on grounds of nationality,63 as well as to Articles 20 and 21 TFEU on the Union citizenship.64 Moreover, now 55

Oliver – Roth 2004, 407-11.

56 57

Judgment in Corsica Ferries, C-49/89, EU:C:1989:649, para. 8.

Judgments in CIA Security, C-194/94, EU:C:1996:172, para. 40 and Unilever Italia, C-443/98, EU:C:2000:496, para. 40. Both cases related to the free movement of goods.

58

Judgments in Commission v France (so-called Strawberry case), C-265/95, EU:C:1997:595 and Commission v Greece, C-205/89, EU:C:1991:123, para. 9.

59

Judgments in Schmidberger, C-112/00, EU:C:2003:333, paras. 62 and 74, Canal Satélite Digital, C-390/99, EU:C:2002:34, paras. 28-30 and Heinonen, C-394/97, EU:C:1999:308, para. 38.

60

Cf. judgment in Van Gend en Loos, 26/62, EU:C:1963:1: ‘Independently of the legislation of Member States, Community Law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.’ Italics by the present author. See Part I of this book for a more detailed analysis of the case. Maduro 1998, 81.

61

E.g., Bleckmann 1981, 666 ff., who advocates a radical approach maintaining that the two concepts are practically identical, whereas Von Bogdandy 2001, 165 ff., 157-71, argues that the Court of Justice grounds its decisions on fundamental freedoms only when lacking relevant secondary legislation. Derogation from a Court decision is hence possible when introducing applicable secondary legislation. This is not, however, possible in the case of fundamental rights, which marks the fundamental difference between the two concepts. See also Shuibhne 2002, 731-71 and Poiares Maduro 1998, 166-8, who warns of according economic freedoms ‘a status higher than that awarded to other fundamental rights and values in the Community legal order’. Baqero Cruz 2002, 81, refers to economic freedoms as ‘constitutional rights’ but not ‘fundamental constitutional rights’.

62

Judgment in Bosman, C-415/93, EU:C:1995:463, para. 129, and the Opinion of AG Lenz to the same case (C-415/93, EU:C:1995:293) point 203, judgment in Forcheri, 152/82, EU:C:1983:205, para. 11. In a subsequent case the Court even stated that ‘free access to employment is a fundamental right.’ See judgment in Heylens, 222/86, EU:C:1987:442, para. 14.

63

E.g., judgment in Cowan, 186/87, EU:C:1989:47.

64

E.g., judgments in Garcia Avello, C-148/02, EU:C:2003:539, Grzelczyk, C-184/99, EU:C:2001:458, Elsen, C-135/99, EU:C:2000:647 and María Martínez Sala, C-85/96, EU:C:1998:217.

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that the EU Charter embraces respect for private and family life (Article 7),65 freedom to choose an occupation and right to engage in work (Article 15) and freedom of movement (Article 45), which all are closely related to the free movement of persons, the Court may well proceed on the implied supposition that human work deserves a special status explicitly due to its strong human rights character.66 It is equally clear from the case law that at least some economic freedoms are capable of horizontal application, as they exert influence on legal relationships between private parties and have to be taken into account when interpreting national regulations affecting the realm of those freedoms.67 The implications of economic freedoms are not limited to certain specific areas of law. The Court has also applied economic freedoms to public enterprises and even private organizations enjoying some form of state authority,68 or which have been established, organised, supervised or financed by the State.69 The application of these freedoms has even been extended to cover measures of private organizations which regulate certain areas in a collective manner which may draw its justification from the quasi-legislative character of the regulations of private organizations.70 Indeed, it seems convincing for the overall coherent application of the economic freedoms in the Union.71 The horizontal effect of economic freedoms stresses their fundamental nature and institutional dimension within the EU legal order.72 The EU Charter makes a distinction between fundamental rights and economic freedoms by codifying EU fundamental rights, while at the same time leaving the economic freedoms, at least expressly, outside of its scope – the only exception being the free movement of persons in Article 45 of the Charter.73 Some authors have argued that in a broad sense the notion of ‘fundamental 65

The corollary right is found in Article 8 ECHR.

66 67

Oliver – Roth 2004, 424.

See Part I of this book. In respect of the freedom of establishment and the free movement of services, cf. judgments in Viking Line, C-438/05, EU:C:2007:772 and Laval, C-341/05, EU:C:2007:809. This is further exemplified by the Court’s case law pertaining to legislation on intellectual property law and unfair competition. Oliver 2003, 303 ff.

68

Judgment in Association of Pharmaceutical Importers, C-266/87 and 267/87, EU:C:1989:205.

69 70

Judgment in Commission v Germany, C-325/00, EU:C:2002:633.

Judgments in Walrave and Koch, 36/74, EU:C:1974:140 and Lehtonen, C-176/96, EU:C:2000:201. In contrast to this line of case law, it is not clear whether economic freedoms should be applied to an entity ‘exercising [only] a certain power over individuals’. Cf. judgment in Ferlini, C-411/98, EU:C:2000:530, para. 50.

71

AG Maduro has argued in favour of the horizontal application of free movement rules in general, which would subsequently also cover actions by private parties. Opinion of AG Maduro of 1 October 2009 in Vodafone, C-58/08, EU:C:2009:596, points 19-22. For an opposite view Oliver – Roth 2004, 426.

72 73

De Vries – Groussot – Petursson 2012, 29.

Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) confirm that Article 15(2) of the Charter (freedom of Union citizens to seek employment, to work, to exercise the rights of

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rights’ also embraces that of the ‘economic freedoms.’74 Comparable to the structure of fundamental rights, the economic freedoms also create a scope of protection which can only be restricted if justified by a public-interest objective and deemed proportionate.75 The economic freedoms have a real and close connection to many concrete fundamental rights, such as the freedom to pursue a trade or profession, as protected in Article 16 of the Charter. The principle of non-discrimination and the right to equal treatment, defined as fundamental rights in their own right, are also implicitly contained in the exercise of the economic freedoms. Nonetheless, there exist important functional differences between the two. The economic freedoms serve economic purposes and are closely linked to the creation of an internal market. They exclusively derive their existence from the Treaties and do not have a ‘life’ outside their scope. They can only be invoked when a cross-border element is detected.76 On the other hand, human and fundamental rights are understood as being at the very core of our understanding of humanity and do not necessarily need to be codified. Instead they are universally available to all without a need to detect any required elements for their coming into ‘life’. 77 Although the realisation of an internal market and the liberalisation of trade were the initial goals of the European integration process, they are not ends in themselves. Rather, they should be seen as tools in increasing welfare and promoting development. Market integration is not pursued in isolation. Now that European-wide market integration has in many respects been effectively realised, the economic freedoms should be counterbalanced by more social considerations and other public interests.78 This trend may in practice moderate the dominant role of the economic freedoms and give way to other policy concerns to be taken into account in balancing their role. Here, fundamental rights can act as counterweight to the pursuits of a more economic nature. Accordingly, the Court’s case law contains an ample variety of issues exemplifying the difficulty to strike the right balance between the two, which has only become more challenging when considering the centrality of the economic freedoms for the European integration process, on the one hand, and the emergence establishment and to provide services) deals with the freedom of movement for workers, freedom of establishment and freedom to provide services guaranteed by Articles 26, 45, 49 and 56 TFEU. 74 75

Ehlers (ed.) 2007.

E.g., judgments in Corsten, C-58/98, EU:C:2000:527, para. 39 and Bacardi France, C-429/02, EU:C:2004:432, para. 33. Skouris 2009, § 171, para. 15 ff.

76

This relates to the concept of (purely) ‘internal situations’ where the Treaty rules do not apply. It is important to note that the relevant case law on the issue is constantly evolving. There are examples which demonstrate that in some situations EU law has been applicable even though no cross-border element has been detected; notably in cases relating to the provisions on the Union citizenship. E.g., judgment in Ruiz Zambrano, C-34/09, EU:C:2011:124.

77

De Vries 2012, 32.

78

Cf. Neergaard 2009, 203, De Vries 2012, 31.

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of fundamental rights in adjudication, on the other.79 When balancing conflicting fundamental rights with economic freedoms, it is very difficult, if not altogether impossible to establish an a priori hierarchy between the fundamental rights and the economic freedoms. The case law seems to support the idea of an equal ranking for fundamental rights and economic freedoms.80 Accordingly, the Court of Justice has found it necessary to reconcile fundamental rights with economic freedoms without giving prima facie priority to either of them.81 However, the economic freedoms have often provided the required basis for the Court to be deemed competent to give a preliminary ruling.82 An equal ranking would also make considering justifications for a restriction on the freedom of movement of persons comparable and consistent irrespective the immediate source of the freedom; whether it is referred to as a Treaty Article or Charter right. The heightened legal value accorded to fundamental rights pursuant to Article 6 TEU and the post-Lisbon legally binding character of the EU Charter imply that special account should be taken of fundamental rights when interpreting the economic freedoms. The case law does not, however, make it entirely clear in which manner fundamental rights may justify restrictions on economic freedoms; i.e., whether they should be viewed as part of Treaty exceptions to free movement rules (express derogations), as mandatory requirements developed in the Court’s case law (legitimate objectives in the public interest) or as selfstanding exception grounds.83 The qualification is of utmost importance, since discriminatory measures are in principle only justifiable on the basis of Treaty exceptions, whereas indistinctly applicable measures may also be justified on the basis of mandatory requirements.84 If placed under the latter category of limitation grounds, fundamental rights would not be on equal footing with economic freedoms and the idea of no a priori hierarchy would seriously be hampered.85 Fundamental rights should therefore be regarded as a self-standing justifica79

As exemplified e.g., by judgments in Schmidberger, C-112/00, EU:C:2003:333, para. 81, Omega, C-36/02, EU:C:2004:614, paras. 30-31, 35-38, Viking Line, C-438/05, EU:C:2007:772, paras. 44 ff., and 77, and Laval, C-341/05, EU:C:2007:809, paras. 91 ff., and 103.

80

Opinion of AG Trstenjak of 14 April 2010 in Commission v Germany, C-271/08, EU:C:2010:183, point 183. Also Skouris 2006, 225-39, Tridimas 2006, 339.

81

Even in situations which concern certain policy areas left to Member States (e.g., direct taxation, criminal law and social assistance), the case law shows that this fact alone does not bar national provisions pertaining thereto from being taken into account when considering legitimate restrictions to the economic freedoms. Cf. judgments in Kohll, C-158/96, EU:C:1998:171, Commission v France, C-334/02, EU:C:2004:129, Marks & Spencer, C-446/03, EU:C:2005:763 and Impact, C-268/06, EU:C:2008:223.

82 83

Skouris 2006, 237 ff.

Morijn 2006, 38-9.

84

Tridimas 2006, 339. It should be noted however that the distinction has over the years become ‘increasingly artificial’, since the Court has in many cases upheld discriminatory measures on the basis of the mandatory requirements. De Vries 2006, 370.

85

Opinion of AG Trstenjak of 14 April 2010 in Commission v Germany, C-271/08, EU:C:2010:183, point 185.

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tion grounds comparable to those of Treaty exceptions, which would also allow considering national discriminatory measures on the basis thereof.86

86

Morijn 2006, 39.

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horizontal effect of fundamental rights in eu law

Fundamental rights form a part of EU primary law. As such they have to be respected at all levels of the Union’s legal order. Those rights form an essential element in the development of the Union as a process of economic, legal and social integration aiming to provide peace and prosperity to all its citizens. While the Court of Justice is not a ‘human rights court’, it nonetheless, as the supreme interpreter of EU law, has a responsibility to ensure respect for those rights within the sphere of the Union’s competences. Fundamental rights also affect the validity and interpretation of secondary legislation and individual decisions.1 All provisions of EU law have to be interpreted in light of fundamental rights.2 The Treaties consider respect for human rights as one of the core values on which the Union is founded. In its seminal Bosphorus case3 the ECtHR indicated that the (EU) Court of Justice has an important role to play in safeguarding rights deriving from the ECHR and its associated protocols as they apply to matters governed by Union law; a duty which will only assume a greater significance when the EU accedes to the Convention. 4 The Bosphorus decision illustrates the continued collaboration and mutual respect between the two European courts in the field of human rights protection in Europe. The debate on the contents and status of fundamental rights is now more fruitful than ever in Europe.5 In addition to recent efforts by the European Union to reinforce its policy on fundamental rights through several initiatives and new policies, 6 the entry into force of the Treaty of Lisbon7 made clear that the current fundamental rights protection in the EU now consists of a three-layered net of rights. As set out in Article 6 TEU this protection entails (1) general principles of EU law, (2) provisions of the European Convention on Human Rights, and (3) the EU Charter. The general principles of EU law are the result of the case law of the Court of Justice and have recently only increasingly come to relate to fundamental rights considerations. The binding EU 1

Cf. judgments in Parliament v Council, C-540/03, EU:C:2006:429, Kadi and Al Barakaat, C-402/05 P and C-415/05 P, EU:C:2008:461, Elgafaji, C-465/07, EU:C:2009:94. Regarding a Commission decision, e.g., judgment in Schneider Electric, T-351/03, EU:T:2007:212. Walkila 2012, 619.

2

Judgments in Ordre des barreaux, C-305/05, EU:C:2007:383, paras. 28-29 and Chakroun, C-578/08, EU:C:2010:117.

3

 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland (Application No. 45036/98), Judgment of 30 June 2005. Case notes on the Bosphorus case, see e.g., Douglas-Scott 2006, 243-54, Hinarejos Parga 2006, 251-9, Costello 2006, 87-130, Jacqué 2005, 749-67, Winkler 2007, 641-54, Bröhmer 2006, 71-6, Lorenzmeier 2007, 370-5, Schohe 2006, 33 and Lavranos 2006, 79-92.

4

See Article 6(2) TEU and Protocol No 8 relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms. Besselink 2008, 295-309.

5

More on the subject, see Walkila 2012, 616-34.

6

E.g., setting up a Fundamental Rights Agency, creating an independent portfolio within the Commission responsible for fundamental rights and supporting humanitarian projects throughout the world.

7

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on 13 December 2007, OJ C 306, 17.12.2007.

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Charter represents the fifth advancement, whereas the enhanced significance of the ECHR for EU law indicates the sixth advancement in the gradual intensification of fundamental rights protection in the EU. At the same time it must be acknowledged that the different advancements considered herein only reflect the growing presence and intensification of fundamental right considerations in the EU legal order. Thus, they do not signify separate or distinct phases, but rather overlap and intersect with one another. Nevertheless, the categorisation illustrates the evolving and intensifying nature of fundamental rights protection in the EU legal order. Table 3. The increased presence and intensification of fundamental rights considerations in the EU legal order. N0. 1 2 3 4

5 6

Advancement Fundamental rights as general principles First reference to the ECHR The ECHR of ‘particular significance’ The Court’s practice to make express references to individual judgments of the ECtHR The legally binding nature of the EU Charter Accession of the EU to the ECHR

Legal Milestone(s) Stauder; Internationale Handelsgesellschaft Nold Hoechst

Year 1969-1970

PvS

1996

The entry into force of the Treaty of Lisbon In progress

2009

1974 1989

In progress

Since the general principles have already been dealt with in the previous part of this study, attention in the following will first briefly turn to the ECHR. It is acknowledged that any more detailed enquiry into the subject is clearly beyond the scope of this study owing to the planned and currently still unfolding accession of the Union to the Convention. Conversely, the EU Charter will be considered in a more comprehensive manner because of its recently gained legally binding status and significance for the current fundamental rights protection in the EU.

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6.1 The Significance of the European Convention on Human Rights for the Fundamental Rights Protection in the EU

Even though the EU is founded on the respect for fundamental rights, the ECHR and its judicial mechanism do not at present formally apply to EU acts. Still, the Court of Justice and the ECtHR have been ‘living apart together’ already since 1975,8 when the Court of Justice for the first time referred to the text of the ECHR as an aid to interpret EU law.9 From that time on, the accession of the Union to the Convention became a lively debated issue both in academic and political circles. The Court of Justice complicated the situation by holding in its Opinion in 1996 that under the EC Treaty in force at the time the Union did not have competence to accede to the Convention.10 In the Court’s view the Treaties should have been amended to explicitly authorise the accession. Consequently, as long as the Union would not be a contracting party to the ECHR, the Convention provisions would only exert an indirect, i.e., interpretational, influence on the scope of fundamental rights protection in the EU legal order. At the entry into force of the Lisbon Treaty in 2009 the Union was granted a legal personality (by virtue of Article 47 TEU) and on the basis of the amended wording of Article 6(2) TEU and Protocol No 8 the EU is now to accede to the ECHR.11 Hence, at a first glance the obstacles to the accession which the Court distinguished in its earlier Opinion seemed to be resolved.12 Besides all the EU Member States being separate parties to the Convention and thus having an obligation to respect and apply the rights and freedoms protected therein, also the Union would be subject to external control mechanisms provided for by the ECHR and to the decisions and the judgments of the ECtHR.13 8

Quotation by De Witte 2011, 17 and 19 and Harpaz 2009.

9

Judgment in Rutili, 36/75, EU:C:1975:137, para. 32, and the first reference to the case law of the ECtHR in the judgment in P v S, C-13/94, EU:C:1996:170, para. 16. See Michl 2014.

10

Opinion Accession to the ECHR, 2/94, EU:C:1996:140. The Opinion has been criticised for being too restrictive and diffident. See analyses of the opinion, e.g., Koutrakos 2006, 128-32, Eeckhout 2004, 82-7 and Arnull 2000, 774.

11

Protocol No 8 relating to article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms. On the part of the Convention, the legal basis for the accession of the EU is provided for by Article 59 § 2 ECHR (‘the European Union may accede to this Convention’), as amended by Protocol No. 14 to the ECHR, which entered into force on 1 June 2010.

12

Official negotiations on the Union’s accession to the ECHR started on 7 July 2010. A committee composed of representatives from the ECHR and the EU reached an agreement in July 2011, which was not approved. An ad hoc working group called the 47+1 group was to negotiate agreement and produced a draft text in April 2013. Steering Committee for Human Rights, Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group and the European Commission on Accession of the European Union to the European Convention on Human Rights (2013).

13

This would signify a milestone in the judicial system of the EU, since the Court has never in its history accepted that it was bound by the decisions of another adjudicator. Eeckhout 2011, 381.

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However, in its recent Opinion 2/13 on the Draft Accession Agreement delivered in December 201414 the Court once again seemed to block at least an immediate way to the accession.15 In its Opinion the Court drew attention to seven separate aspects dealt under five main headings which it deemed to be either inadequately provided for in the draft Accession Agreement or which still required modification. These were 1) coordination between Article 53 of the ECHR and Article 53 of the Charter, 2) securing the observance of the principle of mutual trust, 3) relationship between the mechanism established by Protocol No 16 to the ECHR and the preliminary ruling procedure provided for in Article 267 TFEU, 4) the exclusive jurisdiction accorded by Article 344 TFEU to the Court of Justice to decide all disputes between Member States relate to the interpretation and application of EU law, 5) co-respondent mechanism, 6) priorinvolvement procedure, and 7) judicial review of matters relating to common foreign and security policy (CFSP). Because of the potential adverse effects on the specific characteristics and the autonomy of EU law16 the Court held the draft accession agreement to be incompatible with EU law. 17 Notwithstanding the criticism the Opinion quickly confronted18 it may be considered a clear manifestation of the Court’s eagerness to protect the ‘autonomy of the Union legal order’ and the ‘special characteristics’ intrinsic thereto.19 The same line of argumentation is in fact evident already in the Court’s earlier case law.20 On the basis of this jurisprudence the Court seems to give special emphasis at least to three requirements when considering international agreements. Firstly, only the Court of Justice has competence to authoritatively interpret EU law;21 second, it is only for the Court of Justice to have exclusive jurisdic-

14

Opinion Draft Agreement on the Accession of the EU to the ECHR, 2/13, EU:C:2014:2454, delivered on 18 December 2014. Commentaries on the Draft Agreement, e.g., Gragl 2014 and Heliskoski 2014.

15

Editorial Comments in Common Market Law Review (2015).

16

Opinion Draft Agreement on the Accession of the EU to the ECHR, paras. 178 and 258. The ‘specific characteristics’ refer to inter alia the principle of conferral of powers, the institutional structure, EU law as an independent source of law and the judicial system of the Union (paras. 164-177).

17

Notably with Article 6(2) TEU or Protocol No. 8 EU.

18

As the earlier Opinion 2/94 also Opinion 2/13 has been criticised from being overly formalistic. E.g., Besselink, ‘Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13’, VerfBlog, 2014/12/23, http://www.verfassungsblog.de/acceding-echr-notwithstanding-court-justice-opinion-213/

19

‘Preserving the special characteristics of the Union and Union law’ is also emphasised in Article 1 of the Protcol 8 attached to the Treaties.

20

E.g., opinions the European Economic Area, 1/91, EU:C:1991:490, para. 35 and European Patent Court, 1/09, EU:C:2011:123, para. 67: ‘it is for the Court to ensure respect for the autonomy of the European Union legal order thus created by the Treaties’.

21

Opinions Draft Agreement on the Accession of the EU to the ECHR, 2/13, EU:C:2014:2454, paras. 239, 246, the European Economic Area, 1/91, EU:C:1991:490, para. 43 and European Patent Court, 1/09, EU:C:2011:123, para. 78.

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tion to decide disputes among the Member States,22 and thirdly, the competence of an external control mechanism should be limited to the interpretation and application of the international agreement in question.23 These features are also present in the Opinion 2/13. In line with Article 3 of Protocol 8 the Court stressed that Article 344 TFEU intends to preserve the exclusive nature of procedure for settling disputes among the Member States and between them and the Union in the jurisdiction of the Court of Justice.24 Also, the Court considered it difficult to accommodate all features of the prior involvement procedure and co-respondent mechanism with the principle that only the Court of Justice has exclusive jurisdiction over the definitive interpretation of EU law.25 Moreover, the Court seems to give special emphasis to the principle of mutual trust which is particularly pertinent in the area of freedom, security and justice, thus, in connection with cases concerning e.g., children, asylum seekers and European Arrest Warrant. The principle requires Member States, apart from exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law.26 Therefore, when acting in the scope of application of EU law the Member States are to presume that other Member States have observed fundamental rights so that they may neither demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, nor, save in exceptional cases, check whether other Member States has in reality observed the fundamental rights guaranteed by the EU in a particular case.27 On the other hand, under the ECHR contracting parties are required to ensure that the other party has actually protected human rights to a sufficient degree in a concrete case. The divergent requirements of both courts are thus liable to undermine the autonomy of EU law and the special characteristics inherent to its supranational nature. Even after the Opinion 2/13 the Union seems nevertheless to stay fully committed to accede to the ECHR as foreseen in Article 6(2) TEU.28 The ECHR 22

Opinions Draft Agreement on the Accession of the EU to the ECHR, 2/13, EU:C:2014:2454, paras. 202, 204, 210, 213, European Common Aviation Area, 1/00, EU:C:2002:231, paras. 11-12 and the European Economic Area, 1/91, EU:C:1991:490, para. 35.

23

Opinion Draft Agreement on the Accession of the EU to the ECHR, 2/13, EU:C:2014:2454, para. 182.

24

Ibid., opinion 2/13, paras. 201, 210. The significance of Article 344 TFEU is stressed by Article 3 of Protocol 8 attached to the Treaties: ‘Nothing in the agreement referred to in Article 1 shall affect Article 344 of the Treaty on the Functioning of the European Union.’

25

Ibid., opinion 2/13, paras. 239, 248 and 224-5, 234-5.

26

Cf. judgments in N.S. and Others, C-411/10 and C-493/10, EU:C:2011:865, paras. 78-80, and Melloni, C-399/11, EU:C:2013:107, paras. 37 and 63.

27

Opinion Draft Agreement on the Accession of the EU to the ECHR, 2/13, EU:C:2014:2454, para. 191.

28

Already in the first informal discussion at Coreper on 28 January 2015 followed by the first exchange of views among the delegations on 9 April 2015 an agreement was reached on the need to resume the work and to find possible ways to accomodate the Court’s concerns. See also 2014 Report on the Application of

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is also in practice already consolidating the fundamental and human rights protection both of the Union as well as of Member States. Already the general provisions governing the interpretation and application of the EU Charter determine that insofar as the Charter contains rights which correspond to those of the ECHR, the meaning and scope of those rights shall be the same as those laid down by the Convention, although the Union may also grant even more extensive protection.29 The accession would admittedly rectify divergences thereby strengthening the human rights protection in Europe. It would also help to close gaps in legal protection by giving European citizens the same protection vis-à-vis the acts of the Union as they currently enjoy under the ECHR in national law. Therefore, it may be held that the planned accession of the Union to the Convention would enhance a consistent, coherent and harmonious way of applying the diverse and multi-level human rights systems in Europe.30 Thus, the legal significance of the accession is two-fold. Firstly, once the accession has been completed, the ECHR will directly form a separate and distinctive part of EU law. Secondly, following the accession the acts and actions of the Union are to be submitted to the external control mechanism set up by the Convention, which will directly bind all Union institutions in accordance with Article 216(2) TFEU. 31 Therefore, the planned accession of the EU to the ECHR is considered an additional advancement in the development and intensification of fundamental rights protection in the EU legal order. The substantive contents of the EU fundamental rights will not dramatically change by the accession, since the Court of Justice has habitually applied the ECHR in the pre-Lisbon era.32 More significantly, Article 52(3) of the EU Charter expressly provides for a ‘corresponding’ interpretation.33 Accordingly, the level of protection guaranteed under EU law may never be lower than that of the ECHR and as interpreted by the ECtHR.34 The EU may only exercise its judicial autonomy so as to guarantee a ‘more extensive protection’. Moreover, according to Article 53 of the Charter, if the ECtHR decides to raise the level of protection, the EU Charter of Fundamental Rights (COM(2015) 191 final, 8.5.2015), p. 11: ‘The Commission remains fully committed to EU accession to the ECHR.’ 29 30 31

Article 52(3) of the EU Charter.

Besselink 2009, 179-96, Jacqué 2011, 995 and Lenaerts 2010, 564-5.

Ladenburger 2012, 148, De Schutter 2010, 535-71, Lock 2010, 777-99, Jacobs 2006, 291-6.

32

The case law of the ECHR has played such an important role in the Court of Justice’s approach to fundamental rights protection that AG Jacobs was able to state that ‘for practical purposes the Convention can be regarded as Community law and can be invoked as such both in this court and in national courts where Community laws are in issue..’. Opinion of AG Jacobs of 30 April 1996 in Bosphorus, C-84/95, EU:C:1996:179, point 53. Rosas – Armati 2012, 161 ff., Besselink 2010, 36-49 and Besselink 2008, 199-204.

33

Interestingly, the two Presidents of the European Courts referred to a ‘parallel’ interpretation in the ‘Joint communication from Presidents Costa and Skouris’ of 24 January 2011.

34

Burgorgue-Larsen 2005, 33.

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the Union would be obliged to follow the course by reinterpreting the Charter so as to attain the level set out by the ECtHR. The case law of the Court of Justice and the Explanations relating to the Charter have already shown that the ECHR has a ‘special significance’ in the protection of fundamental rights within the Union’s legal order.35 In addition to the method of ‘corresponding’ interpretation between the provisions of the Charter and those of the ECHR, the Charter also entails a list of Articles whose meaning is the same, but whose scope is wider.36 Suffice here to mention by way of example Article 9 of the Charter, which covers the same scope as Article 12 of the ECHR on the right to marry. The article can also be extended to cover other forms of marriage in case these are lawfully established in domestic legal order. Besides the scope, the meaning of the right may be wider in the context of EU law, which holds equally true of Article 9 of the Charter allowing gay marriage in contrast to the language in Article 12 of the ECHR, the latter mentioning only ‘men and women’. Finally, Article 47 of the Charter demonstrates how both the meaning and the scope are wider than the corresponding provision of the ECHR, i.e., Article 6(1) ECHR. Article 47 of the Charter applies both to the EU institutions as well as to national authorities and affords wider protection.37 Even after the accession, the ECtHR will pronounce itself only on those provisions of the EU Charter which are also contained in the Convention, whereas the Court of Justice will continue to exercise final judicial authority also over those Charter provisions which do not find a direct equivalent in the ECHR. Since the Court of Justice and the ECtHR act in different settings and stem from different contextual backgrounds, there exist areas where these courts’ judicial approaches do not converge. Quite perceptibly, the Court of Justice continues to refer to EU legal instruments and their ‘autonomous interpretation’. This in turn leads to situations where certain issues, such as family reunification, are still considered by the Court of Justice in the context of economic freedoms (free movement rights).38 Another element pertains to the future fate of the so-called Bosphorus standard of limited control and presumption of equivalent protection. It may be in the interest of both courts to continue the existing dialogue and cooperation even after the Union’s accession to the Convention. It is yet to be anticipated whether the accession by the EU to the ECHR will lead to 35

E.g. judgments in Hoechst, 46/87 and 227/88, EU:C:1989:337 and Connolly, C-274/99 P, EU:C:2001:127. As regards Art. 7 of the EU Charter and Art. 8 of the ECHR (respect for private and family life), see judgment in McB., C-400/10 PPU, EU:C:2010:582, para. 53, and with regard to Art. 47 of the EU Charter and Art. 6 § 1 of the ECHR (right to an effective remedy and to a fair trial), see judgment in DEB, C-279/09, EU:C:2010:811, para. 32. Cf. Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, 33-34.

36 37

Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p. 34.

Article 47 of the Charter is not limited to proceedings relating to the ‘determination of his civil rights and obligations or of any criminal charge against him’, as under Article 6(1) of the ECHR.

38

Wotljer 2013, 223-4.

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the adoption of the Court’s famous dictum in its Opinion 1/91 so that the case law of the ECtHR would be binding on the Court of Justice: ‘Where, however, an international agreement provides for its own system of courts, including a court with jurisdiction to settle disputes between the Contracting Parties to the agreement, and, as a result to interpret its provisions, the decisions of that court will be binding on the Community institutions, including the Court of Justice. Those decisions will also be binding in the event that the Court of Justice is called upon to rule, by way of preliminary ruling or in a direct action, on the interpretation of the international agreement, in so far as that agreement is an integral part of the Community legal order.’39



6.2 The Charter of Fundamental Rights of the European Union: The Union’s Own Bill of Rights

The history of the European Union is replete with examples of legal and political decisions in the name of a compromise, only later evolving into instruments not envisaged at the time of their adoption. 40 The EU Charter is an apt example of this intriguing process. The Court of Justice had explained that the EC Treaty, as it then stood, did not grant competence to the Community to accede to the ECHR. 41 Member States would have had the opportunity to amend the Treaties so as to make the accession possible. That amendment would have, however, required unanimity which did not exist at the time. 42 In parallel to the planned accession to the ECHR, the German Presidency of the EU in the first half of 1999 proposed drafting its own fundamental rights document for the Union which came to be known by its present name, the Charter of Fundamental Rights of the European Union. The idea of drafting a Charter of Fundamental Rights was announced in April 1999 at a conference entitled ‘Towards a New Charter of Fundamental Rights’. 43 Discussions of a ‘Bill of Rights’ for the EU were not new even in the late 1990s. The fiftieth anniversary of the Universal Declaration of Human Rights in 1998 and several conferences and other meetings held to mark the occasion added significant political momentum to adopting an ‘own’ Charter for the Union. Simultane39

Opinion the European Economic Area, 1/91, EU:C:1991:490, para. 39. Lock 2009, 396-7.

40 41

De Búrca 2001, 126-7.

Opinion Accession to the ECHR, 2/94, EU:C:1996:140.

42

This absence of a political will was evident in the number of Member State governments which intervened before the Court of Justice to argue against the legality of accession by the Community to the European Convention.

43

The Presidency Conclusions of the Cologne European Council on 3 and 4 June 1999 proclaimed that: ‘- - There appears to be a need, at the present stage of the Union’s development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union’s citizens.’ Cf. the speech by Mr. Roman Herzog, the Chairman of the Body to draw up a draft Charter, annexed to the Record of the Meeting (CHARTE 4105/00, p. 8).

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ously, numerous reports on human rights protection in the EU appeared. The European Parliament frequently criticised the lack of visibility and ambiguous state of citizen’s rights in the Union and embarked upon numerous initiatives concerning fundamental rights protection in the Union. 44 A single document delineating such rights would remedy the lack of clarity in the protection of human rights in the EU. 45 A separate Charter covering fundamental rights recognised in the EU would make their overriding importance and relevance more visible to Union citizens and would represent a welcome intensification of fundamental rights protection in EU law. In line with the Cologne Presidency Conclusions, the European Council set up a working group, a body which referred to itself as a ‘Convention’, to draft the proposed Charter. 46 The large number of members representing both European and national parliaments added to the democratic nature of the drafting process. It also represented a response to the position of the German Federal Constitutional Court held in its Solange I judgment, which held that a step forward in the integration process would have to entail the Union receiving a catalogue of fundamental rights ‘decided on by a parliament’. 47 The Charter was from the beginning drafted with an eye to the possibility of later judicial enforcement so the proposed Charter might over the course of years gain even stronger legislative and judicial power. 48 However, opinions on the status and significance of the Charter differed even inside the working group (the Praesidium which 44

E.g., Joint Declaration of 5 April 1977 by the European Parliament, the Council and the Commission on the protection of fundamental rights (OJ C 103, 27.04.1977, p. 1), Resolution on the granting of special rights to the citizens of the European Community in implementation of the decision of the Paris Summit of December 1974 (OJ C 299, 12.12.1977), Resolution adopting the Declaration of fundamental rights and freedoms (De Gucht report) of 12 April 1989 (A2-3/89, OJ C 120, 16.05.1989), Resolution on the Community Charter of Fundamental Social Rights of 22.11.1989 (A3-69/89, OJ C 323, 27.12.1989), Résolution sur les Conférences intergouvernementales dans le cadre de la stratégie du Parlement européen pour l’Union européen du 22.11.1990 (A3-270/90, JO C 324 du 24.12.1990), Résolution sur la citoyenneté communautaire (A3-129/91, JO C 183 du 14.06.1991), Resolution on the Constitution of the European Union (Herman report) of 10.02.1994 (A3-0064/94, OJ C 61, 28.02.1994), Resolution on the establishment of the Charter of Fundamental Rights (B5-0110/1999, OJ C 54, 25.02.2000, p. 93), Resolution on the drafting of a European Union Charter of Fundamental Rights (Duff-Voggenhuber report) of 16.03.2000 (A5-0064/2000, OJ C 377, 29.12.2000, p. 329).

45

Goldsmith 2001, 1204.

46

Annex to the Presidency Conclusions of the Tampere European Council on 15 and 16 October 1999, as well as, IV Annex to the Presidency Conclusions of the Cologne European Council on 3 and 4 June 1999. Conte 2012, 24.

47

Italics by the author. Solange I judgment, BVerfGE 37, 271.

48

Speech by the Chairman of the Body to draw up a draft Charter, Mr. Roman Herzog, annexed to the Record of the Meeting (CHARTE 4105/00, pp. 8-9). And the Speech by Mr. Inigo Mendez de Vigo before the same Body who expressed the European Parliament’s view on the importance of the binding status of the Charter in stronger terms (CHARTE 4105/00, pp. 11-13). Anderson – Murphy 2011, 2.

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constituted the Convention’s leadership), the drafting process been described as ‘a highly ambivalent one in its establishment, its functioning and its aims’. 49 While the European Commission and European Parliament had lofty ideas regarding the Charter’s significance, Member States were more inclined to accord the Charter a value of a more declaratory nature.50 As so often the case with EU law, the end result of the Charter was a legal and political compromise. The Charter was designed with the intention of making existing fundamental rights recognised in EU law more visible, rather than creating wholly new rights. 51 The Charter was not incorporated into the Treaties, but was instead ‘solemnly proclaimed’ by the European Parliament, the Council of Ministers and the European Commission (but not by Members States) in Nice on 7 December 2000. The Treaty of Nice did not contain any reference to the Charter, nor was the Charter included in the ‘L’ series of the Official Journal, the series reserved for law. Rather, it was included in the ‘C’ series of the Journal, which is reserved for other more informal information and notices.52 Nevertheless, it was the first formal EU document to combine and declare the totality of values and fundamental rights to which Union citizens should be entitled. A separate document containing the rights of EU citizens was meant to deepen and strengthen the culture of considering and applying them. The general approach towards the Charter even after its solemn proclamation was rather moderate. The Advocates General of the Court of Justice acted as judicial pioneers in their views and usage of the Charter.53 Advocates General Alber and Tizzano referred to the Charter along with their other argumentation, seeking to accord it additional legal weight only some two months after its solemn proclamation.54 Some half a year after the proclamation, the Advocate General Léger dealt quite extensively with the status and role of the Charter in his Opinion to the Hautala case concerning the principle of access to documents.55 Advocate General Léger concluded that ‘the Charter has undeniably placed the rights, which form its subject matter, at the highest level of values common to the Member States. It is thus natural for the rules of positive 49 50

De Búrca 2001, 138.

Benoit-Rohmer 2008, 19. The Nice European Council decided to consider the question of the Charter’s legal status during a general debate on the future of the European Union initiated on 1 January 2001. De Búrca 2001, 134.

51

Cf. The Cologne Presidency conclusions of 1999, para. 44.

52 53

OJ 2000, C 364, 18 December 2000, p. 1. Eeckhout 2002, 946.

See Kokott – Sobotta 2010.

54

Opinion of AG Alber of 1 February 2001 in TNT Traco, C-340/99, EU:C:2001:74, point 94 and opinion of AG Tizzano of 8 February 2001 in BECTU, C-173/99, EU:C:2001:81, point 28.

55

Ms. Heidi Hautala was a Finnish Green MEP who was actively involved in issues relating to human rights and transparency and had submitted a written question concerning EU export criteria for arms. Ms. Hautala was concerned about the human rights repercussions which the possible permission granted by the Finnish Government for arms exports to Turkey might have.

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Community law to benefit, for the purposes of their interpretation, from the position of the values with which they correspond in the hierarchy of common values’.56 The Advocate General concluded that the Charter was intended to constitute a privileged instrument for identifying fundamental rights and is a source of guidance as to the true nature of the Community rules of positive law. He considered that where it was decided a right should be classified as a fundamental right, the authorities responsible for applying it are under strict requirements to give it the wide interpretation demanded by its true nature. In the following years also Advocates General Mischo, Poiares Maduro and Kokott, among others, made references to the Charter in their respective Opinions. In many of these Opinions the Advocates General saw it sufficient to simply refer to a relevant provision of the Charter, stating almost in a unison that ‘although the Charter does not yet have binding legal effect comparable to that of primary law, it does at least, as a legal reference, provide information on the fundamental rights guaranteed by the [Union] legal order,’57 and ‘that the charter none the less serves as a guide to and point of reference for the rights guaranteed by the [Union] legal order.’58 Evidently the Advocates General recognised the guiding and interpretational value of the Charter and used it both in support of their legal argumentation and to strengthen legitimacy of their reasoning. The Advocates General indicated the Charter forms a compilation of the rights and principles of EU law which should be adhered to in all the Union’s activities. The General Court referred to the Charter for the first time prior to the Court of Justice in the Mannesmannröhren case concerning the rights of the defence.59 The applicant had expressly requested the Court take the Charter into consideration on the grounds that it constituted a new point of law pertaining to the purpose of the determination of the case. The applicant’s request arrived to the Court after the original proceedings had already been initiated a mere ten days following the proclamation of the Charter. The timing evidently influenced the Court’s standing, according to which the Charter could not be of any consequence for the purposes of review of the contested measure which was adopted prior to that date.60 However, the Court emphasized that Union law does recog-

56

Opinion of the AG Léger of 10 July 2001 in Hautala, Case C-353/99 P, EU:C:2001:392, points 78-86, 80-83.

57

Opinion of AG Kokott of 14 October 2004 in Berlusconi, C-387/02, C-391/02 and C-403/02, EU:C:2004:624, point 109, fn. 83.

58

Opinion of AG Poiares Maduro of 29 June 2004 in Nardone, C-181/03 P, EU:C:2004:397, point 51. In his Opinion AG Poiares Maduro also referred to the Opinion of AG Tizzano in BECTU, C-173/99, EU:C:2001:81, point 28. See also opinion of AG Mischo of 20 September 2001 in Booker Aquacultur, C-20/00 and C-64/00, EU:C:2001:469, point 126.

59

Judgment in Mannesmannröhren-Werke, T-112/98, EU:T:2001:61.

60

Ibid., judgment in Mannesmannröhren, para. 76.

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nise both the rights of defence and the right to fair legal process as fundamental principles.61 On the other hand, in the max.mobil case the General Court referred to a provision of the Charter right after its proclamation. The case represents the first judgment in which the General Court considered the interpretational value of the Charter after its proclamation.62 In its preliminary observations to the case, the Court quoted Article 41(1) of the Charter, which confirms that ‘[e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’. The Court also pointed out that under Article 47 of the Charter any person whose rights guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal.63 The Civil Service Tribunal of the European Union referred to the Charter for the first time in 2006 in its judgment for the Landgren case.64 The Tribunal pointed out that under Article 30 of the Charter ‘[e]very worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices’ as well as to the third indent of Article 41(2). The article provides, under the heading of the right to good administration, for ‘the obligation of the administration to give reasons for its decisions’. The Tribunal noted the special status of the Charter by adding in its findings that ‘by solemnly proclaiming the Charter, the Parliament, the Council and the Commission apparently intended to give it particular significance, account of which must be taken when interpreting the provisions of the Staff Regulations and the Conditions of Employment’.65 Conversely, the Court of Justice took a very moderate approach to the Charter and was initially quite reluctant to refer thereto in its case law on fundamental rights.66 It waited until the Parliament v Council case67 in which it was expressly requested to interpret the validity of the so-called family reunification Directive.68 In that case the European Parliament had deemed some provisions of the Directive to be in conflict with fundamental rights.69 Since the Directive

61

See judgments in Baustahlgewebe, C-185/95 P, EU:C:1998:608, para. 21 and Krombach, C-7/98, EU:C:2000:164, para. 26.

62 63

Judgment in max.mobil, T-54/99, EU:T:2002:20.

Ibid., judgment in max.mobil, paras. 48 and 57.

64 65

Judgment in Landgren, F-1/05, EU:F:2006:112.

Ibid., judgment in Landgren, paras. 70-72.

66 67

Morijn 2006, 19-20.

Judgment in Parliament v Council, C-540/03, EU:C:2006:429.

68

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3.10.2003, p. 12–18.

69

Ibid., judgment in Parliament v Council, C-540/03, EU:C:2006:429, paras. 30-32.

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at issue contained an explicit reference to the Charter, the Court of Justice could not refrain from considering it in its judgment.70 The Court referred extensively to various human and fundamental rights instruments and focused specifically to address Article 8 of the ECHR. With regard to the Charter, the Court referred in several paragraphs to the right to respect for private and family life (Article 7), to the prohibition of discrimination (Article 21) and to the rights of children (Article 24). It stated rather laconically that while the Charter was not a legally binding instrument, the Union legislature acknowledged its importance and that the principal aim of the Charter was to reaffirm the rights already recognised in Union law.71 Some year and a half later the Court assessed various fundamental rights and the need for balancing divergent interests in the Promusicae case.72 The case concerned the issue of balancing the right to privacy, the right to property and the right to an effective remedy (contained, inter alia, in Articles 7, 8 and 47 of the Charter, respectively). The Court held that when implementing directives, Member States must rely on an interpretation which allows a fair balance to be struck between various fundamental rights protected under Union law. Further, when implementing measures transposing those directives, the authorities and courts of Member States ‘must not only interpret their national law in a manner consistent with those directives, but also make sure that they do not rely on an interpretation which would be in conflict with fundamental rights’.73 The ECtHR has also for its part referred to the Charter in its judgments and did so the first time in 2002, in the case of Christine Goodwin v. the United Kingdom.74 The ECtHR has continued to actively reference the Charter, frequently commenting on Article 52(3), according to which ‘in so far as the Charter contains rights, which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the said Convention’.75 The EU Charter is an expression of the common values of the Member States. Hence, it represents an indispensable instrument of political and moral legitimacy. Strong protections for individual rights, whatever its political or 70

The second recital in the preamble to the Directive is worded as follows: ‘This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union.’

71

Ibid., judgment in Parliament v Council, C-540/03, EU:C:2006:429, paras. 38, 58 and 105.

72 73

Judgment in Promusicae, C-275/06, EU:C:2008:54.

Ibid., judgment in Promusicae, paras. 65, 66 and 68.

74

Judgment of the European Court of Human Rights of 11 July 2002 in the case of Christine Goodwin v. The United Kingdom (GC), Application No. 28957/95, ECHR 2002-VI, § 58 and 100. Even a while earlier a brief mention of Article 37 (environmental protection) of the EU Charter is found in the separate opinion of Judge Costa in the Judgment of 20 October 2001 in the case of Hatton & Others v. the United Kingdom (Application No. 36022/97).

75

E.g., Dhabi v. Italy (Application No. 17120/09), Judgment of 8 April 2014. See also Rosas – Kaila 2011, 8.

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constitutional incentives, serve as a judicial safeguard for the individual against the growing legislative and administrative power of the Union and would direct its policies.76 By making these rights more visible and apparent to all, it should be easier for Union citizens, at least in principle, to invoke and rely on them in legal proceedings. This would provide a strong basis for strengthening an individual’s access to legal protection.77 The Charter also marks a phase in which the Union has entered a new, more political – some might even say federal – stage of integration process.78 Almost nine years after the EU Charter was signed and proclaimed in Nice in December 2000, it finally became a legally binding instrument with the entry into force of the Treaty of Lisbon in December 2009. The Union now possesses its own written ‘Bill of Rights’, which is in general considered an essential element of a Rechtsstaat. Whereas the number of cases relating to human rights issues increased somewhat after the EU Charter was first drafted, the quantity of cases soared after the Lisbon Treaty rendered the Charter legally binding. Subsequent to gaining a legally binding force the Charter has been actively employed in court adjudication.79



6.2.1 The Contents and Structure of the Charter

The EU Charter forms a record of rights which are given protection under EU law.80 To this end, it is composed of 54 Articles in total which in turn are divided into six substantive Titles making up the 50 substantive Articles, as follows: Dignity (Articles 1-5), Freedoms (Articles 6-19), Equality (Articles 20-26), Solidarity (Articles 27-38), Citizenship (Articles 39-46) and Justice (Articles 47-50). The seventh and final Title contains the remaining four Articles which cover general rules on the interpretation and the scope of application of the Charter and seek to define the conditions under which the Charter may be relied on. These four Articles have an intriguing drafting history, since their formulation pertains to deeply contested political and legal issues. During the early drafting process of the Charter some Member States expressed doubts over the legal and political potential of the Charter, fearing that the Court could in time make use of the new legal instrument as a centralising force in federalising the Union.81 The seventh Title was explicitly drafted to appease these fears and to assure Member States that the Charter would not be used to disrupt the vertical allocation of powers. The final Title thus seeks to determine the manner in which the Charter provisions should be applied. 76 77

Anderson – Murphy 2011, 1-2.

Cf. Commission Communication on the Charter of fundamental rights of the European Union, COM/2000/0559 final, points 7 and 8.

78

Lenaerts 2012, 375, Eeckhout 2002, 951 and Rossi 2008, 77.

79

Walkila 2012, 616-34 and De Búrca 2013, 170.

80 81

Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391-407.

Knook 2005, 367 and Lenaerts 2012, 376.

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An outstanding character of the Charter relates to its combining provisions of civil and political nature – such as equality before the law and prohibition of torture and of slavery – with rights distinctively of more social, economic and cultural character – such as freedom of the arts and sciences and right to education. Thus, the Charter rightly constitutes the first binding legal instrument at international level which combines economic and social rights with the classic civil and political rights in one fundamental rights catalogue and submits them to the same system of judicial enforcement.82 The preamble to the Charter affirms its contemporary character by recognising the importance of visibility of fundamental rights in particular ‘in the light of changes in society, social progress and scientific and technological developments’.83 In line therewith, the Charter goes further than e.g., the ECHR in the way it confers or guarantees fundamental rights. While the ECHR mostly covers civil and political rights, the Charter lists a range of economic, social and cultural rights under its fourth Title. The Charter also contains a small number of so-called ‘third generation rights’ – rights which seek to protect issues of collective and developmental concern, such as the right to a clean environment. Some of the rights contained in the Charter were not even envisaged at the time of drafting the ECHR in 1950, notably in the field of biotechnology.84 Some of the rights included in the Charter are not mentioned in any other human rights documents, e.g., the protection of personal data, and the prohibition of the reproductive cloning of human beings. The Charter also extends the meaning of some traditional rights into new areas. Whereas the ECHR acknowledges the right of a man and woman to marry, the Charter employs more modern language, and recognises alternative ways of building a family. Similarly, the Title on Equality (Title III, Articles 20 to 26) in the Charter is far more extensive than the corresponding provision of the ECHR (Article 14). The general provision on equality (Article 20 of the Charter) is very broad and – unlike Article 14 of the ECHR – freestanding so it is not necessary to show a violation of another right in addition to the right of non-discrimination. The Charter also includes separate and specific provisions promoting equality between men and women, the rights of children, the elderly and the less able-bodied. Finally, it should be noted that the rights in the ECHR establish a minimum standard of protection. It is recognised in Article 52(3) of the Charter that the EU might provide even a higher standard of protection. Accordingly, the Court of Justice is to follow the interpretation of the ECtHR as to its level of protection. It is precluded from interpreting the provisions of the Charter in a regressive way should the ECtHR ever decide to lower the level of protection below 82 83

Ladenburger 2012, 143.

Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 395.

84

See in this regard and concerning the concept of ‘human embryos’, Opinion of AG Bot of 10 March 2011 in Brüstle, C-34/10, EU:C:2011:138.

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that guaranteed under EU law.85 Article 52(3) of the Charter may also result in the EU and national courts being obliged to elaborate and develop the rights contained in the ECHR even further on the basis of the Charter. This will be the case with regard even to rights not outlined in the ECHR, such as economic and social rights (Title IV of the Charter), the right to good administration (Article 41 of the Charter) and so-called ‘new generation rights’ (e.g., cloning).



6.2.2 The Nature of the Charter Provisions: ‘Rights, Freedoms and Principles’

Another distinctive feature is found in the Preamble to the EU Charter, which describes its provisions as ‘rights, freedoms and principles’. This is followed by the General Provisions of the Charter, namely Article 52(5), which makes a distinction between rights (and freedoms), on the one hand, and principles, on the other. At the same time – apart from providing a few examples – how to distinguish a principle from a right or a freedom is left open.86 Not even the drafters of the Charter succeeded in reaching a consensus on identifying which Charter provisions would be termed as ‘principles’ and which ‘rules’. This task was thus left to the Court of Justice which at least so far has not clearly dealt with the question.87 The distinction is significant. In line with Article 51(1) of the Charter, subjective rights shall be respected, whereas principles shall merely be observed as ‘factors to be taken into account by courts when interpreting legislation but which do not in and of themselves create enforceable rights’.88 Article 52(5) of the Charter further explains that the principle-like provisions of the Charter may be used alone only in the interpretation and ruling on the legality of acts pertaining to EU law. The intended distinction between principles and rights of the Charter provisions stems from the doubts expressed by some Member States (notably the UK and Denmark) with regard to incorporating economic and social rights into the Charter.89 In order to convince some sceptical Member States to accept the new 85

Lenaerts 2012, 384.

86

Explanations relating to the Charter, on ‘Article 52’, classify Articles 25, 26 and 37 ‘for illustration’ as principles (OJ C 303, 14.12.2007, p. 35). It is important to note that the principles in the meaning of the Charter provisions are not to be confused with the general principles of EU law. Although of general applicability, general principles may also function as rules when determining a certain outcome. Rosas – Armati 2012, 178.

87

E.g., judgment in Dominguez, C-282/10, EU:C:2012:33. In her Opinion to the case (EU:C:2011:559) AG Trstenjak qualified Article 31(2) on paid annual leave as a right rather than a principle. The Court did not consider the issue. Neither the explanations relating to the Charter provide helpful guidance as to pointing out the principle-like Charter provisions.

88

Goldsmith 2001, 1212. House of Lords Constitution Committee, European Union (Amendment) Bill and the Lisbon Treaty: Implications for the UK Constitution, 6th Report, 2007-8, HL Paper 84, paras. 60-61.

89

Burgorgue-Larsen 2005, 683 ff., Braibant 2001, 44-6 and Jacqué 2008, 4.

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EU Charter, the Convention on the Future of Europe was willing to make an additional amendment to Article 52 which was intended to make a clear distinction between judicially cognisable ‘rights’, on the one hand, and provisions of a more programmatic nature, i.e., ‘principles’, on the other. Illustrative of this distinction is the initial term used: ‘social principles’. This was later replaced with the shorter form, ‘principles’.90 Consequently, the ‘principles’ among the Charter provisions were not intended to create directly enforceable rights in the meaning of the Article 52(5). The terminology drew inspiration from constitutional practices in some Member States which distinguish between enforceable constitutional norms and those lacking that quality. 91 Moreover, the distinction implies an idiosyncrasy familiar from legal theory. From the legal theoretical point of view, the Charter’s rights and principles may also be analysed in the Dworkinian meaning.92 In Dworkin’s terminology ‘standard’ is a term which captures both legal rules and principles, as well as policies.93 Both principles and policies differ as to their quality from rules; the former ‘inclining a decision one way’ thus having a ‘dimension of weight’, whereas the latter apply in an all-or-nothing fashion. Principles differ from policies in that they relate to individual rights. Policies imply standards setting collective goals to be reached. These differentiations are conceivable also in light of the Charter. Article 5 of the Charter prohibiting slavery and forced labour quite distinctively qualifies as a rule in its absolute character. It is either followed or not, not merely persuading towards a certain direction. In contrast, a clear majority of the Charter provisions guide in a more yielding manner the interpretation towards a certain direction. Variations are detectable even among these. Some of the provisions are distinctly more general and collective in nature, and operate as Dworkinian policies (e.g., Article 37, environmental protection), while others clearly appear more concrete (e.g., Article 28, the right of collective bargaining and action). However, it must be acknowledged it is difficult, if not altogether impossible, to entirely uphold the distinction between rules and principles, as well as between principles and policies, in the Dworkinian meaning, in connection with Charter provisions. Several commentators have questioned the possibility and meaningfulness to establish such a distinction in abstract.94 The 90 91

Braibant 2001, 252 and Grimm 2001, 275 ff.

The distinction was already developed by the first Convention in Article 51(1) which drew inspiration from the French concept of justiciabilité normative and from Article 53(3) of the Spanish Constitution, in particular. See Jiménez Campo 1999, 122 ff. Opinion of AG Cruz Villalón of 18 July 2013 in AMS, C-176/12, EU:C:2013:491, point 48. For a comparative analysis, see Part III of this book and Ladenburger 2004, 803 ff. and Seifert 2012, 804 ff.

92

Dworkin 1977, 22, 24-25 and 72. On the practical application, see Schauer 1991, 13. For more on legal principles, see Part I of this book.

93

Dworkin 1977, 22 ff.

94

E.g., Safjan – Miklaszewicz 2010, 480.

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distinction between ‘rights’ and ‘principles’ in the meaning of Article 51(1) and 52(5) of the Charter is considered more in detail in Chapter 11.



6.2.3 Member State Specific Concerns over the Scope of the Charter

During the drafting of the Charter the United Kingdom (UK) expressed doubts over the potentially binding nature and justiciability of the new legal instrument.95 The UK was primarily concerned over Charter provisions containing economic and social rights accommodated under the fourth, ‘Solidarity’ Title because of its own liberal conditions and rules governing this area in domestic legislation. At the entry into force of the Lisbon Treaty the Charter would form part of the primary law of the Union. Its provisions would potentially be enforceable both in national courts as well as before the Court of Justice when matters of Union law were at stake. The legally binding nature of the Charter could conceivably bring about radical changes to the UK legal system, which it wished to avert as it feared a stream of its citizens going to the Court of Justice in attempts to enforce their Charter-based rights in the UK. 96 Consequently, while the UK did not wish to prevent the Charter from being ratified, it did not want to accord a legally binding nature to the Charter in its entirety. Consequently, the UK had a strong influence on the wording adopted in the Charter to separate (judicially enforceable) rights from principles (of interpretative value), preferring to use the latter in connection with provisions of social and economic character.97 Poland later adopted the UK’s position, although clearly on more political grounds. Consequently, a separate protocol was annexed to the Treaty of Lisbon by which the UK and Poland sought to clarify the manner of application of the Charter with regard to their respective national laws and administrative practices.98 At the European Council of October 2009 Member States agreed on two future protocols which would allow, first, the Czech Republic the same position as Poland and the UK under Protocol No. 30, and second, provide for Ireland 95

See e.g., Verkaik 2000. Cf. the position of the British Prime Minister at the time, Tony Blair, who expressed the British stand clearly to the Liaison Committee of the 18 June 2007 (The House of Commons’ European Scrutiny Committee’s 35th Report, para. 52).

96

E.g., the right to strike has been restricted in the UK since the 1980s, which would ultimately have to be reconsidered under Article 28 of the Charter on the right to collective bargaining and action. Deakin – Morris 2005, 963 ff. and Hendy – Gall 2006, 253-4.

97

The Explanations relating to the Charter also note that some Articles contain elements of both rights and principles. Moreover, two of the provisions in the Solidarity Title which cause most concern to British business, namely Article 28 on collective agreements and collective action and Article 30 on unfair dismissal, appeared to have been drafted as rights so as to be judicially enforceable. Cf. the UK’s submissions to the Court in judgment in Viking Line, C-438/05, EU:C:2007:772. Bercusson 2007, 300.

98

Protocol (No. 30) annexed to the Treaty of Lisbon on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, OJ C 326, 26.10.2012, p. 313-314.

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certain safeguards in relation to the right to life, family and education (Article 1), taxation (Article 2), and Irish neutrality (Article 3).99 The Irish protocol is understood to be clearly declaratory in nature and not intended to change either the content or the application of the Treaty of Lisbon. It emphasises Ireland’s national concerns relating to fiscal policy, aspects relating to family, social and ethical policy, and questions concerning security and defence in the light of Ireland’s traditional policy of neutrality. The Czech protpcpl was done in a measure designed to persuade Czech President Vaclav Klaus to sign the Lisbon Treaty. He had previously expressed concerns that the Charter would allow the families of Sudeten Germans who had been expelled from the territory of the modern day Czech Republic after the Second World War to challenge that expulsion before the Union courts (so-called ‘Beneš decrees’). The President thus requested an opt-out to be added to the Lisbon Treaty to resolve the issue. However, after presidential and parliamentary elections held in 2013 had resulted in a new leadership in the country as of January 2014, the Czech Republic indicated by a letter dated 7 March 2014, that they would discontinue the procedure for the conclusion of the Protocol.100 Protocol No. 30 opens with 12 recitals and contains two Articles divided into three provisions.101 First, according to Article 1(1) ‘The Charter does not extend the ability of the Court of Justice’ or the domestic courts in Poland and the UK to find that ‘laws, regulations or administrative provisions, practices or action’ to be inconsistent with the Charter. The Court of Justice has in fact already touched upon this provision in its judgment to the N.S. and Others case102 in which the Court indicated that Article 1(1) of Protocol No. 30 is more of a declaratory nature and an additional explanation of the normative content of Article 51 of the Charter.103 Article 1(1) merely states the obvious – that the Charter does not apply to purely domestic issues but only when national issues at stake are within the scope of the application of EU law. Accordingly, the Court of Justice may find national law inconsistent with the Charter when the national measures under consideration are within the scope of EU law. Naturally, nothing prevents national courts to interpret fundamental rights in light of the Charter. Article 1(1) does not add much to the already existing jurisprudence on the matter, and at least on this point Protocol No. 30 does not intend to create an ‘opt-out’ from the Charter in the literal sense of the word. 99

Protocol on the concerns of the Irish people on the Treaty of Lisbon, OJ L 60, 2.3.2013, p. 131-139. See Pernice – Griller – Ziller (eds.) 2008.

100

T he Council acted accordingly and on 13 May 2014 withdrew the ‘Recommendation of the Council to the European Council to adopt a draft Decision on the examination by a conference of representatives of the Governments of the Member States on the amendment to the Treaties’ proposed by the Czech Government on 5 September 2011.

101

See Barnard 2008, 257-83.

102

Judgment in N.S. and Others, C-411/10 and C-493/10, EU:C:2011:865, paras. 116-122. Also, Opinion of AG Kokott of 15.12.2011 in Bonda, C-489/10, EU:C:2011:845, point 23.

103

L adenburger 2012, 180.

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Articles 1(2) and 2 of the Protocol have proven more puzzling. According to the former, provisions under the Solidarity Title IV of the Charter, i.e., provisions of economic and social nature would not create justiciable rights. Article 2 of said Protocol intends to set national practices and legislation as decisive grounds for limitation when it refers to the Charter provisions drawing upon national laws and practices.104 Of the twelve Articles under the Solidarity Title, two in particular caught the attention of the UK government. These two, namely Article 28 on right of collective bargaining and action, and Article 30 on protection in the event of unjustified dismissal, are also referred to in Article 2 of the Protocol.105 The most logical reason thereto inevitably lies in the fact that the UK, in absence of its own written Bill of Rights or constitution, does not acknowledge a right to strike. In general, a rights-based system is favourable from a trade union’s perspective, since strikes are commonly considered lawful thereunder and it is up to the state to justify any eventual limitations thereto. In the UK, trade unions only enjoy an ‘immunity’ from being sued in tort, provided they succeed in fulfilling pre-set conditions, wherefore it is up to them to try to justify any eventual strike action. 106 This national practice and its differences with many continental systems resulted in the UK’s concern for the possible enforceability of the Charter, in particular with regard to the right to strike. It is important to bear in mind that in spite of the nature of legal effect intended by the Protocol, the two Members States are still fully bound by fundamental rights as general principles of EU law as indicated in Article 6(3) TEU. In other words, even if Protocol No. 30 would limit the application of the Charter, identical rights could be found and applied even to these two States as general principles of Union law.107 The Court of Justice could thus apply even the right to strike as a fundamental right to the UK when formulating it as a general principle of EU law. This was expressly demonstrated in the Viking Line case in which the Court for the first time recognised the right to strike as a general principle of EU law.108 Also, for the part of Poland, social and labour rights were not a real issue, since the Polish Solidarity movement historically focused on 104

T hese provisions include Article 9 (Right to marry and right to found a family), Article 10 (Freedom of thought, conscience and religion), Article 14 (Right to education), Article 16 (Freedom to conduct a business), Article 27 (Workers’ right to information and consultation within the undertaking), Article 28 (Right of collective bargaining and action), Article 30 (Protection in the event of unjustified dismissal), Article 34 (Social security and social assistance), Article 35 (Health care) and Article 36 (Access to services of general economic interest) of the Charter.

105

T he UK’s concerns over the right to strike are not limited to the Charter alone. Cf. Novitz 2003, 133-4. See also Syrpis 2007.

106

Collective action is granted immunity under the British law if taken ‘in contemplation or furtherance of a trade dispute’ defined in section 244(1) Trade Union and Labour Relations (Consolidation) Act 1992. More on the subject, see Barnard 2008, 266.

107

Jacqué 2008, 6.

108

Judgment in Viking Line, C-438/05, EU:C:2007:772, para. 44.

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advancing workers’ rights and social change in opposition to the Communist regime.109 In spite of these elements and the wide public discussion of ‘opt-outs’ by the UK and Poland to the Charter, the Protocols are primarily clarificatory and interpretative in nature and only intend to put beyond doubt what already ought to be obvious from other provisions of the Charter. Thus, Protocol No. 30 does not constitute an ‘opt-out’ in the strict literal meaning of the word. This is further supported by the Preamble to the Protocol, which notes in its 8th and 9th recitals that Poland and the UK only wished to ‘clarify [certain aspects of] the application of the Charter’ which does not alter the fact that these two States are otherwise bound by Union law generally. This was reaffirmed by the 12th recital to the Protocol. It thus follows that even the UK and Poland are bound by the same legal sources that make up the foundational and legal inspiration for the Charter provisions. Accordingly, it can be maintained that the Protocol was a mere ‘exercise in smoke and mirrors’ and predominantly drafted for ‘presentational reasons’ to help convince the largely Euro-sceptic British public to accept the Treaty of Lisbon without recourse to a referendum.110



6.2.4 Post-Lisbon Status and Use of the Charter

The use of the EU Charter in the jurisprudence of the Union’s courts can be divided into three different phases following the manner and intensity of the Courts employing the Charter. The first phase covers the immediate years after the proclamation of the Charter when the EU Courts primarily referred to the general principles of EU law as found in the Court’s case law when arguing on the basis of fundamental rights. During the second phase, the Court started to make references to rights directly found in the Charter, although the general principles still formed the primary source of reference. It was not until the third phase following the entry into force of the Treaty of Lisbon that the Court began to make direct references to the Charter as a source of certain rights or freedoms, eventually indicating that it is considered the primary point of reference also in relation to the provisions of the ECHR.111 This change of judicial practice connotes significant practical consequences. The entry into force of the Treaty of Lisbon radically strengthened the legal status of the Charter. Thereafter, the Charter emerged as an autonomous legal 109

‘Independent Self-governing Trade Union “Solidarity”’ founded in 1980. Garton Ash 2002. See Declaration 62 Concerning Protocols Annexed to the Treaties, ‘Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom’.

110

Barnard 2008, 283. Nevertheless, it still leaves open the question why an ‘opt-out’ to the Charter was needed during the Lisbon Treaty negotiations when it was not deemed necessary to be included in the earlier Constitutional Treaty.

111

Judgments in Chalkor, C-386/10 P, EU:C:2011:815, paras. 51-52 and Otis, C-199/11, EU:C:2012:684, paras. 46-47.

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act of primary law expressly determining – for the first time at EU level – the scope and the contents of (at least some) fundamental rights. One of the primary objectives of the Charter was to make the rights, freedoms and principles recognised in the Union’s legal order more visible. Reaffirming and clarifying those rights in the form of a separate document increased the possibility of Union citizens to invoke and rely on those rights more efficiently. It is important to note that on the basis of Article 52(2) of the Charter, the Charter does not seek to replace other primary EU legislation.112 For instance, Article 45(1) of the Charter provides for free movement of Union citizens and thus relates to well-established legislation on Union citizenship and the rights attached thereto. Even though the Charter might prove relevant in many areas of EU law, it is the Treaty provisions and other legislation which form the primary source of reference and determine the conditions for exercising those rights.113 At the same time, the Charter carries a strong symbolic status, since in its form and contents it clearly bears a resemblance to several Bill of Rights -type declarations of citizen rights. In this sense the Charter seeks to strengthen a feeling of solidarity and a collective European identity.114 On the basis of the amendments to Article 6 TEU brought about by the Treaty of Lisbon, the Charter has the same legal value as the Treaties. The soft-law status, previously attached to the Charter, gave way to a new legally binding value as the Charter was raised to the level of other primary legislation. This change fulfils a triple function. First, Charter provisions aid interpretation in cases where the issue falls within the scope of the application of EU law. Secondly, Charter provisions may be invoked in judicial review so that EU legislation found to be in breach of Charter provisions is to be held void, whereas contravening national law within the scope of EU law must be set aside. Finally, the Charter provides a source for the general principles of EU law. 115 The Court of Justice has actively referred to the Charter after it acquired a legally binding status. This took place for the first time only two months after the entry into force of the Lisbon Treaty in the Kücükdeveci case, in which the Court applied Article 21 of the Charter concerning the principle of non-discrimination on the grounds of age.116 To date, the Court of Justice has referred to several provisions of the Charter.117 In addition to direct references, the Court 112

A rticle 52(2) reads: ‘Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.’

113

E.g., with regard to free movement of workers, Article 20 TFEU.

114 115

Denman 2010, 350 and Rosas – Kaila 2011, 2.

Lenaerts – Gutiérrez-Fons 2010, 1656 ff. and Lenaerts 2011, 82.

116 117

Judgment in Kücükdeveci, C-555/07, EU:C:2010:21.

Inter alia the right to privacy and family life (Article 7), the protection of personal data (Article 8), the prohibition of discrimination (Article 21), the principle of equality between women and men (Article 23), the rights of children (Article 24), worker rights to information and consultation within the undertaking (Article 27), the right of collective bargaining and action (Article 28), the protection of family and professional life (Article 33), health care (Article 35), the right to good administration (Article 41), the

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has often concurrently relied on other documents or policies concerning human and fundamental rights, notably to the ECHR, to the general principles of EU law, to the Social Charter and to the Treaties. Shortly after the Charter gained a legally binding force did the Court of Justice note in two separate cases that a Union legislative act was invalid because it was in breach of EU fundamental rights.118 Prior thereto the Court had never found a similar violation, which only stresses the significance of the new post-Lisbon status of the Charter. In many instances the Charter has expressly been referred to in cases which have concerned the area of freedom, security and justice, where balancing divergent interests is rather common because of the delicate nature of the subject matters covered by the area and thus open for diverse human rights considerations. Examples of issues particularly sensitive for balancing human and fundamental rights include questions relating to family law, immigration and asylum law.119 It is also anticipated that cases concerning fundamental rights considerations on sensitive issues will only increase in future, since as of 1st December 2014, after the five-year transitional period in compliance with Article 10 of Protocol 36 attached to the Treaties, the Court of Justice will enjoy full jurisdiction and the Commission will be entitled to initiate infringement proceedings regarding EU measures relating to police and judicial cooperation in criminal matters adopted before the entry into force of the Lisbon Treaty. The Court will also have the power to interpret these measures following references for a preliminary ruling from all national courts. The General Court also began to actively include the Charter in its argumentation post-Lisbon. This it did for the first time on 15 December 2010 in its judgment in the E.ON Energie case, in which the General Court addressed the issue of the principle of the assumption of innocence in connection with competition law proceedings.120 In addition to making a reference to Article 47 of the Charter concerning the right to an effective remedy and to a fair trial, the General Court referred to Article 6 of the ECHR in its judgment. For its part, the Civil Service Tribunal of the European Union made its first post-Lisbon reference to the Charter in its judgment in the Bleser case,121 rendered only a day before the freedom of movement and of residence (Article 45), the right to an effective remedy and to a fair trial (Article 47), and presumption of innocence and right of defence (Article 48). 118

Judgments in Volker und Markus Schecke, C-92/09 and C-93/09, EU:C:2010:662, Test-Achats, C-236/09, EU:C:2011:100 and Digital Rights Ireland and Seitlinger, C-293/12 and C-594/12, EU:C:2014:238.

119

E .g., judgment in N.S. and Others, C-411/10 and C-493/10, EU:C:2011:865, in which the Court, drawing much from the judgment by the ECtHR of 21 January 2011 in Case of M.S.S. v. Belgium and Greece (Application No. 30696/09), held that Member States may not transfer an asylum seeker to another Member State if there exists substantial grounds for believing the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. Judgment in Chakroun (C-578/08, EU:C:2010:117) demonstrates the complexities of striking a balance when Member States seek to set conditions for family reunification.

120 121

Judgment in E.ON Energie, T-141/08, EU:T:2010:516.

Judgment in Bleser, F-25/07, EU:F:2010:163.

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afore-mentioned judgment by the General Court in the E.ON Energie. In Bleser the Tribunal referred to Article 41 of the Charter in relation to the right to good administration. The strengthened post-Lisbon status of the Charter is also evident in the Chalkor case.122 In Chalkor the appellant had challenged before the General Court a fine imposed on it by a Commission decision. The judgment was subsequently appealed to the Court of Justice. The appellant relied on Article 6 of the ECHR as well as on the Charter to complain about the wide discretion granted to the Commission by the General Court in exercising judicial review and was of the view that competition proceedings were criminal in nature, for which reason full judicial review should be exercised upon Commission decisions. The Court of Justice maintained the principle of effective judicial protection is a general principle of EU law, to which expression is given by Article 47 of the EU Charter. It continued by holding that since Article 47 of the EU Charter implements in EU law the protection afforded by the ECHR and specifically Article 6(1) thereof at issue in the case, it was necessary to refer only to Article 47 of the EU Charter. Depending on the nature of reference to the Charter, these cases may be categorized into three groups. These comprise, firstly, the cases in which the Charter is employed as the main source for identifying and interpreting fundamental rights. Remarked examples of this first category include the Test-Achats, Digital Rights Ireland and Volker and Markus Schecke cases; the first concerning the right to non-discrimination on the basis of sex and the latter two concerning the right to privacy and data protection.123 In all three cases the Court declared EU provisions to be invalid on the basis of Charter provisions. The second group involves cases in which the Charter is used mainly as a complementary source. Apt examples of this group include the Kücükdeveci and Prigge cases, in which the Court primarily reasoned on the basis of Directive 2000/78 and only by way of supporting its conclusions referring to the Charter as giving expression to the general principle of non-discrimination on grounds of age.124 The third and final group of cases relate to situations where the Court of Justice for some reason failed to consider the Charter in its reasoning and 122

Judgment in Chalkor, C-386/10 P, EU:C:2011:815, paras. 51-52; similarly in the judgment in Otis, C-199/11, EU:C:2012:684, paras. 46-47.

123

Judgments in Test-Achats, C-236/09, EU:C:2011:100, Volker und Markus Schecke, C-92/09 and C-93/09, EU:C:2010:662 and Digital Rights Ireland and Seitlinger, C-293/12 and C-594/12, EU:C:2014:238, paras. 69, 71. The Charter has also been distinctively employed in Scarlet Extended, C-70/10, EU:C:2011:771 (data protection), and DEB, C-279/09, EU:C:2010:811 (the right to effective judicial protection).

124

Judgments in Kücükdeveci, C-555/07, EU:C:2010:21 and Prigge, C-447/09, EU:C:2011:573. Other examples include, e.g., judgments in Danosa, C-232/09, EU:C:2010:674, para. 71 (the principle of equality between men and women in Article 23 of the EU Charter), ASNEF, C-468/10 and C-469/10, EU:C:2011:777, paras. 41-42 (the right to privacy, Articles 7 and 8 of the Charter), and People’s Mojahedin Organization of Iran, C-27/09 P, EU:C:2011:853, para. 66 (a right to be heard as contained in the rights of defence and as such enshrined in Article 41(2)(a) of the Charter).

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focused instead on considering, e.g., applicable secondary legislation. Examples of such situations include cases such as Rosenbladt,125 Georgiev,126 Römer127 and Dominguez128, as well as, quite notably, Brüstle; 129 the latter concerning the interpretation of the concept of ‘human embryo’ which could have benefited from the modern contents of the EU Charter, specifically Article 3.



6.3 Interim Conclusions

Presently, fundamental rights protection in the EU is stronger than at any other point in the history of the Union. In a period of five decades the protection based on fundamental rights considerations has evolved and strengthened primarily through the jurisprudence of the Court of Justice. The evolutionary process which began with modest considerations based on norms of a fundamental right character has in recent years culminated first, in the drafting of the Charter of Fundamental Rights of the European Union and its subsequent legally binding status, and then the planned accession of the Union to the European Convention of Human Rights. In anticipation of the accession to the Convention by the Union, the Court of Justice has also begun to make references to individual decisions of the ECtHR on a more recurrent basis.130 This practice evidently seeks to align the jurisprudence of both European Courts in matters which relate to questions on human and fundamental rights protection. The EU Charter undoubtedly brings more clarity and transparency to fundamental rights protection in the EU. It informs both its citizens and legal advisers about the existence and content of the fundamental rights which these may seek to enforce. Following its legally binding status and elevation to the level of primary Union law, the Court is set to take the protection afforded by the Charter even more seriously. As the primary catalogue of fundamental rights which are explicitly recognised and guaranteed in the Union’s legal order, the Court appears to refer to the Charter as the principal source of fundamental rights in the Union and has made referring thereto its constant practice in 125

Judgment in Rosenbladt, C-45/09, EU:C:2010:708.

126

Judgment in Georgiev, C-250/09 and C-268/09, EU:C:2010:699, in contrast to another case on age discrimination, i.e., judgment in Hennigs, C-297/10 and C-298/10, EU:C:2011:560, which quoted the Charter (Articles 21 and 28) as the main source of the right to non-discrimination on grounds of age. Cf. judgment in Ruiz Zambrano, C-34/09, EU:C:2011:124, in which the Court purposely evaded the issue about the scope of application of the Charter, although the referring court had expressly inquired about the interpretation of Articles 21, 24 and 34 of the Charter.

127

Judgment in Römer, C-147/08, EU:C:2011:286.

128

Judgment in Dominguez, C-282/10, EU:C:2012:33.

129 130

Judgment in Brüstle, C-34/10, EU:C:2011:669

Cf. judgment in Digital Rights Ireland and Seitlinger, C-293/12 and C-594/12, EU:C:2014:238, paras. 35, 47, 54-55.

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particular after the Charter gained a legally binding force at the entry into force of the Treaty of Lisbon.131 The Court’s practice indicates that fundamental rights do have significance and that the conclusions the Court draws have to be in conformity with established and recognised fundamental rights standards. The Court’s current case law also demonstrates that where the Court has a choice to refer both to the Charter and to the ECHR, it will primarily employ the former, as giving precedence to an EU legal instrument. In this sense the Charter has in concrete terms contributed to the realisation and fulfilment of the fundamental rights protection in the Union’s legal order. Yet, several important issues relating to the Charter are still left open. One of the foremost questions both of practical as well as academic interest relates to the conditions under which EU fundamental rights and the EU Charter apply to the acts and actions of Member States. Other important questions concern the degree and nature of enforceability of its provisions and the possible horizontal effect of its Articles. These issues are addressed in the following.

131

Based on a survey made through the Curia database, the EU Charter has been referred to in 86 judgments delivered by the Court of Justice between 2010 and 2011, thus immediately after the Charter became legally binding. Saiz Arnaiz – Torres Pérez 2012, 9.

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The Scope of Application of Fundamental Rights in the Union’s Legal Order

horizontal effect of fundamental rights in eu law

The Union has no inbuilt competence in the field of fundamental rights. It seldom acts for the exclusive purpose of advancing those rights. Nonetheless, all provisions of EU law have to be interpreted in light of fundamental rights.1 Respect for fundamental rights is a general condition of the legality of all Union acts.2 Initially, fundamental rights were primarily addressed to EU institutions in order to make them observe generally acknowledged human rights standards.3 All measures enacted by EU institutions are therefore subject to scrutiny regarding their compliance with fundamental rights. 4 This is in line with general constitutional traditions, according to which fundamental rights are primarily codified as constraints of excessive power, whereby they also (indirectly) translate into constitutional guarantees for citizens. The practical implementation and application of EU law relies to a great extent on the acts and actions taken on the domestic front. Within the national legal orders, Member States have an obligation to comply with the fundamental rights recognised by the Union.5 However, they are only bound to do this when they act within the scope or field of application of EU law.6 As the Court indicated in the Åkerberg Fransson case,7 which will be dealt more in detail further below, fundamental rights are applicable in all situations governed by European Union law when the situation under consideration falls within the scope of Union law. The Court also emphasized that situations cannot exist which are covered by Union law without its fundamental rights being applicable.8 There does not however exist a simple and all-encompassing formula to define what this ‘scope’ is. What falls within the ambit of EU law differs depending on the context, provisions and subject matter under consideration.9 In general, the scope of EU law is determined by four aspects which must all be fulfilled in order for Union law to apply. These entail, first of all, the territorial 1

Judgments in Ordre des barreaux, C-305/05, EU:C:2007:383, paras. 27-37 and Chakroun, C-578/08, EU:C:2010:117.

2

E.g., judgment in Nold, 4/73, EU:C:1974:51, para. 13, in which the Court of Justice held that fundamental rights take precedence in a case of conflict with other EU measures. See also opinion Accession to the ECHR, 2/94, EU:C:1996:140, para. 34; and judgments in Grant, C-249/96, EU:C:1998:63, para. 45 and Rinke, C-25/02, EU:C:2003:435, para. 26.

3

Cf. De Vries 2012, 9-42. He draws inspiration from among others: Editorial Comments, ‘The scope of application of the general principles of Union law: An ever expanding Union?’ 47 Common Market Law Review 6 (2010), 1590. Prechal – De Vries – Van Eijken 2011, 216-8.

4 5

Opinion of AG Sharpston of 30 September 2010 in Ruiz Zambrano, C-34/09, EU:C:2010:560, point 156.

Cf. Temple Lang 1992, 28-35.

6

Cf. opinion of AG Sharpston of 22 May 2008 in Bartsch, C-427/06, EU:C:2008:297, point 69, and e.g., judgments in Demirel, 12/86, EU:C:1987:400, para. 28, Grogan, C-159/90, EU:C:1991:378, para. 31, Kremzow, C-299/95, EU:C:1997:254, paras. 15-16, Attila Vajnai, C-328/04, EU:C:2005:596, para. 13 and Booker Aquacultur, C-20/00 and C-64/00, EU:C:2003:397, para. 88.

7

Judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105.

8

Ibid., judgment in Åkerberg Fransson, paras. 19-21.

9

Cf. Derlén – Lindholm 2012, 77-100, esp. 99.

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scope which comprises the Member States and their overseas territories (Article 52 TEU and Article 355 TFEU). 10 Second, ratione temporis; i.e., the temporal scope of EU law, which as a general rule corresponds to the day of accession of the Member State (Article 351 TFEU) so that EU legislation enters into force on a specific day.11 Third, the personal scope of EU law, ratione personae, defines who can rely on it. Although Article 20 TFEU identifies citizens of the Union as persons deriving rights and obligations from EU law, many provisions have left it to the Court of Justice to identify the addressees.12 Finally, in order for the fourth aspect, ratione materiae, to be fulfilled, EU law must be deemed applicable to the issue under consideration. In absence of a clear common denominator to establish this aspect, the scope ratione materiae often proves the most critical of the four aspects connecting the issue to EU law. Ratione materiae situations have been deemed to fall within the scope of application of EU law, when a Member State has possessed a mere possibility to act according to Union legislation,13 or where Member States have introduced penalties for violating EU law even though this has not explicitly been required by EU law itself.14 Ratione materiae has also been fulfilled when Member States have undermined an EU act,15 or when Member States could have influenced an interest protected by EU law.16 In light of the centrality of the scope of ratione materiae, the first issue to be resolved when faced with a dispute concerning fundamental rights in EU law is to determine whether the matter falls into the realm of the Union’s competence with a sufficiently substantial linkage to Union law to trigger its application so that the circumstances may be deemed to be governed by a norm of EU law. If this can be established, EU fundamental rights come into play as part of the interpretation of that norm.17

10

Even the geographical application of the Treaties does not necessarily preclude EU law from having an effect outside the territory of the Union. Cf. judgment in Boukhalfa, C-214/94, EU:C:1996:174.

11

As regards the day of accession as a criterion which makes EU law immediately applicable and binding on a Member State, with the result that it applies to the future effect of situations arising even prior to that new Member State’s accession to the Union. See e.g., judgment in Saldanha, C-122/96, EU:C:1997:458, paras. 12-14.

12

Such as ‘workers’ and ‘service providers’ in Articles 45 and 57 TFEU. As regards the concept of ‘workers’, see e.g., judgments in Meade, 238/83, EU:C:1984:250, para. 7 and Steymann, 196/87, EU:C:1988:475, paras. 8-14. As regards ‘service providers’, see judgment in Luisi and Carbone, 286/82 and 26/83, EU:C:1984:35, para. 10.

13

Judgment in Klensch, 201/85 and 202/85, EU:C:1986:439.

14 15

Judgment in Zuckerfabrik Franken, 77/81, EU:C:1982:70.

Judgment in Garage Molenheide, C-286/94, C-340/95, C-401/95 and C-47/96, EU:C:1997:623.

16 17

Judgment in Apesco, 207/86, EU:C:1988:200.

See judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, paras. 19-21.

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7.1 The General Scope of Application of EU Fundamental Rights

On the basis of its settled case law the Court of Justice has distinguished two formulations to depict different sets of situations where fundamental rights would apply in the EU legal order. The first formulation refers to situations where national authorities apply or implement EU law, i.e., when Member States act as agents on behalf of and in the interest of the EU (thus, in a so-called ‘agency situation’ or ‘Wachauf situation’).18 The second formulation relates to situations where national measures restrict EU law (the so-called ‘derogation situation’ or ‘ERT situation’).19 Even though there have been some misgivings on the validity of the ERT line of case law, the fact that the case was cited in the Explanations to the Charter shows it is still considered as part of valid law.20 As a general rule, both categories have been broadly understood and interpreted by the Court. For example, concerning agency or Wachauf situations, in cases such as Booker,21 Klensch22 and Zuckerfabrik Franken,23 Member State actions were deemed either founded on EU law or a direct consequence thereof, whereby national measures were considered to be within the scope of application of EU law. Conversely, Derogation or ERT situations relate to matters where Member States somehow restrict EU law, be it by way of restricting an economic freedom, undermining an EU act or any other interest protected by EU law.24 18

The term ‘agency situation’ is derived from Weiler – Lockhart 1995, 73. See also Coppel – O’Neill 1992, 227 and 330, Kaila 2012, 293 and Groussot – Pech – Petursson 2012, 135. This line of case law is commonly referred to after the Wachauf case (5/88, EU:C:1989:321), although it has been argued the foundations for this development were established already in the Rutili case, where the Court of Justice cited fundamental rights in connection with Member State action (36/75, EU:C:1975:137). See opinion of AG Trabucchi of 2 June 1976 in Watson, in which the AG Trabucchi maintained that ‘within the sphere of application of Community law’, fundamental rights could also ‘be of importance in determining the legality of a State’s conduct in relation to a freedom which the Treaty accords to individuals’ (118/75, EU:C:1976:79, p. 1207). Cf. judgments in Klensch, 201/85 and 202/85, EU:C:1986:439, Bosphorus, C-84/95, EU:C:1996:312, Garage Molenheide, C-286/94, C-340/95, C-401/95 and C-47/96, EU:C:1997:623, Lindqvist, C-101/01, EU:C:2003:596 and DEB, C-279/09, EU:C:2010:811. Also described as positive integration, see Besselink 2001, 68-80.

19

This line of case law has in some academic writings been termed ‘the ERT line of cases’ (after the judgment in ERT, C-260/89, EU:C:1991:254). Also described as negative integration, see Besselink 2001, 68-80.

20

See also judgments in Familiapress, C-368/95, EU:C:1997:325, Carpenter, C-60/00, EU:C:2002:434, Baumbast, C-413/99, EU:C:2002:493, Schmidberger, C-112/00, EU:C:2003:333, Omega, C-36/02, EU:C:2004:614, Ruiz Zambrano, C-34/09, EU:C:2011:124 and Dereci, C-256/11, EU:C:2011:734.

21

Judgment in Booker Aquacultur, C-20/00 and C-64/00, EU:C:2003:397.

22 23

Judgment in Klensch, 201/85 and 202/85, EU:C:1986:439.

Judgment in Zuckerfabrik Franken, 77/81, EU:C:1982:70.

24

National measures capable of undermining or affecting the objectives of an EU act is reviewable on the grounds of its compatibility with the general principles as indicated by the judgment in Garage Molen-

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The Carpenter,25 K.B.,26 and Karner27 cases evince a broad understanding of the purview of EU law. In Carpenter, a Union citizen who provided services to recipients in other Member States could rely on his right to family life in order to oppose the expulsion of his third-country national spouse from his Member State of origin although the spouse had not exercised free movement rights. In K.B. the Court held that while the right to marry was an issue of national law, the resulting inequality of treatment brought the matter under Union law. Finally, in Karner the Court found Austrian legislation restricting advertising to fall within the scope of EU law and applied EU fundamental rights standards, although the applicant had argued that the national law at issue merely constituted a selling arrangement which fell outside the scope of EU law. Even though the Court did not provide further reasons – and unfortunately so – it was found that the Austrian legislation did in fact restrict the applicant’s freedom to provide services. As a result, the legislation fell within the purview of EU law.28 It may be held that a broad understanding of ‘implementing’ or ‘derogating from’ EU law is only legitimate in so far as it contributes to a uniform application of EU law, and hence to the Union’s credibility in the eyes of its citizens. Still, the mere fact that Member States happen to act within a policy area covered by EU competence has not proved sufficient.29 Even if secondary EU legislation may be found to relate to a situation, the Court still examines whether it actually covers the relevant aspects brought before it.30 In the first category, a national measure falls into the purview of EU law when it has a connection to the application, enforcement or interpretation of EU legislation.31 This holds true even in situations where Member States enjoy wide discretion in ensuring the implementation of EU rules within their territory.32 A heide, C-286/94, C-340/95, C-401/95 and C-47/96, EU:C:1997:623. 25

Judgment in Carpenter, C-60/00, EU:C:2002:434.

26 27

Judgment in K.B., C-117/01, EU:C:2004:7.

Judgment in Karner, C-71/02, EU:C:2004:181.

28

E.g., judgments in Carpenter, C-60/00, EU:C:2002:434, paras. 37-40, K.B., C-117/01, EU:C:2004:7, paras. 30-34, and Karner, C-71/02, EU:C:2004:181, paras. 18-22. One may still wonder how the Austrian legislation governing consumer protection in the event of sales of goods from an insolvent estate could possibly fall within the scope of EU law when the provisions on free movement of goods were not applicable and the area was not harmonised by EU legislation. See Groussot – Pech – Petursson 2001, 14.

29 30

Cf. order in Polier, C-361/07, EU:C:2008:16, paras. 13-15. Ladenburger 2012, 162.

Judgments in Maurin, C-144/95, EU:C:1996:235, paras. 11-13, Gueye, C-483/09 and C-1/10, EU:C:2011:583. Nonetheless, in two cases (judgments in Carpenter, C-60/00, EU:C:2002:434 and Karner, C-71/02, EU:C:2004:181) the Court found the ‘connecting element’ rather straightforward and assessed the compatibility of the national legislation with fundamental rights.

31

E.g., judgments in Booker Aquacultur, C-20/00 and C-64/00, EU:C:2003:397 and Steffensen, C-276/01, EU:C:2003:228, both in which the facts pertain more to the application than implementation of directives. Cf. Groussot – Pech – Petursson 2012, 158.

32

Cf. judgments in N.S. and Others, C-411/10 and C-493/10, EU:C:2011:865 and DEB, C-279/09, EU:C:2010:811, in which the principle of effective judicial protection enshrined in Article 47 of the EU

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Member State which exercises discretionary power in complying with other EU norms, is considered to be implementing EU law.33 Under the second category, Member States do not act as agents for the Union, but autonomously, although within the scope of EU law.34 The Court’s case law shows that any national measure which affects negatively any of the economic freedoms, makes the measure fall within the scope of application of EU law. Firstly, Member States do this when they derogate from any of the economic freedoms on the basis of relying on any of the justifications set out in Treaties.35 Secondly, they may also do this when making use of any of the so-called mandatory (also called ‘imperative’ or ‘over-riding’) requirements on the basis of the Court’s case law à la Cassis de Dijon,36 and when they rely on fundamental rights as a direct ground for justification to a derogation.37 The underlying idea is that defining what constitutes a violation of the economic freedoms is a matter of EU law.38 It is up to Union law and the Court to decide the conditions under which Member States may legitimately deviate from these freedoms. An examination on the justifiability of a restriction of an economic freedom leads inescapably to an assessment involving the impact of fundamental rights within the parameters of the principle of proportionality. When seeking grounds to justify national rules which affect the exercise of the economic freedoms, Member States act within the realm of EU law and are thus bound to observe fundamental rights. Interestingly, in the ERT case the Court held it had jurisdiction to determine the compatibility of national measures with fundamental rights where such measures ‘fall within the scope of [Union] law’.39 The Court’s view reveals a tendency to a broader and a more unified criterion for the application of fundamental rights. There is a close interlink between the two categories, i.e., between the Wachauf and ERT lines of case law. The different formulations should be seen so as to point to the same overall conclusion, to a requirement of a sufficient presence of EU law. The latest addition to this broad interpretation of the reach of EU law is provided by the evolving nature of the Union citizenship. The Court has indiCharter was applied in relation to national procedural rules which were deemed to hinder the effectiveness of EU law in general and thus concerned the implementation of EU law. 33

Also within the meaning of Article 51(1) of the EU Charter, see judgment in N.S. and Others, C-411/10 and C-493/10, EU:C:2011:865.

34

Literature contains differing views on the suitability of the ERT line of cases. E.g., in support, see Kokott – Sobotta 2010, 269 and Rosas – Armati 2010. For the contrary view, see Jacobs 2001, 336 ff.

35

Cf. judgment in Omega, C-36/02, EU:C:2004:614. Justifications relating to public policy and public security are closely linked with national sovereignty, which in turn allows the issue to be scrutinised in light of fundamental rights. Lenaerts – Gutiérrez-Fons 2010, 1659.

36 37

Judgment in Rewe-Zentral, C-120/78, EU:C:1979:42.

Judgment in Schmidberger, C-112/00, EU:C:2003:333.

38

Kaila 2012, 305.

39

Judgment in ERT, C-260/89, EU:C:1991:254, para. 42.

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cated that national measures interfering, not only with any of the economic freedoms, but also with Union citizenship rights, may and need to be justified on public policy grounds which are deemed both necessary and proportionate. 40 In this respect, the Court has never expressly acknowledged a civis europaeus sum doctrine, according to which an EU citizen could claim full protection under the EU’s fundamental rights merely on the grounds of citizenship. Also, the Court’s position does not mean all violations of the fundamental rights of persons who have moved to another Member State automatically become violations of these rights. The Court is prone to examine fundamental rights in conjunction with the national measure which infringes a free movement right rather than assessing fundamental rights on their own. 41 Accordingly, Advocate General Sharpston has proposed that national measures would fall within the scope of EU law if a substantive rule of EU law was applicable to the situation. In other words, if the situation had a sufficient connection to EU law. 42 This conclusion has been further confirmed in the Siragusa case, in which the Court held the obligation to respect fundamental rights defined in the context of the EU is binding upon Member States only in respect to matters covered by EU law. This in turn requires that a prior sufficient connection to EU law can be established. 43 It appears that the Court of Justice has not intended to launch any new radical principles on the purview of the fundamental rights, but has rather sought to stress the very obvious – that fundamental rights are to be respected at the national level whenever Union law is at stake. 44 Fundamental rights are part of Union primary law and thus always involved when any norm of EU law is applied, or where national measures implement that law. 45 Although varying nuances may be identified between different formulations and the categories, they are still not to be taken as expressions decisively different in quality. 46 It is proposed here that the notion of ‘a sufficient connection to EU law’ would serve as a determining factor. This criterion requires the existence of a norm of EU law which is both directly relevant and applicable to the case under consideration. When deemed fulfilled under a case-by-case examination, it would trig40 41

Judgment in Sayn-Wittgenstein, C-208/09, EU:C:2010:806.

Rosas – Armati 2012, 150-1.

42

Opinion of AG Sharpston of 22 May 2008 in Bartsch, C-427/06, EU:C:2008:297, point 69, making reference to judgment in Karner, C-71/02, EU:C:2004:181, paras. 48-53 (potential impediment to intraCommunity trade), to judgment in Commission v UK, 804/79, EU:C:1981:93, paras. 23-30 (Member States acting as trustees of the Community in an area of exclusive Community competence), and to judgment in Garage Molenheide, C-286/94, C-340/95, C-401/95 and C-47/96, EU:C:1997:623, paras. 45-48 (measures adopted by a Member State in the exercise of its competences relating to VAT).

43

Judgment in Siragusa, C-206/13, EU:C:2014:126, paras. 22 and 35.

44 45

Rosas – Armati 2012, 165.

Eeckhout 2002, 954 and Rosas – Armati 2012, 165.

46

Opinion of AG Cruz Villalón of 12 June 2012 in Åkerberg Fransson, C-617/10, EU:C:2012:340, points 27 and 33.

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ger the application of EU law and bring the matter under the jurisdiction of the Court of Justice. Adopting a simple and unified rule to determine the applicability of EU law in a given situation would bring about more clarity and simplicity. Such a rule could cover all different situations and sub-categories where Member States act within the field of EU law, whether implementing, derogating or invoking Union legislation in any other manner. On the other hand, given the vast array of different areas governed by at least some norms of EU law and the sheer quantity thereof, the suggested criterion should not be applied in an arbitrary fashion, but instead strictly and with discretion. This simple rule would not bring about more legal uncertainty, since notwithstanding the suggested rule, the Court of Justice has been repeatedly confronted with difficult assessments relating to the delimitation between situations falling within the scope of EU law and those remaining within purely national competence. 47 Moreover, determining the applicable legal norms is an ordinary way to proceed in adjudication. The boundaries will always remain blurred. This is only a logical and inevitable consequence of EU and national law being so closely intertwined and constantly overlapping. According to the established case law, fundamental rights guaranteed within the Union legal order are to be applied in all situations regulated by Union law, but cannot be applied outside its scope. 48 In some cases the Court of Justice has not found a sufficiently direct and strong link between the national measures and Union law, wherefore the national measures have been considered to fall outside the scope of Union law. For example, in the Annibaldi and Gueye cases the Court saw itself prevented from assessing certain question in the light of EU law, since it held the situation and national legislation at issue to fall outside the scope of Union law. 49 In Annibaldi the Court held that national legislation, while capable of indirectly affecting an EU policy area, cannot in itself constitute a sufficient connection between that legislation and EU law. The mere fact that a Member State can act within a policy area covered by EU competences would not be sufficient to grant the Court of Justice jurisdiction over the case. Consequently, the Court seems to look for a specific link between national acts and a concrete and relevant norm of EU law governing that act.50 47

Opinions of AG Jääskinen of 11 March 2010 in Sbarigia, C-393/08, EU:C:2010:134, points 29-33 and AG Mengozzi of 25 March 2010 in VEBIC, C-439/08, EU:C:2010:166, point 36. See also judgments in Mangold, C-144/04, EU:C:2005:709, Bartsch, C-427/06, EU:C:2008:517 and Dereci, C-256/11, EU:C:2011:734. Rosas 2012, 1277-9, 1284-5.

48

Orders in Sociedade Agrícola, C-258/13, EU:C:2013:810, para. 19 and Boncea, C-483/11 and C-484/11, [2011] ECR I-198, Summary publication, para. 29. Judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, para. 19.

49

Judgments in Annibaldi, C-309/96, EU:C:1997:631, paras. 24-25, Gueye, C-483/09 and C-1/10, EU:C:2011:583, paras. 69-70, Kremzow, C-299/95, EU:C:1997:254, esp. para. 16 and Grogan, C-159/90, EU:C:1991:378, esp. para. 31.

50

E.g., order in Polier, C-361/07, EU:C:2008:16, paras. 11-16. In favour of a comprehensive scope, see the Opinion of AG Sharpston of 30 September 2010 in Ruiz Zambrano. The AG was of the opinion that

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In absence of a specific reference made to any of the fundamental rights, the fact that national law contains a fundamental right worded analogously to EU rights should not suffice for the Court to have jurisdiction to interpret it.51 However, the different formulations on the lack of competence used by the Court do not seem to pose a problem for adopting a unified notion of a sufficient connection to EU law which would subsequently trigger the application of EU law.52 Instead, creating additional ‘categories’ as to the scope of application of EU law would not bring about further theoretical or methodological clarity on the issue. Rather, it be only liable to create more complexity and legal uncertainty. This is particularly so, since expansive scope of EU fundamental rights would take them into a sphere where national human rights protection already exists alongside ECHR protection. Overlapping levels of protection between interacting legal orders would only add to judicial confusion.53 The advantage of adopting a unified rule would be its capacity to provide a clear basis for argumentation and assessment. The reasoning for a call for a clear and simple rule is obvious. The increase of normative sources of fundamental rights recognised in EU law post-Lisbon is liable to create more uncertainty. The particular significance of the EU Charter calls for a consideration of its scope of application vis-à-vis that of (general) EU law and whether the Charter would assume even a higher legal status and scope among the sources of EU law. The latter conclusion would seem plausible in light of the Court’s judgment in the above-mentioned Kadi case,54 in which the Court held that the constitutional principles of the EU Treaty also include the principle that all Union acts must respect fundamental rights, which form part transparency and clarity would require one be able to identify with certainty what ‘the scope of Union law’ means for the purposes of EU fundamental rights protection. To the AG it seemed, in the long run, the clearest rule would be one on the existence and scope of a material EU competence, i.e., provided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EU even if such competence has not yet been exercised (C-34/09, EU:C:2010:560, point 163 ff.) 51

Cf. judgment in Cicala, C-482/10, EU:C:2011:868, paras. 21-30, in connection with the EU Charter.

52

Cf. order in Asparuhov, C-339/10, EU:C:2010:680, para. 14, where the Court expressly referred to ‘a measure implementing European Union law or would be connected in any other way with that law’. Italics by the present author. Order in Chartry, C-457/09, EU:C:2011:101, para. 25. Ladenburger 2012, 20.

53

Besselink 2012, Von Danwitz – Paraschas 2012, 7. Opinion of AG Sharpston of 30 September 2010 in Ruiz Zambrano, Case C-34/09, EU:C:2010:560, point 156. For examples of the judicial problems relating to the overlapping protection of fundamental rights, see the judgments of the German Bundesverfassungsgericht of 29 May 1974, known as Solange I (2 BvL 52/71) and of 22 October 1986, known as Solange II (2 BvR 197/83); the judgment of the Italian Corte Costituzionale of 21 April 1989 (No 232, Fragd, in Foro it., 1990, I, 1855); the declaration of the Spanish Tribunal Constitucional of 13 December 2004 (DTC 1/2004) and the judgment of the ECtHR in the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland (Application No. 45036/98), Judgment of 30 June 2005.

54

Judgment in Kadi and Al Barakaat, C-402/05 P and C-415/05 P, EU:C:2008:461, paras. 285, 304.

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of ‘the very foundations of the Union legal order’ and that all Union measures must be consistent with those rights.55



7.2 The Scope of Application of the Charter of Fundamental Rights

Despite the current legally binding status of the EU Charter and its post-Lisbon role in primary EU law, it does not follow that the Union has become a ‘human rights organisation’ or that the Court of Justice would in turn become a human rights court.56 In keeping with the second paragraph of Article 6(1) TEU, Article 51(2) of the Charter indicates that it does not alter the general scope of application of Union law. In accordance with Article 5(2) TEU the Charter respects the principle of conferral according to which the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties. According to Article 51(1) of the Charter its provisions are primarily addressed to the ‘institutions, bodies, offices and agencies of the Union’. The term ‘institutions’ used in the Article is enshrined in the Treaties and the expression ‘bodies, offices and agencies’ is commonly used in the Treaties to refer to all the authorities set up by the Treaties or by secondary legislation.57 Given the plainness of the wording of the Charter, its provisions would foremost be directed to Union authorities and only thereafter to Member States in situations where they are ‘implementing Union law’.58 In an early Praesidium document proposing a draft wording for certain rights of the Charter, the addressees of the Charter were dealt with under the heading ‘Horizontal Articles’. The Praesidium suggested the general article concerning the relevant addresses of the Charter should either be placed in the preamble or become the first article of the Charter. It was intended to indicate clearly that the Charter’s scope is restricted only to the Union and to avoid any application to Member States when they are acting exclusively within their own jurisdiction. Consequently, an early formulation of the article was worded so that provisions 55

This has already become evident as regards secondary legislation even prior to the EU Charter gaining a legally binding status. For instance, in the above-mentioned Kadi case the Court of Justice annulled a Regulation and repealed another Regulation in so far as they concerned the appellants, since the Court held that their fundamental rights (right to an efficient remedy and right to property) had been infringed and not adequately protected.

56 57

Tridimas 2006, 613.

Explanations relating to the Charter of Fundamental Rights, Explanation on Article 51 – Field of Application, OJ C 303, 14.12.2007, p. 32. E.g., Articles 15 or 16 TFEU.

58

Also confirmed by the Explanations relating to the Charter which state that the said article ‘seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union.’ Explanations relating to the Charter of Fundamental Rights, Explanation on Article 51 – Field of Application, OJ C 303, 14.12.2007, p. 32.

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of the Charter would be ‘binding on the Member States only where the latter transpose or apply the law of the Union.’59 Interestingly, in a draft document dealing with draft horizontal clauses dated some two months later, the heading of the same provision had now clearly changed to determine the scope of the Charter.60 The first paragraph of the article was worded as follows: ‘The provisions of this Charter are addressed to the - Member States exclusively within the framework of implementing Community law.’61 The provision sought again to clearly establish that the Charter applied only to matters covered by Union competence and the tasks of the Union. It emphasized that the requirement to respect fundamental rights is binding on the Member States only when they act in the context of Union law.62 As may be seen from both draft wordings of the provisions dealing with the scope of application of the Charter, it was the clear intention of the drafters to limit the extent to which Member States would be obligated to observe the provisions of the Charter. Despite attempts to broaden the scope of application for Member States so the provisions of the Charter would be addressed ‘to the Member States exclusively within the scope of Union law’,63 the final version of said provision – now Article 51 of the Charter – bore a strong resemblance to wording already outlined in the beginning of the draft work, worded finally as: ‘to the Member States only when they are implementing Union law’.64 The Explanations relating to the Charter shed further light on the strict reading of this formulation by adding that the requirement to respect fundamental rights defined in the context of the Union is only binding for Member States when they act in the scope of Union law.65 The clarification is in place since the final wording would 59

 D raft Charter of Fundamental Rights of the European Union − Draft articles (CHARTE 4123/1/00, Rev 1, Convent 5, Brussels, 15 February 2000, p. 9).

60 61

The provision had been titled as ‘Article H.1, Scope’.

 D raft Charter of Fundamental Rights in the European Union − Horizontal clauses (CHARTE 4235/00, Convent 27, Brussels, 18 April 2000, p. 1).

62 63

Ibid., CHARTE 4235/00, p. 2.

E.g., Draft Charter of Fundamental Rights of the European Union – Summary of amendments received and of Praesidium compromise amendments on economic and social rights and on the horizontal clauses (Articles 31 to 50) (CHARTE 4383/00, Convent 41, Brussels, 3 July 2000, p. 23). The individual proposals contained in the Praesidium Note of Draft Charter of Fundamental Rights of the European Union − Amendments submitted by the members of the Convention regarding social rights and the horizontal clauses (CHARTE 4372/00, Convent 39, Brussels, 16 June 2000, pp. 1-484).

64

 D raft Charter of Fundamental Rights of the European Union – Complete text of the Charter proposed by the Praesidium following the meeting held from 11 to 13 September 2000 and based on CHARTE 4422/00 Convent 45 (CHARTE 4470/00, Convent 47, Brussels, 14 September 2000, p. 17); Draft Charter of Fundamental Rights of the European Union – Text of the explanations relating to the complete text of the Charter (CHARTE 4423/00, Convent 46, Brussels, 31 July 2000, pp. 34-35).

65

OJ C 303/02, of 14.12.2007, p. 32. Italics by the present author. Interestingly, a late draft to the Charter used the term ‘context’ instead of the term ‘scope’ of the final version. C.f., Draft Charter of Fundamental

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otherwise seem narrower in scope than the jurisprudence of the Court of Justice would suggest.66 As is discernable already from the aforementioned overview of the legislative history, the difficulties relating to the formulation of the scope of application of the Charter well testify to the apparent aim of the drafters to limit the effect of the Charter as well as its direct effect for Member States. While it is clear under Article 51(1) of the Charter that its provisions primarily apply to EU institutions, defining the extent to which the Charter would bind Member States was, both politically and legally, a sensitive and difficult task. Drafting an appropriate wording to capture the appropriate scope of the Charter was subject to much debate and divided opinions.67 Even though it was emphasized from the very beginning of the drafting process that the purpose of drawing up a fundamental rights document was not to alter the responsibilities of the Union, many member States were apprehensive and reluctant to commit themselves to observe any additional constitutional instrument.68 The provisions of the Charter relating to its scope of application were a result of delicate compromises.69 The consensus was reached when the Praesidium proposed to rely on the wording used by the Court of Justice in one of its then-recent judgments.70 The authors adopted the wording used in the Wachauf case. Article 51(1) of the Charter provides that the provisions of the Charter apply to Member States ‘only when they are implementing Union law’. This formulation has proved to be open to diverging interpretations and numerous academic opinions,71 which is for the most part result from the vague and imprecise notion of the term ‘implementation’.72 Moreover, the word ‘only’ used in the clause seems to point to a limited scope of application. 73 This conclusion also finds some further Rights of the European Union − Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 Convent 50 (CHARTE 4473/00, Convent 49, Brussels, 11 October 2000, p. 46). 66

This is evident even from the cases cited in the Explanations (judgments in Wachauf, 5/88, EU:C:1989:321, ERT, C-260/89, EU:C:1991:254, Annibaldi, C-309/96, EU:C:1997:631 and Karlsson, C-292/97, EU:C:2000:202), since ‘acting in the scope of Union law’ includes both situations where the Member States are implementing Union law, or where they e.g., derogate from it, or otherwise act in the context triggering the application of Union law. Cf. De Búrca 2001, 137.

67

See e.g., Goldsmith 2001, 1201. Lord Goldsmith represented the Government of the United Kingdom in the Convention which drafted the Charter. Walkila 2011, 813-20 and Von Danwitz – Paraschas 2012.

68

Experience shows that separate ‘bills of rights’ have a concrete centralising effect and thus clear constitutional implications. Eeckhout 2002, 945.

69 70

Kaila 2012, 293-4.

Judgment in Karlsson, C-292/97, EU:C:2000:202, para. 37, as referred to in the Explanations relating to the Charter of Fundamental Rights (OJ C 303, 14.12.2007, p. 17-35), p. 32.

71

The word ‘only’ exemplifies the minimalist approach of some Member States. See Von Danwitz 2009, 26. Cf. also the criteria worded in the judgment in Iida, C-40/11, EU:C:2012:691.

72

Cf. opinion of AG Bot of 5 April 2011 in Scattolon, C-108/10, EU:C:2011:211, point 119 and judgment in Tsakouridis, C-145/09, EU:C:2010:708, paras. 50-2.

73

The term ‘only’ in Article 51(1) of the Charter does not necessarily serve as a basis for far-reaching conclusions, since it could only express an optimistic belief relating to the semantic capacity of the

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support from the drafting process of the Charter, as some Member States clearly expressed concerns over the overly broad purview of the Charter.74 The same fears were evident at the time of the negotiation processes of both the Constitution75 as well as the Treaty of Lisbon. On the other hand, as regards the term ‘implementation’ contained in Article 51 of the Charter, the Explanations relating to this Article include an express reference to ‘the Member States acting in the scope of Union law’, 76 and further references to the Wachauf, ERT, Annibaldi and Karlsson cases.77 The latter three cases stress the importance of a sufficient connection between national legislation and EU law and thus relate either to a situation where such a connection has been discerned (ERT, Karlsson), or explicitly not (Annibaldi). In the latter situation EU law was not found to impose any obligations on the Member States for which reason the Charter was neither applicable.78 For instance, in the Vinkov case the Court of Justice held that since it was not apparent that the national legislation constitutes a measure implementing EU law or connected in any other way with EU law, the Court declared the reference by the national court for a preliminary ruling inadmissible.79 In a similar vein in the Sociedade Agrícola case the Court indicated that where a legal situation does not first fall within the scope of Union law, i.e., concerns the interpretation or application of a rule of Union law other than those set out in the Charter, the Court has no jurisdiction to rule on it. Any Charter provisions relied upon cannot, of themselves, form the basis for the Court’s jurisdiction.80 verb ‘implement’. Opinion of AG Cruz Villalón of 12 June 2012 in Åkerberg Fransson, C-617/10, EU:C:2012:340, points 33-34. 74 75

Walkila 2012, 620, Lenaerts – Gutiérrez-Fons 2010, 1656 and De Búrca 2001, 136.

Treaty establishing a Constitution for Europe, OJ C 310, 16.12.2004, p. 1-474.

76

Explanations relating to the Charter of Fundamental Rights (OJ C 303, 14.12.2007, p. 17-35) were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter of Fundamental Rights of the European Union. In accordance with the last paragraph of Article 6(1) TEU and Article 52(7) of the Charter, the Explanations must be taken into account for the purpose of interpreting the Charter. Rosas – Armati 2010, 150 and Ziller 2010, 765. See also Lenaerts 2012, 401-2.

77

Judgments in Wachauf, 5/88, EU:C:1989:321, ERT, C-260/89, EU:C:1991:254, Annibaldi, C-309/96, EU:C:1997:631 and Karlsson, C-292/97, EU:C:2000:202.

78

Cf. Rosas – Kaila 2011, who consider that the expression ‘when they are implementing Union law’, used in Article 51(1) of the Charter, ‘calls for quite a broad interpretation and existence of a connection with that law’.

79

Judgment in Vinkov, C-27/11, EU:C:2012:326, para. 59. Cf. also judgments in Annibaldi, C-309/96, EU:C:1997:631, paras. 24-25 and Dereci, C-256/11, EU:C:2011:734, para. 66. Even if the issue could not be examined in light of fundamental rights of the EU, it does not rule out consideration under other human and fundamental rights instruments, notably the ECHR.

80

Orders in Kárász, C-199/14, EU:C:2014:2243, paras. 14-17, Sociedade Agrícola, C-258/13, EU:C:2013:810, paras. 20-24. See also, e.g., orders in Pedone, C-498/12, EU:C:2013:76, para. 14, Gentile, C-499/12, EU:C:2013:77, para. 14, Currà, C-466/11, EU:C:2012:465, paras. 25-26, Asparuhov, C-339/10, EU:C:2010:680, paras. 12-15, Chartry, C-457/09, EU:C:2011:101, paras. 25-26 and Boncea, C-483/11

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In Siragusa the Court pointed out that the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other.81 In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some points to be determined include, first, whether the national legislation at issue is intended to implement a provision of EU law; second, the nature of that legislation and whether it pursues objectives other than those covered by EU law although being capable of indirectly affecting EU law; third, whether there are any specific rules of EU law on the matter or capable of affecting it; and finally, whether the provisions of EU law in the subject area concerned impose any obligation on Member States with regard to the situation at issue.82 The Court has found that the EU fundamental rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings.83 In the same vein, a national measure which did not come within the framework of the measures adopted on the basis of certain provision of EU law could not be brought within the scope of EU law.84 Thus, the mere fact that a national measure comes within an area in which the EU has powers cannot bring it within the scope of EU law, and cannot therefore, render the Charter applicable.85 The Court has indicated that for it to have jurisdiction to rule on an issue pertaining to fundamental rights, the matter must first fall to the scope of application of EU law so it has a relevant and concrete connection to said law and concerns a norm of EU law other than any of the provisions of the Charter.86 Accordingly, it is argued here that the term ‘implementation’ and its corresponding formulation ‘act in the scope of Union law’ cover both the Wachauf as well as the ERT types of situations. Both formulations point to a situation where the presence of Union law in a given situation is sufficiently strong to warrant an assessment of the scenario in light of EU law.87 Even if formulations vary, they do not necessarily have to be interpreted as differing qualitatively and C-484/11, [2011] ECR I-198, Summary publication. Judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, para. 22. 81

Judgment in Siragusa, C-206/13, EU:C:2014:126, para. 24. Also, judgments in Julian Hernández and Others, C-198/13, EU:C:2014:2055, para. 34, and Liivimaa Lihaveis, C-562/12, EU:C:2014:2229, para. 62.

82 83

Ibid., judgment in Siragusa, paras. 25-26.

Judgment in Maurin, C-144/95, EU:C:1996:235, paras. 11 and 12.

84 85

Judgment in Römer, C-147/08, EU:C:2011:286, para. 61.

Judgments in Pringle, C-370/12, EU:C:2012:756, paras. 104, 105, 180, 181 and Julian Hernández and Others, C-198/13, EU:C:2014:2055, para. 36.

86

Judgments in Texdata Software GmbH, C-418/11, EU:C:2013:588, paras. 72 and 73 and Marcos, C-265/13, EU:C:2014:187, paras. 29-33, 36 and 43.

87

Opinion of AG Cruz Villalón of 12 June 2012 in Åkerberg Fransson, C-617/10, EU:C:2012:340, point 27.

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very much from each other. Instead they exemplify the difficulties (and advantages) in connection with any open expressions. Ultimately, the boundaries will remain blurred. Attempts to limit the scope of application of the Charter were seemingly motivated by the endeavours to minimise national resistance to the Charter’s strengthened legal status.88 Nonetheless, national fears or averseness did not alter the basic rule according to which all provisions of EU law have to be interpreted in light of fundamental rights,89 and that the respect for fundamental rights is a condition of the legality of all Union acts.90 It logically follows that fundamental rights should be ‘all pervasive in EU law’.91 The opposite would inevitably prove impossible in legitimate judicial practice. Categorically leaving out a group of situations with a connection to EU law from the consideration of their consistency with fundamental rights would open the door to potential violations of fundamental rights and disrupt the ‘ideological continuity’ of fundamental rights protection between the national and Union level.92 The view that provisions of the Charter enjoy the same scope of application as ‘other’ EU law is further supported by recent Opinions of Advocates General and by the Court of Justice itself. In her Opinion to the Radu case Advocate General Sharpston wrote that the Charter merely codifies the already preexisting position on fundamental rights in the Union’s legal order and it does not represent ‘a sea change of any kind’.93 A few months later, the Court held in its judgment for the Åkerberg Fransson case that the Charter must be complied with where national legislation falls within the scope of EU law.94 As explained above, national legislation falls within the scope of EU law with the effect of EU fundamental rights being applicable when the situation under consideration is deemed to have a sufficient connection to EU law. The EU Charter represents a formal ‘codification’ of the pre-existing position and thus only seeks to make the already acknowledged rights more visible in the EU legal order. The application of the provisions of the Charter therefore correspond to that of general EU law.95 88

Knook 2005, 373. There was ‘emergent reluctance’ felt during the drafting process of the Charter ‘to commit the Member States to observing the norms of the Charter other than in the cases which are most closely linked to the European Union where the Member States have little or no autonomy’. See De Búrca 2001, 137. In favour of a limited scope of application for the Charter, see Goldsmith 2001, 1205-6 and Jacobs 2001, 331.

89

Judgments in Ordre des barreaux, C-305/05, EU:C:2007:383, paras. 27-37 and Chakroun, C-578/08, EU:C:2010:117, para. 44.

90

See inter alia opinion Accession to the ECHR, 2/94, EU:C:1996:140, para. 34, judgments in Grant, C-249/96, EU:C:1998:63, para. 45 and Rinke, C-25/02, EU:C:2003:435, para. 26.

91

Eeckhout 2002, 977, who also notes that the notion of ‘public policy’ is difficult to apprehend if fundamental rights are left out of consideration.

92 93

Tridimas 2006, 302.

Opinion of AG Sharpston of 18 October 2012 in Radu, C-396/11, EU:C:2012:648, point 51.

94 95

Judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, para. 21.

Ibid., opinion in Radu, C-396/11, EU:C:2012:648, point 51.

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The explicit purpose of the Charter was only to ensure a uniform and coherent manner of interpreting and applying EU law throughout the Union.96 The term ‘implementation’ and its corresponding formulation ‘act in the scope of Union law’ strongly point towards the general rule, i.e., the requirement of a sufficient connection to EU law. In its Order in the Asparuhov case the Court states that its jurisdiction to interpret the Charter is not established, in so far as the order for reference contains nothing showing that the national decision at issue ‘constitutes a measure implementing EU law or contains other connections with the latter’.97 The reference to ‘other connections with EU law’ once again points towards the main rule of a ‘degree of connection between the measure of EU law and the national measure at issue’.98 Hence, the issue requires a concrete and relevant presence of an EU legal norm, and that being other than of the Charter, to be applicable to the situation.99 This conclusion is further buttressed by the different language versions of the same formulation which appear to use a more broad-spectrum word of ‘application’.100 Even the Explanations relating to Article 51(1) of the Charter make explicit reference to the ERT case. Indeed, that case shows that in order to be held justified (on grounds laid down in Article 52(1) TFEU) a national measure conflicting with EU legislation (in particular with economic freedoms) must not only pursue a legitimate aim recognised by EU law, be non-discriminative and proportionate, but also comply with fundamental rights. When a Member State is derogating from Union law, it is also ‘implementing EU law’, since such derogations sought must always meet the requirements set by EU law.101 Since the Charter now forms a part of primary EU law, it follows that any derogations sought by Member States must also be in harmony with Charter provisions. This corresponds to the general scope of application of EU law and thus also that of the general principles.102 But, even if the scope of the application of the Charter would be interpreted narrowly, the scope of application of the general principles of EU law would remain the same. Hence, the general principles would take over where the scope of application of the Charter would end.103 This 96

Cf. Communication from Commission – Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, 19.10.2010, COM(2010) 573 final, point 1.3.3. Lenaerts 2010, 564.

97

Order in Asparuhov, C-339/10, EU:C:2010:680, para. 14. Italics by the author.

98

Judgment in Julian Hernández and Others, C-198/13, EU:C:2014:2055, para, 34, order in Tudoran, C-92/14, EU:C:2014:2051, paras. 44-49.

99

Opinion of AG Bot of 5 April 2011 in Scattolon, C-108/10, EU:C:2011:211, point 120.

100

Cf. German ‘Durchführung’, French ‘mettent en œuvre’, Spanish ‘apliquen’, Finnish ‘soveltavat’, Swedish ‘tillämpar’.

101

Judgment in Robert Pfleger and Others, C-390/12, EU:C:2014:281, para. 36, opinion of AG Sharpston of 14 November 2013 in Robert Pfleger and Others, C-390/12, EU:C:2013:747, points 45 and 46.

102 103

Tridimas 2006, 36 ff. See more in detail, Part I of this book.

L enaerts 2012, 384.

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is particularly so, since on the basis of the Court’s case law 104 and Article 6(3) TEU, fundamental rights are to be observed in essence ‘as general principles of EU law’. The relation between those principles and Charter rights is not explicit.105 Whereas general principles make up a universal, indeterminate and often abstract and constantly developing source of EU law, the Charter forms a separate and distinct written document which seeks to establish a defined framework for the protection of fundamental rights. Moreover, even if fundamental rights could be considered a subcategory of the general principles of EU law, all Charter provisions would not necessarily qualify as such. 106 A strict interpretation of Article 51(1) of the Charter does not appear advantageous. Ultimately, such a dual regime would not be desirable and might even prove burdensome, since it could give rise to arbitrary divergences.107 It has to be borne in mind that Articles 2, 4(3) and 7 TEU bind Member States, just as the Court’s case law on primary and secondary legislation pertaining to those rights.108 Some provisions of primary EU legislation are in a similar or corresponding manner codified in the Charter, such as Articles 18, 45 and 61 TFEU on the prohibition of discrimination on grounds of nationality in relation to Article 21(2) of the EU Charter and the free movement of persons in Article 45 TFEU in relation to Article 45 of the Charter. If the scope of the application of the Charter was narrower than that of other EU law, it would inevitably lead to a system of double standard protection based on the immediate source of the right in question, and thus to an arbitrary and uncertain judicial method. Such a scenario would ultimately weaken the overall level of fundamental rights protection in the EU legal order and would neither be consistent with the need to ensure a uniform and efficient protection of individuals and other actors within the EU.109 It would also be liable to violate Article 19 TEU and Article 47 of the Charter on the effective legal protection in the fields covered by Union law, as well as Article 53 of the Charter, under which nothing in it shall be interpreted as restricting or adversely affecting human and fundamental rights in EU law.110 104

Judgments in Stauder, 29/69, EU:C:1969:57, para. 7 and Internationale Handelsgesellschaft, 11/70, EU:C:1970:114.

105

L enaerts – Gutiérrez-Fons 2010, 1657-60, Egger 2006, 547-50, Tridimas 2006, 363 and Jacqué 2002, 111.

106 107

K aila 2012, 295.

Dougan 2008, 664-5. A similar converging approach is distinguishable also as regards liability in EU law. The Court of Justice has made use of the same criterion to assess Union liability (judgment in Bergaderm, C-352/98 P, EU:C:2000:361, para. 41) as was earlier used in connection with state liability (judgment in Brasserie du Pêcheur, C-46/93 and C-48/93, EU:C:1996:79, para. 51). This approach shows that the protection of the individual should not vary depending on whether the damage is caused by the Union or whether it emanates from Member States. Derlén – Lindholm 2012, 90-1 and Aalto 2011.

108

Rossi 2010, 620 and Barents 2010, 721.

109 110

Jacqué 2002, 76.

Cf. opinion of AG Bot of 5 April 2011 in Scattolon, C-108/10, EU:C:2011:211, point 120.

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In the view of the author the wording adopted by the drafters of the Charter does not indicate they sought to restrict the scope of the application of the Charter in relation to the scope of the application of EU law in general. This conclusion is supported by the recent Åkerberg Fransson and Melloni cases.111 In the former case a Swedish fisherman Hans Åkerberg Fransson had allegedly provided false information concerning his income tax and value added tax. As a result he was ordered in 2007 to pay a tax surcharge as an administrative sanction for the years 2004 and 2005. Again in 2009, criminal proceedings were initiated against him for the same cause. This time the defendant claimed that these criminal proceedings were in violation of the ne bis in idem principle protected also in Article 50 of the Charter. Value added tax was covered by a Directive.112 On the other hand, the national legislation which provided for tax penalties and criminal proceedings was not a direct consequence of the implementation of that Directive. Consequently, in the particular case Sweden was not ‘implementing’ EU law. However, the situation was considered to have a sufficiently close connection to EU law through the Directive on common system of value added tax113 whereby it was deemed to lie within the ‘scope’ of EU law. The Court held that the Charter was applicable in the case when stating that ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law. Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.’114 It must also be noted that Article 51(1) of the Charter sought to determine the situations where the Charter provisions would be applicable; i.e., their appropriate scope of application. In contrast, Article 51(1) of the Charter should not be understood as categorically excluding individuals from any kind of position of an addressee of the Charter, despite its wording on the addressees of the Charter provisions. Commonly, constitutional fundamental rights do not necessarily designate their direct addressees or duty-bearers. Nevertheless, as demonstrated above, since the horizontal effect of fundamental rights norms are not an unfamiliar concept in EU law or in the case law of the Court of Justice, it would be ‘paradoxical’ if an instrument expressly seeking to strengthen fundamental rights protection in the Union would worsen the prevailing state of affairs.115 111

Judgments in Åkerberg Fransson, C-617/10, EU:C:2013:105 and Melloni, C-399/11, EU:C:2013:107.

112

Council Directive 2006/112/EC of 28.11.2006 on the common system of value added tax, OJ L 347, 11.12.2006, p. 1.

113

2006/112/EC, op.cit.

114 115

Judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, paras. 19-21.

Cf. opinion of AG Cruz Villalón of 18 July 2013 in AMS, C-176/12, EU:C:2013:491, points 28-37. On the horizontal effect of EU law, see Part I of this book.

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Instead of suggesting the exclusion of any influence of the Charter provisions on the realm of private law relations, the primary purpose of Article 51(1) of the Charter appears to leave the prevalent allocation of competencies intact. It is hence argued that the scope of application of the Charter coincides with that of (general) EU law, and by the same token, that of the general principles of the Union law. As a result, individuals are guaranteed the same protection regardless of the immediate source of rights. The approach contributes to a uniform and coherent system of law within the Union’s legal order. In this way the Court of Justice will avoid unnecessary lacunae in the system of fundamental rights protection in the Union as well as needlessly complicating legal difficulties as to how a different scope of the Charter would be reconciled with the general obligation of the Union to respect and observe fundamental rights. Member States are bound to observe the Charter provisions whenever they act within the scope of EU law. The decisive criterion pertains to the existence of a sufficient connection to EU law, which implies the presence in the issue of a concrete and relevant norm of EU law other than the Charter.116



7.3 National Constitutional Identity and Divergent Rights Standards: Where Do the Limits Go?

In spite of the extensive coverage of different policy areas of the EU Charter, it was not intended to harmonise the way in which human and fundamental rights are applied throughout the Union. The Charter was not meant to acquire such a wide scope of application even if it was anticipated to gain a legally binding status in place of being solely a political declaration. This is reflected in Article 53 of the Charter, which references other human and fundamental rights regimes. In spite of the manifold interpretative suggestions, 117 at the first reading the wording of Article 53 of the Charter seems to state the obvious; i.e., that the Charter does not affect the way provisions of other human and fundamental rights instruments and regimes are applied or interpreted ‘in their respective fields of application’. Explanations relating to the Charter, which plainly state that Article 53 of the Charter is ‘intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law, seem to support this view. Owing to its importance, mention is made of the ECHR.’118 116

Craig 2011, 430–1. Cf. judgments in Mangold, C-144/04, EU:C:2005:709, Karner, C-71/02, EU:C:2004:181, K.B., C-117/01, EU:C:2004:7 and Carpenter, C-60/00, EU:C:2002:434. Ladenburger 2012, 16 and Sarmiento 2013, 1279 ff., who has also further catalogued ‘triggering rules’ into three groups, namely, mandating rules, optioning rules and remedial rules.

117

Torres Pérez 2013, 150.

118

Italics by the present author. Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p. 35.

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As demonstrated above the Charter is only applicable where EU law is applicable to a given situation. Therefore, Union citizens cannot directly rely on its provisions in situations outside the purview of EU law; i.e., in purely internal situations without any linkage to EU law.119 In these purely internal situations Union citizens continue to rely on national fundamental rights protection along with the respective international obligations. However, where a national authority or court implements a Union act, national fundamental rights cannot be invoked in an attempt to question the validity of the Union act.120 EU fundamental rights are applied when the situation is within the scope of the application of EU law. Within that respective scope of Union law, the Court of Justice applies fundamental rights as guaranteed in the Union’s legal order and in a way which ensures a uniform application of EU law.121 There is a need to avoid situations in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine ‘the primacy, unity and effectiveness of EU law’.122 When interpreting fundamental rights the Court takes into account ‘the [common] constitutional traditions’ and ‘the constitutions of the member states’ in line with Articles 52(4) and 53 of the Charter. Accordingly, the Court of Justice seeks to interpret fundamental rights in the EU legal order in a way which affords a high level of protection, is consistent with previous case law as well as with the objectives of the Union, but which at the same time takes into account, as far as possible, national constitutional traditions. Rendering fundamental rights an interpretation which is both appropriate as well as consistent with the previous case law and with the objectives of the Union does not preclude the Court from taking into account and showing deference to national interpretations of fundamental rights as well as respecting national specificities. On the contrary, the Court of Justice has demonstrated its willingness to respect Member States’ views on the appropriate level of protection granted by domestic human and fundamental rights as well as paying homage to national specificities, as indicated in the Omega,123 Dynamic Medien,124 Satakunnan Markkinapörssi and Satamedia,125 as well as, Sayn-Wittgenstein cases respectively.126 119

Judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, para. 19.

120 121

Besselink 2012, 173 and Besselink 2001, 68.

Cf. Sarmiento 2013.

122

Judgments in Siragusa, C-206/13, EU:C:2014:126, paras. 31-32, Melloni, C-399/11, EU:C:2013:107, para. 60 and Internationale Handelsgesellschaft, 11/70, EU:C:1970:114, para. 3, ‘the uniformity and efficacy of Community law’.

123

Judgment in Omega, C-36/02, EU:C:2004:614.

124 125

Judgment in Dynamic Medien, C-244/06, EU:C:2008:85.

Judgment in Satakunnan Markkinapörssi and Satamedia, C-73/07, EU:C:2008:727.

126

Judgment in Sayn-Wittgenstein, C-208/09, EU:C:2010:806. Besselink 2012a, 671. Along the same lines of showing respect to cultural aspects of national identity, see judgement in Runevič-Vardyn, C-391/09, EU:C:2011:291.

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In the latter case an Austrian national residing in Germany had acquired the last name of her adoptive father indicating nobility (Fürstin von Sayn-Wittgenstein). On the basis of the Austrian law on the abolition of the nobility, she was informed of her last name being registered as ‘Sayn-Wittgenstein’ without the honorific. She challenged the decision by the Austrian authorities arguing that the decision constituted an obstacle to her right to freedom of movement as well as interference with her right to respect for family life. Considering the case under a preliminary reference procedure the Court of Justice allowed the competent national authorities a margin of discretion in that it interpreted the applicable national law prohibiting the acquisition, possession or use of a title of nobility along the lines of a constitutional principle of equality of all Austrian citizens. As such, reliance on a public policy ground capable of justifying an obstacle to the free movement of persons was allowed. The judgment implies respect for the constitutional identity of the Member States and the willingness on the part of the Court of Justice to provide for exceptions and derogations where necessary. This approach by the Court ably reflects the Union’s well-established and recognised obligation to respect Member States’ national identities, in line with Article 4 TEU, which holds that the Union shall respect Member States’ national identities inherent in their fundamental political and constitutional structures. National fundamental and constitutional rights undoubtedly fall under the notion of ‘fundamental constitutional structures’. The rights considered to form the core of the constitution can be understood as embracing the notion of constitutional identity. This kind of understanding is also shared by many Member State constitutional courts, which have asserted the authority of national constitutional rights as constitutional guarantees even vis-à-vis EU law. There are several examples by the German Federal Constitutional Court in its Solange line of cases and by the Italian Constitutional Court through its controlimiti doctrine according to which the primacy of EU law is accepted over constitutional norms, except where it threatens the core provisions or values of the Constitution. Other examples include the Czech Constitutional Court which in its Lisbon I judgment held that transferring competences to the Union is possible only if the function does not violate the core of the republic as a democratic state governed by the rule of law, founded on respect for the rights and freedoms of human beings and of citizens, all of which form the ‘unalterable core of the Czech Constitution’.127 Notwithstanding the above-mentioned, the Court’s deferential approach knows its limits. The Melloni case is illustrative of this.128 The case concerned an extradition order issued by a Spanish court as regards an Italian citizen, Mr. Stefano Melloni, who was facing trial for bankruptcy fraud before an Italian .

127

Czech Constitutional Court, 26.11.2008, Pl. ÚS 19/08, No. 446/2008. See Bobek – Kosar 2010, 123. Also the Spanish Constitutional Court which in its Declaration 1/2004 of 13.12.2004 considered the compatibility of the failed Constitutional EU Treaty with the Spanish Constitution.

128

Judgment in Melloni, C-399/11, EU:C:2013:107. De Boer 2013.

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court. Mr. Melloni, however, fled while released on bail and never appeared before the Italian court. The trial took place in his absence, even though he had appointed lawyers to present him. Mr. Melloni was convicted and sentenced to 10 years’ imprisonment for bankruptcy fraud. A European arrest warrant was issued for Mr. Melloni and he was arrested years later by the police. After the Spanish court had authorised his surrender to Italy, Mr. Melloni claimed this act would violate Article 24(2) of the Spanish Constitution guaranteeing the right to a fair trial, since he had been convicted for a serious crime in absentia without having the possibility to challenge the judgment.129 The Spanish Constitutional Court chose to rely on the stronger protection accorded by Article 24(2) of the Spanish Constitution which prohibited extradition to countries which allow convictions in absentia without making surrender conditional upon the convicted party being able to challenge the conviction. The resulting conflict between the Framework Decision130 and the Spanish Constitution led the Spanish Constitutional Court to request a preliminary ruling on the interpretation on the appropriate level of protection.131 In spite of its long record of respecting national constitutional traditions and interpretations, in Melloni the Court demonstrated its limits when stressing and arguing for the principle of primacy of EU law. It stated that ‘the interpretation envisaged by the national court - - that Article 53 of the Charter gives general authorisation to a Member State to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law - - cannot be accepted.’132 With regard to limits on the appropriate level of protection, the dictum of the judgment is encapsulated in the Court’s following formulation: ‘national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the 129

T he Spanish Constitutional Court had established that in the case of serious offences a possibility to review the judgment rendered in absentia was a condition for surrender. This was not possible under Italian law.

130

Council Framework Decision of 2009 set out the grounds for refusing to execute a European arrest warrant where the person concerned did not appear in person at his trial. It had amended the previous Framework Decision of 2002 by inserting a new Article 4a which specified the conditions under which executing a European arrest warrant even in case of trial in absentia was possible, e.g., when the person had been informed about the scheduled trial and was duly defended there (Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/ JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned, OJ L 81, 27.3.2009, p. 24-36).

131

Interestingly, the Melloni case represents the first preliminary reference ever submitted by the Spanish Constitutional Court (Tribunal Constitucional). See Torres Pérez 2012.

132

Judgment in Melloni, C-399/11, EU:C:2013:107, paras. 56-60. Italics by the present author.

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Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.’133

While the immediate effect of the judgment could be restricted to the particular EU legislative act at issue, the Court nevertheless implied a strong desire to defend the primacy, effectiveness and uniform application of EU law. The Court indicated that national constitutional standards should not compromise the level of protection afforded by the EU Charter. According to the main rule, national courts are to refrain from relying on the application of national constitutional standards whenever they would affect the effectiveness of an EU act. It may also be read in the judgment that on the basis of Article 4(2) TEU and Article 53 of the EU Charter applying the core or more protective constitutional rights of the Member States is justified. Where Union law leaves a margin of appreciation or discretion to the national authorities, they are free to apply national standards for the protection of fundamental rights while not jeopardising the primacy and effectiveness of Union law.134 The obligation to respect constitutional identity and the constitutional rights of the Member States reflects a pluralist conception of the Union’s legal system which is realized on a case-by-case basis through the proportionality test.135 Article 4(2) TEU has prompted some authors to contend that national constitutional courts would thereby be enabled to ‘overcome absolute primacy’ of EU law.136 It is nevertheless submitted here that the Court of Justice, in accordance with its mandate under Article 19 TEU to ‘ensure that the law is observed’, is best placed and suited to balance the different interests at stake and to assess whether constitutional identity in the meaning of Article 4(2) TEU or a higher level of protection in the meaning of Article 53 of the EU Charter could justify

133

Italics by the present author. Ibid., judgment in Melloni, para. 60. Also the opinion of AG Bot of 2 October 2012 in Melloni, C-399/11, EU:C:2012:600, esp. points 138-146. Similarly in the judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, para. 29. The Spanish Constitutional Court handed down its judgment in the Melloni case on 13 February 2014 (STC 26/2014) in which it aligned its approach to the degree of protection guaranteed in EU law.

134

Cf. the previously discussed judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, in which Sweden was called upon to review compliance with fundamental rights of national legislation in a situation where an action of the Member States was not entirely determined by EU law. The Court demonstrated that the main rule applies, i.e., the effectiveness and primacy of EU law set the limits for domestic discretion. See also, e.g., judgments in Rottman, C-135/08, EU:C:2010:104, para. 55 and Michaniki, C-213/07, EU:C:2008:731, in which the Court indicated that national constitutional considerations cannot provide an acceptable ground for derogating from secondary Union law, but can be taken into account within the discretion left to Member States.

135

Cf. opinion of AG Poiares Maduro of 8 October 2008 in Michaniki, C-213/07, EU:C:2008:544, points 33-34.

136

Von Bogdandy – Schill 2011 and Besselink 2010, 48.

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an exception to the primacy, unity and effectiveness of EU law. 137 The unilateral possibility of national courts to determine the suitable level of fundamental rights protection would be liable to jeopardise integration objectives and a uniform application of EU law, hence also its primacy and effectiveness.



7.4 Interim Conclusions

A distinguishing aspect of the Charter relates to its scope of application. In contrast to many other human rights instruments which are directly applicable as such, Charter provisions are not enforceable alone. EU fundamental rights may not be invoked in a legal situation which lacks a sufficient connection to EU law, be it in a vertical or horizontal relation. Instead, the context must first be within the scope of application of EU law in order for the Charter to be applicable at all. As shown above, this requires the situation to have a sufficient connection to EU law. Once established, fundamental rights are applicable as part of (general) EU law. Prior to invoking any of the Charter’s provisions the parties to a legal dispute must first establish a sufficiently concrete link to other substantive EU legal norm which is deemed applicable to the situation. The enforcement of fundamental rights in EU law is mediated through Member State or Union action in a legal situation which is considered to be within the scope of application of EU law. Hence, there does not exist any general horizontal application of the Charter’s provisions or other fundamental right norms in EU law in absence of other substantive EU legal norms. Since the fundamental rights are only applied within the scope of application of EU law and always require a prior and sufficiently concrete link to other EU law, they operate and produce effects in the context of interacting legal orders. Arguably, adjudicating fundamental rights is rarely void of value assessments. This in turn leaves a considerable margin of appreciation to the judiciary. Wide discretionary powers strengthen the judiciary’s judicial (and political) powers. They can be utilised as a judicial tool in the promotion of pre-set interests or goals, where the courts are reviewing the merits of the case which opens a possibility to subjectivity and personal visions. In the context of EU law a strict scrutiny of national measures would be liable to transfer powers away from the national level to the EU level. This would lead to competence issues and ultimately difficulties on the delicate issue of the separation of powers. Making assessments on the basis of fundamental rights should be made with utmost care, particularly in preliminary ruling procedures which often involve diverse national interests, and only in areas where EU law has clearly set a common level of protection for the legitimate interest under consideration. The approach is legitimate, since a Member State’s constitutional 137

For an opinion contrary to and against the central role of judges in determining rights standards, see, Waldron 2006 and Waldron 1993.

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values are as such neutral as regards the Union’s economic interests. Conversely, the Court may adopt a much stricter approach when measures seem protectionist or go directly against a fundamental Union value or seem to endanger the unity of Union law. Respect for national identities is a practical way for the Court to manage issues potentially liable to grow into constitutional conflicts, since a strict scrutiny of national measures would only be prone to gradually shift judicial and legislative power from the national level to the Union level. As long as the essential interests of the Union would not be hampered, Member States should have a wide margin of discretion to determine the appropriate level of fundamental rights protection even when acting inside the scope of EU law.138 A margin of appreciation would allow for an expression of national differences between Member States and would methodologically relate to the assessment of a justification for restricting fundamental rights.139 Article 53 of the Charter should therefore be understood as encouraging constitutional dialogue and promoting constitutional pluralism rather than weakening either the primacy of Union law or the constitutional traditions of Member States.140

138

Walkila 2012, 634.

139

Kokott – Sobotta 2010, 12.

140

‘Constitutional pluralism’ refers to separate yet mutually dependent legal systems whose foundational norms – as between the EU Treaties and state constitution – are not hierarchically determined. MacCormick 1998, 528-32 and MacCormick 1999, 117-21. See also Krisch 2013, Poiares Maduro 2003, 501 ff., Kumm 1999, 356, Walker 2002, 317 and Azoulai 2005, 689.

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The Horizontal Effect of Fundamental Rights: A Comparative Constitutional Inquiry and the Union Way

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Supremacy of the constitution over ordinary law and its authority over other legislation adds to the significance of fundamental rights in all spheres of law. An increasing influence of human rights treaties and rights parlance on a global scale has contributed to a growing emphasis on the horizontal application of those rights. It has also been recognised that human and fundamental rights may not only be violated by public authorities, but also by other individuals, social groups and non-public entities. According to the conventional view, fundamental rights are bestowed upon individuals primarily as safeguards from an excessive interference of public power. This view follows from historical developments which connect fundamental rights with values of liberty, autonomy and privacy on the one hand, and from historical processes which led to the incorporation of fundamental rights in constitutional documents of various states, on the other.1 The idea of liberal autonomy suggests that private actors operate in a sphere where their reasons for acting are free from public inquiry. In this sense, fundamental rights primarily operate in a vertical relation between citizen and government. However, where human and fundamental rights have implications for the legal relations between private parties only, these rights are said to operate in a horizontal relation between private parties. In the latter case, an element of a customarily public law character is being applied in the sphere of private or civil law – an area commonly designated solely for private parties.2 The horizontal application of fundamental rights has become more significant also due to the growing presence and importance of newer generations of fundamental rights which emphasize a different interpretation of the rule of law. Whereas political and civic rights mainly focus on safeguarding citizen rights vis-à-vis public power in a direct vertical relation, newer rights encompass rights of a more collective character or entail a wider scope of application. This perspective emphasizes their inter-subjective dimension, which unavoidably extends the scope of application of human rights also into private relations. Fundamental rights may thus be considered either exogenous or endogenous to private law; i.e., either viewed in their capacity of exerting an external influence, or affecting the system from within.3 In the exogenous view, private law is considered an autonomous sphere of law. As such, it is strictly separate from public law. Individuals and private parties are therefore not directly bound to observe fundamental rights. The potential influence of these rights is consid1

Cf. the reasoning in the Lüth case of the German Federal Constitutional Court. English translation in Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany, Volume 2 / Part I, 1998, p. 4.

2

The terms ‘private law’ and ‘civil law’ (from Latin civis denoting Roman citizens as opposed to laws covering conquered and foreign peoples) are used interchangeably in this book. For the sake of clarity, only relationships between private individuals and other private parties are categorised under private law, although in some jurisdictions private law may also cover relationships between private individuals and public authorities (e.g., undue payments, unlawful acts etc.).

3

Voermans 2006, 34.

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ered foreign and expansive. Proponents of the integrated view, on the other hand, regard fundamental rights as innate and intrinsic to all law, both public as well as private – irrespective of any classifications of spheres of law. In this view, fundamental rights embrace universal values which cannot be ignored or marginalized. Regardless of the point of view, the horizontal effect of fundamental rights unavoidably interacts between and often even connects the spheres of private and public law, and influences the respective branches of law and legislation. The constitutional significance of the horizontal applicability of fundamental rights is largely due to this construct, which permeates the traditional constitutional divide between the private and public spheres. The terminology used to describe this legal phenomenon – the effect of fundamental rights on private law relationships – is heterogeneous. The terms ‘horizontal effect’4 and ‘third party effect’5 and even the ‘effect between private persons’ have found most common usage.6 The term ‘reflexive effect’ has been employed both in France and in the Netherlands,7 whereas the expression ‘combined’ or ‘coordinated’ application is used in Italy to denote the relation of constitutional principles with private law.8 Blurring the distinction between the private and public spheres encounters the strongest criticism against horizontality. This relates to fears of a parallel judge-made system of civil law and potential infringements on private autonomy by attempts to hold individuals to the same standards as the state.9 Admittedly, the approach and definition of the concept of horizontal effect differs among the scholars of EU law and those of private law. While scholars of EU law mainly tend to focus on the constitutional aspects of the relationships between EU law and national law – notably through the concepts of primacy and direct effect – private law lawyers are more concerned with the legal relationships between individuals.10 While it is beyond the aim of this study to embark upon a detailed discussion on the nature of the differences between public and private law or even the precise definitions thereof, an inquiry into the horizontal effect of fundamental rights inevitably calls for some contextual clarification of the public-private dichotomy in law which lies at the root of the concept. 4

E.g., Horizontale werking (Dutch), effete orizzontali (Italian), efeito horizontal (Portuguese), horisontaalinen vaikutus (Finnish). The Portuguese term efeito horizontal has also been used to imply ‘the effectiveness of constitutional provisions with regard to fundamental rights in relations between private parties’. Cf. Vieira De Andrade 1981, 181 ff.

5

E.g., Drittwirkung (German), derdenwerking (Dutch), efficacia rispetto ai terzi (Italian), tredjemanseffekt (Swedish).

6

On the concepts of ‘direct effect’ and ’direct (and indirect) horizontal effect’ particularly in the context of EU law, see Part I of this book.

7

E.g., effet reflexe (French), reflexwerking (Dutch).

8

E.g., combinato disposto (Italian).

9

K rzemińska-Vamvaka 2009, 22.

10

Hartkamp 2013.

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8.1 The Public-Private Dichotomy in Law

The public-private divide ultimately defines the constitutionally established line between individual and state. Under the conventional approach to the public-private dichotomy, the individual and community are perceived as distinct and even antagonistic.11 The divide between public and private law was apparent already in the Roman law – recognised by Ulpian (Roman jurist Gnaeus Domitius Annius Ulpianus, c. 170-228) and reflected in Justinian’s Digest (Dig. 1, 1, 1, 2) and never questioned by Roman law scholars, from Irnerius to Savigny.12 The divide did not develop into a conceptually precise notion until the Middle Ages, when the philosophical longing for a consistent system of knowledge entered the minds of (continental) European legal scholars, who then spent centuries binding the doctrines of Roman law into a unified structure. The results of the work, the subsequent law codifications, only deepened the chasm between the two spheres of law.13 The vast classificatory efforts gradually resulted in private law developing into an autonomous field with its own conceptual categories, which could be systematically reproduced in the civil codes of modern Europe, thereby lending itself to the ideologies of new-born nationstates.14 The French Code Civil,15 which immersed both liberal constitutional principles and natural rights into one single codification of laws as well as the German BGB (Bürgerliches Gesetzbuch, 1896) are clear results of these developments. As is the case regarding its French counterpart, the German BGB came to form the constitutional basis for a unified Germany, which implemented the fundamental liberal ideals of the time such as private property and freedom of contract.16 In the 19th century the focus lay in the separation of a free civil society from the regulation of the political system so that civil rights, whether enshrined in civil law or the formal constitution, constituted civil society, i.e., a sphere of freedom of contract and free relations between citizens inter se. The same 11

Klare 1982, 1358-1422.

12

Some passages in the Digest present the trichotomy ius civile – ius gentium – ius natural, although some scholars, like Perozzi, claim that not even Ulpian recognised this trichotomy, since the threefold division would have been only later produced by the post-classical writers from the original dichotomy ius civile – ius gentium. Perozzi 1928, 91, De Francisci 1943, 264. In the sixth-century Justinian’s Corpus Juris Civilis private law doctrine did not reveal any signs of internal consistency. Kunkel 1964, 225.

13

Merryman 1968, 3-19, Horwitz 1982, 1423-9.

14 15

Caruso 1997, 6.

Also referred to as the Napoleonic Code or Code Napoléon, officially (Le) Code civil des français (‘Code Civil’) is a French civil code established under Napoléon in 1804. For more on the subject, see Halpérin 2003. Even some years prior to the establishment of the code, the French Declaration of the Rights of Man and of the Citizen (Déclaration des droits de l’homme et du citoyen, 1789) sought to define individual and collective rights and was markedly influenced by natural law, according to which the rights of man are held to be universal – valid at all times, everywhere and in regard to all human beings.

16

Kröger 1998, 19 ff.

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phenomenon is evident in the constitutional texts of the time. The Frankfurt Paulskirchen Constitution of 1848-49 also entailed binding political freedoms and the fundamental rights of the citizens, even though they were ineffective in practice. The subsequent Bismarckian Constitution did not contain any fundamental rights. The Weimar Constitution (1919) did in turn entail a catalogue of fundamental and economic rights which were perceived more as programmatic and without any greater practical impact. In England, on the other hand, the legal and political constitution was anchored to the basis of common law, which by the beginning of the industrial revolution was infused with economic and philosophical liberalism. After the World Wars the new German Constitution incorporated a distinct catalogue of fundamental rights (Articles 1-19 of the Grundgesetz, 1949) which was established to be directly binding on all State power. Constitutional law was to supersede all State law. The case law of the Federal Constitutional Court (Bundesverfassungsgericht), which was established only two years afterwards, laid the basis for the new German constitutional law. These developments strongly influenced the civil law jurisprudence and ultimately gave birth to the controversial Drittwirkung doctrine.17 More generally, all law to a civilian European legal mind came little by little to be distinctly divided into separate spheres of private and public law. At least in civil law countries, private law is concerned with horizontal interactions between formally equal private individuals, whereas vertical interactions between citizens and public power are detached in line with Montesquieu’s model of the separation of powers.18 Private law consists of an integrated system of norms, standards and principles which together form an autonomous subset severable from the rest of the legal regime.19 British and Irish lawyers have never classified the public and private domains as rigidly. While the understanding of the public-private spheres have survived legal realism and are still visible in US law, stern formalism is distant in US legal traditions. This strict understanding of the divide differs from the continental European approach.20 In the first half of the 20th century, the Western world sought to clarify the domains of public and private, since the world as it then stood saw the need to conceptualise private law for the purposes of social policy, redistributive considerations and administrative pursuit of public welfare.21 More recently, it has become more universally accepted that a clear separation between the public and private is not viable in the same degree and may even be impractical. Nevertheless, the distinction serves as a conceptual prism through which one can analyse 17

More on the German doctrine of Drittwirkung below.

18

‘Formal equality’ is here understood as pertaining to the lack of public power on both parties of a private law relationship. It is separate from substantive equality which connotes to equality of bargaining power or of access to commodities.

19

Caruso 1997, 5.

20 21

Cf. Barnett 1986, 267-76, Ruffert (ed.) 2009 and Caruso 1997, fn. 4.

Caruso 1997, 7 and 13.

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the intricacies of modern social realities. In order to establish this distinction in a more concrete manner, the dichotomy of public and private law can be analysed on the basis of varying criteria using a subjective, objective and formalistic approach. These criteria may be relied on either cumulatively or exclusively. According to the subjective approach the determining criterion on the divide between private and public spheres depends on the principal subject of action. On the basis of actor-specific subjectivity, e.g., a private shopkeeper would fall into the ambit of the private realm. A tax inspector representing the government would act in the public sphere. This criterion takes for granted the existence of pre-defined spheres of private and public and merely allocates activities on the grounds of the subjective actor. Under the objective approach the crucial criterion to separate public and private is based on the object of an action. Thus, selling milk in a grocery shop would seemingly fall in the category of private realm, while the government’s tax inspection would quite clearly belong in the public sphere. Conversely, the formalistic approach focuses on the form of an action and whether it may be linked to the private or to public sphere. Under this model a contract for the selling of products between two private shopkeepers would be designated as falling into the private sphere, whereas newly enacted tax laws would assign the whole activity to the sphere of public law. Some authors have also distinguished additional criteria resting on, inter alia, whether the underlying legal relationships are the result of voluntary acts or coercion.22 Private law presupposes a formal equality of individuals and is at least in many civil law countries concerned with the horizontal dimension of citizens’ relations inter se. This is in contrast with situations where private actors interact in vertical relations with public authorities or actors endowed with public power. Although the conceptual difficulties of a strict distinction between public and private have become increasingly accepted, the quintessence of the separation – i.e., ‘the conviction that it is possible to conceive of social and economic life apart from government and law’23 – is recognised and upheld in this study. It is further admitted that using the terms ‘public’ and ‘private’, even where no exhaustive definition is provided thereof, presupposes the existence of a clear line between the public and private spheres as well as the possibility to transfer the terms as such into EU law.



8.2 Public-Private Distinction Within the Context of EU Law

As opposed to many (European) civil and common-law countries, the distinction between public and private law has never been one of the guiding features in EU law. The original Treaty of Rome establishing the EEC was entirely public in character, inspiration and scope and contained almost 22 23

E.g., Semmelmann 2012, 187-8.

Klare 1982, 1417, Caruso 1997, 6 and Semmelmann 2011, 236.

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entirely provisions of public law character. The Community – and later the Union – resembled a public law organisation with origins in a treaty of public international law nature. The historical context of the Community was primarily of an economic nature and the idea of European integration relied mostly on market forces and economic drive.24 The Treaty consisted to a large extent of rules directed to Member State governments; only with few exceptions which included a provision prohibiting agreements which could distort competition25 and the provision on non-contractual liability.26 Early Community law suggested the macro-economic project of integration would primarily be about deregulation and the elimination of State protectionism. It would only entail functions relating to conventional public law, such as custom duties and internal taxation. There were little, if any, implications of the Community process on micro level activity – commonly held to be the exclusive preserve of the internal domestic adjudication of Member States and thus beyond the direct reach of Community legislation. Against this background, private law seemed uninteresting and even unrelated to the realization of an area of internal trade. It is no wonder the Treaties, case law and many other legislative EU documents which make reference to the public or private spheres of law, still fail to define their precise contextual meaning.27 It is also worthwhile to keep in mind that each of the six European nations which signed the original Treaty of Rome in 1957, had a respective autonomous and functionally independent civil code, which they applied and interpreted according to their respective national judicial traditions.28 National civil codes have historically captured the ethos of nation-states as political and legal entities and bear important symbolic constitutional weight. Dating back to the time they were drafted, the basic construct of civil codes have remained the same even in the face of major social changes in European society. Hence, the monopoly of private law was, and continues to be, of utmost historical and legal pertinence to many national constituencies. For instance, many Member States’ legislators have shown a tendency to implement EU directives with a visible prejudice in favour of already existing domestic private law rules and standards.29 Moreover, 24 25

Caruso 2004, 752-3, Kapteyn – Mcdonnell – Mortelmans – Timmermans (eds.) 2008, 66.

Now Articles 101(2) and 102 TFEU. Also elaborated on in the jurisprudence of the Court of Justice, e.g., in the judgment in Courage, C-453/99, EU:C:2001:465.

26 27

Now Article 340 TFEU.

E.g., the case law of the Court of Justice has used terms such as ‘private law’ and ‘civil law’ without further defining the concept. Cf. judgments in Hamilton, C-412/06, EU:C:2008:215, para. 42 and Messner, C-489/07, EU:C:2009:502, para. 26.

28

For more on the historical development of the Union, see Part I of this book.

29

Cf. Scandinavian implementation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29–34) as discussed in the judgment in Commission v Sweden, C-478/99, EU:C:2002:281. Interestingly, national judiciaries often welcome EU-driven reforms only insofar as they remain capable of controlling the practical impact of such reforms in the courts. Cf. judgment in Commission v France, C-52/00, EU:C:2002:252.

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national traditions and economic and political ideologies have had a profound impact on European legal thought. To name just two influential schools of thought, German ordoliberalism and French service public which, even if differing ideologically, still converge on a strict distinction between the public and private spheres and consider such a distinction essential to the legitimacy of the EU legal order.30 Against this historical and markedly public law context in mind, the Treaties have nevertheless exerted a significant influence on the realm of private law. This has primarily come about by means of the Court of Justice interpreting some provisions, such as the economic freedoms and the principles of equality and non-discrimination, in a manner which have granted them direct horizontal effect in private law relationships. The Union has gradually come to generate a considerable amount even more nuanced and detailed legislation in areas such as consumer law, product liability, labour law, company law and general contractual conditions which all have influenced the realm of private law and ushered in arguments also touching on fundamental rights considerations. Moreover, the processes of privatisation, trade liberalisation and the current globalisation trend have all been liable to transform the role of the state and to realign the public and private spheres.31 Privatisation has caused notable shifts of competencies and resources to the private sector while the state has refrained from direct intervention in the economy. Private companies increasingly assume public tasks. Private and public undertakings both compete under the same market conditions. This phenomenon could be described as the publicisation of private actors and denotes the occurrence of private law structures and actors being ‘publicised’ at the same time when the sphere of administrative law is extending to private actors. The phenomenon has created new markets in need of regulation, or are covered by hybrid mechanisms of indirect control and new forms of regulation.32 This functional differentiation in society has reduced the state’s capacity for hierarchical political control.33 Accordingly, the term ‘governance’ has assumed common usage and is widely employed to describe the transformation of the state’s role and operations and the folding of strict distinctions between the regulator and the regulated. Apart from these more general development considerations shaping the European legal, political and economic field, the addressees and beneficiaries of the Union activities have always been considered private parties – nationals of the Member States (later as Union citizens) in their different roles as consum30

To simplify, under ordoliberalism, the law serves to protect the market from politics, whereas in the service public view, the political realm is to be protected from market pressures by legal means. Sauter – Schepel 2009, 18. More on ordoliberalism in English, e.g., Gerber 1994, 25-84 and Joerges 1994, 29. More on the idea of service public, e.g., Jourdan 1987, 89-118, Chevallier 2005 and Prosser 2005.

31

Sauter – Schepel 2009, 19.

32 33

Sauter – Schepel 2009, 20-1, Majone 1994, 77-101 and Majone 1997, 139-67.

Sauter – Schepel 2009, 20.

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ers, workers, business conductors, and so forth. Although it was initially thought that economic freedoms could be realized without any reference to national civil codes or other substance of private law, the constitutional structure of the Union and the significance of an individual therein, were apt for blurring the distinction between the national and international dimensions of its modern States. It soon became apparent the initial perception and strict categorization between public and private within the Community system would prove untenable. The Consten and Grundig case34 demonstrated that in addition to functions clearly of a public law nature, the Community law would inevitably and increasingly come to face issues involving aspects of a private law character. Consten and Grundig introduced two pertinent and inescapable dimensions to this debate, i.e., industrial property and contractual relations between private parties. Later, EU interests and internal market objectives only facilitated the intertwining of public and private spheres within EU law and made the classic dichotomy to cave in.35 Private law has even come to be seen as an effective tool to further integration in the Union.36 Examples show the objective of establishing the internal market has bestowed upon Union institutions wide functional competencies which easily cover subjects within the sphere of private law. Keeping Union objectives and interests completely separate from societal or non-economic influences proved to be indefensible in the long run. Abundant examples in the case law relating to balancing purely economic goals with the public interest objectives of the Union testify how the public-private dichotomy – or more accurately, their intertwinement – is in a concrete manner present in EU law. More recently, the proliferation of policy competence areas, in particular in the area of freedom, security and justice, and enhanced civil and police cooperation have increased the number of concrete cases involving private parties on both sides of the legal action. This development has not gone unnoticed, and has rendered private law in Europe indisputably its own peculiar European character.37 The presumed neutrality of private law has yielded to the more value-laden nature of private law.38 Yet, to a great extent EU law still leaves it up to Member States to determine how they implement domestically obligations based on Union law while taking into account the varying national concepts of the publicprivate distinction in law. 34 35

Judgment in Consten and Grundig, 56/64 and 58/64, EU:C:1966:41.

E.g., Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of Member States concerning liability for defective products (OJ L 210, 7.8.1985, p. 29-33), followed by other harmonization measures pertaining to consumer protection. For more on the collapse of the public-private distinction in the context of harmonization, see Hesselink 2003, 228-30.

36

An apt expression of such activity can be found in the Draft Common Frame of Reference (‘DCFR’) on Principles, Definitions and Model Rules of European Private Law.

37

Zimmermann – Whittaker 2010, 8 and Hartkamp et al. 1998.

38

Caruso 1997, 5.

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Defining public and private as conceptual terms remains a subjective exercise as long as these terms are not given normative force by authoritative interpretation. In EU law, the task of providing a term with a generally applicable and accepted definition is even more difficult when taking into account the diversity of varying national conceptions of said dichotomy and the silence of the Treaties on the matter. Even if general trends may be identified, varying interpretations of the public and private spheres diverge significantly not just between Member States, but also across different sectors of the economy. As long as the terminology of public and private in EU law remains undefined or open-ended, it is up to the Court of Justice to provide normative force to these terms.39 The Court of Justice has primarily approached the realm of private law in two ways. 40 First, the Court has interpreted some Treaty provisions to be directly applicable in relationships between individuals, thus creating subjective rights and obligations. In practice, this has translated into direct horizontal effect between private parties. Notable examples of this interpretational practice include the direct horizontal effect granted to some economic freedoms and the principle of non-discrimination. 41 Second, private law has been influenced through recourse to the general principles of EU law. Although the general principles have predominantly been used most actively in areas of a public law nature (such as administrative law, constitutional law, and institutional law) and serve to ascertain that the actions of the Union institutions are legitimate and legal, they have nevertheless had ramifications in the area of private law. 42 Even if EU law disregards private and public law as traditional basic distinctions, the need for a uniform application of EU law requires that such terms, which do not make express reference to the law of Member States for the purposes of determining their meaning and scope should be given an independent and uniform interpretation throughout the Union. 43 It is argued here that the concepts of vertical and horizontal better encapsulate the sui generis nature of EU law and are more apt for the purposes of explaining Union law, as opposed to relying on the distinction between private and public. The concepts of private and public and their respective coverage, contents and meaning vary 39

Interestingly, AG Mayres addressed the issue by seeking to define ‘official authority’ in his opinion in Reyners, C-2/74, EU:C:1974:59.

40 41

Cf. Hartkamp 2010, 529.

E.g., judgments in Defrenne II, C-43/75, EU:C:1976:56, Walrave and Koch, 36/74, EU:C:1974:140, Bosman, C-415/93, EU:C:1995:463, Angonese, C-281/98, EU:C:2000:296, Viking Line, C-438/05, EU:C:2007:772 and Fra.bo, C-171/11, EU:C:2012:453. See Part I of this book.

42

E.g., the principle of effectiveness has furthered liability for Member States for acts violating EU law as well as other remedies to enforce rights based on EU law. See Tridimas 2006, 418 ff. For more on the role of the general principles of EU law, see Part I of this book.

43

Cf. judgments in Brüstle, C-34/10, EU:C:2011:669, para. 26, Ekro, 327/82, EU:C:1984:11, para. 11, Linster, C-287/98, EU:C:2000:468, para. 43, Infopaq, C-5/08, EU:C:2009:465, para. 27 and Padawan (SGAE), C-467/08, EU:C:2010:620, para. 32.

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from one Member State to another and also assume different meanings in the specific context of EU law. Scholarly approaches also differ. 44 Admittedly, setting a conceptually rigorous divide between the vertical and horizontal dimensions of fundamental rights is a challenging task, since it poses classic constitutional questions as regards the divide between public and private law. The distinction between vertical and horizontal effect should nevertheless be considered as more apt and suitable to be employed in the EU legal order than relying on concepts of private and public, which seem foreign and conceptually distinct to EU law. The Court should thus make use of autonomous conceptions and rely on an interpretational method specifically suited for EU law.

44

Hartkamp 2013.

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Comparative Constitutional Inquiry into the Concept of Horizontal Effect of Fundamental Rights

horizontal effect of fundamental rights in eu law

The interrelation of fundamental rights and private law began to be actively discussed during the second half of the 20th century. The end of the Second World War saw the democratic re-awakening of most of continental Western Europe, which led to several legislative adjustments in order to harmonise nineteenth-century civil codes with modern human rights standards. Fast progress led to a wide spectrum of issues relating to the public-private divide and the relation of fundamental rights with private law. The conventional approach tended to restrict the effect of fundamental rights to the exclusive domain of public law, where they mainly affected and imposed obligations on public authorities in a so-called vertical relation between public authorities and citizens. Under this view the relations between private actors are usually left entirely outside constitutional control.1 While public power is primarily linked to the state and focuses on questions such as the division of institutional power, the competences of authorities or citizens’ constitutional guarantees, the focus of private law primarily lies in the paradigms of private autonomy, individual freedom and formal equality. Questions of public power are not centre-stage in traditional private law methodology. Presently, EU law affects and sets limits in quite a detailed fashion in certain sectors of private law, e.g., in fields of consumer protection, communication and insurance sector. As a result, even private law has not succeeded in remaining totally separated from the influences of public law. More recently, tendencies to take constitutional norms and fundamental rights into account are clearly evident and fundamental rights issues have begun to have implications on the relations between private parties through their horizontal effect.2 A number of scholars have referred to the so-called ‘constitutionalisation’ of private law. This implies situations where national courts refer to constitutional rights by way of intervening in cases otherwise of a private law nature, e.g., in order to strengthen the importance of social rights in private law matters.3 The European Courts in both Luxembourg and Strasbourg have followed suit by relying in stronger terms on human rights as a means to enhance the individual’s position. 4 These influences are most evident in situations where there has been an imbalance of power and where the other party (individual) has been in a weaker position.5 1

Länsineva 2006, 1177.

2

See Smits 2003, 124-30 and Cherednychenko 2007. German academic literature, e.g., Starck 2001 and Brüggemeier 2006, 59-82.

3

Cherednychenko 2007.

4 5

Reich 2007, 704 ff., Micklitz – Patterson 2012, esp. 14 and Micklitz 2010.

E.g., the principle of protection of the weaker party has established itself as one of the widely recognised principles of European private law. Rösler 2010, 729-56. Examples in German legal tradition, the Bürgschaft case, BverfGE 89, 214, 19 October 1993, in England, Barclays’ Bank plc v. O’Brien [1994] 1 AC 180, in the Netherlands, Van Lanschot Bankiers v. Bink, HR 1 June 1990, NJ 1991, 759. Finnish academic literature on the subject, e.g., Hemmo 2003, 19-24, Tolonen – Ämmälä 2001, 94-101.

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Regardless of the jurisdiction, legal problems share many similar basic traits.6 The horizontal effect of fundamental rights can be examined in different constitutional systems by focusing on the interrelationship between constitutional law, ordinary legislation and case law. Looking outside the judicial borders of the Union for sources of inspiration provides judicial vision and precludes isolation and seclusion.7 A comparative view on human rights questions and controversies is particularly relevant in the EU context when taking into account the fact that the fundamental rights jurisdiction of the Court of Justice has only recently been strengthened both by the extension of policy areas as well as the number of fundamental rights instruments.8 Yet, at the same time it is also noted that the Court of Justice clearly lacks a custom to refer to other sources of human rights law and jurisprudence apart from the selective use of the ECtHR case law.9 In order to avoid the possibility of retaining a narrow, detached and insufficiently informed view of human rights issues exemplifying how horizontal effect has been utilised in other jurisdictions and the various types of arguments employed therein, a brief comparative view on the illustrative cases is presented in the following. This is accompanied by an explanation on why the issue was particularly difficult as a matter of national constitutional law. The choice of different jurisdictions selected for comparison is made with the aim of providing a wide range of approaches to the issue of horizontal effects of constitutional rights. Apart from two legal systems with distinct constitutional features affecting the doctrine, i.e., Germany and the United States, the following account will also present countries which have undergone quite recent constitutional reforms and have thus had to address the issue of the horizontal effect of fundamental rights only recently. Although constitutional laws of the various jurisdictions display different approaches to the issue of horizontality, for an EU lawyer, the horizontal effect of fundamental rights is perhaps most familiar and conventionally explained in terms used in and stemming from German constitutional law. The terminology used in connection with the horizontal effect of fundamental rights has to a great extent been influenced by the German legal tradition. Due to its early interest in the interaction of fundamental rights with private law and the presence of a powerful Constitutional Court, Germany has developed a rich record 6

This is true, e.g., of direct implications of international treaties in domestic legislation and of the manner of interpreting citizens’ rights. See a Dutch approach in Part I of this book.

7

Cf. the US Supreme Court under its Chief Justice Rehnquist has in particular been criticized for having failed to look with any regularity to other jurisdictions for inspiration. See the opinion of former Justice of the Supreme Court of Canada, L’Heureux-Dubé 1998, 37.

8

The Treaty of Lisbon, e.g., repealed the constraints under the former Article 68 EC relating to the possibility to make preliminary references by national courts in the area of freedom, security and justice.

9

Observation made, e.g., in the OHCHR report regarding the Court of Justice’s insufficient references to the UN Human Rights Committee in the Grant case (C-249/96, EU:C:1998:63, para. 46). De Búrca 2013, 173, and potential reasons for the reluctance of the Court to draw on comparative law, 176-8.

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of experience in the field of applying constitutional rights in private law.10 As a consequence, the horizontal effect of fundamental rights is commonly explained and analyzed in German terminology and on the basis of German constitutional theories. The following brief comparative view on constitutional traditions related to the horizontal application of fundamental therefore begins with an examination of the German view of the issue.



9.1 German Drittwirkung: Radiating Effect of the Basic Rights

The conventional term used for the horizontal effect of fundamental rights is that of Drittwirkung (der Grundrechte), i.e., the third-party effect of fundamental rights.11 Drittwirkung is a legal doctrine used to apply public law provisions such as fundamental rights in private law relations.12 The German Constitution (Grundgesetz) does not expressly recognise the doctrine of horizontal rights, but states that fundamental rights directly bind public authorities.13 However, shortly after its entry into force, scholars and the judiciary suggested that fundamental rights were also capable of horizontal effect. Although the issue has been a prominent subject in German legal discourse at least for the last forty years, it still generates several complex interpretations.14 Conventionally the manner and extent of the effect of fundamental rights have been categorized under two main subdivisions, i.e., direct (unmittelbare) and indirect (mittelbare) effect on the basis of the weight, authority and interpretative effect of the norm. The difference between the two concepts lies in their right-creative force. Under the concept of direct horizontality individuals may directly derive subjective rights based on fundamental rights claims. In that sense fundamental rights have a normative and absolute effect capable of modifying existing private law norms or creating new ones. The concept of direct effect signifies that the 10 11

Cherednychenko 2007, 16.

The expression drittwirkung originates from Hans Peter Ipsen’s writing on ‘Gleichheit’, in Bettermann – Neumann – Nipperdey – Scheuner (eds.) 1954, 143. Other terms used in German academic literature to connote third-party effect of fundamental rights include, inter alia, ‘Horizontalwirkung der Grundrechte’, see Preedy 2005; ‘Ausstrahlungswirkung’, see Stern 1994, 1511, § 76 ff.; ‘Privatwirkung’, see Wernicke 2000; ‘Geltung der Grundrechte im Privatrecht’, and ‘Schutzpflicht des Staates’, see Canaris 1999, 16 ff. The term is also commonly used in other EU Member States, see e.g., for Portugal, Vieira De Andrade 1981, 181 ff.; for Spain, García Torres – Jiménez Blanco 1986.

12 13

Engle 2009, 165-73.

Article 1(3) of German Basic Law. Articles 4(3), 12(2) and (3), 16, 16a, 17, 19(4) – which by their nature relate to State-citizen relations – are identified with vertical effect. The other rights codified in the Grundgesetz are also capable of horizontal effect.

14

For a summary of the discussion, see e.g., Canaris 2002, 33, Von Münch (ed.) 1998, Eckhold-Schmidt 1974, 26 ff. and 66 ff. and a critical account, Kumm 2006, 341-70, also in Menéndez – Eriksen (eds.) 2006, 113-38.

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courts consider and take constitutional values, principles and rights into consideration when deciding private law cases. Its origins date back to the 1950s and are linked to Hans Carl Nipperdey (1895-1968),15 then-President of the German Federal Labour Court (Bundesarbeitsgericht, BAG), 16 who maintained that the function of fundamental rights must be adjusted to the contemporary industrial era and thus distanced from its historical meaning as shielding individuals from excessive governmental power. The German Federal Labour Court began to apply fundamental rights in employment matters before it as of 1954.17 The Federal Court of Justice (Bundesgerichtshof, BGH) also began to directly apply fundamental rights to cases before it of a private law nature.18 According to the concept of indirect effect public authorities are to take fundamental rights into account when interpreting and applying the law. Fundamental rights function as reference criteria for general contractual clauses and are often concretised in ordinary law. This is most notably realised through general clauses and the open-ended norms of private law, which infuse fundamental rights and constitutional principles into private law.19 While generally denying the horizontal effect of fundamental rights as such, Canaris is among many German academics preferring the concepts of the ‘State’s duty of protection’ (Schutzpflicht des Staates) and the ‘validity of fundamental rights’ within private law (Geltung).20 This is because direct effect impairs the distinction of judicial from both legislative power and the autonomy of private law.21 This position has also been recognised and applied in the German Federal Constitutional Court’s (BVerfG) case law since the famous Lüth case,22 after which the concept of indirect effect became an officially accepted theory. 15

Nipperdey 1950, 121-8, Nipperdey 1961, 24. On Nipperdey, see Adomeit 2007, 148-65 and Hollstein 2005, 249-69.

16 17

See e.g., BAGE 1, 185 (191 ff.); BAGE 4, 274 (276 ff.).

The first being BAG, 3 December 1954, BAGE 1, 185, at 606. Other examples, inter alia, BAG, 27 May 1986, BAGE 52, 88, at 98; BAG, 11 March 1998, BAGE 88, 118.

18

BGH, 26 June 1952, BGHZ 6, 360 at 366 (Schutz der Ehewohnung gegen Geliebte); BGH, 25 May 1954, BGHZ 13, 334 (Schacht).

19

In the context of German Civil Law, Paragraph 138(1) of the German Civil Code (Bürgerliches Gesetzbuch) prescribes transactions contra bonos mores (‘ein Rechtsgeschäft, das gegen die guten Sitten verstößt, ist nichtig’; ‘a legal transaction contrary to public policy is void’). Cf. Badura 2003, 107 and Manssen 2005, 31-2.

20

Canaris 1984, 201 ff. As a private law lawyer, Canaris seeks to safeguard the independence of civil law and hence favours the doctrine of the State’s duty of protection. For more on direct effect, see e.g., Alexy 1994, 476 ff. and Von Münch – Kunig (eds.) 2000, no. 31.

21

Dürig 1956, 176 ff. and Krüger 1949, 163-6.

22

BVerfGE 7, 198, decided on 15 January 1958, 1 BvR 400/51. For an English translation of the judgment, see Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany, Volume 2 / Part I, 1998, 1-20. In fact, several years prior to the judgment in Lüth case the German Federal Court of Justice (BGH) had held in the so-called Schacht case that ‘human dignity and the free

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The Lüth case concerned a public official who sought to boycott a film by a director who had under the Nazi regime made an anti-Semitic film. Lüth was the then-Permanent Secretary and Director of the State Press Office of the Free and Hanseatic City of Hamburg and spoke on the occasion of the opening of ‘German Film Week’ in his capacity of Chairman of the Hamburg Press Club. He called on German cinema owners and film distributors not to include the film ‘Unsterbliche Geliebte’ (Immortal Beloved), scripted and directed by film director Veit Harlan, in their programme, and also called on the German public not to see the film. In order to obstruct the boycott, the director relied on German defamation law and succeeded in obtaining an interlocutory injunction from the Hamburg Regional Court against the boycotting attempts. Lüth appealed but the injunctions were upheld. Therefore, he lodged a constitutional complaint based on an alleged infringement of his fundamental right to freedom of expression.23 In contrast to the decision of the lower courts in the matter, the Federal Constitutional Court accepted Lüth’s complaint. The Court first acknowledged that fundamental rights are primarily intended to guarantee the individual’s sphere of freedom against interference by the public power, which is also the intention of the fundamental rights described in the Basic Law, which, by putting the section on fundamental rights first, stressed the primacy of the human person and his or her dignity against the power of the State.24 However, the Court continued by stating that the Basic Rights not only provide this kind of subjective defensive rights of the individual against the state, but they also embody ‘an objective order of values’ which binds basic constitutional decisions in all areas of the law and offers guidelines and impulses both for the legislature as well as the judiciary.25 This objective order of values made up of fundamental rights manifestly influences the civil law so that no provision of civil law may be in contradiction, although each one must be interpreted in spirit. Accordingly, the Federal Constitutional Court set aside the judgment of the Hamburg Regional Court on the grounds that the Regional Court had failed to appreciate the particular importance of the free expression of opinion as a fundamental right, even where it came into conflict with the private interests of others. Influenced by the judgment of the Federal Constitutional Court, both the Federal Labour Court, as well as the Federal Court of Justice began to apply the doctrine of the indirect horizontal effect of fundamental rights. development of personality must be respected by everyone also in private relationships’. BGH, 25 May 1954, BGHZ 13, 334 (Schacht). 23

Article 5(1), first sentence of German Basic Law.

24

 D ecisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany, Volume 2 / Part I, 1998, 4-5.

25

For more on the terminology and distinction on ‘defensive’ and ‘protective’ rights, see Part II of this book.

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Under the German constitution, direct horizontal effect is only expressly recognised for one single and quite particular right amidst the fundamental rights: the right to form associations to safeguard and improve working and economic conditions.26 In more general and as illustrated by the Lüth case, fundamental rights operate and exert their influence on ordinary legislation indirectly, as value-decisions, objective norms, constitutional rights values or objective principles.27 The Federal Constitutional Court has referred to the concept of indirect effect by describing fundamental rights as having a ‘radiating effect’ on the entire legal system.28 Ordinary law must in content reflect the values comprised of fundamental rights. Fundamental rights have an interpretative and guiding effect on private law on the basis of their being part of the ‘objective system of values’ which the people have arrived at and fixed in their Constitution at a particular time.29 Yet, even if the German theory of mittelbare Drittwirkung or indirekte Drittwirkungslehre (indirect effect of fundamental rights) introduced in the famous Lüth judgment certainly offered a workable solution to settle the dispute in that particular case (and also more generally between private and public lawyers), it nevertheless did not succeed in creating a feasible or durable basis for any general development of fundamental rights within private law. Conversely, the German theory of unmittelbare Drittwirkung (direct effect of fundamental rights) introduced by Nipperdey has also been criticized, although it has been accepted in various European legal systems.30Although the Federal Constitutional Court formally adheres to the doctrine of the indirect effect of fundamental rights, there exist examples of case law which also suggest alternative approaches.31 On the more theoretical side, new trends on the doctrine of fundamental rights’ horizontal effect are presented, e.g., by three German academics, Teubner, Brüggemeier and Kumm, who have examined views on sociological systems 26

Article 9(3) of the German Basic Law. Nevertheless, there are examples of direct horizontal effect relating to more specific rights, e.g., Article 48(2) of German Basic Law which sets out the right not to be dismissed from employment because of serving as a member of the Federal Parliament. Busch – Schulte-Nölke (eds.) 2011, 13.

27

Even though the decisions of the Bundesverfassungsgericht in the Bürgschaft case (BVerfG 89, 19 October 1993, p. 214) reopened the debate on the direct or indirect horizontal effect of constitutional rights. See Preedy 2000.

28

Analysed and applied also in cases Princess Soraya (BverfGE 34, 269, 14 February 1972) and First Abortion decision (BverfGE 39, 1, 25 February 1975). For a legal theoretical discussion on the concept, see e.g., Alexy 2002, 352 ff.

29

The concepts of the ‘radiating effect’ and an ‘objective system of values’ have been established and applied in case law by the German Federal Constitutional Court (BVerfG) since the famous Lüth case, after which it became an officially accepted theory in German constitutional jurisprudence. See Lüth (BVerfGE 7, 198, decided on 15 January 1958, 1 BvR 400/51).

30 31

E.g., ECtHR, X and Y v. The Netherlands (Application No. 8978/80), 26 March 1985.

BVerfG, 7 February 1990, BVerfGE 81, 242 (Handelsvertreter), and BVerfG, 19 October 1993, BVerfGE 89, 214 (Bürgschaft).

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theory,32 the two-dimensional process of constitutionalisation of civil law and civilianisation of fundamental rights,33 and impracticality of the distinction of the indirect/direct effect respectively.34



9.2 Application of Fundamental Rights on the British Isles: Towards Horizontality

In contrast to Germany and many other Continental European approaches to the effect of fundamental rights, the Irish legal system has accepted the doctrine of full direct horizontal effect of constitutional rights. The Supreme Court of Ireland has interpreted some of the rights in the Irish Constitution horizontally so they bind and produce direct effects on the legal relationships between private parties.35 In practical terms every citizen is entitled to invoke constitutional rights directly against another citizen and not only against the State. The Irish Supreme Court established this principle in two famous cases. In Educational Company of Ireland Ltd v. Fitzpatrick,36 the Court would see to it that a private individual would not be deprived of the protection granted by constitutional rights and would seek to protect those rights. As Justice Budd stated in the aforementioned case echoing a Hohfeldian spirit, ‘if one citizen has a right under the Constitution there exists a correlative duty on the party of other citizens to respect that right and not to interfere with it’. Shortly thereafter came Meskell v. Coras Iompair Eireann,37 in which Justice Walsh indicated that private individuals would be entitled to seek redress against persons who have infringed their constitutional rights and thereupon caused damage. Later on, Justice Costello expressly stated in P.Hosford v. John Murphy & Sons38 that the Irish Constitution confers a right of action for breach of constitutionally protected rights against persons other than the State. Even if the United Kingdom does not have a written constitution, a separate bill of rights, a constitutional court, or a clear-cut division between the public and private legal domain, rights have certainly played a crucial role in English legal and political history.39 The incorporation of the ECHR into domestic law 32 33

E.g., Beat Graber – Teubner 1998, 61-73.

Brüggemeier 2006, 59-82 and Brüggemeier 2004.

34 35

Kumm 2006, 341-70.

Examples of constitutional rights which have rendered full horizontal effects include freedom of association, freedom from sex discrimination (Murtagh Properties v. Cleary [1972] IR 330), the right to earn a livelihood (Lovett v. Gogan [1995] ILRM 12; Parson v. Kavanagh [1990] ILRM 560) and the right to due process (Glover v. BLN Ltd. [1973] IR 388).

36 37

 E ducational Co. Ltd. v. Fitzpatrick (No 2) [1961] IR 345.

 Meskell v. CIE [1973] IR 121.

38

 P.Hosford v. John Murphy & Sons [1987] IR 621.

39

See e.g., Feldman 2002.

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by the enactment of the Human Rights Act (‘HRA’) in 1998 was a result of a long legal trend concerning the status of fundamental freedoms and human rights in the UK. At the same time, it represents a clear shift towards recognising fundamental rights more as positive rights. Since the entry into force of the Act, the higher courts have been able to call into question the validity of Acts of Parliament on the basis of their incompatibility with human rights. 40 Individuals can now seek a remedy for alleged human rights breaches before their national courts. Even before 1998 English courts had nevertheless developed the common law so that it was generally consistent with the ECHR even in cases involving only private parties. 41 Still, at least so far, the English courts have been cautious with regard to the horizontal effect of human rights and have tried to avoid explicitly referring to their ‘horizontal or vertical effect’. 42 Since the adoption of the Human Rights Act, the question of the scope of application of the rights has generated much academic literature. 43 English scholars have begun to employ the terminology of the horizontal/vertical effect of human rights, often referring to the German doctrine of Drittwirkung. 44 Various views expressed in the academic literature have pointed to different directions in the question of horizontality. It is to be noted, firstly, that most of the rights contained in the Act (and accordingly in the ECHR) are applicable in vertical relations between individuals and the State. Nothing in the Act implies that it would apply to the common law, but only to legislation. 45 Finally, Section 6(1) of the entirely rules out direct horizontal effect, since the Convention is expressly addressed to ‘public authorities’. 46 However, under Section 6(3) of the Act the courts are explicitly included in the definition of ‘public authority’. 47 The duty to comply with and take into account the Convention even when adjudicating legal disputes between private parties now lies with the courts. 48 Academic views on the practical significance 40

In spite of the fact that this may qualify as a ‘constitutional revolution’ the courts do not however have power to invalidate or strike down legislation, since this is entirely reserved for the Parliament under the English doctrine of parliamentary sovereignty. Cf. Gardbaum 2001, 733-4.

41

Hunt 1998, 423-43.

42

Cf. Campbell v. Mirror Group Newspapers [2004] 2 AC 457; [2004] 2 WLR 1232; [2004] 2 All ER 995. Although the majority opinion was implicitly in favour of the concept of indirect horizontal effect.

43

E.g., Phillipson 1999, 824-49, Wade 1998, 61-8, Elliott 2000, 269-88. On different categories of horizontality, see Leigh 1999, 57-87.

44 45

Mulcahy (ed.) 2001.

Section 3(1) HRA: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’

46

Section 6(1) HRA: ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

47

Section 6(3) HRA: ‘In this section “public authority” includes – (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature’.

48

Cf. the Official Report of debates in Parliament, Human Rights Bill, H.L. Deb., 03 November 1997, 3.14 p.m., Series 5, vol. 582, cc 1231 ff.; and H.L. Deb., 24 November 1997, 5.15 p.m., Series 5, vol. 583, cc 783 ff.

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of the effect of the Act have varied from ‘weak indirect horizontal effect’ à la German constitutional approach to its Basic Rights, to the overall subjection of domestic law to human rights scrutiny in a way of ‘strong indirect horizontality’. 49 As the latter approach would place an absolute duty on courts to guarantee the compatibility of all existing law with the ECHR, the former would only imply developing the common law in light of the fundamental rights. There exists a broad consensus among courts and scholars, according to which direct horizontal effect in legal actions between private parties are excluded as such. Individuals would not be placed directly under the ECHR so they would not be able to take another private party to court solely on the basis of a breach of a provision of the ECHR. Nevertheless, in cases where there would already exist a cause of action, the rights contained in the HRA (and thus, in the ECHR) can be made to indirectly affect the legal relations between private parties. The courts could use Convention rights as a source of inspiration in order to develop English law in conformity with the ECHR.50 In Phillipson’s terminology this would imply ‘weak indirect effect’ of fundamental rights,51 as the courts – as public authorities – take the Convention rights into account even when deciding legal cases solely between private parties.52



9.3 Further European Constitutional Traditions

Many Continental European constitutional traditions share similar traits as regards the interpretation and application of fundamental and constitutional rights. One significant feature relates to the distinction between enforceable rights and non-enforceable principles among constitutional fundamental provisions. Article 53(3) of the Spanish Constitution of 1978 presents an illustrative example. According the Article, fundamental constitutional provisions termed ‘principles’ may inspire judicial practise, whereas enforceable ‘rights’ may be invoked and relied on in legal proceedings before courts. French, Portuguese, Austrian, Polish and Italian constitutional practises offer similar examples. Article 81 of the Polish Constitution limits the scope of the application of certain economic and social fundamental rights, although the Polish Constitutional Court has acknowledged the direct applicability of some of its fundamental constitutional rights. 53 Likewise in Italy, a traditional distinction has been made between ‘prescriptive norms’ (norme prescrittive) and ‘program49 50

The former suggested in Phillipson 1999, 833-43 and the latter in Hunt 1998, 438-42.

This kind of an approach has already been taken in an important post-HRA decision of the Court of Appeal in case of Douglas v. Hello! Ltd (No. 1) [2001] QB 967; [2001] 2 WLR 992; 2 All ER 289. The House of Lords has, although implicitly, rejected direct horizontal effect in the Campbell v. Mirror Group Newspapers case.

51

See Phillipson 1999, 833-43.

52 53

Cf. Laws 1993, 59-79, Laws 1995, 73-93 and Laws 1996, 622-35.

Cf. Article 2 of the Italian Constitution in connection with the principle of human dignity and the values based thereupon. Perlingieri 2001, 1.

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matic norms’ (norme programmatiche); the former regarded as perfect norms in the sense that their structure encompasses all the necessary elements for their immediate and direct application. Programmatic norms are understood as political directives or appeals for intervention by the legislature or expressions of goals, good intentions and promises which the State should realize through legislation.54 Greece has adopted a pragmatic approach to fundamental rights so that fundamental rights apply in private legal relationships insofar as they can be reconciled with existing rights. In practice this approach is realized through indirect application.55 Another way to look at the same issue is to differentiate between direct horizontal effect and indirect horizontal effect as made e.g., in the Dutch constitutional practise.56 Direct horizontal effect refers to the application of fundamental rights as directly enforceable rights exactly the same as in vertical relations. Indirect effect serves as an aid for interpretation, as ‘enlightening’ private law provisions so a fundamental right is realized through the interpretation of other provisions conforming to its contents.57 A similar difference is also known e.g., in Polish constitutional tradition. Indirect horizontal effect is realized in private law through general clauses or by way of the interpretation of statutes and other legal acts in conformity with the values enshrined in the Constitution, as well as the review of the constitutionality of legal acts.58 Direct horizontal applicability of clear, precise and unequivocal provisions of the Constitution has in exceptional cases been possible. While the concept of direct horizontal effect has always been recognised in France, neither scholars nor the judiciary tend to refer to any kind of classification of the effect, except maybe in the context of comparative law in view of explaining the different concepts employed.59 Both categorisations attach different effects to different types of rights and in different kinds of situations. Evidently, all fundamental rights are not equally suitable for horizontal application. This may be due to their nature (e.g., rights on citizenship) or may relate to yet another distinction made between the so-called ‘classic’ and ‘social’ fundamental rights. The first category commonly refers to civil and political rights, whereas social rights primarily imply policy objectives and goals to be attained by public authorities. They thus create policies in the Dworkinian sense.60 The distinction is not as clear in practice and many jurisdictions have acknowledged that fundamental rights permeate all 54 55

D’Atena 2012, 26-8.

Article 25 of the Constitution of Greece. Cf. the Court of First Instance of Thessaloniki, decision no. 9069/2005, in which case the right of personality was infused indirectly through the general clause of section 57 of the Greek Civil Code.

56 57

Maris 1969, 23-7.

Akkermans – Bax – Verhey 1999, 171.

58

Jańczuk – Krzemińska-Vamvaka 2010, 496.

59

Many French scholars have criticised the classification of horizontal effect familiar from German constitutional law. Marguénaud 2001, 79.

60

Dworkin 1977, 22 ff. and Van Empel – De Jong 2002, 292.

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spheres of law and society as a whole. Accordingly, the Italian Constitution not only contains provisions regarding the classic constitutional relationship between State and individual but also includes norms which directly refer to private law situations, such as the rights of employees.61 Horizontal effect has not been granted to all rights in the Italian Constitution. The Italian courts have adopted a case-by-case approach which takes into account various factors, such as the nature of the fundamental rights involved, the nature of the private law relationship at issue and the manner in which the right has been formulated, whether it is sufficiently concrete and complete and unequivocal to be directly enforceable.



9.4 Meet the Dividing Line: The State Action Doctrine of the US Constitutional Jurisprudence

The concept of the horizontal effect of fundamental rights has had different fates on the two continents. The majority of European Constitutional Courts have developed their own national approach or even a moredefined doctrine on the matter. Such a doctrine does not seem to exist in US jurisprudence. In the United States the unidirectionality of fundamental rights is maintained as one of the pillars of US constitutional theory. Rights are conceived of as something to be preserved from the rise of state power. Accordingly, the Amendments to the Federal Constitution which form the Bill of Rights in the US legal system62 may only be invoked by way of ‘state action’.63 According to this doctrine, private actors may only violate the fundamental constitutional rights of others if an element of state action may be identified in their actions; i.e., whether state authorities are involved in their actions or they are exercising public functions.64 This is well understood in the American politico-historical context. The original incentive for the drafting of the Bill of Rights arose – quite paradoxically – from anti-federalists who feared the growing power of the federal government. A written codification was meant to limit the authority and legislative power of the emerging central government, but later came to serve as the foundational limit upon the authority of all government within the United States.65 The US Bill of Rights was initially applied exclusively to the Federal Government, since the States had their own Bills of Rights. It took some hundred years – by way of the Fourteenth Amendment – for the US to open up the application of the Bill of Rights for individuals. Still, the doctrine remains one of the most vexing in US constitutional jurisprudence.66 61

Mak – Sanchez Galera – Wünsch – Jorge Ramos – Kraus 2010, 328.

62

The first ten Amendments to the United States Constitution are commonly referred to as the ‘Bill of Rights’.

63

From the viewpoint of comparative law, see Friedman – Barak-Erez (eds.) 2001.

64 65

Canaris 1999.

Cf. preface in Cogan (ed.) 1997, lv.

66

Cf. Black 1967-1968, 69 and 95.

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A thorough and an in-depth examination of the doctrine of US state action is obviously beyond the scope of this work.67 Nevertheless, to illustrate how the issue of horizontal effect of fundamental rights has been dealt with in the US constitutional jurisprudence, it is useful to describe the main characteristics of the doctrine and refer to some representative cases. As a point of departure, US constitutional provisions do not have direct horizontal effect as such. Yet, the famous landmark case in connection with the so-called ‘state action’ doctrine, Shelley v. Kraemer,68 proves extremely controversial in this context, since it held that an injunction enforcing a restrictive covenant violated the US Constitution. According to the Fourteenth Amendment ‘no State shall - - deny to any person within its jurisdiction the equal protection of the laws.’ The case was based on covenants which restricted the sale of property to whites only. When African Americans purchased homes in the neighbourhood, the property owners sought to enforce the restrictive covenants in state courts, which they also succeeded in obtaining at the Missouri Supreme Court. However, the US Supreme Court reversed the Missouri Court’s decision by holding that enforcing a racially restrictive covenant violated the US Constitution, in particular its Fourteenth Amendment on citizens’ equal protection. The US Supreme Court held that discriminatory agreements could not be considered to violate any rights as long as the terms of the agreements were agreed upon and voluntarily adhered to. However, where the terms were to be enforced by state courts, the situation would be different. The holding of the US Supreme Court had merit, since the denial of the enjoyment of property on the grounds of race – and even in relation between private parties – seriously conflicted with constitutional values. Hence, the US Supreme Court held that State courts could intervene on the grounds that the enforcement of the restrictive covenants was possible only through the ‘active intervention of the State courts’, which thus constituted the ‘clear and unmistakable imprimatur of the State.’ In so doing, the case suggested a novel concept of state action and state responsibility, both of which came to later have far-reaching repercussions on the federal jurisdiction by seeking to readjust relationships between the government and individual.69 The case seemed to render horizontal effect to the equal protection clause and therefore oblige also private individuals to observe the principle of non-discrimination. Indeed, in practical terms the judgment of the Supreme Court implied the acceptance of the substantive protection of fundamental rights in private relations. Although the result of the case was commendable – the Supreme Court effectively importing constitutional values into private disputes – the approach of the Court has been criticized for the evidently unsupportable repercussions 67

For more on the doctrine, see e.g., Black 1967-1968, 69-109, Chemerinsky 1985, 503-57, Glennon – Nowak 1976, 221-62 and Elkind 1974, 656-705.

68

 Shelley v. Kraemer 334 U.S. 1 (1948).

69

The doctrine of ‘State action’ also enabled the Supreme Court to hold unconstitutional an Alabama defamation law in an action by private litigants in New York Times v. Sullivan, 376 US 254 (1964).

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which would follow when terming court orders as ‘State actions’.70 Judges – who in their duty engage in public activities, thus establishing state actions – must observe and act in accordance with the fundamental rights recognised within their respective jurisdictions. One must consider the actions of a judge acting in his or her capacity as public actor to incorporate the required ‘missing link’ – the ‘public’ element – which would justify a direct application of fundamental rights onto private parties. With this background in mind, it is conceivable to understand the persuasive criticism and complex case law which have suggested that the rule in Shelley v. Kraemer would not be readily available in private litigation.71



9.5 On Canadian Soil: Fundamental Rights as Interpretative Parameters

The Canadian Constitutional approach to the application of fundamental rights has often been paralleled with the German doctrine of indirect effect. The Canadian Charter of Rights and Freedoms of 198272 reflects the Canadian vision of liberty and the State. It puts less emphasis on individual rights and more on collective interests. Many rights under the Charter are also subject to an express limitation.73 Prior to the drawing up of the Charter, the Supreme Court of Canada had no constitutional document like the American Bill of Rights to interpret and apply. Since the Charter, the Canadian Supreme Court has interpreted Charter rights in a way to grant them indirect horizontal effect. An apt example is represented by the landmark Dolphin Delivery case.74 The case concerned a trade union whose members were striking at one employer and threatened to picket another, who was providing services to the first. When a trial court enjoined the secondary picketing on the basis that the common law does not permit it, the union challenged the injunction on the basis of the Canadian Charter, which guarantees freedom of expression and association. The Charter forthrightly provides that ‘any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’75 Nevertheless, the Supreme Court of Canada held in accordance with the stance of its Justice McIntyre that ‘the Charter does not apply to private 70 71

E.g., Wechsler 1959, 1-35 and Henkin 1962, 473-505.

Cf. US Supreme Court cases, Black v. Cutter Laboratories, 351 U.S. 292 (1956) and Evans v. Newton, 382 U.S. 296 (1970). Cf. Gardbaum 2003, 426.

72

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

73

L’Heureux-Dubé 2003, 35-57.

74

 R etail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd. (1986) 2S.C.R. 573 (Supreme Court of Canada). Case commentaries and further on the concept in Canada, see Anderson 1996 and Slattery 1987, 905-23.

75

Canadian Charter, § 52(1). Italics by the present author.

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litigation’ but rather to ‘the Parliament and government of Canada’.76 Hence, the Charter would apply to common law only where the government was involved. Moreover, the Supreme Court found that orders from the court did not constitute government action; instead the courts must be the neutral arbiters. Nonetheless, the Court held that ‘the Charter is far from irrelevant to private litigants’, since the common law must be developed ‘in a manner consistent with the fundamental values enshrined in the Charter.’ To develop the common law in a manner consistent with Charter values implies that the courts should always make inquiries into whether a given common law rule is consistent with the values represented by Charter rights and whether any eventual limitations are reasonable. The Supreme Court reiterated and further clarified its stance in the subsequent Hill v. Church of Scientology of Toronto case. 77 The Court held that unless the Charter is a basis of governmental action, it only applies indirectly so common law is interpreted in accordance with general Charter principles.78 The position expressly suggests an indirect horizontal effect of the Charter. Although formally requiring an element of ‘governmental action’ to trigger the direct application of the Charter’s rights and freedoms, the values contained therein influence all law. The Supreme Court has rightly scrutinized common law and private relationships through the objective values enshrined in the Canadian Charter.79



9.6 Law under Constitutional Scrutiny: South African Approach

The South African Constitution80 formulates the scope of the application of its Bill of Rights by stating it ‘binds a natural or juristic person, if, and to the extent that, it is applicable, taking into account the nature of the right and any duty imposed by the right.’81 This provision appears to suggest a provision-specific approach to (direct) horizontal effect, rather than any general 76 77

Canadian Charter, § 32(1)(a).

 Hill v. Church of Scientology of Toronto (1995) 2 SCR 1130.

78

Cf. Justice L’Heureux-Dubé’s concurring reasons at para. 206 of the judgment.

79

Cf. R. V. Salituro, (1991) 3 SCR 654; Dagenais v. Canadian Broadcasting Co., (1994) 3 SCR 835; Hill v. Church of Scientology, (1995) 2 SCR 1130. Slattery 1987, 921. Cf. Section 52(1) of the Charter: ‘The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’

80

Constitution of the Republic of South Africa, Act 108 of 1996, the so-called ‘Final Constitution’, as opposed to the so-called ‘Interim Constitution’, i.e., the Constitution of the Republic of South Africa, Act 200 of 1993. For more on the political context of the provisions of the Interim Constitution, see Spitz – Chaskalson 2000, 269-82.

81

§ 8(2) of Chapter 2 in the Constitution of the Republic of South Africa.

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scope of application.82 Although the provision does not expressly address the issue of (in)direct nature of the effect of fundamental rights, the jurisprudence of the South African Constitutional Court indicates a subtle move from indirect effect more markedly towards direct effect. Two provisions of the Interim Constitution of 1993 addressed the effect of Constitutional provisions in rather controversial terms. The first relied on a clear vertical approach by stating that the Constitution ‘shall bind all legislative and executive organs of the state at all levels of government’.83 Another provision seemed to imply indirect horizontal effect when stating ‘in the interpretation of any law and the application and development of common law and customary law, a court shall have due regard to the spirit, purport and objects’ of the Constitution.84 By way of summarizing the position under the Interim Constitution, the Bill of Rights would not apply directly in private litigation, but it would wield a strong interpretative influence on the development of the common law. The application of these provisions led to a controversial judgment in Du Plessis v. De Klerk.85 The facts of the case date back to February 1993, when The Pretoria News, a daily South African newspaper, began a series of articles on the supply of arms to rebel forces in Angola. Some articles mentioned the names of private parties, who subsequently sued the newspaper for defamation. The case ended up at the Constitutional Court,86 which dismissed the defendants’ appeal because the Bill of Rights, which had entered into force by the time of the Interim Constitution, did not apply retroactively. Because of the significance of the question, the Constitutional Court may well have waited for a more pertinent and fitting case to arise in which the issue of horizontal applicability was essential to the direct outcome of the action. The Court nevertheless decided to address the issue of horizontal applicability of the provisions of the Bill of Rights in Du Plessis. The Court first emphasised that the primary purpose of the Bill of Rights was to prevent abuses of state power. Only state organs would be directly bound 82

In the specific legal-historical context of South Africa, this may be discerned, e.g., from Section 9(4) of the South African Bill of Rights which expressly requires also private individuals not to discriminate against others on the basis of the same grounds as applied to the public authorities (Chapter 2 in the Constitution of the Republic of South Africa). The same provision refers to subsection (3) which lists various grounds of discrimination including, inter alia, race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

83

§ 7(1) of the (Interim) Constitution of the Republic of South Africa, Act 200 of 1993.

84 85

§ 35(3) of the (Interim) Constitution of the Republic of South Africa, Act 200 of 1993.

 D u Plessis v. De Klerk, 1996 (3) S.A. 850. For a comprehensive case analysis, see Futch 1997, 1009-38.

86

The Interim Constitution provided for a Constitutional Court which exercised jurisdiction as the ‘court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of this Constitution.’ (Chapter 7, § 98(2) of the South African Interim Constitution.) The establishment of the Constitutional Court marked the end of parliamentary sovereignty in South Africa. See Suzman 1996, 149-53.

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by the Bill of Rights, since the state ‘as the maker of the laws, the administrator of the laws and applier of the laws, is bound to stay within the four corners’ of the Constitution, i.e., also those of the Bill of Rights.87 Private parties would not have constitutional duties. Justice Kriegler implied in his dissenting opinion to the Du Plessis case that all law is subject to the authority and prospective scrutiny of constitutional law.88 Although only certain provisions contained in the Bill of Rights would be capable of direct horizontal effect, all law would nevertheless be equally and wholly subjected under the constitutional law (incl. the Bill of Rights). This implies that the Bill of Rights formed a value-based constitutional document akin to that of the Basic Rights in German Basic Law, which embodies an objective normative value system.89 Still, its effects are not dependent on the type or source of law or action in question, which shifts the interpretation and application method closer to that of the horizontal approach.



9.7 Effective Protection, Cautious Terminology: Jurisprudence of Regional Human Rights Courts

It is beyond doubt that the issue of horizontal effect of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) were not taken into account at the time the Convention was being drafted.90 Since the entry into force of the Convention, the possible horizontal effect of its provisions has been actively discussed. The Preamble of the Convention attaches great importance to a general respect for fundamental rights and freedoms. However, any general horizontality of the provisions does not find immediate support from either the text or the Court’s case law. Under the procedure set up by the Convention, it is also not possible to lodge a complaint against another individual. Only complaints concerning a breach of any right or freedom committed by any of the Contracting States are admissible. Individuals can thus bring a case based on alleged violations by other individuals only when a Contracting State may be held responsible for the violation.91 While the Convention is primarily addressed to the Signatory States only, it does not set any explicit limitation to its eventual horizontal effect. It is possible to distinguish some sort of horizontality, or at least an effect comparable thereto, of the Convention rights in two separate meanings. First, in States which follow 87

South African Constitutional Court in Du Plessis v. De Klerk, (1996) 3 SA 850. Du Plessis was later confirmed in the Khumalo case of 2002 (Khumalo and Others v. Holomisa (CCT53/01) 2002 (5) SA 401).

88

 Du Plessis v. De Klerk, (1996) 3 SA 850, at 914H-915D.

89

South African Constitutional Court in Carmichele v. Minister of Safety and Security, (2001) 4 SA 938.

90

It was drafted in 1950 by the then newly formed Council of Europe and entered into force on 3 September 1953.

91

As a general rule, a State is not internationally held responsible for acts or omissions of its nationals or individuals within its jurisdiction. Dijk – Van Hoof 2006.

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a monist legal system and where the Convention is transposed into a part of domestic law, the Convention provisions may be directly applied in national courts. In this case, individuals may invoke the Convention in legal disputes against other individuals in accordance with their national judicial system. Nevertheless, the possibility to invoke the Convention directly before national courts through domestic legal system implies its direct applicability in the national legal order rather than, strictly speaking, its capacity of being directly applicable in legal relations between individuals as such. Another form of horizontality is evident in cases where provisions of the Convention are not directly applicable, but where public authorities are obliged to protect Convention rights and freedoms and even required to provide an effective remedy in case of a violation of any of these rights (Article 13).92 In this sense, protection of fundamental rights in relationships between private individuals is achieved on the basis of the concept of a ‘duty of protection’ or the so-called ‘positive obligations’ imposed upon a State which is subsequently obliged to protect the Convention rights and freedoms by adopting positive measures.93 Horizontal effect in the Convention is in practice mostly realized in this latter meaning, i.e., through recourse to the concept of positive obligations. While the decisions of the ECtHR do not necessarily provide a general definition of the concept of positive obligations, such a definition may be detected from several individual cases.94 The prime characteristic of positive obligations is that they require national authorities to take the necessary measures to safeguard a right,95 or to adopt reasonable and suitable measures to protect the rights of the individual.96 For a finding against a State to be established, it is necessary for the conduct of a private individual to be seen as originating in a failing on the part of the State or as tolerated by it. In practice, the State fulfils its duty of protection by way of legislation and enforcement measures, e.g., by seeking to achieve a balance of interests under private law in harmony with 92

Cf. a parallel approach may be discerned in Polish and Italian constitutional doctrines. Article 31(1) and (2) of the Polish Constitution stipulates that the freedom of the person shall receive legal protection and everyone shall respect the freedom of others. In Italy, Article 2 of the Italian Constitution recognises the ‘unalterable duties of solidarity’ which is considered the basis for the horizontal application of fundamental rights. Moreover, the Italian Court of Cassation (Corte Suprema di Cassazione) has recently affirmed that constitutional provisions for fundamental rights do have direct horizontal effect, cf. the Court of Cassation, Civil Section I, 7 June 2000, judgment no. 7713; Civil Section II, 24 April 2007, judgment no. 8961; Civil Section II, 15 April 2009, judgment no. 8941.

93

See Reid 2004, 46, para. I-064, Sudre 1995, 363 ff. and Mowbray 2004.

94

E.g., in the case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ v Belgium (‘Belgian linguistic case’) (Application No. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64), 23 July 1968) the applicants, taking this as the basis for their complaints, argued that such obligations should be recognised as ‘obligations to do something’.

95

 Hokkanen v. Finland (Application No. 19823/92), 23 September 1994.

96

L ópez-Ostra v. Spain (Application No. 16798/90), 9 December 1994.

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the Convention.97 This guarantees observance of the Convention in relations between individuals. As legal action cannot be brought against private individuals, there cannot as a result of such a judgment be any joint liability on the part of the actual disturber responsible for infringement of the fundamental right. Rather, a breach of this duty of protection is established in a binding manner when the ECtHR pronounces a judgment against a State having neglected its duty of protection/positive obligations. 98 In this manner, the theory of positive obligations comes closer to the concept of ‘horizontal effect’, as it extends the scope of the Convention even to relations between individuals. Although nothing in the Convention makes clear the extent, nature and object of the positive obligations on the part of the Contracting States, the Court has nevertheless clearly stated it does not ‘consider it desirable, let alone necessary, to elaborate a general theory concerning the extent to which the Convention guarantees should be extended to relations between private individuals inter se’.99 The majority opinion seems to favour some sort of indirect effect of the Convention, so that the courts are bound to take it into account when interpreting and applying private law and thus ensuring that Convention rights are not violated by either public or private actors.100 This stance receives support even from the case law of the ECtHR itself.101 The case law suggests the provisions of the Convention may affect relations between private individuals, although much depends on the nature and formulation of the Convention provision in a given legal context.102 Hence, as the law stands at present, the establishment and development of the horizontal effect of the Convention by the ECtHR is much of a consequence of the theory of positive obligations. Yet, since the factual context and legal relations between private parties vary significantly and the horizontality itself is a polygonal notion, some 97

Grabenwarter 2009, 131, para. 15.

98

Cf. the judgments of the ECtHR in Khurshid Mustafa and Tarzibachi v. Sweden (Application No. 23883/06), 16 December 2008, § 50 (right to information), Von Hannover v. Germany (Application No. 59320/00), 24 June 2004, § 57 (right to respect for private and family life), Moreno Gómez v. Spain (Application No. 4143/02), 16 November 2004, § 55 (right to respect for private and family life), and Öneryildiz v. Turkey (Application No. 48939/99), 30 November 2004, § 135 (proprietary interests).

99

VGT Verein Gegen Tierfabriken v. Switzerland (Application No. 24699/94), 28 June 2001, § 46.

100

National constitutional provisions governing the effect of the ECHR norms on domestic orders affect the way the Convention is interpreted and applied in different Contracting States. For more on the subject, see Keller – Stone Sweet (eds.) 2008 and Martinico – Pollicino (eds.) 2010.

101

ECtHR, ‘Belgian linguistic case’, 23 July 1968.

102

T he majority of Convention rights are relative in the sense that their application may be restricted on legitimate grounds. It must however be noted that under Article 15 ECHR no derogations may be made from the so-called ‘absolute rights’, i.e., Articles 3 (Prohibition of torture), 4(1) (Prohibition of slavery) and 7 (No punishment without law) and derogations are qualified in respect of Article 2 (Right to life). Under Article 15(2) ECHR, a contracting state may suspend the application of the right to life to deaths resulting from lawful acts of war.

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commentators have noted that any general statements concerning the horizontal effect of the Convention rights and freedoms are hardly possible.103 In Latin America, apart from the well-developed doctrine of the Columbian Constitutional Court,104 the case law on the horizontal effect of fundamental rights is either elementary or almost non-existent.105 The case law of the InterAmerican Court of Human Rights (Corte Interamericana de Derechos Humanos, ‘IACHR’)106 nevertheless clearly indicates how the Court has taken steps towards recognising the horizontal effect of fundamental rights under its jurisdiction. The Velásquez Rodríguez v. Honduras case represents the first case in which the IACHR considered the effect of fundamental rights in relations between private parties. Manfredo Velásquez was a university student involved in subversive groups, who was violently arrested without a warrant by the Honduran secret police and civilians acting under their orders. Velásquez was later assassinated after having been subjected to various forms of torture.107 The Court held that a State could be held responsible for an illegal act violating human rights, either on the grounds of the act itself, or on the lack of due diligence to prevent the violation or to respond to it as required by the Convention.108 The stance was further elaborated in the Blake v. Guatemala case109 which the Inter-American Commission had referred to the IACHR in order to consider Guatemala’s responsibility in connection with the ‘civilian patrols’ acting as agents of the state. The case concerned two US citizens but residents of Guatemala, journalist Nicholas Chapman Blake and photographer Griffith Davis, who were collecting information for an article on Guatemalan guerrillas. On their way to a small village of the country on 26 March 1985, they were assassinated by a paramilitary organization, Civilian Self-Defense Patrol of El Llano. The IACHR had dealt with similar cases in connection with Colombia, which was accused of various violations of fundamental rights by guerrillas and paramilitary groups despite an active Colombian governmental policy against them. Recognising the difficulty to show a sufficient connection to state authority in that and similar cases, Judge Cançado argued that ‘human rights treaties create obligations of protection of an objective character and that there is an element of intemporality in the corpus juris of the International Law of Human Rights, as it is a law of protection of the human being as such - - constructed to be applied - all the time’.110 State responsibility and the search for state involvement of some 103

E .g., Alkema 1988, 33-45.

104 105

Julio Estrada 2000 and Cifuentes Munõz 1998.

Fix-Zamudio 1970, 3-45.

106

T he American Convention on Human Rights was adopted by the Member States of the Organization of the American States (OAS) in November 1969 and entered into force on 18 July 1978.

107

Velásquez Rodríguez v. Honduras, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988). See Mijangoz Y González 2008.

108

Velásquez Rodríguez v. Honduras, Judgment of July 29, 1988, (Ser. C), No. 4, para. 172.

109 110

Blake v. Guatemala, Judgment of January 24, 1998, Inter-Am.Ct.H.R. (Ser. C), No. 36.

Blake v. Guatemala, Preliminary Objections of July 2, 1996, para. 20.

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kind were subsequently abandoned by the Inter-American Court as the decisive elements determining the applicability of fundamental rights in private relations. The nature of the violated norm began to form the crucial argument for the purposes of affirming the horizontal effect of the Convention rights. The latest development phase of the concept of the horizontal effect of fundamental rights relates to the Advisory Opinion 18/03 of the IACHR.111 The request for an advisory opinion was submitted by Mexico on 10 May 2002 and formally based on Article 64.1 of the American Convention on Human Rights (ACHR). The clear motive for the reference was a ruling of the US Supreme Court relating to the legal condition of immigrants.112 The decision in the case maintained that an undocumented worker did not have the right to receive back pay after being illegally fired for attempting to exercise the rights granted to him by labour law, particularly by the National Labor Relations Act. The IACHR started by scrutinizing the principles of equality and non-discrimination, which it held to be jus cogens, and as such of significant import to general international law ‘to the extent that it is applicable to every state, independently of the fact that it may - - [have] effect on third parties, including individuals.’ The jus cogens feature supposes there exist norms so essential to the international community that states may not get away from them. According to the Court, the jus cogens character of a norm allows its multidirectional application. Consequently, the principle of equality being a jus cogens norm gives rise to erga omnes obligations, which in turn includes all possible addressees, be they of public or private character.113 The effect of fundamental rights in respect to third parties was based on Article 1.1 which requires adherence to the Convention both from the part of the state as well as from private individuals. The consequences of the Advisory Opinion 18/03 clearly go beyond the obligation of the state to possess the necessary resources to prevent or correct violations of rights also in relations between private parties.114 The IACHR consequently held that ‘fundamental rights are direct limits on the actions of individuals.’115

111

 Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18 of September 17, 2003, (Ser. A), No. 18. In the exercise of its advisory function, the IACHR is generally not called upon to decide questions of fact, but clarify the purpose and meaning of the international rules pertaining to human rights.

112

Hoffmann Plastic Compounds v. National Labor Relations Board (535 US 137 [2002]), which the Court adopted by a majority 5-4 vote.

113

Supra, Advisory Opinion 18/03, para. 140 ff.

114

Cf. Myrna Mack Chang v. Guatemala, Judgment of November 25, 2003, para. 153, Hermanos Gómez Paquiyauri v. Peru, Judgment of July 8, 2004, para. 129, Institute de Reeducación del Menor v. Paraguay, Judgment of September 2, 2004. Mijangoz Y González 2008.

115

Supra, Advisory Opinion 18/03, para. 151.

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9.8 Conclusions on the Comparative Constitutional Inquiry: ‘There Lies a Common Interest’

The comparative view above demonstrates a broad array of different constitutional approaches to the way of applying fundamental rights in horizontal relations. Nevertheless, one may subscribe to the words of Jean Monnet quoted at the outset according to which ‘beyond their differences and geographical boundaries there lies a common interest’. Even if different jurisdictions have approached the issue of horizontal effect of fundamental rights from different angles and their methodology is deeply influenced by features stemming from domestic legal culture, some common traits and similarities are still detectable. These findings will also benefit and contextualize the examination of the horizontal effect of fundamental rights in the context of EU law. Common to all jurisdictions briefly considered above is the general proposition according to which fundamental and human rights intend to grant rights to private individuals against public power. Many codifications of fundamental rights do not clearly define the addressees of those rights nor expressly identify the subjective rights among all constitutional and fundamental provisions. This is why an express reference to private parties as direct addressees of the rights seems an exception, even though it is clear those rights are expressly intended to benefit the citizen. Another common trait to all jurisdictions is the highest hierarchical status, or at least a significant eminence accorded to the fundamental rights among all other laws. Their high standing derives its legitimacy from the common aim shared by all fundamental rights, that of protecting human dignity. This status at the top of the legal hierarchy is of particular importance in the context of reconciling conflicting rules. The interpretation in conformity and similar rules for conflict resolution are based on and ultimately derive their logic and acceptability from the hierarchical or categorised status of norms. Apart from the approach of fundamental rights as adopted by the UK, the capacity of fundamental rights to influence other fields of law can easily be perceived from the case law of many European constitutional jurisdictions. For example, in France all legislation must be in conformity with the French Constitution.116 Following a decision of the Conseil Constitutionnel, the sources mentioned in the bloc de constitutionnalité (the preamble) must be taken into consideration in decision-making. 117 These include the 1789 Declaration of the Rights of Man, the rights and principles recognised in the preamble to the 1946 Constitution and the 2004 Charter for the Environment. The approach adopted by many European constitutional jurisdictions is also partly due to the influence of the ECHR, which has a direct normative effect on all the legal systems of its 116

T he current constitution of France dates from 1958, and underwent considerable modernisation in 2008.

117

71-44 DC, 16 July 1971, (Liberté d’association), Rec. 29.

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High Contracting Parties.118 Although the states may themselves decide on the method of incorporation of the Convention into their respective national legal systems, the fundamental rights set out in the Convention must nevertheless be uncompromisingly observed and complied with. What is also evident in the constitutional jurisprudence is the technique, or more precisely, the lack of it, used by judges when applying fundamental rights. Judges do not appear to be concerned about the particular technique relied on or the terminology used, e.g., when distinguishing between direct or indirect effect. Instead, the judiciary appears to be more concerned about the outcome to be achieved and its concrete effects in a given case. In many jurisdictions fundamental rights tend to constitute an objective system of values which infuses the entire legal system.119 This kind of view of the position and effects of fundamental rights leaves their exact manner of interpretation and application a flexible exercise and apt for the judiciary. The particular effects of fundamental rights in legal relations between individuals are realized by way of interpretation instead of relying on an express constitutional rule mandating it.120 It is clear that the scope and degree of horizontality varies from one jurisdiction to another and is often deeply rooted in a particular historical context. Quite commonly courts seem to avoid theorising or terming the effects of their jurisprudence. Instead they settle for a rational and flexible ad-hoc approach. Some jurisdictions have shown a considerable degree of pragmatism in their approach to the horizontal application of fundamental rights. In addition to the examples presented above, Belgium, the Netherlands, Greece, and Czech Republic, respectively, recognise both direct and indirect horizontal effects. The distinction between the two concepts is to a large extent a matter of degree.121 In spite of different patterns of resolving the issue of the horizontality of fundamental rights, the effects seem in practice to lead to similar outcomes which evokes Jean Monnet’s words concerning the ‘common interest’ behind different approaches. 122 118

Keller – Stone Sweet (eds.) 2008.

119

T he expression ‘objective system of values’ distinctively relates to German constitutional law, where interpretation in conformity with the constitution is a well-established concept and has been acknowledged since the famous Lüth decision by the Federal Constitutional Court (BVerfG 15 January 1958, BVerfGE 7, 198). Academic discussions in the field are nevertheless numerous and highly disputed.

120

Seifert 2012, 801-26. Opinion of AG Cruz Villalón of 18 July 2013 in AMS, C-176/12, EU:C:2013:491, point 30.

121

Cf. the constitutional approaches to fundamental rights in Germany (Part 9.1 above), Canada (Part 9.5 above), South Africa (Part 9.6 above) and the Inter-American Court of Human Rights (Part 9.7 above). As regards Belgium, see Van Leuven 2006; for Greece, see Greek Supreme Court, Decision 8/2008, 17/2009, and Court of Appeals Athens, Decision 8700/1982; for the Netherlands, see Mak 2008; for Czech Republic, see Šturm 2013, 357 ff.; for Switzerland, see Besson 1999 and Egli 2002.

122

Cf. Gardbaum 2003, 387-459. See on the account of the spectrum of positions which has been particularly influential in Britain, Hunt 1998, 427. Cf. three premises suggested by Robert Alexy: a direct, an indirect and a mediated theory, Alexy 2002, 355.

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The strongest horizontal effect – direct horizontality – presents itself as a construct of a subjective right of an individual flowing from a fundamental right. Supporters of direct horizontal effect seek to provide the strongest protection of fundamental rights by defending private parties from abuse of power by both public and private parties. This in turn has required the courts to permit an individual to invoke fundamental rights directly as grounds of a claim not only against the State, but similarly also against other private parties. On the other hand, the horizontality of fundamental rights may also be indirect, so neither of the parties may raise a direct claim based on subjective rights derived from fundamental rights. In such cases, the assessment of whether fundamental rights are respected is left to external organs, generally to the courts. The proponents of this kind of indirect effect understand private law as an autonomous field of law with its own particular perceptions on fairness. On their view, therefore, fundamental rights cannot affect private law directly, but only indirectly by way of interpretation. This may be realized in resorting to the use of the so-called ‘general clauses’ of private law, such as good faith, principles of justice, bona mores, etc. which reflect the values encompassed in fundamental rights and subsequently import them into the realm of private law. This form of indirect effect is widely applied in the doctrine and practice of many European legal systems.123 Indirect effect guides judicial interpretation in directing it towards the strongest protection of fundamental rights. The other polar position pertains to exclusive vertical effect, according to which individual rights and responsibilities are applicable only to the state and public authorities and expressly not to private actors. The US jurisdiction comes closest to this vertical model, as the alleged infringements against fundamental rights must always be sufficiently connected to the government in order to be applicable in disputes between private litigants.124 It is important to note that one of the reasons for drawing up the Bill of Rights was the need to specifically safeguard historic American individual liberties against any violations committed by the emerging power of the federation and its legislative power. This historic notion explains to a great extent the line of reasoning behind the US doctrine of state action. The US constitutional practice does not therefore subscribe to the doctrine of indirect effect and withdraws itself from the private sector of the society, as the vertical approach seeks rather to uphold the distinction between the public and private. Analogies between concepts which seek to determine the applicability of fundamental rights may be found between the US ‘state action’ doctrine and its European counterpart, the EU concept of ‘a sufficient connection’. Both 123

Safjan – Miklaszewicz 2010, 478.

124

Contrary to the standard view in comparative constitutional law, Gardbaum argues the US does not adhere to the vertical approach, but follows the constitutional approach akin to that of South Africa, in that all law of whatever type and source is directly and fully subject to the Constitution. Hence, in his view there is no threshold question of whether the law at issue amounts to state action to be resolved before constitutionality of the law may be assessed. See Gardbaum 2003, 419-20.

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doctrines seek to establish a rule which determines the applicability of fundamental constitutional rights to the situation. While under the US doctrine private actors may only violate the fundamental rights of others if an element of state action may be identified in their actions, in an analogous way EU law requires a prior sufficient connection to EU law so that the situation is first considered to be governed by EU law.125 Both doctrines thus point to a situation where the presence of Federal or Union law in a given situation is sufficiently strong to warrant an assessment of the circumstances thereunder.126 A further similarity concerning the express wording of the addressees of the rights and thus the vertical/horizontal distinction may be found in the English Human Rights Act of 1998 and correspondingly in the EU Charter. Section 6(3) of the HRA expressly indicates that Convention rights and the entailing duties are addressed to ‘public authorities’. In a similar vein, Article 51(1) of the EU Charter states its provisions are primarily ‘addressed to the institutions and bodies of the Union’. Under Section 6(3) of the HRA courts are explicitly included in its definition of ‘public authority’. Article 51(1) of the EU Charter could legitimately been given a similar interpretation, since the Court of Justice of the European Union is expressly included in the list of ‘institutions’ of the Union as stated in Article 13 TEU. On that basis, the Court of Justice would have a duty to guarantee the compatibility of EU legislation with fundamental rights and to develop its case law in harmony with those rights. Moreover, national courts should also be understood as addressees of the Charter provisions. Article 51(1) of the EU Charter also includes the Member States among the addressees of the Charter provisions. Since the Court of Justice’s own jurisprudence shows the reference to Member States also entails its courts,127 this would clearly imply that national courts are among the addresses of the Charter provisions and thus have an obligation to observe them. The other side perceives private individuals as holders of constitutional rights and corresponding duties these entail towards other private parties. According to this view, constitutional and fundamental rights impose rights and duties on private actors which they subsequently can enforce before courts. This approach rejects the public-private dichotomy in the operation and scope of application of fundamental rights. Among the jurisdictions analyzed above, a fitting example of a comprehensive form of horizontal effect of fundamental rights may be found e.g., in the Irish legal system, which grants direct horizontal effect at least to some of its constitutional rights. 125

Opinion of AG Cruz Villalón of 12 June 2012 in Åkerberg Fransson, C-617/10, EU:C:2012:340, point 33.

126

In the EU context the issue of the scope touches upon sensitivities in the division of powers between the EU and its Member States. This is not a problem in the US context.

127

Judgment in Defrenne II, C-43/75, EU:C:1976:56, para. 37: ‘the reference to “Member States” - - cannot be interpreted as excluding the intervention of the courts in direct application of the Treaty’. In the Köbler case the Court held that state liability also extended to the activities of the judiciary (C-224/01, EU:C:2003:513, paras. 40-43, 48).

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The concept of indirect effect proposes a more flexible methodology and acts as a mediator, in a kind of 45-degree angle between the two polar positions. It allows the values and core principles of fundamental rights to have an effect on private parties while not formally recognising their direct applicability or binding effect on private actors. Constitutional law, e.g., in Germany and Canada clearly qualifies under this approach and the reach of the fundamental rights is clearly broader than e.g., under the US state action model. Their approach is also sometimes analyzed under the rubric of the structural effect of human rights, which refers to the use of fundamental rights as general values or principles which exert an influence or ‘radiate’ into the sphere of private law.128 General values are then concretized in the system of private law when adjusted, so as to guide the interpretation of private law either through the general clauses of private law or in a manner which closely conforms to the essence of fundamental rights.129 The various constitutional approaches following the concept of indirect effect uphold the distinction between public and private in granting direct effect to the public sphere and limiting the indirect effect to the private sphere. This is well illustrated e.g., by the Canadian constitutional approach, according to which the Canadian Charter does not directly apply to private litigation but rather to ‘the Parliament and government of Canada …’.130 Nonetheless, as held by the Canadian Supreme Court, ‘the Charter is far from irrelevant to private litigants’ since the common law must be developed ‘in a manner consistent with the fundamental values enshrined in the Charter.’ The position expressly suggests the indirect horizontal effect of the Charter. The Canadian approach thus acknowledges constitutional values in its development of the common law in a manner consistent with Charter values. The constitutional approaches of South Africa and the UK, respectively, may be placed between the Irish model, on the one hand, and the German and Canadian models, on the other. As outlined above, the South African constitutional approach under its Interim Constitution subtly shifted from indirect horizontal effect closer towards direct horizontal effect under the Final Constitution. As at least some of the provisions of the Bill of Rights are granted direct horizontal effect, all ordinary legislation is subject to compliance with the Bill of Rights. This is also evident in the jurisprudence of the Constitutional Court of South Africa, which reveals that national courts are obliged to protect the realization of fundamental rights and even provide effective remedies to guarantee those rights. Finally, it may be noted that the UK approach is perhaps the most ambiguous of the above-mentioned jurisdictional examples, since the effect of the Human Rights Act may be argued both from vertical as well as from horizontal perspectives. Although the UK Human Rights Act does not concretely allow 128

Gardbaum 2008, 233-57.

129 130

Cf. Teubner 2011, 199.

Canadian Charter of Rights and Freedoms, § 32(1)(a).

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full direct effect, it is still perceived as strongly influencing all domestic law, since the courts are deliberately given power to examine the compatibility of all national law under the Act. In all jurisdictions the rights of the individual against the government inevitably and in some measure also include the right to protection from fellow citizens. In the context of the ECHR this even implies that a government may be held responsible for failing to prevent, through judicial or law enforcement methods, the violation of a person’s human rights by another person or private, non-state actor. Violation of this ‘duty of protection’ or ‘positive obligations’ may lead to liability in damages on the part of the State. The system of the protection of fundamental rights provided for in the ECHR proves it is not absolutely necessary for fundamental rights to be directly binding on private parties in order to guarantee reasonable protection of fundamental rights. It would suffice, if the individual were able to rely on the legislature’s duty of protection to prevent breaches of fundamental rights on the part of private individuals. Consequently, the doctrine of duty of protection/positive obligations on the part of the State, on which the system of protection of fundamental rights under the ECHR is based, renders the issue of the binding nature of fundamental rights on private individuals redundant, since it succeeds in providing practical solutions to legal questions commonly discussed in the context of horizontal effect. This is why it could not be claimed that the level of protection of fundamental rights in the EU would lag behind that of the ECHR even if it is found that fundamental rights under the EU legal order did not have direct effect in horizontal situations. 131 The particular importance of the ECHR and its jurisprudence for the EU legal order is stressed by the fact that under Articles 52(3) and 53 of the EU Charter the level of protection of fundamental rights guaranteed in the Charter must not lag behind the minimum standards in the ECHR. In anticipating the European Union’s future accession to the ECHR, as provided for in the first sentence of Article 6(2) TEU, it would appear indispensable and of particular importance to take into account the approaches to the solution afforded by the system of protection of fundamental rights under the ECHR. While some provisions of the ECHR appear to suggest horizontal effect, no direct basis for this is found in any guarantees of fundamental rights in the ECHR. Horizontal effect would also encounter barely surmountable difficulties on procedural grounds, as applications for contravention of guarantees in the ECHR by private individuals are ab initio inadmissible ratione personae under Article 35 ECHR.132 In the context of EU law, corresponding positive obligations on the part of the state could be based on Article 4(3) TEU, which requires Member States pursuant to the principle of sincere cooperation to take any appropriate measure 131

As pointed out by Opinion of AG Trstenjak of 8 September 2011 in Dominguez, C-282/10, EU:C:2011:559, point 87.

132

Judgments of the European Commission of Human Rights of 11 October 1988 in Ian Nimmo v. United Kingdom (Application No. 12327/86), and of 7 April 1997 in Scientology Kirche Deutschland e.V. v. Germany (Application No. 34614/97).

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to ensure fulfilment of the EU related obligations and facilitate the achievement of the Union’s tasks. At the same time they should refrain from any measure which could jeopardise the attainment of the Union’s objectives. Article 2 TEU links fundamental rights closely to the activities of the Union, when declaring the Union to be ‘founded on the respect of human dignity and the protection of fundamental rights’. According to some scholars, even Article 1 of the EU Charter provides a basis for the ‘positive obligations’ of the Member States to protect their citizens against violations of fundamental rights by other private parties when stating that ‘human dignity is inviolable and that it must be respected and protected.’133 Some judgments admittedly point towards courts also being assignees of positive obligations. This could be inferred for instance from the Defrenne case134 in which the Court of Justice held that a provision which is now Article 157 TFEU refers to all functions of the Member States which may affect the implementation of the principle of equal pay. This logically extends to national courts. The Court of Justice indicated that as the Article was directly applicable and confers rights on individuals, individuals must be able to enforce those rights before the courts, despite the fact that the Article in question was formally addressed to Member States.135 The concept of positive obligations, while most notably common in connection with the ECHR, also shares some similarities with the holding of the US Supreme Court in its landmark Shelley v. Kraemer case in which it held the terms of covenant made between private parties seriously conflicted with the constitutional values and necessitated court intervention when the matter was brought before it. The case seemed to render horizontal effect to the equal protection clause and therefore also obliged private individuals to observe the principle of non-discrimination. It would be too bold to say the Court of Justice has doctrinally established positive obligations in the context of EU law, although there may be some pressure to that direction. This is because EU law has by its magnitude and scope developed to the point where it increasingly extends to matters of private law. In order to guarantee full effectiveness of rights conferred by Union legislation, the public authorities, courts included, appear obliged to protect those rights also in situations entailing only private parties. As the analysis above shows, the difference between the direct and indirect approach seems at times more formalistic than substantive. Some academics and even Advocates General have acknowledged that imposing on civil courts an 133

Calliess 2006, 978, § 44, para. 17.

134 135

Judgment in Defrenne II, C-43/75, EU:C:1976:56.

Cf. judgments in Simmenthal II, 106/77, EU:C:1978:49, paras. 15 and 16, Courage, C-453/99, EU:C:2001:465, para. 25, Fruiticola, C-253/00, EU:C:2002:497, paras. 27 and 28. Positive obligations on the basis of the ECHR are commonly linked to the executive and legislative branches of government. UK jurisprudence has accepted a view according to which courts are included in these ‘public authorities’, whereas opinions in the US are split as regards allowing court orders to be covered by the ‘State action’ doctrine.

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obligation to protect fundamental rights by way of granting them direct horizontal effect would reach the same result as employing the doctrine of indirect horizontal effect. The doctrine of indirect effect seems to lead to the very same outcome as the doctrine of direct effect. The difference between direct approach and indirect approach seems, at least to some extent, to recede. This conclusion also suggests the borderline between the public and private in the contemporary society may be fading. This is evident, e.g., in the way fundamental rights affect legal relationships between private parties through general clauses of private law. The apparent hesitancy of different jurisdictions to accept the full direct horizontal effect of fundamental rights and consequent preference for the indirect approach comes down to endeavours to uphold the distinction between public and private law as the constitutional undertones imply. The indirect approach recognises the distinction and particularity between the two spheres of law and does not meld private acts with public functions. Another reason for this apparent hesitancy may well pertain to the question on the allocation of power and the question of the final arbiter of rights protection. In most European states the choice to restrict one or both competing rights seems a matter for the legislature, not a judge. In absence of objective and specific legal criteria, courts, by usurping a legislative prerogative in determining the spheres of private autonomy, might reach arbitrary choices guided primarily by their own views. The major danger is that when courts are engaged in the judicial process, they might interpret vague and indeterminate constitutional norms on the basis of personal and political convictions by following unpredictable criteria which might override or displace the legislative choices and infringe the certainty of law.136 The institutional and procedural framework for the realization of fundamental rights protection determines to a great extent the manner in which this protection is achieved, as well as the interplay between the different levels of multi-dimensional fundamental rights protection in Europe.137 In jurisdictions with a constitutional court, cases pertaining to fundamental rights reach the court either through incidental questions of constitutional compatibility filed by an ordinary court (e.g., in Austria, Italy, Luxembourg and Germany), or through individual constitutional complaints (e.g., Spain and Germany). Regardless of the manner in which the cases end up before the court, the presence of constitutional courts have a ‘filtering function’ and manage e.g., to affect the number of cases ending up in Strasbourg before the European Court of Human Rights.138 On the other hand, in jurisdictions without a specialized court to review constitutionality,139 it is up to ordinary courts to also see to it that fundamental 136 137

C herednychenko 2004, 10 and 769.

Busch – Schulte-Nölke (eds.) 2011, 19.

138

Soriano 2008, 481. Examples of EU Member States having a Constitutional Court are Austria, Belgium, Bulgaria, France, Germany, Poland, Portugal, Romania and Spain.

139

E .g., Finland, Sweden, Denmark, Ireland, the United Kingdom and the Netherlands.

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rights are taken into consideration and protected in practice. Even in these countries the power and degree of review varies. In the Nordic Countries ordinary courts commonly possess the power to review the constitutionality of statutes. In Finland, Article 106 of the Finnish Constitution provides that courts shall give primacy to the constitution ‘if in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution.’140 In Sweden, ordinary courts are likewise empowered to review the constitutionality of statutes and subordinate legislation, but laws passed by Parliament and ordinances passed by the Government may only be disapplied in the event they manifestly breach a provision of the Constitution.141 All human rights entail corresponding obligations that must be concretely realized in order to guarantee those rights. This is why fundamental and human rights have also been categorized either as defensive or protective rights.142 According to the classic liberal understanding of fundamental rights, defensive rights are designed to secure a sphere of liberty for the individual and thus directed against the state to prevent it from excessive interference in the private realm.143 For many years, traditional human rights discourse was dominated by the misperception that civil and political rights require only negative duties, while economic, social and cultural rights in turn require positive duties. More recently, the positive v. negative dichotomy has been discredited in favour of the understanding that all human rights have both positive and negative components. This dichotomy has been replaced by a tripartite typology of duties or obligations these rights create for states. In spite of some variations in the categorizations used, they all converge along basic obligations to (1) respect, (2) protect and (3) fulfil.144 The obligation to ‘respect’ obliges states to abstain from violating a right, the obligation to ‘protect’, expects states to prevent third parties from violating that right, and the obligation to ‘fulfil’ requires the state to take measures to ensure the right is enjoyed within its jurisdiction. Hence, the dichotomy between positive/negative is rather replaced by a typology of duties or obligations these rights create to public authorities, which illustrates their encompassing nature in contemporary society. 140

Section 106 of Chapter 10 of the Constitution of Finland of 11 June 1999 (731/1999, amendments up to 1112/2011 included). See Viljanen 2001, Länsineva 2002, Lavapuro 2010.

141

T his is based on Article 14 (‘Judicial review’) of Chapter 11 (‘Administration of Justice’) of Regeringsformen (‘The Instrument of Government’, 1974:152, amendments up to SFS 2014:1385).

142

See e.g., Alexy 2002, 304 ff. Critical of the view of defensive rights as opposed to protective rights, see Schwabe 1977, 213 ff.

143

Schmitt 1970, 163.

144

T he tripartite typology was introduced by Henry Shue in his book Basic Rights: Subsistence, Affluence and U.S. Foreign Policy, 2nd edn. (Princeton, N.J: Princeton University Press, 1996, first published in 1980), p. 52; and later developed by Asbjørn Eide, the UN’s Special Rapporteur for Food during the early 1980s (UN Special Rapporteur for the Right to Food, The Right to Adequate Food as a Human Right: Final Report submitted by Asbjørn Eide, UN Doc E/CN.4/Sub.2/1987/23,1987, pp. 67-69).

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10.1 Rationale of the Horizontal Effect of Fundamental Rights

The Union’s constitutional order consists of core principles which form the basis for the Union’s legal order. In this capacity it prevails over the written primary law. Article 2 TEU embraces among these values respect for human dignity, freedom, democracy, equality, the rule of law, and expressly, respect for human rights. The fact that these values appear abstract should not diminish their significance. A shared commitment to abstract ideals and values is in fact a common element of all constitutions. The Union’s values have a primordial status and as such cannot be ‘amended away’. They lay down a set of parameters within which a legal issue may be resolved. In this sense they form a source of convergence in providing a principal point of reference for the interpretation of other provisions of Union law. This conclusion seems plausible even in light of the Court’s case law, e.g., in the Kadi case in which the Court held that the constitutional principles of the EU Treaty also include the principle that all Union acts must respect fundamental rights, ‘these forming part of the very foundations of the Union legal order’ and that all Union measures must be consistent with those rights.1 Forming a system of common values, other legislation should thus reflect fundamental rights and conform thereto. In fact, all legislation should be oriented in content to the system of values made up of fundamental rights. Especially the norms codified in the EU Charter should be considered to form a value-based constitutional document akin, e.g., to the fundamental rights contained in German Basic Law which embody an objective normative value system. The EU Charter embraces in a separate and distinct document common and shared values of the European states. Given its omnipresence and central role the EU Charter could indeed acquire a special – even constitutional – status within EU law and already on this ground have at least an indirect effect on all applicable law. Since all Union law reflects the same system of values, fundamental rights contribute to the coherence, unity and consistency of the Union’s legal order and law. Since fundamental rights are intended to permeate the legal system as a whole, they also need to be protected in an effective way in society. This protection should not strictly be limited solely to vertical relations between the State and its citizens, since the nature of fundamental rights does not change whether they are affected by the activities of a public body or by the activities of private individuals. Some rights are also clearly addressed to individuals or the importance of those rights becomes evident in legal relations between private parties, such as prohibition of child labour (Article 32 of the EU Charter) and non-discrimination and equality (Article 21 of the EU Charter). Union values would be hampered and impaired if fundamental rights were not applied in an effective way and could not be concretely enforced by those affected. This approach arguably comes close to the concept of a state’s ‘positive obligations’ which in the context of EU law would require that the Court of Justice 1

Judgment in Kadi and Al Barakaat, C-402/05 P and C-415/05 P, EU:C:2008:461, paras. 285, 304.

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had a duty to guarantee the compatibility of EU legislation with fundamental rights and to develop its case law in harmony with those rights. Arguably, many of the rights contain elements of a collective nature or set goals and objectives for public authorities to attain. In this sense they indeed require positive action on the part of the public power. A similar understanding of the role of the fundamental rights is found in many jurisdictions dealing with interpretation and application of fundamental rights.2 Establishing horizontal effect on the basis of the State’s duty to protect implies that besides an obligation to refrain from violating those rights, public authorities also have a duty to protect individual citizens from infringements by other individuals. This kind of logic is to some extent discernible in the Court’s line of reasoning, e.g., in its case law relating to the free movement of goods where violations were committed by private individuals, but where the applicants had taken legal action directly against Member States for a failure to hinder the violations. This is illustrated, e.g., in the Commission v France and Schmidberger cases.3 Moreover, according to Article 51(1) of the EU Charter its provisions are primarily ‘addressed to the institutions and bodies of the Union’. If read together with Article 13 TEU enlisting the Court of Justice of the European Union among the ‘institutions’ of the Union, Article 51(1) of the EU Charter could legitimately be given a similar interpretation to that of the Section 6(3) of the English HRA which includes ‘courts’ in the definition of the ‘public authorities’ to which those rights are expressly addressed and thus have a duty to protect. The Court of Justice is an explicit addressee of fundamental rights. As such it is directly bound to observe that those rights are complied with in all cases coming before it. In certain circumstances granting effective protection would arguably require that fundamental rights were to have concrete implications also in legal relations between private parties. Consequently, when considering the universal nature and significance of fundamental rights complemented with their role in the Union’s legal order as safeguarding the primacy, unity and effectiveness of EU law, there seems to be ample reason to support the existence and rationale of the horizontal effect of fundamental rights in EU law.

2 3

See the comparative inquiry in Chapter 9 above.

Judgments in Commission v France (‘Strawberry case’), C-265/95, EU:C:1997:595, esp. paras. 65 and 66, and Schmidberger, C-112/00, EU:C:2003:333, esp. paras. 77 and 94.

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10.2 The Approach of the Court of Justice to Horizontal Effect of Fundamental Rights



10.2.1 Guiding Features in the Court’s Reasoning

The Union’s authority derives from the principle of conferral. The extent and reach of EU legislation must respect the same authority. Therefore, fundamental rights only apply where the issue falls within the scope of EU law. The objective of protecting fundamental rights in EU law is to ensure those rights are not infringed in any area of EU activity, be it through action at EU level or through implementation of Union law by Member States. 4 Since the Court of Justice is not a human rights court, it does not review the compatibility of measures and acts with fundamental rights outside the scope of EU law. Rather, the Court applies and interprets fundamental rights as part of its regular judicial work in which fundamental right considerations may be raised in all types of judicial proceedings and not limited to a certain type of action. At least so far, the Court of Justice has described the horizontal effect of fundamental rights in abstract and vague terms, avoiding expressly recognising horizontality even where the judgment itself would clearly imply it. This prudent approach is to be understood against the legal-historical context of fundamental rights in the Union’s legal order. As human and fundamental rights were initially understood merely as a means of binding the Union’s institutions to observe generally agreed human rights standards, the Union embraced a traditional approach to fundamental rights according to which fundamental rights would only be applicable in vertical relations and thus not directly binding in legal relations solely between private parties. It was only gradually with time that the supranational character of the Union and its expanding coverage of legislation as well as its relationships and interaction with the domestic laws of Member States began to expand into the realm of private law and put emphasis on the intersubjective nature of fundamental rights. This also resulted in their extended interpretation and application in legal relations between private parties. The possibility of the horizontal effect of EU legal norms law, even of fundamental rights, is not expressly granted for – while neither excluded – in the Treaties or even in the EU Charter. However, many provisions of EU law still seem apt for an interpretation in their favour.5 As already raised in this study, the first cases pointing towards the horizontal effect of norms of fundamental right nature can be traced back to 1974, when the Court of Justice decided the BRT-I, Sacchi and Walrave cases respectively.6 All these cases were based on norms of EU law which are not themselves fundamental rights, but reflect the 4 5

Judgment in Siragusa, C-206/13, EU:C:2014:126, para. 31.

See Part I of this book.

6

Judgments in BRT-I, 127/73, EU:C:1974:251, Sacchi, 155/73, EU:C:1974:40 and Walrave and Koch, 36/74, EU:C:1974:140.

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values protected thereby. The Court succeeded in circumventing the issue of horizontal effect of fundamental rights by relying instead on the horizontal application of other EU legal norms; an approach which is also evident in the more recent case law of the Court.7 The Court does not seem to pay much attention to the conceptual, terminological or theoretical concepts or distinctions concerning the degree or nature (whether direct or indirect) of the effects. The case law indicates that fundamental right considerations are not even self-evidently included in the Court’s reasoning, but that the principal point of reference varies.8 In the context of EU law, integration objectives and the need to safeguard the pre-eminence and effectiveness of EU law underpin the Court of Justice’s formulations of the doctrines which shape the Union’s legal order, such as primacy and direct effect. In a similar vein, the case law indicates that the horizontal effect of EU norms has proven a practical way to render provisions of EU law effective where so deemed necessary in casu in order to ensure the coherence of Union law as a whole. Under this approach, the decisive factor in determining whether a norm of EU law is capable of being directly effective in a horizontal relation has not been its source, character, or rank in hierarchy, nor its place in any other theoretical model, but rather whether its content may be sufficiently ascertainable so as to be operational in the case. This in turn requires a functional approach in terms of inquiring into the subject and object of the right, the enforceability of the right as well as the party responsible for its enforcement.



10.2.2 The Horizontal Effect of Fundamental Rights in the Court’s Case Law

The case law appears to suggest a provision- and contextspecific approach to direct horizontal effect rather than a general scope of application. This is well illustrated in the Court’s recent case law relating to the horizontal application of fundamental rights. As already demonstrated in this study, the Mangold case showed in essence that general principles of EU law may be applicable even in disputes between private parties and have a horizontal effect. The direct horizontal effect of the general principle of a fundamental right character at issue in Mangold was of an exclusionary nature. It was the responsibility of the national court to set aside any provision of national law in conflict with Union law.9 Mangold did not turn out to be an isolated exception. 7

E.g., judgment in Mangold, C-144/04, EU:C:2005:709.

8

Fundamental rights were used as the main point of reference e.g., in the Test-Achats case (C-236/09, EU:C:2011:100) and in Volker und Markus Schecke (C-92/09 and C-93/09, EU:C:2010:662, whereas in Kücükdeveci (C-555/07, EU:C:2010:21) and Prigge (Case C-447/09, EU:C:2011:573) cases fundamental rights were used as additional arguments supporting the Court’s reasoning primarily based on secondary legislation. In contrast, e.g., the Dominguez case lacked any considerations based on fundamental rights (C-282/10, EU:C:2012:33).

9

Judgment in Mangold, C-144/04, EU:C:2005:709, paras. 77 and 78.

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The subsequent Kücükdeveci case showed that Mangold marked a beginning of a distinct line of case law concerning the application of fundamental right norms of EU law in disputes between private parties. Building on Mangold and at the same time taking a significant step forward, the Kücükdeveci case paralleled the principle of non-discrimination on grounds of age with the prohibition of age-discrimination contained in Article 21(1) of the EU Charter.10 The stand is fully in line with Article 6(3) TEU, according to which fundamental rights constitute general principles of the Union’s law. It was only that the Court demonstrated this for the first time in Kücükdeveci which made the case so significant. Similarly to the Mangold case, the Court held in Kücükdeveci that the general principle at issue was capable of producing horizontal effect so that it precluded contravening national legislation from being applied, thus producing direct horizontal effect of exclusionary nature of the fundamental right norm at issue.11 The obligation to interpret national law in conformity with EU law was considered in more detail in the Dominguez case.12 The case concerned national provisions and practices which made the worker’s right to paid annual leave conditional on certain requirements.13 Having considered the possibility of interpreting national legislation in conformity with EU law, the Court proceeded to enquire whether the norm of (secondary) EU law at issue had direct effect and if so, whether it could be relied upon in the case. What is peculiar in Dominguez is that the Court only considered the possible direct effect of certain articles of the relevant Directive to the case and not that of the general principle or its corresponding Charter right. In fact, the Court did not even mention the Charter or that it codified the right to paid annual leave in Article 31(2) thereof. Dominguez thus lacked any considerations based on fundamental rights and left open the question of the possible horizontal application of fundamental right norms in EU law. The Court’s judgment stood in stark contrast to the Advocate General’s Opinion to the case, which examined the issue of the horizontal effect of fundamental rights in depth.14 Much speculation could be devoted to the possible reasons for the Court acting as it did. Leaving that aside, the Court’s decision to circumvent the issue can be taken to demonstrate the prudence and even hesitancy it is willing to show in matters concerning the horizontal effect of fundamental rights. The Court’s position is however plausible when considering the constitutional connotations inherent in the issue. In Dominguez the only 10 11

Judgment in Kücükdeveci, C-555/07, EU:C:2010:21, paras. 21 and 22.

Ibid., judgment in Kücükdeveci, paras. 27, 43.

12 13

Judgment in Dominguez, C-282/10, EU:C:2012:33, paras. 23-27. See Leczykiewicz 2013a, 480.

French Labour Code (Code du travail) and the model rules annexed to the national collective labour agreement for staff of social security bodies. Ibid., judgment in Dominguez, paras. 7-14.

14

Opinion of AG Trstenjak of 8 September 2011 in Dominguez, C-282/10, EU:C:2011:559. AG’s Opinion spanned over 40 pages.

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remedy the Court had to offer for the party injured as a result of domestic law not being in conformity with EU law was to rely on the principle of state liability as established in the Francovich case.15 The lack of any substantial guidance on the issue was somewhat remedied, although not to a fully satisfactory extent in the AMS case, which to some extent clarifies the nature of the (limited) practical effect of the principle-like provisions of the Charter.16 The case concerned the appointment of Mr Laboubi as trade union section representative at the Marseille-based non-profit-making private association AMS (Association de médiation sociale), which worked for the prevention of crime in the urban area of Marseille. To that end it also provided social and employment measures aiming to rehabilitate young people in particularly vulnerable situations into working life. Aside from a total of eight employees on indefinite contracts, AMS had concluded approximately 120 to 170 so-called ‘accompanied-employment contracts’ with persons it gradually sought to direct towards more stable employment and social activities.17 In June 2010 the local Union (Union Locale des Syndicats CGT Quartiers Nord) notified the AMS of the creation of a trade union section within the association and the appointment of one of its permanent workers, Mr Laboubi, as its representative. The designation of Mr Laboubi followed from the relevant provisions of the French Labour Code (Code du Travail) which in turn sought to implement Directive 2002/14,18 requiring the election of staff representatives for all establishments or undertakings with a certain pre-set number of employees. However, the French Labour Code excluded, inter alia, persons with ‘accompanied-employment contracts’ from the calculation of the number of employees. 19 AMS therefore took the view that the number of its permanent staff (eight) was far below the minimum threshold of fifty employees required for the application of the relevant provisions of the Directive, and thus challenged the appointment of Mr Laboubi as trade union representative. After a series of national procedural steps in the matter, the Cour de cassation decided to stay the proceedings and to refer two questions to the Court of Justice for a preliminary ruling. The Cour de cassation inquired whether Article 27 of the Charter on the right of workers to information and consultation and 15

Judgments in Dominguez, C-282/10, EU:C:2012:33, para. 43 and Francovich, C-6/90 and C-9/90, EU:C:1991:428.

16 17

Judgment in AMS, C-176/12, EU:C:2014:2. Dubout 2014.

Statistics are based on the situation in 2010, when the facts of the case took place.

18

Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 80, 23.3.2002, p. 29-34.

19

Article L. 111-3 of the Labour Code (Code du travail) lists ‘apprentices and workers with employmentinitiative contracts or accompanied-employment contracts or professional training contracts’ as categories of workers excluded from the calculation of staff numbers.

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as given expression by secondary legislation by way of Directive 2002/14 could be invoked in the dispute which took place between private parties, and in the affirmative, whether it precluded the national legislation at issue from being applied. The Court found rather straightforwardly that Article 3(1) of Directive 2002/14 on the thresholds of employees precluded the French legislation at issue. Even if the Court held that Article 3(1) fulfilled the conditions for it to have direct effect,20 it could not be applied in the proceedings, since the case took place exclusively between private parties, and directives lack direct horizontal effect. Even the interpretational value of the Directive was limited, since it would have required an interpretation contra legem which is considered to go beyond the realm of mere interpretational methods, and thus not allowed. The Court was left to consider whether Article 27 of the Charter on the ‘workers’ right to information and consultation within the undertaking’ could alter the legal scenario for the benefit of the defendants. The Court distinguished the AMS case from the Kücükdeveci. By contrasting the two cases the Court demonstrated the reason for treating Article 27 of the Charter differently from Article 21(1) thereof. Whereas Article 21(1) on nondiscrimination may be regarded as ‘sufficient in itself to confer on individuals an individual right which they may invoke in European Union or national law’, 21 the Court seemed to treat Article 27 more as a principle-like fundamental right when considering that Article 27 must be given ‘more specific expression in Union or nation law in order to be fully effective’.22 The Court further elaborated on the distinction between ‘principle-like’ and ‘right-like’ fundamental rights in the Glatzel 23 case in which it considered the principle-like nature of Article 26 of the Charter on the integration of persons with disabilities. The Court first pointed out that by virtue of the second sentence of Article 51(1) of the Charter, the EU legislature is to observe and promote the application of the principles laid down in it, but continued to hold that ‘the principle enshrined by [Article 26] does not require the EU legislature to adopt any specific measure.’ Instead, ‘in order for [Article 26] to be fully effective, it must be given more specific expression in European Union or national law.’ Therefore, ‘[Article 26] cannot by itself confer on individuals a subjective

20 21

Ibid., judgment in AMS, paras. 30-35.

Ibid., judgment in AMS, para. 47.

22

Ibid., judgment in AMS, para. 45. Admittedly, Article 27 of the Charter does not reach the level of precision and clarity. E.g., the wording is completely silent on the object of information and consultation. Moreover, Article 27 is to be recognised ‘under the conditions provided for by Union law and national laws and practices.’

23

Judgment in Glatzel, C-356/12, EU:C:2014:350. The Court also considered Articles 20 (equality before the law) and 21(1) (the principle of non-discrimination) of the Charter in the case but found no incompatibility of secondary legislation therewith.

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right which they may invoke as such.’24 Thus, by indicating that the principlelike fundamental rights cannot create subjective rights for the lack of required degree of specificity, the Court provided guidance on the distinction between ‘principle-like’ and ‘right-like’ fundamental rights. Since that distinction is of significance for the practical effects of the application of fundamental rights in a horizontal relation, it is explored more in detail in the following. Table 4. Examples of the development of the concept of horizontal effect of fundamental right norms in the case law of the Court of Justice. Case Year Type of Fundamental Right Norm at Issue

Mangold 2005 general principle

Direct Horizontal Effect

yes



Kücükdeveci 2010 general principle; reference also made to the corresponding Charter right yes

Dominguez 2012 Charter right; also as a ‘particularly important principle of EU social law’ N/A the issue circumvented by the Court

AMS 2014 Charter right

no

10.3 Adjudicating ‘Rights’ and ‘Principles’: An Analysis of the Content and Context

National constitutions have approached the issue of the horizontal application of fundamental rights in different ways. Varying approaches not only reflect deeply rooted national practices and legal-historic traditions, but also manifest diverse methodologies to consider the different nature and contents of fundamental rights. Most jurisdictions, however, tend to distinguish between enforceable and unenforceable constitutional provisions. These entail the entire justiciability of ‘rights’, on the one hand, and the reduced or non-existent enforceability of ‘principles’, on the other; the latter mainly serving interpretational purposes. The distinction also helps to demonstrate the difference between ‘rights’ and ‘principles’ of fundamental rights in EU law, most notably those among the provisions of the EU Charter. In contrast to the Dominguez case discussed above and in which the Court did not even consider the possible direct effect of fundamental right norms applicable to the issue, in the AMS case the Court proceeded to examine the ‘full effectiveness’ of Article 27 of the Charter. The Court’s statement implies that Article 27 of the Charter was not ‘fully effective’ 24

Judgment in Glatzel, paras. 77 and 78.

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in the sense that it lacked full remedial force in a horizontal legal situation. It did not provide with the requisite degree of specificity any normative content which a private party could rely upon. Instead, in the Court’s view Article 27 of the Charter required further legislative configuration, i.e., ‘more specific expression in European Union or national law’ in order to be fully enforceable.25 For that reason Article 27 of the Charter would qualify as a ‘principle’ rather than a right in the meaning of the distinction between ‘rights’ and ‘principles’ of the Charter provisions.26 Principle-like fundamental rights would be termed ‘rights’ by virtue of their nature and character, but ‘principles’ by virtue of their remedial force and operation.27 Sometimes the distinction may be established on the basis of clear prohibitions contained in the fundamental right norm or on the use of the term ‘right’ therein. It must also be noted that apart from Articles 51(1) and 52(5) of the Charter which refer to the distinction between ‘rights’ and ‘principles’, the same terms and terminology are not used consistently in the text of the Charter or even in the Explanations thereto.28 Thus, the text of the Charter still refers to the ‘principle of equality’ in Article 23 thereof, even if equality has been applied in a manner which clearly resembles more of a ‘right’ in that it has been capable of conferring an enforceable individual right to private parties. Even the reference to ‘the rules laid down by Union law and national laws and practices’ contained in some of the Charter provisions is not necessarily an implication of the principle-like nature of the provision. The reference to national or EU law and practices may only imply that legal traditions and a particular context affect the manner of application of certain fundamental rights even if they do not diminish the significance or enforceability of the norm. The fact that specific laws and practices are taken into account when giving practical effect to certain norms should not be understood to reduce or weaken their concrete effects. The wording used in Articles 51(1) and 52(5) of the Charter referring to rights which are ‘respected’, on the one hand, and principles which are to be ‘observed’, on the other, should not prove decisive when determining the concrete nature of their effects. Nothing in the Charter or in the Explanations thereto implies the two verbs have an exclusive or defined meaning either in their relation to each other or to other legal norms. For example, ‘respecting’ the rights of the elderly does not indicate the existence of a positive claim. Conversely, ‘observing’ the principle of equality has often led to subjective individual rights which private parties have been able to enforce before courts. Thus, the word ‘respect’ is not exclusively linked to right-like fundamental rights any more than the word 25

Judgment in AMS, C-176/12, EU:C:2014:2, para. 45.

26 27

Articles 51(1) and 52(5) of the Charter and the Preamble thereto.

Cf. opinion of AG Cruz Villalón of 18 July 2013 in AMS, C-176/12, EU:C:2013:491, point 45.

28

Efforts to clarify the text of the Explanations on the distinction between ‘rights’ and ‘principles’ were not entirely successful. Neither has it been possible to adjust the terminology of the Charter.

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‘observe’ would be solely used in connection with principle-like fundamental right norms. Yet, both terms imply guaranteeing certain attainments.29 The distinction between principle-like and right-like fundamental rights is neither based on categorisations of human or fundamental rights in international practice, which follows, e.g., from the social nature of a right (e.g., on the basis of different generations of human rights). That kind of stand would not be consistent with the Court’s case law, which indicates that some fundamental rights designated as ‘social’ are judicially cognisable and capable of judicial, or at least ‘quasi-judicial’ interpretation and application even in horizontal situations.30 In the meaning of the Charter, the term ‘principle’ refers to the nature of its operation, which follows from the absence of a sufficiently concretized content of the norm, rather than the social nature thereof. Neither should the terms ‘principle’ or ‘principle-like fundamental right’ be understood as synonymous with the ‘general principles’ of EU law. The former terms only relate to the nature of a fundamental right norm, and in particular to the distinction between ‘rights’ and ‘principles’ in the meaning of the EU Charter (Article 52(5)). Hence, the case law indicates that fundamental rights are capable of producing horizontal effect in varying forms. The explicit distinction made between ‘rights’ and ‘principles’ in the EU Charter emphasizes the difference in the nature of its Articles and upholds the difference between judicially enforceable Articles and those with a guiding and interpretational value. The judgment rendered in the AMS case should thus not be understood as overturning the line of Mangold – Kücükdeveci case law. Instead it demonstrates the conditions for applying fundamental rights in horizontal relations as well as the concrete effects and practical functioning of principle-like fundamental rights, such as Article 27 of the Charter was held to be. The core criterion pertains to the question whether a norm may be deemed ‘sufficient in itself’ to serve as a direct basis of a claim before a court. That points to the remedial force of the norm; i.e., whether the norm has a sufficiently ascertainable normative content which enables a judge to apply it in given circumstances. The remedial force of a fundamental right norm may be examined on the basis of content and context based analyses which are explored in the following.



10.3.1 A Content-Based Analysis

The content-based analysis inquires whether the norm enjoys ‘fully effectiveness’ in the sense that its normative content is defined with a requisite degree of specificity and clarity so that the parties to a legal dispute may rely upon it and the courts enforce it. 29

E.g., Jacqué refers to certain principles as guarantees so that compliance therewith is made judicially possible. Jacqué 2002a, 114-5 and Peers – Prechal 2014, 1508.

30

E.g., judgments in Viking Line, C-438/05, EU:C:2007:772, Laval, C-341/05, EU:C:2007:809 and Commission v Germany, C-271/08, EU:C:2010:426.

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On the basis of their content alone examples of right-like fundamental rights would comprise, inter alia, the following:31 • Article 2(2) of the Charter (the prohibition of the death penalty or execution); • Article 3(2)(c) of the Charter (the prohibition on making the human body and its parts as such a source of financial gain); • Article 3(2)(d) of the Charter (the prohibition of the reproductive cloning of human beings); • Article 5(1) of the Charter (the prohibition of slavery); • Article 5(3) of the Charter (the prohibition of trafficking in human beings); • Article 21 of the Charter (the prohibition of non-discrimination); • Article 23 of the Charter (the right to equality between women and men); • Article 28 of the Charter (the right to take collective action); • Article 32 of the Charter (the prohibition of child labour); • Article 39 of the Charter (the right to vote and to stand as a candidate at elections to the European Parliament ); • Article 40 of the Charter (the right to vote and to stand as a candidate at municipal elections); • Article 45 of the Charter (the freedom of movement and of residence); • Article 46 of the Charter (the right to diplomatic and consular protection); • Article 49(1) of the Charter (nulla poena sine lege); • Article 50 of the Charter (ne bis in idem). • All the examples of the right-like fundamental rights above have a sufficiently concretized normative content which would thus make them enforceable in courts. In contrast to right-like fundamental rights, the principle-like fundamental rights do not establish a direct judicial basis for a claim in court for positive action on the part of the Charter’s direct addressees.32 Neither can they serve to establish standing before the Union or national courts. The nature of their content differs from that of the right-like fundamental rights in that they do not define with sufficient precision an individual right which private parties could rely upon before the courts. The content of principle-like fundamental rights is too general, vague or incomplete to admit direct judicial application. On the basis of their content alone some examples of principle-like fundamental rights would include, inter alia, the following:33 31

It must be noted that the list is not meant to be exhaustive or final but rather hypothetical and only to give examples in order to illustrate the nature of the right-like fundamental rights in the meaning of the distinction made between the ‘rights’ and ‘principles’ in the Preamble to the EU Charter and Articles 51(1) and 52(5) thereof.

32 33

Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p. 35.

It must be noted that the list is not meant to be exhaustive or final but rather hypothetical and only to give examples in order to illustrate the nature of the principle-like fundamental rights in the meaning

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• Article 25 of the Charter (the rights of the elderly);34 • Article 26 of the Charter (integration of persons with disabilities);35 • Article 33(1) of the Charter (protection of the family);36 • Article 37 of the Charter (the right to environmental protection);37 • Article 38 of the Charter (consumer protection).38 As the examples of principle-like fundamental rights demonstrate those norms are often drafted in fairly abstract and imprecise terminology and may describe general values in a universal language, for which reason they do not define with sufficient ascertainability the normative content so as to be judicially enforceable. In that case the fundamental right in question would by virtue of its normative content qualify as a ‘principle’. Some principle-like rights are not by their nature or contents addressed to individuals or private parties, but relate to collective rights or values which set out objectives of public interest or standards to be attained by the authorities (e.g., Article 37 of the Charter on the right to environmental protection). Admittedly, this is often evident of rights of a more ‘social’ nature which appear too imprecise and indefinite to confer an individual right which private parties could rely upon before the courts.39 of the distinction made between the ‘rights’ and ‘principles’ in the Preamble to the EU Charter and Articles 51(1) and 52(5) thereof. 34

Explanations relating to the Charter of Fundamental Rights on Article 52(5) include Article 25 in its list of ‘examples for principles’ recognised in the Charter (OJ C 303, 14.12.2007, p. 35).

35

Explanations relating to the Charter of Fundamental Rights on Article 52(5) include Article 26 in its list of ‘examples for principles’ recognised in the Charter (OJ C 303, 14.12.2007, p. 35). Also, judgment in Glatzel, C-356/12, EU:C:2014:350, para. 74.

36

The Explanation to Article 52(5) of the Charter provides that Article 33 contains ‘both elements of a right and of a principle’. The right-like nature of the provision is more apparent as regards the second paragraph of Article 33 which recognises ‘the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.’ However, the generality and broad formulation of the first paragraph of Article 33 (‘The family shall enjoy legal, economic and social protection.’) supports the contention that it is a ‘principle’ rather than an individual right. Costello 2014, 892, 918 and 924.

37

Explanations relating to the Charter of Fundamental Rights on Article 52(5) include Article 37 in its list of ‘examples for principles’ recognised in the Charter (OJ C 303, 14.12.2007, p. 35).

38

In accordance with the Explanations relating to the Charter (OJ C 303, 14.12.2007, p. 28) Article 38 is based on Article 169 TFEU (ex 153 EC), which promotes a high level of consumer protection. Nevertheless, unlike Article 169 TFEU, the Charter provision is short and seems to recognise the importance of consumer protection as a policy goal while not providing it the legal effect of a fundamental subjective right (‘Union policies shall ensure a high level of consumer protection.’). The broad formulation of Article 38 of the Charter appears to reflect the drafters’ aim to assign it a status of a principle rather than a subjective right. Benöhr 2013, 54 ff., Mcgoldrick 2004, 97 and Micklitz 1991, 53-4.

39

Examples among the Charter rights: Article 22 on cultural, religious and linguistic diversity; Article 26 on integration of persons with disabilities; Article 37 on environmental protection.

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In order to ascertain the normative content which private parties could rely on, principle-like fundamental rights would require legislative configuration and more specific normative content in the form of implementing acts. Therefore, principle-like fundamental rights ‘must be given more specific expression’ in form of more detailed secondary legislation in order to be fully effective. In accordance with the established division of competences, the Court would leave it to the Union legislature to concretise principle-like Charter provisions and adopt appropriate secondary legislation to flesh them out. Nevertheless, the wording of Article 52(5) of the Charter indicates that the principle-like fundamental rights exert some effect. The Article states that principle-like Charter provisions may be used ‘only in the interpretation - - and in the ruling on th[e] legality’ of Union acts. Even if not creating a direct basis for a claim to be enforced before a court, principle-like provisions reflect and express the values and objectives which the Union esteems and adheres to. In this capacity, they serve as a yardstick for the legality of Union legislation in guiding and directing the interpretation and application of EU law. 40 Principle-like fundamental rights can also impact the law-making process by providing a ‘foundation’ on which more precise rights may be based. In this way some principles can eventually evolve into rights which would be directly enforceable. 41



10.3.2 A Context-Based Analysis

In order to determine the concrete effects of a fundamental right norm in a certain situation one also needs to consider, besides the normative content of the norm, the actual circumstances in which it is intended to be applied. The practical effects and result of the application of any legal norm are intimately linked to the concrete case at hand. Even the same fundamental right norm would not necessarily bring about similar effects in a different factual context. To illustrate, the freedom to conduct business as enshrined in Article 16 of the Charter would not likely prove a successful basis of a positive claim for an individual, so that they could not demand the Union or the Member State authorities to give them a business to run. On the other hand, the same provision could be relied upon to set aside measures which would disproportionally restrict the possibilities of an individual to run a business. While in the former situation the individual could not successfully rely on Article 16 of the Charter 40

Cf. in connection to the precautionary principle codified as Art. 37 of the Charter but nevertheless qualified according to explanations relating thereto as a ‘principle’, judgment in Pfizer, T-13/99, EU:T:2002:209. See also Lenaerts 2012, 400.

41

E.g., the principles of equality and non-discrimination, which gradually evolved from the original internal market considerations (notably on the basis of nationality, ex Article 12 TEC, now Article 18 TFEU) first into a general principle of non-discrimination (e.g., Article 2 TEU, Article 8 TFEU, Article 19(2) TFEU and finally Article 21(1) of the Charter) and subsequently found its way into more detailed secondary legislation where it was substantiated in a number of nuanced ways.

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for the basis of a subjective individual right, in the latter scenario the same Article could be enforced to exclude the application of disproportionate national measures. Hence, the particular right or good or service which the private party seeks to enforce affects the consideration of the concrete effects of the norm. A rigid distinction between ‘rights’ and ‘principles’ among the Charter’s provisions is difficult to make in abstract. Such a distinction would not even prove meaningful or significant, since even the same provision would operate and bring about different effects in different circumstances. An analysis of the effects of fundamental right norms should thus always be made in light of the specific circumstances of the case. Categorizing fundamental rights either as ‘rights’ or ‘principles’ relates to the degree of their enforceability or justiciability of the fundamental right norm in given circumstances of the case. Because the decision on the degree of justiciability of a given fundamental right norm is always made in casu, i.e., under specific circumstances, it would not be meaningful or even possible to categorize fundamental rights either as ‘principles’ or ‘rights’ outside the particular factual context in which they are to be applied. Instead, the concrete effects of a particular fundamental right should be determined both on the basis of its wording and content and the particular circumstances where it is intended to be applied. This approach bears a resemblance to the question of the direct enforceability of norms faced by the early Community legal order in the years preceding the Van Gend en Loos case, which established the doctrine of direct effect. The same logic seems to apply; some legal norms are not enforceable in courts because they are simply not meant to grant subjective individual rights to private parties, or because their contents are too vague or incomplete to admit judicial application in a given case at hand. Under the doctrine of direct effect the provision at issue must qualify as sufficiently precise and unconditional in order to provide an operational standard to be applied by the courts in the case at hand. 42 The difference in the examination of a ‘full effectiveness’ between fundamental right norms and other provisions of EU law mostly relates to the context-based analysis which is emphasized in connection with fundamental right norms. Whereas the conditions for direct effect of other EU legal norms may often be assessed on the basis of their content alone, the typically more open nature of fundamental right norms requires that their concrete effects are closely examined and determined in light of specific circumstances and by close reference to EU legislation which covers the same field. Both the content and context based analyses of the fundamental right norm interconnect in the sense that the more subjective the nature of the claim which the party seeks to enforce is the more ‘effective’, i.e., concretized and ascertainable the content of the norm in question must be to bring about the effects which the party wishes to attain. The ‘effectiveness’ of the norm thus relates to its invo42

Peers – Prechal 2014, 1511.

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cability in the sense it provides a sufficiently ascertainable normative content in given circumstances so the court may adjudicate on the basis thereof. 43



10.4 In Sum: Horizontal Effect of Fundamental Rights in EU Law

The ultimate reason for seeking to protect fundamental rights in EU law, as regards both action at EU level and the implementation of EU law by the Member States, is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine ‘the primacy, unity and effectiveness of EU law’. 44 Therefore, in all cases coming before the Court of Justice, the Court strives to reach an outcome, be it directly or indirectly, which would best conform to the fundamental right norms and especially those enshrined in the legally binding Charter which is now part of the Union’s primary law. A marked feature of the fundamental rights guaranteed in the Union’s legal order relates to their scope of application. In order for the EU fundamental rights to apply at all, a prior ‘sufficient connection to EU law’ must first be established, since fundamental rights under EU law are not self-supporting and do not operate independently of other EU law. 45 Once established, the fundamental rights are THUS applied as part of (general) EU law. A categorical distinction between the direct and indirect effects of the fundamental rights is seldom significant in the reasoning of the Court or for the outcome of the case. Moreover, both paths would lead to the same outcome of the case in all events, except in situations requiring an interpretation contra legem which goes beyond the realm of mere interpretational methods. So, only when a situation cannot be brought into consistency with fundamental rights through an interpretation in conformity therewith (indirect effect), further inquiries must be made into the degree of enforceability of the fundamental right norm at stake in order to determine its possible direct effect. The examination entails an analysis both of the content and context of the norm at issue. The content of the norm is first examined in order to determine whether it is sufficiently precise and concretised so as to be judicially enforceable. The norm is then assessed in light of the particular circumstances of the case so as to determine whether it may produce the effects sought for. This is because the context-based inquiry may reveal that the norm still requires further legislative configuration and more specific normative content in the form of implementing measures in order to be invoked to the fullest extent. In certain 43

Prechal 2007, 37 and Prechal 2005, 98 ff.

44

Judgments in Julian Hernández and Others, C-198/13, EU:C:2014:2055, para. 47, Siragusa, C-206/13, EU:C:2014:126, paras. 31, 32, Melloni, C-399/11, EU:C:2013:107, para. 60 and Internationale Handelsgesellschaft, 11/70, EU:C:1970:114, para. 3.

45

E.g., judgment in Kücükdeveci, C-555/07, EU:C:2010:21, para. 23.

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situations, e.g., in absence of or non-applicability of secondary legislation, fundamental rights may provide a necessary normative content to fill a legal gap or otherwise secure a coherent development of the case law. The final outcome resulting from the horizontal application of fundamental rights and the manner in which it is reached also depends on the nature of the norms which the other party invokes. If the other party relies on norms which are also part of primary law of the Union, the Court must engage in a balancing process in order to reach a suitable outcome to the case. This is since the fundamental rights and other primary law of the Union are of the same norm hierarchical rank so that instead of disapplying some of the provisions the Court must reconcile the norms by weighing them against each other. On the other hand, if the norms which the other party invokes are part of the secondary legislation of the Union or stem from national law, the Court may either on the basis of their lower norm hierarchical status or primacy of EU law just disapply them. Table 5. The effects resulting from a direct application of an EU fundamental right norm which is found to be in conflict with another norm. FUNDAMENTAL RIGHT NORM

→

Examining the degree of enforceability of the fundamental right norm through a content and context based analysis Context Content

↓

Sufficiently ascertainable normative content Both conditions fulfilled

↓ Application

→

CONFLICTING NORM

←

Examining the source and norm hierarchical status of the conflicting norm Source

↓

National law

Suitable for horizontal appli- EU law cation in a given context

↓

Hierarchical status

↓

Primacy of EU law

Primary law

Secondary law

↓

↓

Balancing

Disapplying the conflicting measures

↓

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Nevertheless, two recent cases demonstrate the often unnecessary categorical classification of the effects of fundamental rights as either direct or indirect. The Alemo Herron46 case concerned Mr. Alemo-Herron, who along with his 23 colleagues were employed by the London Borough of Lewisham on standard contracts with terms and conditions determined in accordance with collective agreements negotiated by a local government collective bargaining body which included representatives of local authority employers and trade unions. Under the collective agreement the employees had the right to pay increases. Following a transfer of undertaking their employment was transferred twice; first to CCL and then to Parkwood – both private sector undertakings. The employees continued to receive pay increases in accordance with the collective agreements until the transfer to Parkwood. A new collective agreement was reached only a few months after the transfer although with a retroactive effect for which reason Parkwood took the view that the new collective agreement was not binding on it and refused to grant the pay increase. However, the UK had adopted a ‘dynamic’ approach to collective agreements according to which the employees could benefit from changes to collective agreements which came into effect following the date of the relevant transfer. 47 The national approach thus gave more favourable rights than those provided by the Acquired Rights Directive under EU law. 48 Therefore, the UK Supreme Court which dealt with the matter referred several preliminary questions to the EU Court of Justice, whereby it in essence inquired whether the UK courts could give a more favourable interpretation to legislation than had been given in an earlier analogous German Werhofen case decided by the Court of Justice. 49 The Court of Justice, much following its earlier case law, held that the Directive does not aim solely to safeguard the interests of employees in the event of a transfer of undertaking, but seeks to ensure ‘a fair balance between the interests of employee - - and those of the transferee’. The Court noted that the transferee must be in a position to make the adjustments and changes necessary to carry on its operations. The Court based its conclusions on the interpretation of the Directive in light of Article 16 of the Charter in holding that without any scope for representation in this process there would be an undue restriction on the 46 47

Judgment in Alemo-Herron, C-426/11, EU:C:2013:521.

E.g., in Whent v T Cartledge Ltd [1997] IRLR 153, in which the Employment Appeal Tribunal interpreted Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 1981 SI 1981/1794 and Article 3 of Directive 77/187 (the Acquired Rights Directive), which have subsequently been replaced by the TUPE Regulations 2006 SI 2006/246 and Directive 2001/23, respectively. In fact, Article 3(2) of the Directive 77/187, which addressed the effect of collective agreements, had not been transposed into the domestic implementing legislation.

48

Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, OJ L 61, 5.3.1977, p. 26-28.

49

Judgment in Werhofen, C-499/04, EU:C:2006:168.

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employer’s business freedom and freedom of contract.50 The Court thus found that the national approach relating to the effects of collective agreements was not compatible with Article 16 of the Charter. On the other hand, the Sánchez Morcillo and Abril García 51 case was brought within the scope of application of EU law by virtue of Directive 93/13, which lays down rules relating to unfair terms in consumer contracts.52 The case pertained to the Spanish procedural rules which governed mortgage enforcement proceedings. According to national rules, the consumer, as a debtor against whom mortgage enforcement proceedings could be brought, could not appeal against a decision dismissing an objection to that enforcement. Conversely, a creditor seeking enforcement could bring an appeal against a decision terminating the proceedings or ordering an unfair term to be applied. Moreover, mortgage enforcement proceedings could not be stayed by the court of first instance, which in its final decision could at most award compensation for the damage suffered by the consumer. The Court of Justice found that the domestic procedural rules for objecting the enforcement placed the consumer, as a debtor against whom mortgage enforcement proceedings were brought, in a weaker position compared with the creditor. Accordingly, the national procedure for mortgage enforcement was liable to jeopardize the effectiveness of consumer protection intended by Directive 93/13. The Court then made use of Article 47 of the Charter (the right to an effective remedy and a fair trial) to conclude the relevant provisions of the Directive read in conjunction with Article 47 of the Charter precluded a domestic system of enforcement such as was at issue in the case. It must be noted that both disputes took place between private parties, hence in a horizontal relation. Both cases relate to a situation entailing an imbalance of power between the parties; in Alemo Herron between a group of private individuals as the employees and an undertaking as their employer; in Sánchez Morcillo between two consumers as debtors and a private bank as their creditor. Both cases were brought within the scope of application of EU law by virtue of certain provisions of secondary legislation which sought to govern the issue at stake. In both cases the Court used the Charter to interpret secondary legislation in given circumstances. In both cases the directives were interpreted in light of Charter provisions, which led to findings on the existence of an incompatibility of national measures with EU law. Whereas in Alemo Herron the dynamic approach concerning the effects of collective agreements adopted in domestic jurisprudence was found incompatible with the interpretation given by Article 16 of the Charter to Article 3 of Directive 2001/23, in Sánchez Morcillo 50

Judgment in Alemo-Herron, C-426/11, EU:C:2013:521, para. 35. A comment of the judgment which also implies an argument for the respect of national constitutional identity, see Wynn-Evans 2010.

51

Judgment in Sánchez Morcillo and Abril García, C-169/14, EU:C:2014:2099.

52

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95, 21.04.1993, p. 29-34.

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the domestic procedural rules were found to conflict with the interpretation accorded by Article 47 of the Charter to Article 7(1) of Directive 93/13. Even if in both cases the Charter was mainly used to interpret the domestic measures at issue, they nevertheless led to setting aside or disapplying a national practice based on jurisprudence (Alemo Herron) or national procedural rules (Sánchez Morcillo). Both outcomes would have been unlikely or hard to arrive at without the normative help of the relevant Charter provisions. While it may be maintained that the Court appeared to use the Charter provisions in a way which resembles more of their interpretative effect, thus indirectly, the outcomes in both cases evince a much stronger and hence direct effect of the fundamental rights. However, the distinction between the two approaches, i.e., direct and indirect effect, seems merely procedural and focuses on the construction of legal issues and particularly on the structuring of complaints. Under the doctrine of indirect horizontal effect the private party, instead of invoking fundamental rights directly against the other private party, can rely on those rights in a case before a court in the sense that the Court has a duty to interpret applicable legislation in a way which conforms to fundamental rights. On the other hand, if the private party based its arguments primarily on fundamental right norms and where these were well-founded, the outcome would point towards an existence of a horizontal direct effect of fundamental rights. Consequently, the horizontal effect of fundamental rights contributes to a construction of the law in a way which closely aligns it with those rights. Accepting the operation of fundamental rights even in horizontal legal relations in the context of EU law thus ensures the ‘primacy, unity and effectiveness’ of the Union’s law. Since fundamental rights are used to interpret and apply EU law in a way which best contributes to a build-up of a coherent case law, it should not be significant whether the parties to a legal dispute are public or private or quasipublic-private, or whether the possible horizontal effect may be categorized as direct or indirect. Ultimately the question pertains to an act of interpreting and applying EU law in a way which most closely conforms to fundamental right norms. What should matter is the jeopardizing act in and of itself irrespective of its immediate source, i.e., whether it originates from the private or public realm, or whether the incurring effects could be categorized either as direct or indirect. In this way the interpretation and application of fundamental rights in EU law would best contribute to the ‘primacy, unity and effectiveness of European Union law’.



10.5 Interim Conclusions

If an act or action is alleged to be in conflict with the fundamental rights, one needs to examine, first, whether the situation is governed by any substantive EU legal norm. The courts have a duty to pay regard to EU fun-

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damental rights which count in favour of the positions argued for by the parties only when the situation is deemed to be within the scope of application of EU law. This demonstrates the adjudication-related nature of fundamental rights in EU law. The enforcement of fundamental rights in EU law is mediated through Member State or Union level action. Private parties do not have direct claimrights or duties which are based on or derived from fundamental rights alone. For that reason there does not exist any kind of horizontal effect of fundamental rights outside the scope of application of EU law.53 If the situation is considered to lack a sufficient connection to EU law so that fundamental rights may not be invoked, the private party does not have the power to oblige the other party to observe those rights. On the other hand, in the event EU law is deemed applicable and the fundamental rights in question are considered to be ‘fully effective’, i.e., enforceable, a private party may invoke them in a legal action against another private party before a court or other public authority and claim the enforcement of those right with respect to any act or action protected or prescribed thereby. If the claim is well-founded, the application of fundamental rights could concretely affect the application of the law. Rights or duties based on EU fundamental rights in a horizontal relation are always realised, i.e., enforced, through an action mediated by public authorities, either at Member State or Union level. In some way the approach corresponds to the US state action doctrine which also necessitates a situation must first be deemed to have a sufficient connection to the government in order for constitutional rights to apply in disputes between private litigants. The final outcome resulting from the horizontal application of fundamental rights also depends on the nature of the norms which the other party invokes, these pertaining either to primary EU law, or secondary EU legislation or national measures. The majority of cases seem to pertain to the latter category and relate to a situation where EU law is invoked in order to prevent the application of a duty-imposing rule stemming either from secondary Union legislation or national law. Therefore, the concrete horizontal effect which results from the application of fundamental rights is often of an exclusionary nature so that a fundamental right is invoked in a case between private parties to prevent the application of a conflicting provision of national or Union law. The end result of the application of fundamental rights then corresponds to a legal disadvantage of one of the parties while the other enjoys a correlating advantage. The consequence of setting aside or disapplying conflicting provisions of Union or national law in a horizontal relation subsequently alters the legal positions of the private parties. In situations where national law would be found to be in conflict with EU law, the effects from the application of fully enforceable EU legal norms on the legal positions of private parties are analogous regardless of whether the EU norm is in the form of a Treaty Article (Defrenne II) or a 53

Although the Union’s fundamental rights cannot be enforced or invoked outside the scope of application of EU law this does not preclude Member States or other third parties from deriving inspiration from those rights even in situations outside the purview of EU law.

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general principle (Mangold).54 Both norms are part of primary law of the Union and capable of a direct horizontal effect, which is not the case with, e.g., directives. The application of a norm of a fundamental right nature affects the outcome of the case in that it changes the interacting legal positions of the parties. Ultimately, this is to the legal detriment of one party while the other gains a legal advantage on the basis of an EU legal norm of a fundamental right nature. The horizontal effect of fundamental rights relates to a situation where the legal position of the private party is changed or reversed pursuant to the application of those rights by a court in a legal dispute before it. The incurring legal position depends on the degree of enforceability of the fundamental right norm in question. The degree of enforceability is in turn determined through a contentand context-based analysis of the norm in given circumstances. The application of fundamental rights in a horizontal relation thus creates legal positions for private parties which would not exist in their absence.55 The adjudication-related nature of fundamental rights hence emphasises the important role of the courts in accepting and favouring the admissibility of legal actions pertaining to and based on norms of a fundamental right nature.

54 55

Cf. judgments in Defrenne II, 43/75, EU:C:1976:56 and Mangold, C-144/04, EU:C:2005:709.

Cf. the discussion on constitutional rights in Alexy 2010, 363.

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Conclusions: Horizontal Effect of Fundamental Rights Contributing to ‘the Primacy, Unity and Effectiveness of European Union Law’ and Beyond

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11.1 The Horizontal Effect of Fundamental Rights: An Implication of a Stronger Fundamental Rights Protection in the Entwined Public-Private Sphere

The Treaty establishing the European Community was entirely public in character, inspiration and scope. The Community – and subsequently the Union – resembled a public law organisation having its origins in a treaty of a public international law nature. The historical context of the Community was primarily of an economic nature. The idea of European integration relied most perceptibly on market forces and economic drive. The Treaty consisted to a large extent of rules on economic cooperation directed to Member State governments, thus relating to a vertical relation, with only few exceptions. Early Community law appeared to suggest the macro-economic project of integration would primarily be about deregulation and elimination of States’ protectionism and would only entail functions of a public law nature, such as custom duties. There were little, if any, implications of the Community process on micro level activities – commonly held to belong to the exclusive sphere of the internal domestic adjudication of Member States, beyond the direct reach of Community legislation. Against this backdrop, private law seemed uninteresting and even unrelated to the realisation of an area of internal trade. It is thus no wonder that the Treaties, case law and many other legislative EU documents which reference the public or private spheres of law still fail to define their precise contextual meaning. For the same reason the terms ‘vertical’ and ‘horizontal’ succeed in better encapsulating the sui generis nature of EU law and prove more apt for the purposes of explaining Union law as opposed to relying on the distinction between the ‘private’ and ‘public’ spheres of law. However, the addressees and thus the beneficiaries of Union activities have always been considered to be private parties. For this reason it soon became apparent the initial perception and strict categorisation between the public and private spheres within the Union’s system would prove unsustainable. Later, the Union’s interests and internal market objectives only facilitated the entwinement of both the public and private spheres within EU law and the classic dichotomy began to collapse. In pace with the advancing integration process, the Union has generated a considerable amount of more detailed legislation in areas touching upon private law, inter alia, consumer law, product liability, employment law, company law and general contractual conditions. This development has not only influenced the realm of private law, but has also made relying upon arguments relating to fundamental rights considerations all the more frequent. The processes of privatisation, trade liberalisation and current globalisation trends have transformed the role of the state and realigned the public and private spheres. Although it was initially thought that economic freedoms could be realised without any reference to national civil codes or other substantive

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private laws, 1 the constitutionalising structure of the Union and the particular significance of the individual therein were ideal for gradually blurring the distinction between national and supranational as well as public and private. Private law has since come to be seen as an effective tool to advance the Union’s integration process. Fundamental rights were historically acknowledged to defend citizens against illegitimate or excessive interferences from public power. In modern societies the citizen characteristically faces threats also posed by other private actors possessing considerable social and/or economic power. The horizontal effect of fundamental rights has therefore often been manifest in cases which have either entailed private actors assuming governmental powers or state functions, or other type of considerable public power. Admittedly, an unequal relation of the parties tends more easily to justify recourse to fundamental rights in an effort to strengthen the position of the weaker party. Since this is a common situation and characteristic of many employer-employee relations, the field of employment law has proved a fruitful area for the evolution of the horizontal effect of fundamental right norms of EU law.2 This is evident in the great number of cases relating to the horizontal application of fundamental right norms in situations arising in the area of employment law.3 Even if it seeks to govern and regulate relations between private parties, employment law typically refers to socio-economic policies which are designed to protect the weaker party (employee) while at the same time balancing that protection with the legitimate interests of the employer. Since public authorities take a keen interest in the functioning of the labour market, the area is commonly covered by legislation distinctively of a public law character. 4 In such a markedly mixed regulatory environment clashes between private parties unavoidably embrace elements from public law with the consequence that the

1

Each of the six European nations which signed the original Treaty of Rome in 1957 had an autonomous and functionally independent system of law including civil codes which they applied and interpreted according to their respective national judicial traditions. The monopoly of private law was, and it continues to be, of utmost historical and legal importance to many national constituencies.

2

For the same analogous reasons fundamental rights have also come to the fore in situations relating to consumer protection. The consumer is often in a weak position vis-à-vis the seller or supplier as regards both his bargaining power and his level of knowledge. E.g., judgments in Sánchez Morcillo and Abril García, C-169/14, EU:C:2014:2099, Barcalys Bank, C-280/13, EU:C:2014:279, para. 32 and Aziz, C-415/11, EU:C:2013:164, para. 44.

3

Cf. judgments in Kücükdeveci, C-555/07, EU:C:2010:21 and Mangold, C-144/04, EU:C:2005:709.

4

Caruso 1997, 7 takes rent-control legislation as an example of public interference into the sphere of private law in order to level the playing field and thereby restrain the ability of landlords to increase rents arbitrarily and to restore the conditions for the workability of private law principles in the housing context.

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field of employment law has been disposed to subsume constitutional values and considerations of a fundamental right nature.5 Keeping the Union’s objectives and interests completely separate from any societal or non-economic influences has proven indefensible. EU law has irrefutably developed into a legal order which has to a considerable extent expanded to cover even legal relations solely between private parties. Abundant examples in the case law relating to norms emanating from the sphere of private law against fundamental rights considerations testify how the public-private dichotomy – or more accurately, their entwinement – is in a concrete manner present in EU law. The introduction and growing presence of a newer generation of moral, social and economic rights has intensified the inter-subjective dimension of those rights and progressively extends their scope of application. More recently, the proliferation of policy competence areas, in particular in the area of freedom, security and justice and the enhanced civil and police cooperation, has only increased the number of cases involving private parties on both sides of a legal action. As a consequence, the presumed neutrality of private law has yielded to its more value-laden nature. Since the boundaries between public and private both with respect to spheres as well as law seem to interrelate and blur in contemporary society, one could argue that fundamental rights should in fact protect private parties from the abuse of power on the part of whatever kind of entity, be it of a public, private or quasi-public-private nature. While it is true that in most cases the public authorities are the first to be called upon to guarantee citizens the enjoyment of fundamental rights, the practical effectiveness of those rights is often dependent on the private parties’ observance thereof. 6 In case horizontal application of fundamental rights was entirely ruled out merely for notional reasons, it could be argued those rights could not legitimately correspond to the universal rationale lying beneath the ultimate idea of human and fundamental rights protection.7 The origin of the threat to fundamental rights should thus be rather trivial. The fact that the horizontal effect of fundamental rights is a relatively frequent phenomenon in recent case law especially post-Lisbon is to be seen as a consequence of a stronger presence and significance of fundamental rights in the Union’s legal order in an era when the borderline between the public 5

Historically, industrialisation and its repercussions for the working class prompted states to set up measures to protect individuals against the abuse of contractual freedom on labour markets.

6

Cf. Article 27 of the Charter, which clearly involves positive action on the part of private parties, even if public authorities would be the first to guarantee that right by way of adopting implementing legislation. Opinion of AG Cruz Villalón of 18 July 2013 in AMS, C-176/12, EU:C:2013:491, point 40.

7

This same line of reasoning is evident in the Court’s case law concerning the direct horizontal effect of economic freedoms Cf. judgments in Walrave and Koch, 36/74, EU:C:1974:140, paras. 17 and 18 and Lehtonen, C-176/96, EU:C:2000:201, para. 35. It is interesting that the text of the Articles indicates that the Articles are explicitly aimed at State measures and nothing suggests that they would also cover ‘restrictions’ created by private parties.

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and private spheres is increasingly blurred. At present, cases which reach the Court of Justice relate all the more to issues requiring value judgments between diverse and sometimes even colliding interests stemming from the private sphere and which at the same time necessitate fundamental right considerations to be taken into account. The post-Lisbon case law clearly shows that fundamental rights exert a significantly stronger and concrete influence on the adjudication of the Court.8 Moreover, it may be anticipated that the significance of human and fundamental rights protection in the Union’s legal order is only intensifying as the EU is preparing its accession to the ECHR. After the accession the ECtHR will have a significantly wider jurisdiction to review the compatibility of the acts and actions of the Union with the Convention. Therefore, both the Court of Justice and the Union’s legislature would do well to bring the jurisprudence and legislation into line with the requirements stemming from the Convention. These conclusions suggest that fundamental rights will only continue to grow in significance in the Union’s legal order and exert a stronger influence in the interpretation and application of all Union law. This in turn implies even a more frequent presence of the horizontal effect of fundamental rights in the Court’s jurisprudence in the future.



11.2 Implications of the Horizontal Application of Fundamental Rights: Towards a Strengthened Judicial Protection and Constitutional Structure of the EU?

Under Dworkin’s rights-based conception of the rule of law even private parties possess moral rights and duties in relation to one another, and political rights against the public authority. These moral and political rights should be acknowledged in positive law in a way which renders them enforceable through the courts. This kind of conception of the rule of law is the ideal of rule by a public conception of individual rights.9 Even if ideal in its call for the inner coherence of a system of law, this kind of conception of rights is prone to criticism in that it also opens a possibility to gouvernement des juges. Because of the semantic and structural openness of fundamental right norms they do not lay down precisely one solution in every case. It is seldom explicit what exactly they require in a concrete case. The objective value system which fundamental rights create is incomplete and necessitates the deduction of a more concrete normative content from its norms which typically appear in vague or abstract 8

Judgments in Google, C-131/12, EU:C:2014:317, Digital Rights Ireland and Seitlinger, C-293/12 and C-594/12, EU:C:2014:238, Test-Achats, C-236/09, EU:C:2011:100 and Volker und Markus Schecke, C-92/09 and C-93/09, EU:C:2010:662.

9

Dworkin 1985, 11–2. The UK House of Lords, Select Committee on Constitution Sixth Report Appendix 5: Paper by Professor Paul Craig: The Rule of Law. Ordered by the House of Lords to be printed 11 July 2007.

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terminology. Concretisation of abstract norms makes adjudicating on the basis of fundamental rights a delicate matter, since it gives great power to the courts. When this power is extended to areas which typically belong to the sphere of private law, it is made even stronger. Being able to grant a direct horizontal effect to the Union’s fundamental rights would extend and strengthen the reach of Union law which would ultimately give the Court a possibility to adjudicate directly in legal issues between private parties, i.e., in situations traditionally belonging to the judicial domain of national ordinary courts. As a result, the horizontal application of fundamental rights would strengthen the Court of Justice’s judicial as well as political power. Accordingly, the main criticism concerning the horizontal application of fundamental rights has focused on the increasing intrusion of the Court of Justice into the domain of national legal orders which would result in the weakening of the autonomy and sovereignty of the Member States. The Court of Justice has frequently been accused of overstepping its adjudicatory powers, for acting ultra vires and for claiming Kompetenz-Kompetenz. With the objective of realising a truly unified internal market, the Union could appear to aspire to a potentially unlimited interference with the Member States’ laws. Allowing an unlimited horizontal effect to fundamental rights would lead to a broad control over private law and domestic adjudication, since it would assign the Court of Justice to shape both the form and substance of local legal discourse. Nevertheless, the notion of direct horizontal effect should not necessarily be seen as a threat to the constitutional allocation of powers between the Union and its Member States as long as the issue under consideration is first considered falling into the scope of application of EU law. The precondition resembles a kind of ‘state action’ criterion which must first be fulfilled in order for fundamental rights to apply. In practical terms this implies that a written norm of EU legislation – be it of primary or secondary law – remains the main point of reference in all cases coming before the Court of Justice. In this way the powers of the EU legislature are also duly maintained.10 In fact, this is the way the Court seems to proceed in its adjudication process also in practice. While innovative and forward-looking, it nevertheless respects the constitutional division of powers established in the Treaties. From the Court’s perspective a possibility to invoke and directly rely on fundamental rights even in cases between private parties would be liable to significantly increase the number and variety of cases submitted to the scrutiny of the Court of Justice.11 This would inevitably lead the Court to examine rules and behaviour of a private law nature on a case-by-case basis and engage in an examination of a large number of arguments advanced for the support of 10 11

Lenaerts – Gutiérrez-Fons 2010, 1649.

Evidence on the implications of the EU Charter is already discernable in the increasing number of requests for a preliminary ruling of national jurisdictions received by the Court. See Report from the Commission, 2014 Report on the Application of the EU Charter of Fundamental Rights which refers to the field of asylum as an example of an area sensitive to fundamental right considerations.

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fundamental rights considerations. As cases involving the horizontal application of fundamental rights would be settled on a case-by-case basis without any clear-cut technique which could be objectively verified, the final outcome would obviously be more difficult to predict. An increased and substantially varied caseload would inevitably have a detrimental effect on legal certainty and the predictability of judicial outcomes. Opening the possibility to invoke and rely on human and fundamental right considerations almost unrestrictedly in all matters of EU law would not only pile up the Court’s already extensive case law considerably, it would also be liable to change the nature of the Court of Justice more towards a human rights court. This would not be a desirable direction considering that there already exists a European court expressly set up for that purpose. In order to limit the potentially unlimited possibility to rely directly on fundamental rights in all types of legal actions and to restrict excessive activism of the Court, it is maintained that the methodology of interpreting and applying fundamental rights in EU law should primarily proceed through the indirect effect of those rights. It must be noted that it is not for the Court of Justice to verify all judgments of the Member State national courts for possible errors in law. The purpose of the Court of Justice is to assess the correct manner of applying EU law. It thereby has to guarantee that the value content of the Union’s fundamental rights permeates all legislation – whether domestic or Union – within the Union’s legal order. Although the Court of Justice is not called upon to act as an additional appeal court over the Member States’ national courts, it should neither hold back from reviewing such judgments or ignoring a misinterpretation of fundamental rights which may possibly occur in them. It is still ultimately up to the Court of Justice to decide on the nature and concrete effect of a norm in a given case. The horizontal application of fundamental rights has also been held unacceptable from the point of view of the potential to disregard the established division of competencies. Any doubt on the capability of EU legislation to fully and effectively protect individual fundamental rights has shifted the balance of power in favour of the Court of Justice. This implies a gradual shift of legislative power from the legislature to the judiciary, and towards a direction of constitutional adjudication. Critics adhere to the classic categorization of rights as defensive rights primarily of vertical nature which would ensure matters are decided by politics. Under this approach a horizontal effect would at most be only of an indirect, i.e., interpretational nature, since direct horizontal effect would only be liable to impair the distinction of judicial from that of the legislative power and weaken the autonomy of private law. The significant power left to the Court of Justice to apply fundamental rights when adjudicating cases pertaining to legal relations between private parties does not weaken the guarantee for separation of powers. Rather, it contributes a practical effect to the Union’s fundamental values which are binding both upon the Union and its judicial powers. This requires, first of all, that the legisla-

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ture feels bound by those rights and works towards concretising them by way of enacting legislation to complement, refine and elaborate on fundamental rights. All other law-applying bodies should also take fundamental rights into account as part of their regular work in judicial interpretation and application. As emphasized in this study, feeling bound by fundamental rights and working towards concretizing them also in practice should not only be a task of the legislature, but specifically also that of the judiciary. By upholding shared fundamental values of society and seeking ways to render them effective also in practice, judges provide effective legal protection to individuals which these in turn derive from the rights guaranteed and protected by the Union. While it is accepted that a complete acceptance of the direct horizontal effect of fundamental rights would not be meaningful, it is nevertheless held that all problems or disputes between private parties pertaining to fundamental rights cannot be solved by the legislature alone, but are rather left to the applier of law. At the legislative level it is neither possible nor sensible to introduce sufficiently extensive regulatory models which would succeed in ruling out in advance any kind of threats to fundamental rights or abuses of power which may occur in private relationships. A great responsibility for the protection of fundamental rights – both in vertical as well as horizontal relations – is bestowed upon the courts and other authoritative appliers of law which are best apt to assess the concrete need for protection in a given context. Ultimately, it is the task of the Court of Justice to ensure ‘the law is observed’ and to secure ‘the primacy, unity and effectiveness’ of Union law. This task governs and directs the Court’s judicial work and should also be reflected in the way it interprets and applies fundamental rights in the Union’s legal order. Fundamental rights strengthen the legitimacy of the Union as its citizens are provided with common values they can relate to and identify with. Fundamental rights also convey a powerful symbolic message, as they imply the Union is committed to protecting the fundamental rights of its citizens and takes this task seriously. Union citizens will enjoy a real prospect to invoke their fundamental rights and enforce them before courts only when those rights are precluded from being reduced to a mere symbolic or declaratory notion. Admittedly, in some circumstances a concrete realization of fundamental rights would necessitate that those rights were also applicable in relations between private parties. The ability of individuals to directly invoke fundamental rights in legal proceedings would contribute to ensuring the effectiveness of Union law, since horizontal effect of fundamental rights is able to offer more straightforward solutions. This would hold true, e.g., in matters where a directive, in absence of transposition measures, could not be relied on and the national court found it impossible to interpret national law in harmony with the directive, but where fundamental rights offered the Court an additional and practical means to resolve the matter without an individual being solely obliged to bring an action for damages against the State. Private enforcement by means of direct effect of

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fundamental rights would also complement public enforcement under Article 258 TFEU, thereby strengthening the effectiveness of EU law. The horizontal effect of fundamental rights would thus lead to a better and strengthened protection of the rights of the individual within the Union’s legal order. Granting a horizontal effect to fundamental rights is also a means to support and promote the constitutional values of the Union. Accordingly, the horizontal effect would not exclusively be perceived as protecting the rights of Union citizens vis-à-vis the Union, but rather imply the right of Union citizens to decide on the kind of society they want to create and live in. Under this view, the primary focus should not be on the respect for the rights of the Union citizens against institutional organs, but on the need to realize the constitutional values recognised and accepted in the Union. The importance of an effective and concrete fundamental rights protection within the Union’s legal order is emphasized by the obligation of the Union to accede to the ECHR in accordance with Article 6(2) TEU. In order to guarantee a real and efficient protection of its citizens’ fundamental rights and to avoid condemnatory decisions from the ECtHR, the Union should uphold a strong protection of fundamental rights in connection with measures and actions within the scope of application of its law. From the Court’s perspective, the horizontal application of fundamental rights would allow the Court to resolve concrete cases in a functional and practical manner. It would also offer a simple and forthright way to resolve concrete legal problems and thus contribute to increasing the effectiveness of EU law and upholding the Union’s fundamental rights obligations. Finally, besides powerfully serving to enhance inner coherence and consistency of Union’s law and offering feasible solutions to legal problems, the horizontal application of fundamental rights inevitably implies a move towards a strengthened constitutional phase of the integration process. Arguments on fundamental rights entail much more than just formal or dogmatic disputes over the scope of application of an act of EU law. They touch on fundamental questions relating to the functioning of the Union and its constitutional nature which pertain to the EU’s entire legal order. Besides being a powerful tool to integrate, the protection of fundamental rights unavoidably assumes political and constitutional elements, thereby affecting the constitutional nature and development of the Union. The horizontal effect of fundamental rights could admittedly be used as an effective ‘federalising device’ at the service of an activist judiciary. 12 Particularly after the entry into force of the Treaty of Lisbon and the subsequent stronger status of the EU Charter unquestionably potentially provides the Court of Justice with a powerful new legal instrument to be employed in legal interpretation and adjudication. The Charter would at least in some respects come to resemble the US Bill of Rights in setting a ‘federal standard’. The Charter already confers upon the rights, freedoms and principles it embraces a quality which should 12

Lenaerts – Gutman 2006, 7 ff.

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provide a strong guidance for their interpretation. Where a right is defined as a fundamental right, the authorities responsible for applying it are under a strict requirement to give it a wide interpretation demanded by its true nature.13 Hence, it is only natural for the rules of other Union legislation to benefit in their interpretation from the position of the values with which they correspond in the hierarchy of common values.14

13

Echoing the Opinion of AG Léger of 10 July 2001 in Hautala, Case C-353/99 P, EU:C:2001:392, point 86.

14

Judgment in Strack, C-579/12, EU:C:2013:570, with regard to the effects of Article 31(2) of the Charter on the EU Staff Regulations.

206

Epilogue

horizontal effect of fundamental rights in eu law

‘For the first time there has been created a sovereign European Court. I foresee in it also a Supreme Federal European Court.’– Jean Monnet 1 Constitutions seek to produce order and coherence in the legal system – both in a formal and substantive sense. In the formal sense, constitutions create a hierarchy of norms and delineate the role and status of the law-making authorities. In the substantive sense, constitutions reflect the fundamental principles of the legal order, offering interpretative guidance through which ordinary legal norms are assessed. Such a coherence-creating function should be one of those of fundamental rights. They function as principles which infuse substantive coherence into the constitutional order and guide the interpretation and application of lower-order legal norms. Through their interpretative force fundamental rights both create coherence and legitimacy as well as limit the powers of the law-making authorities.2 Ultimately, the work of conceptualising the scope and manner of application of fundamental rights in EU law cannot be done in isolation from the social and political context of European integration. The ambit and method of applying fundamental rights is a subject of political tension between the institutional centre and Member States and casts new light on the struggle for legislative and judicial control in all matters of European governance. The European Union has evolved beyond the border where a purely economic constitution would have been sufficient. The structure and nature of the Union at its present phase goes far beyond an internal market with a single currency and common trade policies and is more and more characterized in political and legal terms. The current phase of the integration process indicates the Union has passed the predominantly political phase and is advancing towards a closer security and more centralised form of cooperation evidenced, e.g., by the determined cooperation in the monetary and financial sector and areas such as police, asylum and immigration – which in federal political systems commonly belong to the competence of the centralised authority. The stronger emphasis on human and fundamental rights protection is an obvious indication of this same phenomenon. Especially the EU Charter has been the source of important changes in EU law in pushing the Union and its judicature to take fundamental rights even more seriously. As the ‘idea of Europe’ advances and progresses further, its aims and objectives have to be adjusted and developed accordingly.3 It is asserted that not even provisions of primary legislation should be accorded the same significance. A further defining could take place. Accordingly, European constitutional scholarship should 1

 C hronique de politique Étrangère, vol. VI nº 1, janvier 1953.

2

Presentation held by prof. Kaarlo Tuori in Unidem Seminar ‘Constitutional Design’ organized by the European Commission for Democracy through Law (Venice Commission), Centre of Excellence in Foundations of European Law and Polity, University of Helsinki and the International Association of Constitutional Law (IACL) held in Helsinki on 21-22 May 2012.

3

Cf. judgment in CILFIT, 283/81, EU:C:1982:335, para. 20.

208

epilogue

base itself on norms and structures which form the ‘core of primary law’. 4 Fundamental rights are claimed to assume this place. Values are usually defined as measures of worthiness, a relative status of a thing, or the estimate in which it is held, according to its real or supposed worth, usefulness, or importance. Values may also describe principles or standards observed by a person or society, the personal or social judgments of what is valuable and important in life.5 The decision for a particular set of values, once enacted and given a normative force, shapes through the mandatory power of law the entire public and private sphere of the state’s social system and thus in a broader sense creates a special identity to its subject.6 The EU Charter has been said to represent the best illustration of the fact that the European Union is not just a purely economic undertaking. On the contrary, it reflects an overall view of political life in which fundamental rights are the identifying feature of the civilization of Europe’s political culture.7 In many societies drafting a separate document of human rights is regarded as a constitutional act which signifies the nation’s common values, standards and ideals which it seeks to identify with and function as a legitimating tool for self-justification.8 Drafting a separate charter of fundamental rights for the European Union inevitably constitutes one of the formative moments of the Union’s constitutional history. Already the objective of the process – making the rights and freedoms recognised in the Union more visible for its citizens – implies constitutional undertones. The constitutionalisation paradigm in the EU corresponds to the widespread understanding of fundamental rights as supreme values binding and shaping the content of the entire EU legal system. The horizontal effect of fundamental rights of EU law may thus become the engine for important future developments. The prophetic words of Jean Monnet have in many senses already proved true: ‘For the first time there has been created a sovereign European Court. I foresee in it also a Supreme Federal European Court.’9 The future, near or far, will reflect how closely events echo Monnet’s words. The odds are favourable.

4

Ipsen 1972, 64, where Hans Peter Ipsen cautiously referred to ‘Inbegriff des Primärrechts’ (‘the core of the primary law’).

5

 O xford English Dictionary.

6 7

Avbelj 2004, 8-9.

Speech delivered by Mr. Inigo Mendez de Vigo on 17 December 1999 in Brussels at the first meeting of the Body to draw up a draft Charter of Fundamental Rights of the European Union (CHARTE 4105/00, p. 12).

8

Schütze 2009, 22 ff. and Jääskinen 2008, 69 ff.

9

 C hronique de politique Étrangère, vol. VI nº 1, janvier 1953.

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European Court of Justice (ECJ) –2009; Court of Justice of the European Union (CJEU) 2009– Case 1/54 Case 2/54 Joined Cases 7/54 and 9/54 Case 8/55 Joined Cases 7/56 and 3-7/57

Case 13/57 Case 1/58 Case 14/59

Joined Cases 36–38/59 and 40/59

Joined Cases 42/59 and 49/59 Joined Cases 43/59, 45/59 and 48/59 Case 6/60 Case 14/61

Case 26/62

Case 32/62 Case 6/64 Case 40/64 Joined Cases 56 and 58/64 Joined Cases 18/65 and 35/65 258

French Republic v High Authority of the European Coal and Steel Community [1954] ECR 7, English special edn. 1, ECLI:EU:C:1954:7 Italian Republic v High Authority of the European Coal and Steel Community [1954] ECR 73, English special edn. 37, ECLI:EU:C:1954:8 Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority of the European Coal and Steel Community [1956] ECR 53, English special edn. 175, ECLI:EU:C:1956:2 Fédération Charbonnière de Belgique v High Authority [1956] ECR 291, English special edn. 292, ECLI:EU:C:1956:11 Dineke Algera, Giacomo Cicconardi, Simone Couturaud, Ignazio Genuardi, Félicie Steichen v Common Assembly of the European Coal and Steel Community [1957/58] ECR 81, English special edn. 39, ECLI:EU:C:1957:7 Wirtschaftsvereinigung Eisen- und Stahlindustrie v High Authority [1958] ECR 263, English special edn. 265, ECLI:EU:C:1958:10 Friedrich Stork & Cie v High Authority of the European Coal and Steel Community [1959] ECR 43, English special edn. 17, ECLI:EU:C:1959:4 Société des fonderies de Pont-à-Mousson v High Authority of the European Coal and Steel Community [1959] ECR 445, English special edn. 215, ECLI:EU:C:1959:31 Präsident Ruhrkolen-Verkaufsgesellschaft mbH, Geitling RuhrkohlenVerkaufsgesellschaft mbH, Mausegatt Ruhrkohlen-Verkaufsgesellschaft mbH and I. Nold KG v High Authority of the European Coal and Steel Community [1960] ECR 857, English special edn. 17, ECLI:EU:C:1960:36 Société nouvelle des usines de Pontlieue – Aciéries du Temple (S.N.U.P.A.T.) v High Authority of the European Coal and Steel Community [1962] ECR 101, English special edn. 53, ECLI:EU:C:1961:5 Eva von Lachmüller, Bernard Peuvrier, Roger Ehrhardt v Commission of the European Economic Community [1960] ECR 933, English special edn. 463, ECLI:EU:C:1960:37 Jean E. Humblet v Belgian State [1960] ECR 1125, English special edn. 559, ECLI:EU:C:1960:48 Koninklijke Nederlandsche Hoogovens en Staalfabrieken N.V. v High Authority of the European Coal and Steel Community [1962] ECR 485, English special edn. 253, ECLI:EU:C:1962:28 NV Algemene Transport en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 3, English special edn. 1, ECLI:EU:C:1963:1 M. Maurice Alvis v Council of the European Economic Community [1963] ECR 101, English special edn. 49, ECLI:EU:C:1963:15 Flaminio Costa v E.N.E.L.[1964] ECR 1141, English special edn. 585, ECLI:EU:C:1964:66 Marcello Sgarlata and others v Commission of the EEC [1965] ECR 279, English special edn. 215, ECLI:EU:C:1965:36 Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v Commission of the EEC [1966] ECR 299, ECLI:EU:C:1966:41. Max Gutmann v Commission of the EAEC [1967] ECR 75, English special edn. 61, ECLI:EU:C:1967:6

table of cases

Case 28/67 Case 13/68 Case 14/68 Case 29/69 Case 9/70 Case 11/70 Case 25/70 Case 80/70 Case 5/71 Case 43/71 Case 93/71 Joined Cases 21-24/72 Case 39/72 Case 4/73 Case 34/73 Case 127/73

Case 155/73 Case 2/74 Case 8/74 Case 36/74

Case 41/74 Case 36/75 Case 43/75 Case 48/75 Case 118/75 Opinion 1/76

Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollame Paderborn [1968] ECR 211, English special edn. 143, ECLI:EU:C:1968:17 SpA Salgoil v Italian Ministry of Foreign Trade [1968] ECR 661, English special edn. 453, ECLI:EU:C:1968:54 Walt Wilhelm and others v Bundeskartellamt [1969] ECR 1, ECLI:EU:C:1969:4 Erich Stauder v City of Ulm – Sozialamt [1969] ECR 419, ECLI:EU:C:1969:57 Franz Grad v Finanzamt Traunstein [1970] ECR 825, ECLI:EU:C:1970:78 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, ECLI:EU:C:1970:114 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster et Berodt & Co. [1970] ECR 1161, ECLI:EU:C:1970:115 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (Defrenne I) [1971] ECR 445, ECLI:EU:C:1971:55 Aktien Zuckerfabrik Schöppenstedt v Council of the European Communities [1971] ECR 975, ECLI:EU:C:1971:116 Politi s.a.s. v Ministry for Finance of the Italian Republic [1971] ECR 1039, ECLI:EU:C:1971:122 Orsolina Leonesio v Ministero dell’agricoltura e foreste [1972] ECR 287, ECLI:EU:C:1972:39 International Fruit Company NV and others v Produktschap voor Groenten en Fruit [1972] ECR 1219, ECLI:EU:C:1972:115 Commission v Italy [1973] ECR 101, ECLI:EU:C:1973:13 J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ECR 491, ECLI:EU:C:1974:51 Fratelli Variola S.p.A. v Amministrazione italiana delle Finanze [1973] ECR 981, ECLI:EU:C:1973:101 Belgische Radio en Televisie ja société belge des auteurs, compositeurs et éditeurs vastaan SV SABAM ja NV Fonior [1974] ECR 313, ECLI:EU:C:1974:25 Giuseppe Sacchi [1974] ECR 409, ECLI:EU:C:1974:40 Jean Reyners v Belgian State [1974] ECR 631, ECLI:EU:C:1974:68 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837, ECLI:EU:C:1974:82 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie et Federación Española Ciclismo [1974] ECR 1405, ECLI:EU:C:1974:140 Yvonne van Duyn v Home Office [1974] ECR 1337, ECLI:EU:C:1974:133 Roland Rutili v Minister for the Interior [1975] ECR 1219, ECLI:EU:C:1975:137 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (Defrenne II) [1976] ECR 455, ECLI:EU:C:1976:56 Jean Noël Royer [1976] ECR 497, ECLI:EU:C:1976:56 Lynne Watson and Alessandro Belmann [1978] ECR 1185, ECLI:EU:C:1976:106 Draft Agreement establishing a European laying up fund for inland waterway vessels [1977] ECR 741, ECLI:EU:C:1977:63

259

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Case 35/76 Case 50/76 Case 85/76 Joined Cases 117/76 and 16/77 Case 106/77 Case 112/77 Case 149/77 Case 120/78 Case 230/78

Case 265/78 Case 44/79 Case 131/79 Case 136/79 Case 804/79 Case 810/79 Case 58/80 Case 8/81 Case 77/81 Joined Cases 115/81 and 116/81 Case 283/81 Case 66/82 Joined Cases 75/82 and 117/82 Case 152/82

260

Simmenthal SpA v Ministère des finances italien (Simmenthal I) [1976] ECR 1871, ECLI:EU:C:1976:180 Amsterdam Bulb BV v Produktschap voor Siergewassen [1977] ECR 137, ECLI:EU:C:1977:13 Hoffmann-La Roche & Co. AG v Commission of the European Communities [1979] ECR 461, ECLI:EU:C:1979:36 Ruckdeschel v. Hauptzollamt Hamburg St. Annen [1977] ECR 1753, ECLI:EU:C:1977:160, Amministrazione delle Finanze dello Stato v Simmenthal SpA. (Simmenthal II) [1978] ECR 629, ECLI:EU:C:1978:49 August Töpfer & Co. GmbH v Commission of the European Communities [1978] ECR 1019, ECLI:EU:C:1978:94 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (Defrenne III) [1978] ECR 1365, ECLI:EU:C:1978:130 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, ECLI:EU:C:1979:42 SpA Eridania-Zuccherifici nazionali and SpA Società Italiana per l’Industria degli Zuccheri v Minister of Agriculture and Forestry, Minister for Industry, Trade and Craft Trades, and SpA Zuccherifici Meridionali [1979] ECR 2749, ECLI:EU:C:1979:216 H. Ferwerda BV v Produktschap voor Vee en Vlees [1980] ECR 617, ECLI:EU:C:1980:66 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 3727, ECLI:EU:C:1979:290 Regina v Secretary of State for Home Affairs, ex parte Mario Santillo [1980] ECR 1585, ECLI:EU:C:1980:131 National Panasonic (UK) Limited v Commission of the European Communities [1980] ECR 2033, ECLI:EU:C:1980:169 Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland [1981] ECR 1045, ECLI:EU:C:1981:93 Peter Überschär v Bundesversicherungsanstalt für Angestellte [1980] ECR 2747, ECLI:EU:C:1980:228 Dansk Supermarked A/S v A/S Imerco [1981] ECR 181, ECLI:EU:C:1981:17 Ursula Becker v Finanzamt Münster Innenstadt [1982] ECR 53, ECLI:EU:C:1982:7 Zuckerfabrik Franken GmbH v Federal Republic of Germany [1982] ECR 681, ECLI:EU:C:1982:70 Rezguia Adoui v Belgian State and City of Liège Dominique Cornuaille v Belgian State [1982] ECR 1665, ECLI:EU:C:1982:183 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415, ECLI:EU:C:1982:335 Fromançais SA v Fonds d’orientation et de régularisation des marchés agricoles (FORMA) [1983] ECR 395, ECLI:EU:C:1983:42 C. Razzouk and A. Beydoun v Commission of the European Communities [1984] ECR 1509, ECLI:EU:C:1984:116 Sandro Forcheri and his wife Marisa Forcheri, née Marino, v Belgian State and asbl Institut Supérieur de Sciences Humaines Appliquées – Ecole Ouvrière Supérieure [1983] ECR 2323, ECLI:EU:C:1983:205

table of cases

Joined Cases 177/82 and 178/82 Case 218/82

Criminal proceedings against Jan van de Haar and Kaveka de Meern BV. [1984] ECR 1797, ECLI:EU:C:1984:144 Commission of the European Communities v Council of the European Communities [1983] ECR 4063, ECLI:EU:C:1983:369 Joined Cases 286/82 and Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro [1984] 26/83 ECR 37, ECLI:EU:C:1984:35 Case 327/82 Ekro BV Vee- en Vleeshandel v Produktschap voor Vee en Vlees [1984] ECR 107, ECLI:EU:C:1984:11 Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, ECLI:EU:C:1984:153 Case 15/83 Denkavit Nederland BV v Hoofdproduktschap voor Akkerbouwprodukten [1984] ECR 2171, ECLI:EU:C:1984:183 Case 125/83 Office belge de l’économie et de l’agriculture (OBEA) v SA Nicolas Corman et fils [1985] ECR 3039, ECLI:EU:C:1985:382 Case 238/83 Caisse d’Allocations Familiales de la Région Parisienne v Mr and Mrs Richard Meade [1984] ECR 2631, ECLI:EU:C:1984:250 Case 251/83 Eberhard Haug-Adrion v Frankfurter Versicherungs-AG [1984] ECR 4277, ECLI:EU:C:1984:397 Case 294/83 Parti écologiste “Les Verts” v European Parliament [1986] ECR 1339, ECLI:EU:C:1986:166 Case 44/84 Derrick Guy Edmund Hurd v Kenneth Jones (Her Majesty’s Inspector of Taxes) [1986] ECR 29, ECLI:EU:C:1986:2 Joined Cases 60/84 and Cinéthèque SA and others v Fédération nationale des cinémas français 61/84 [1985] ECR 2605, ECLI:EU:C:1985:329 Case 152/84 M. H. Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) [1986] ECR 723, ECLI:EU:C:1986:84 Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, ECLI:EU:C:1986:206 Joined Cases 89/85, A. Ahlström Osakeyhtiö and others v Commission of the European 104/85, 114/85, 116/85, Communities (‘Pulp case’) [1988] ECR 5193, ECLI:EU:C:1988:447 117/85 and 125-129/85 Joined Cases 201/85 and Marthe Klensch and others v Secrétaire d’État à l’Agriculture et à la 202/85 Viticulture [1986] ECR 3477, ECLI:EU:C:1986:439 Case 311/85 ASBL Vereniging van Vlaamse Reisbureaus v ASBL Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801, ECLI:EU:C:1987:418 Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, ECLI:EU:C:1987:400 Case 24/86 Vincent Blaizot v University of Liège and others [1988] ECR 379, ECLI:EU:C:1988:43 Case 126/86 Fernando Roberto Giménez Zaera v Institut Nacional de la Seguridad Social and Tesorería General de la Seguridad Social [1987] ECR 3697, ECLI:EU:C:1987:395 Case 157/86 Mary Murphy and others v An Bord Telecom Eireann [1988] ECR 673, ECLI:EU:C:1988:62 Case 207/86 Asociación Profesional de Empresarios de Pesca Comunitarios (Apesco) v Commission of the European Communities [1988] ECR 2151, ECLI:EU:C:1988:200 Case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef ) v Georges Heylens and others [1987] ECR 4097, ECLI:EU:C:1987:442

261

horizontal effect of fundamental rights in eu law

Case 302/86 Joined Cases 46/87 and 227/88 Case 85/87 Case 186/87 Case 196/87 Case 266/87

Case 5/88 Case 103/88 Case C-145/88 Case C-221/88 Case C-322/88 Case C-331/88

Case C-49/89 Case C-106/89 Case C-118/89 Case C-188/89 Case C-205/89 Case C-260/89

Case C-314/89 Case C-363/89 Joined Cases C-6/90 and C-9/90 Case C-76/90 Case C-159/90 Case C-200/90

262

Commission of the European Communities v Kingdom of Denmark [1988] ECR 4607, ECLI:EU:C:1988:421 Hoechst AG v Commission of the European Communities [1989] ECR 2859, ECLI:EU:C:1989:337 Dow Benelux NV v Commission of the European Communities [1989] ECR 3137, ECLI:EU:C:1989:379 Ian William Cowan v Trésor public [1989] ECR 195, ECLI:EU:C:1989:47 Udo Steymann v Staatssecretaris van Justitie [1989] ECR 6159, ECLI:EU:C:1988:475 The Queen v Royal Pharmaceutical Society of Great Britain, ex parte Association of Pharmaceutical Importers and others [1989] ECR 1295, ECLI:EU:C:1989:205 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, ECLI:EU:C:1989:321 Fratelli Costanzo v Comune di Milano [1989] ECR 1839, ECLI:EU:C:1989:256 Torfaen Borough Council v B & Q plc. [1989] ECR 3851, ECLI:EU:C:1989:593 ECSC v Acciaierie e Ferriere Busseni [1990] ECR I-495, ECLI:EU:C:1990:84 Salvatore Grimaldi v Fonds des maladies professionnelles [1989] ECR 4407, ECLI:EU:C:1989:646 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others [1990] ECR I-4023, ECLI:EU:C:1990:391 Corsica Ferries France v Direction générale des douanes françaises [1989] ECR 4441, ECLI:EU:C:1989:649 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135, ECLI:EU:C:1990:395 Firma Otto Lingenfelser v Federal Republic of Germany [1990] ECR I-2637, ECLI:EU:C:1990:267 A. Foster and others v British Gas plc. [1990] ECR I-3313, ECLI:EU:C:1990:313 Commission of the European Communities v Hellenic Republic [1991] ECR I-01361, ECLI:EU:C:1991:123 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others [1991] ECR 2925, ECLI:EU:C:1991:254 Siegfried Rauh v Hauptzollamt Nürnberg-Fürth [1991] ECR I-1647 ECLI:EU:C:1991:143 Danielle Roux v Belgian State [1991] ECR I-273, ECLI:EU:C:1991:41 Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECR I-5357, ECLI:EU:C:1991:428 Manfred Säger v Dennemeyer & Co. Ltd [1991] ECR I-4221, ECLI:EU:C:1991:331 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-4685, ECLI:EU:C:1991:378 Dansk Denkavit ApS and P. Poulsen Trading ApS [1992] ECR I-2217, ECLI:EU:C:1992:152

table of cases

Case C-370/90

Opinion 1/91

Case C-169/91 Case C-2/92 Case C-91/92 Case C-92/92 Case C-128/92 Joined Cases C-46/93 and C-48/93 Joined Cases C-133/93, C-300/93 and C-362/93 Case C-415/93

Opinion 2/94

Case C-13/94 Case C-55/94 Case C-214/94 Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Case C-84/95

Case C-144/95 Case C-185/95P Case C-265/95 Case C-299/95

The Queen v Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department [1992] ECR I-4265, ECLI:EU:C:1992:296 Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area [1991] ECR I-6079, ECLI:EU:C:1991:490 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc. [1992] ECR I-6635, ECLI:EU:C:1992:519 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Dennis Clifford Bostock [1994] ECR I-955, ECLI:EU:C:1994:116 Paola Faccini Dori v Recreb Srl. [1994] ECR I-3325, ECLI:EU:C:1994:292 Phil Collins v Imtrat Handelsgesellschaft mbH [1993] ECR I-5145, ECLI:EU:C:1993:847 H. J. Banks & Co. Ltd v British Coal Corporation [1994] ECR I-1209, ECLI:EU:C:1994:130 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-1029, ECLI:EU:C:1996:79 Antonio Crispoltoni v Fattoria Autonoma Tabacchi and Giuseppe Natale and Antonio Pontillo v Donatab Srl. [1994] ECR I-4863, ECLI:EU:C:1994:364 Union royale belge des sociétés de football association ASBL v JeanMarc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v JeanMarc Bosman [1995] ECR I-4921, ECLI:EU:C:1995:463 Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, ECLI:EU:C:1996:140 P v S and Cornwall County Council [1996] ECR I-2143, ECLI:EU:C:1996:170 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, ECLI:EU:C:1995:411 Ingrid Boukhalfa v Bundesrepublik Deutschland [1996] ECR I-2253, ECLI:EU:C:1996:174 Garage Molenheide BVBA (C-286/94), Peter Schepens (C-340/95), Bureau Rik Decan-Business Research & Development NV (BRD) (C-401/95) and Sanders BVBA (C-47/96) v Belgische Staat [1997] ECR I-7281, ECLI:EU:C:1997:623 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others [1996] ECR I-3953, ECLI:EU:C:1996:312 Criminal proceedings against Jean-Louis Maurin [1996] ECR I-2909, ECLI:EU:C:1996:235 Baustahlgewebe GmbH v Commission of the European Communities [1998] ECR I-8417, ECLI:EU:C:1998:608 Commission of the European Communities v French Republic [1997] ECR I-6959, ECLI:EU:C:1997:595 Friedrich Kremzow v Republik Österreich [1997] ECR I-2629, ECLI:EU:C:1997:254

263

horizontal effect of fundamental rights in eu law

Case C-368/95

Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-3689, ECLI:EU:C:1997:325 Bayerische Hypotheken- und Wechselbank AG v Edgard Dietzinger [1998] ECR I-1199, ECLI:EU:C:1998:111 Deutsche Telekom AG v Lilli Schröder [2000] ECR I-743, ECLI:EU:C:2000:72 María Martínez Sala v Freistaat Bayern [1998] ECR I-2691, ECLI:EU:C:1998:217 Stephen Austin Saldanha and MTS Securities Corporation v Hiross Holding AG [1997] ECR I-5325, ECLI:EU:C:1997:458 Inter-Environnement Wallonie ASBL v Région wallonne [1997] ECR I-7411, ECLI:EU:C:1997:628 Portuguese Republic v Council of the European Union [1999] ECR I-8395, ECLI:EU:C:1999:574 Raymond Kohll v Union des caisses de maladie [1998] ECR I-1931, ECLI:EU:C:1998:171 A. Racke GmbH & Co. v Hauptzollamt Mainz [1998] ECR I-3655, ECLI:EU:C:1998:293 Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Fédération royale belge des sociétés de basket-ball ASBL (FRBSB) [2000] ECR I-2681, ECLI:EU:C:2000:201 United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities [1998] ECR I-2265, ECLI:EU:C:1998:192 Lisa Jacqueline Grant v South-West Trains Ltd. [1998] ECR I-621, ECLI:EU:C:1998:63 Criminal proceedings against Horst Otto Bickel and Ulrich Franz [1998] ECR I-7637, ECLI:EU:C:1998:563 Daniele Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio [1997] ECR I-7493, ECLI:EU:C:1997:631 Nour Eddline El-Yassini v Secretary of State for Home Department [1999] ECR I-1209, ECLI:EU:C:1999:107 Markku Juhani Läärä, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Kihlakunnansyyttäjä (Jyväskylä) and Suomen valtio (Finnish State) [1999] ECR I-6067, ECLI:EU:C:1999:435 Kjell Karlsson and Others [2000] ECR I-2737, ECLI:EU:C:2000:202 Criminal proceedings against Sami Heinonen [1999] ECR I-3599, ECLI:EU:C:1999:308 Dieter Krombach v André Bamberski [2000] ECR1-1935, ECLI:EU:C:2000:164 The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas [2000] ECR I-2927, ECLI:EU:C:2000:224 Josef Corsten [2000] ECR I-7919, ECLI:EU:C:2000:527 Johann Buchner and Others v Sozialversicherungsanstalt der Bauern [2000] ECR I-3625, ECLI:EU:C:2000:276 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR I-4139, ECLI:EU:C:2000:296 Grand Duchy of Luxemburg v Berthe Linster, Aloyse Linster and Yvonne Linster [2000] ECR I-6917, ECLI:EU:C:2000:468 Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission, [2000] ECR I-5291, ECLI:EU:C:2000:361

Case C-45/96 Case C-50/96 Case C-85/96 Case C-122/96 Case C-129/96 Case C-149/96 Case C-158/96 Case C-162/96 Case C-176/96

Case C-180/96 Case C-249/96 Case C-274/96 Case C-309/96 Case C-416/96 Case C-124/97

Case C-292/97 Case C-394/97 Case C-7/98 Case C-37/98 Case C-58/98 Case C-104/98 Case C-281/98 Case C-287/98 Case C-352/98P

264

table of cases

Case C-403/98

Case C-411/98 Case C-443/98 Case C-135/99 Case C-173/99

Case C-184/99 Case C-274/99P Case C-309/99

Case C-340/99 Case C-353/99P Case C-390/99

Case C-413/99 Case C-453/99 Case C-478/99 Joined Cases C-20/00 and C-64/00 Joined Cases C-27/00 and C-122/00

Case C-37/00 Case C-52/00 Case C-60/00 Case C-76/00P Opinion 1/00

Azienda Agricola Monte Arcosu Srl v Regione Autonoma della Sardegna et. al. Organismo Comprensoriale nº 24 della Sardegna and Ente Regionale per l’Assistenza Tecnica in Agricoltura (ERSAT) [2001] ECR I-103, ECLI:EU:C:2001:6 Angelo Ferlini v Centre hospitalier de Luxembourg [2000] ECR I-8081, ECLI:EU:C:2000:530 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535, ECLI:EU:C:2000:496 Ursula Elsen v Bundesversicherungsanstalt für Angestellte [2000] ECR I-1409, ECLI:EU:C:2000:647 The Queen v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) [2001] ECR I-4881, ECLI:EU:C:2001:356 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-laNeuve [2001] ECR I-6193, ECLI:EU:C:2001:458 Bernard Connolly v Commission of the European Communities [2001] ECR I-1611, ECLI:EU:C:2001:127 J. C. J. Wouters, J. W. Savelbergh and Price Waterhouse Belastingadviseurs BV v Algemene Raad van de Nederlandse Orde van Advocaten [2002] ECR I-1577, ECLI:EU:C:2002:98 TNT Traco SpA v Poste Italiane SpA and Others [2001] ECR I-4109, ECLI:EU:C:2001:281 Council of the European Union v Heidi Hautala [2001] ECR I-9565, ECLI:EU:C:2001:661 Canal Satélite Digital SL v Adminstración General del Estado, and Distribuidora de Televisión Digital SA (DTS) [2002] ECR I-607, ECLI:EU:C:2002:34 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091, ECLI:EU:C:2002:493 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others [2001] ECR I-6297, ECLI:EU:C:2001:465 Commission of the European Communities v Kingdom of Sweden [2002] ECR I-4147, ECLI:EU:C:2002:281 Booker Aquacultur Ltd (C-20/00) and Hydro Seafood GSP Ltd (C-64/00) v The Scottish Ministers [2003] ECR I-7411, ECLI:EU:C:2003:397 The Queen v Secretary of State for the Environment, Transport and the Regions, ex parte Omega Air Ltd (C-27/00) and Omega Air Ltd, Aero Engines Ireland Ltd and Omega Aviation Services Ltd v Irish Aviation Authority (C-122/00) [2002] ECR I-2569, ECLI:EU:C:2002:161 Herbert Weber v Universal Ogden Services Ltd. [2002] ECR I-2013, ECLI:EU:C:2002:122 Commission of the European Communities v French Republic [2002] ECR I-3827, ECLI:EU:C:2002:252 Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-6279, ECLI:EU:C:2002:434 Petrotub SA and Republica SA v Council of the European Union [2003] ECR I-79, ECLI:EU:C:2003:4 Proposed agreement between the European Community and nonMember States on the establishment of a European Common Aviation Area [2002] I-3493, ECLI:EU:C:2002:231

265

horizontal effect of fundamental rights in eu law

Case C-112/00 Case C-253/00

Case C-325/00 Case C-438/00 Case C-442/00 Joined Cases C-465/00, C-138/01 and C-139/01 Case C-100/01 Case C-101/01 Case C-117/01 Case C-189/01

Case C-224/01 Case C-276/01 Joined Cases C-397/01C-403/01

Case C-25/02 Case C-36/02

Case C-71/02 Case C-148/02 Case C-278/02 Case C-334/02 Joined CasesC-387/02, C-391/02 and C-403/02 Case C-429/02

266

Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659, ECLI:EU:C:2003:333 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECR I-7289, ECLI:EU:C:2002:497 Commission of the European Communities v Federal Republic of Germany [2002] ECR I-9977, ECLI:EU:C:2002:633 Deutscher Handballbund eV v Maros Kolpak [2003] ECR I-4135, ECLI:EU:C:2003:255 Ángel Rodríguez Caballero v Fondo de Garantía Salarial (Fogasa) [2002] ECR I-11915, ECLI:EU:C:2002:752 Rechnungshof (C-465/00) v Österreichischer Rundfunk and Others and Christa Neukomm (C-138/01) and Joseph Lauermann (C-139/01) v Österreichischer Rundfunk [2003] ECR I-4989, ECLI:EU:C:2003:294 Ministre de l’Intérieur v Aitor Oteiza Olazabal [2002] ECR I-10981, ECLI:EU:C:2002:712 Criminal proceedings against Bodil Lindqvist [2003] ECR I-12971, ECLI:EU:C:2003:596 K.B. v National Health Service Pensions Agency and Secretary of State for Health [2004] ECR I-541, ECLI:EU:C:2004:7 H. Jippes, Afdeling Groningen van de Nederlandse Vereniging tot Bescherming van Dieren and Afdeling Assen en omstreken van de Nederlandse Vereniging tot Bescherming van Dieren v Minister van Landbouw, Natuurbeheer en Visserij [2001] ECR I-5689, ECLI:EU:C:2001:420 Gerhard Köbler v Republik Österreich [2003] ECR I-10239, ECLI:EU:C:2003:513 Joachim Steffensen [2003] ECR I-3735, ECLI:EU:C:2003:228 Bernhard Pfeiffer (C-397/01), Wilhelm Roith (C-398/01), Albert Süß (C-399/01), Michael Winter (C-400/01), Klaus Nestvogel (C-401/01), Roswitha Zeller (C-402/01) and Matthias Döbele (C-403/01) v Deutsches Rotes Kreuz, Kreisverband Waldshut eV. [2004] ECR I-8835, ECLI:EU:C:2004:584 Katharina Rinke v Ärztekammer Hamburg [2003] ECR I-8349, ECLI:EU:C:2003:435 Omega Spielhallen- und Automatenaufstellungs-GmbH v berbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609, ECLI:EU:C:2004:614 Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025, ECLI:EU:C:2004:181 Carlos Garcia Avello v Belgian State [2003] ECR I-11613, ECLI:EU:C:2003:539 Herbert Handlbauer GmbH [2004] ECR I-6171, ECLI:EU:C:2004:388 Commission of the European Communities v French Republic [2004] ECR I-2229, ECLI:EU:C:2004:129 Criminal proceedings against Silvio Berlusconi (C-387/02), Sergio Adelchi (C-391/02) and Marcello Dell’Utri and Others (C-403/02) [2005] I-3565, ECLI:EU:C:2005:270 Bacardi France SAS, formerly Bacardi-Martini SAS v Télévision française 1 SA (TF1), Groupe Jean-Claude Darmon SA and Girosport SARL [2004] ECR I-6613, ECLI:EU:C:2004:432

table of cases

Case C-105/03 Case C-181/03P Case C-213/03

Case C-265/03 Case C-446/03 Case C-540/03 Case C-144/04 Case C-300/04 Case C-310/04 Case C-328/04 Case C-499/04 Case C-519/04P Case C-81/05 Case C-305/05 Case C-341/05 Case C-384/05 Joined Cases C-402/05P and C-415/05P Case C-438/05

Case C-117/06 Case C-244/06 Case C-268/06 Case C-275/06 Case C-412/06

Criminal proceedings against Maria Pupino [2005] ECR I-5285, ECLI:EU:C:2005:386 Albert Nardone v Commission of the European Communities [2004] ECR I-199, ECLI:EU:C:2005:18 Syndicat professionnel coordination des pêcheurs de l’étang de Berre and de la région v Électricité de France (EDF) [2004] ECR I-7357, ECLI:EU:C:2004:464 Igor Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol [2005] ECR I-2579, ECLI:EU:C:2005:213 Marks & Spencer plc v David Halsey (Her Majesty’s Inspector of Taxes) [2005] ECR I-10837, ECLI:EU:C:2005:763 European Parliament v Council of the European Union [2006] ECR I-5769, ECLI:EU:C:2006:429 Werner Mangold v Rüdiger Helm [2005] ECR I-9981, ECLI:EU:C:2005:709 M. G. Eman and O. B. Sevinger v College van burgemeester en wethouders van Den Haag [2006] ECR I-8055, ECLI:EU:C:2006:545 Kingdom of Spain v Council of the European Union [2006] ECR I-7285, ECLI:EU:C:2006:521 Criminal proceedings against Attila Vajnai [2005] ECR I-8577, ECLI:EU:C:2005:596 Hans Werhof v Freeway Traffic Systems GmbH & Co. KG [2006] ECR I-2397, ECLI:EU:C:2006:168 David Meca-Medina and Igor Majcen v Commission [2006] ECR I-6991, ECLI:EU:C:2006:492 Anacleto Cordero Alonso v Fondo de Garantía Salarial (Fogasa) [2006] ECR I-7569, ECLI:EU:C:2006:529 Ordre des barreaux francophones et germanophone and Others v Conseil des ministres [2007] ECR I-5305, ECLI:EU:C:2007:383 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others [2007] ECR I-11767, ECLI:EU:C:2007:809 Johan Piek v Ministerie van Landbouw, Natuurbeheer en Visserij [2007] ECR I-289, ECLI:EU:C:2007:21 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351, ECLI:EU:C:2008:461 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779, ECLI:EU:C:2007:772 Gerda Möllendorf and Christiane Möllendorf-Niehuus [2007] ECR I-8361, ECLI:EU:C:2007:596 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-505, ECLI:EU:C:2008:85 Impact v Minister for Agriculture and Food and Others [2008] ECR I-2483, ECLI:EU:C:2008:223 Productores de Música de España (Promusicae) v Telefónica de España SAU [2008] ECR I-271, ECLI:EU:C:2008:54 Annelore Hamilton v Volksbank Filder eG. [2008] ECR I-2383, ECLI:EU:C:2008:215

267

horizontal effect of fundamental rights in eu law

Case C-427/06

Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH [2008] ECR I-7245, ECLI:EU:C:2008:517 Case C-450/06 Varec SA v Belgian State [2008] ECR I-581, ECLI:EU:C:2008:91 Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] ECR I-9831, ECLI:EU:C:2008:727 Case C-213/07 Michaniki AE v Ethniko Symvoulio Radiotileorasis and Ypourgos Epikrateias [2008] ECR I-9999, ECLI:EU:C:2008:731 Order in Case C-361/07 Olivier Polier v Najar EURL [2008] ECR I-6, ECLI:EU:C:2008:16 Court of Justice of the European Union (CJEU) 2009– Case C-345/06 Gottfried Heinrich [2009] ECR I-1659, ECLI:EU:C:2009:140 Order in Case C-361/07 Olivier Polier v Najar EURL [2008] ECR I-6, ECLI:EU:C:2008:16 Joined Cases C-378/07Kiriaki Angelidaki and Others v Organismos Nomarchiakis AutoC-380/07 dioikisis Rethymnis (C-378/07), Charikleia Giannoudi v Dimos Geropotamou (C-379/07) and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou (C-380/07) [2009] ECR I-3071, ECLI:EU:C:2009:250 Case C-440/07P Commission v Schneider Electric SA [2009] ECR I-6413, ECLI:EU:C:2009:459 Case C-465/07 Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie[2009] ECR I-921, ECLI:EU:C:2009:94 Case C-489/07 Pia Messner v Firma Stefan Krüger [2009] ECR I-7315, ECLI:EU:C:2009:502 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECR I-365, ECLI:EU:C:2010:21 Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569, ECLI:EU:C:2009:465 Case C-118/08 Transportes Urbanos y Servicios Generales SAL v Administración del Estado [2010] ECR I-635, ECLI:EU:C:2010:39 Case C-135/08 Janko Rottman v Freistaat Bayern [2010] ECR I-1449, ECLI:EU:C:2010:104 Case C-147/08 Jürgen Römer v Freie und Hansestadt Hamburg [2011] ECR I-3591, ECLI:EU:C:2011:286 Joined Cases C-175/08, Aydin Salahadin Abdulla (C-175/08), Kamil Hasan (C-176/08), Ahmed C-176/08, C-178/08 and Adem, Hamrin Mosa Rashi (C-178/08) and Dler Jamal (C-179/08) v C-179/08 Bundesrepublik Deutschland [2010] ECR I-1493, ECLI:EU:C:2010:105 Case C-271/08 European Commission v Federal Republic of Germany [2010] ECR I-7091, ECLI:EU:C:2010:426 Joined Cases C-317/08Rosalba Alassini v Telecom Italia SpA (C-317/08) and Filomena CaliC-320/08 fano v Wind SpA (C-318/08) and Lucia Anna Giorgia Iacono v Telecom Italia SpA (C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08) [2010] ECR I-2213, ECLI:EU:C:2010:146 Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC [2010] ECR I-2177, ECLI:EU:C:2010:143 Case C-365/08 Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft [2010] ECR I-4341, ECLI:EU:C:2010:283 Case C-467/08 Padawan SL v Sociedad General de Autores y Editores de España (SGAE) [2010] ECR I-10055, ECLI:EU:C:2010:620 Case C-578/08 Rhimou Chakroun v Minister van Buitenlandse Zaken [2010] ECR I-1839, ECLI:EU:C:2010:117

268

table of cases

Opinion 1/09 Case C-27/09P Case C-34/09 Case C-45/09 Joined Cases C-92/09 and C-93/09 Case C-145/09 Case C-208/09 Case C-232/09 Case C-236/09 Joined Cases C-250/09 and C-268/09 Case C-279/09 Case C-391/09

Case C-429/09 Case C-447/09 Order in Case C-457/09 Joined Cases C-483/09 and C-1/10 Order in Case C-20/10 Case C-34/10 Case C-70/10 Case C-282/10 Joined Cases C-297/10 and C-298/10 Order in Case C-339/10 Case C-360/10 Case C-386/10P Case C-400/10 PPU

European and Community Patents Court [2011] I-1137, ECLI:EU:C:2011:123 French Republic v People’s Mojahedin Organization of Iran [2011] ECR I-13427, ECLI:EU:C:2011:853 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] ECR I-1177, ECLI:EU:C:2011:124 Gisela Rosenbladt v Oellerking Gebäudereinigungsges. mbH. [2010] ECR I-9391, ECLI:EU:C:2010:601 Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v Land Hessen [2010] ECR I-11063, ECLI:EU:C:2010:662 Land Baden-Württemberg v Panagiotis Tsakouridis [2010] ECR I-11979, ECLI:EU:C:2010:708 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010] ECR I-13693, ECLI:EU:C:2010:806 Dita Danosa v LKB Līzings SIA [2010] ECR I-11405, ECLI:EU:C:2010:674 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministers [2011] ECR I-773, ECLI:EU:C:2011:100 Vasil Ivanov Georgiev v Tehnicheski universitet – Sofia, filial Plovdiv [2010] ECR I-11869, ECLI:EU:C:2010:699 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland [2010] ECR I-13849, ECLI:EU:C:2010:811 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others [2011] ECR I-3787, ECLI:EU:C:2011:291 Günter Fuß v Stadt Halle [2010] ECR I-12167, ECLI:EU:C:2010:717 Reinhard Prigge and Others v Deutsche Lufthansa AG [2011] ECR I-8003, ECLI:EU:C:2011:573 Claude Chartry v Belgian State [2011] ECR I-819, ECLI:EU:C:2011:101 Criminal proceedings against Magatte Gueye (C-483/09) and Valentín Salmerón Sánchez (C-1/10) [2011] ECR I-8263, ECLI:EU:C:2011:583 Vino Cosimo Damiano v Poste Italiane SpA. (’Vino I’) [2010] ECR I-148, ECLI:EU:C:2010:677 Oliver Brüstle v Greenpeace eV. [2011] ECR I-9821, ECLI:EU:C:2011:669 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) [2011] ECR I-11959, ECLI:EU:C:2011:771 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2012] ECLI:EU:C:2012:33 Sabine Hennigs (C-297/10) v Eisenbahn-Bundesamt and Land Berlin (C-298/10) v Alexander Mai [2011] ECR I-7965, ECLI:EU:C:2011:560 Krasimir Asparuhov Estov and Others v Ministerski savet na Republika Bulgaria [2010] ECR I-11465, ECLI:EU:C:2010:680 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV. [2012] ECLI:EU:C:2012:85 Chalkor AE Epexergasias Metallon v Commission [2011] ECR I-13085, ECLI:EU:C:2011:815 J. McB. v L. E. [2010] ECR I-8965, ECLI:EU:C:2010:582

269

horizontal effect of fundamental rights in eu law

Joined Cases C-411/10 and C-493/10

Joined Cases C-468/10 and C-469/10

Case C-482/10 Case C-617/10 Case C-27/11 Case C-40/11 Order in Case C-161/11 Case C-171/11

Case C-172/11 Case C-199/11 Case C-256/11 Case C-399/11 Case C-415/11 Case C-418/11 Case C-426/11 Order in Case C-466/11 Order in Joined Cases C-483/11 and C-484/11 Case C-131/12

Case C-176/12

Joined Cases C-293/12 and C-594/12

270

N. S. (C-411/10) v Secretary of State for the Home Department et M. E. and Others (C-493/10) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ECR I-13905, ECLI:EU:C:2011:865 Asociación Nacional de Establecimientos Financieros de Crédito (ASNEF) (C-468/10) and Federación de Comercio Electrónico y Marketing Directo (FECEMD) (C-469/10) v Administración del Estado [2011] ECR I-12181, ECLI:EU:C:2011:777 Teresa Cicala v Regione Siciliana [2011] ECR I-14139, ECLI:EU:C:2011:868 Åklagaren v Hans Åkerberg Fransson [2013] nyr., ECLI:EU:C:2013:105 Anton Vinkov v Nachalnik Administrativno-nakazatelna deynost [2012] nyr., ECLI:EU:C:2012:326 Yoshikazu Iida v Stadt Ulm [2012] published in the electronic Reports of Cases, ECLI:EU:C:2012:691 Cosimo Damiano Vino v Poste Italiane SpA. (’Vino II’) [2011] ECR I-91, ECLI:EU:C:2011:420 Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) – Technisch-Wissenschaftlicher Verein [2012] nyr., ECLI:EU:C:2012:453 Georges Erny v Daimler AG – Werk Wörth [2012] nyr., ECLI:EU:C:2012:399 Europese Gemeenschap v Otis NV and Others [2012] nyr., ECLI:EU:C:2012:684 Murat Dereci and Others v Bundesministerium für Inneres [2011] ECR I-11315, ECLI:EU:C:2011:734 Stefano Melloni v Ministerio Fiscal [2013] nyr., ECLI:EU:C:2013:107 Mohamed Aziz v Caixa d´Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa) [2013] nyr., ECLI:EU:C:2013:164 Texdata Software GmbH [2013] nyr., ECLI:EU:C:2013:588 Mark Alemo-Herron and Others v Parkwood Leisure Ldt. [2013] nyr., ECLI:EU:C:2013:521 Gennaro Currà and Others v Bundesrepublik Deutschland [2012] nyr., ECLI:EU:C:2012:465 Andrei Emilian Boncea, Filofteia Catrinel Boncea, Adriana Boboc, Cornelia Mihăilescu (C-483/11), Mariana Budan (C-484/11) v Statul român [2011] ECR I-198, Summary publication Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González [2014] nyr., ECLI:EU:C:2014:317 Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT) [2014] nyr., ECLI:EU:C:2014:2 Digital Rights Ireland v The Minister for Communications, Marine and Natural Resources, The Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána Ireland and The Attorney General (C‑293/12) and Kärntner Landes-regierung, Michael Seitlinger, and Christof Tschohl, Andreas Krisch, Albert Steinhauser, Jana Herwig, Sigrid Maurer, Erich Schweighofer, Hannes Tretter, Scheucher Rechtsanwalt GmbH, Maria Wittmann-Tiwald, Philipp Schmuck, Stefan Prochaska and Others (C‑594/12) [2014] nyr., ECLI:EU:C:2014:238

table of cases

Case C-356/12 Case C-370/12 Case C-390/12 Order in Case C-498/12 Order in Case C-499/12 Case C-562/12 Case C-579/12 RX-II Opinion 2/13

Order in Case C-73/13 Order in Case C-106/13 Case C-198/13

Case C-206/13 Order in Case C-258/13 Case C-265/13 Case C-280/13 Order in Case C-92/14 Order in Case C-199/14

Wolfgang Glatzel v Freistaat Bayern [2014] nyr., ECLI:EU:C:2014:350 Thomas Pringle v Governement of Ireland, Ireland and The Attorney General [2012] ECLI:EU:C:2012:756 Robert Pfleger and Others [2014] nyr., ECLI:EU:C:2014:281 Antonella Pedone v N [2013] nyr., ECLI:EU:C:2013:76 Elisabetta Gentile v Ufficio Finanziario della Direzione Ufficio Territoriale di Tivoli and Others [2012] ECLI:EU:C:2013:77 Liivimaa Lihaveis MTÜ v Eesti-Läti programmi 2007-2013 Seirekomitee [2014] nyr., ECLI:EU:C:2014:2229 European Commission v Guido Starck [2013] nyr., ECLI:EU:C:2013:570 Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, nyr., ECLI:EU:C:2014:2454 T. [2013] nyr., ECLI:EU:C:2013:299 Francesco Fierro and Fabiana Marmorale v Edoardo Ronchi and Cosimo Scocozza [2013] nyr., ECLI:EU:C:2013:357 Víctor Manuel Julian Hernández and Others v Reino de España (Subdelegación del Gobierno de España en Alicante) and Others [2014] nyr., ECLI:EU:C:2014:2055 Cruciano Siragusa v Regione Sicilia [2014] nyr., ECLI:EU:C:2014:126 Sociedade Agrícola e Imobiliária da Quinta de S. Paio Lda v Instituto da Segurança Social IP [2013] nyr., ECLI:EU:C:2013:810 Emiliano Torralbo Marcos v Korota SA and Fondo de Garantía Salarial [2014] nyr., ECLI:EU:C:2014:187 Barclays Bank SA v Sara Sánchez García and Alejandro Chacón Barrera [2014] nyr., ECLI:EU:C:2014:279 Liliana Tudoran and Others v SC Suport Colect SRL [2014] nyr., ECLI:EU:C:2014:2051 János Kárász v Nyugdíjfolyósító Igazgatóság [2014] nyr., ECLI:EU:C:2014:2243

Court of First Instance (CFI) –2009, General Court of the European Union (GCEU) 2009– Case T-7/89 Joined Cases T-466/93, T-469/93, T-473/93, T-474/93 and T-477/93 Case T-115/94 Joined Cases T-125/96 and T-152/96 Case T-112/98 Case T-13/99 Case T-54/99 Case T-191/99

Hercules NV v Commission [1991] ECR II-1711, ECLI:EU:T:1991:75 Thomas O’Dwyer, Thomas Keane, Thomas Cronin and James Reidy v Council of the European Union [1995] ECR II-2071, ECLI:EU:T:1995:136 Opel Austria GmbH v Council of the European Union [1997] ECR II-39, ECLI:EU:T:1997:3 Boehringer Ingelheim Vetmedica GmbH and C.H. Boehringer Sohn v Council of the European Union (T-125/96) and Commission of the European Communities (T-152/96) [1999] ECR II-3427, ECLI:EU:T:1999:302 Mannesmannröhren-Werke AG v Commission of the European Communities [2001] ECR II-729, ECLI:EU:T:2001:61 Pfizer Animal Health SA v Council of the European Union [2002] ECR II-3305, ECLI:EU:T:2002:209 max.mobil Telekommunikation Service GmbH v Commission of the European Communities [2002] ECR II-313, ECLI:EU:T:2002:20 David Petrie, Victoria Jane Primhak, David Verzoni and Others v Commission [2001] ECR II-3677, ECLI:EU:T:2001:284

271

horizontal effect of fundamental rights in eu law

Case T-259/03 Case T-351/03

Kalliopi Nikolaou v Commission [2007] ECR II-99, ECLI:EU:T:2007:254 Schneider Electric SA v Commission of the European Communities [2007] ECR II-2237, ECLI:EU:T:2007:212 Case T-193/04 Hans-Martin Tillack v Commission [2006] ECR II-3995, ECLI:EU:T:2006:292 Case T-412/05 M v European Ombudsman [2008] ECR II-197, ECLI:EU:T:2008:397 General Court (GCEU) 2009– Case T-19/07 Systran SA et Systran Luxembourg SA v Commission [2010] ECR II-6083, ECLI:EU:T:2010:526 Case T-141/08 E.ON Energie AG v European Commission [2010] ECR II-5761, ECLI:EU:T:2010:516

Civil Service Tribunal (CST) Pia Landgren v European Training Foundation (ETF) [2006] FP-I-A-1123; FP-II-A-1-459, ECLI:EU:F:2006:112 Thomas Bleser v Court of Justice of the European Union [2010] nyr., ECLI:EU:F:2010:163

Case F-1/05 Case F-25/07

Opinions of Advocates General (AG) Case 8/55

Case 11/70

Joined Cases 21-24/72

Case 2/74 Case 43/75

Case 118/75 Case 5/88

Case C-169/89

Case C-159/90

Case C-2/92

272

Opinion of Advocate General Lagrange of 25 October 1956 in Fédération Charbonnière de Belgique v High Authority of the European Coal and Steel Community [1956] ECR English special edn. 245 Opinion of Advocate General Dutheillet de Lamothe of 2 December 1970 in Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, ECLI:EU:C:1970:100 Opinion of Advocate General Mayras of 25 October 1972 in International Fruit Company NV and others v Produktschap voor Groenten en Fruit [1972] ECR 1219, ECLI:EU:C:1972:89 Opinion of Advocate General Mayras of 28 May 1974 in Jean Reyners v Belgian State [1974] ECR 631, ECLI:EU:C:1974:59 Opinion of Advocate General Trabucchi of 10 March 1976 in Case Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR 455, ECLI:EU:C:1976:39 Opinion of Advocate General Trabucchi of 2 June 1976 in Lynne Watson and Alessandro Belmann [1976] ECR 1185, ECLI:EU:C:1976:79 Opinion of Advocate General Jacobs of 27 April 1989 in Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, ECLI:EU:C:1989:179 Opinion of Advocate General van Gerven of 20 March 1990 in Criminal proceedings against Gourmetterie Van den Burg [1990] ECR 2143, ECLI:EU:C:1990:124 Opinion of Advocate General van Gerven of 11 June 1991 in The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-4685, ECLI:EU:C:1991:249 Opinion of Advocate General Gulmann of 20 April 1993 in The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Dennis Clifford Bostock [1994] ECR I-955, ECLI:EU:C:1993:141

table of cases

Joined Cases C-92/92 and C-326/92

Case C-128/92

Case C-415/93

Case C-84/95

Case C-274/96 Case C-287/98

Case C-343/98 Case C-377/98

Joined Cases C-122/99P and C-125/99P Case C-173/99

Case C-270/99P Case C-313/99

Case C-340/99

Case C-353/99

Case C-413/99

Case C-459/99

Opinion of Advocate General Jacobs of 30 June 1993 in Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Im- und Export Verwaltungsgesellschaft mbH and Leif Emanuel Kraul v EMI Electrola GmbH [1993] ECR I-5145, ECLI:EU:C:1993:276 Opinion of Advocate General Van Gerven of 27 October 1993 in H. J. Banks & Co. Ltd v British Coal Corporation [1994] ECR I-1209, ECLI:EU:C:1993:860 Opinion of Advocate General Lenz of 20 September 1995 in Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-4921, ECLI:EU:C:1995:293 Opinion of Advocate General Jacobs of 30 April 1996 in Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others [1996] ECR I-3953, ECLI:EU:C:1996:179 Opinion of Advocate General Jacobs of 19 March 1998 in Bickel and Franz [1998] ECR I-7637, ECLI:EU:C:1998:115 Opinion of Advocate General Léger of 19 September 2000 in Grand Duchy of Luxemburg v Berthe Linster, Aloyse Linster and Yvonne Linster [2000] ECR I-6917, ECLI:EU:C:2000:3 Opinion of Advocate General Alber of 18 January 2000 in Collino and Chiappero [2000] ECR I-6659, ECLI:EU:C:2000:23 Opinion of Advocate General Jacobs of 14 June 2001 in Kingdom of the Netherlands v European Parliament and Council of the European Union [2001] ECR I-7079, ECLI:EU:C:2001:329 Opinion of Advocate General Mischo of 22 February 2001 in D and Kingdom of Sweden v Council of the European Union [2001] ECR I-4319, ECLI:EU:C:2001:113 Opinion of Advocate General Tizzano of 8 February 2001 in the Queen v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) [2001] ECR I-4881, ECLI:EU:C:2001:81 Opinion of Advocate General Jacobs of 22 March 2001 in Z v European Parliament [2001] ECR I-9197, ECLI:EU:C:2001:180 Opinion of Advocate General Geelhoed of 12 July 2001 in Gerard Mulligan and Others v Minister for Agriculture and Food, Ireland and Attorney General [2002] ECR I-5719, ECLI:EU:C:2001:409 Opinion of Advocate General Alber of 1 February 2001 in TNT Traco SpA v Poste Italiane SpA and Others [2001] ECR I-4109, ECLI:EU:C:2001:74 Opinion of Advocate General Léger of 10 July 2001 in Council of the European Union v Heidi Hautala [2001] ECR I-9565, ECLI:EU:C:2001:392 Opinion of Advocate General Geelhoed of 5 July 2001 in Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091, ECLI:EU:C:2001:385 Opinion of Advocate General Stix-Hackl of 13 September 2001 in Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) v Belgian State [2002] ECR I-6591, ECLI:EU:C:2001:446

273

horizontal effect of fundamental rights in eu law

Joined Cases C-20/00 and C-64/00

Opinion of Advocate General Mischo of 20 September 2001 in Booker Aquacultur Ltd (C-20/00) and Hydro Seafood GSP Ltd (C-64/00) v The Scottish Ministers [2003] ECR I-7411, ECLI:EU:C:2001:469 Case C-112/00 Opinion of Advocate General Jacobs of 11 July 2002 in Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659, ECLI:EU:C:2002:437 Case C-109/01 Opinion of Advocate General Geelhoed of 27 February 2003 in Secretary of State for the Home Department v Hacene Akrich [2003] ECR I-9607, ECLI:EU:C:2003:112 Joined Cases C-397/01 to Opinion of Advocate General Ruiz-Jarabo Colomer of 6 May 2003 in C-403/01 Pfeiffer and Others [2004] ECR I-8835, ECLI:EU:C:2003:245 Case C-36/02 Opinion of Advocate General Stix-Hackl of 18 March 2004 in Omega Spielhallen- und Automatenaufstellung-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609, ECLI:EU:C:2004:162 Joined CasesC-387/02, Opinion of Advocate General Kokott of 14 October 2004 in CrimiC-391/02 and C-403/02 nal proceedings against Silvio Berlusconi (C-387/02), Sergio Adelchi (C-391/02) and Marcello Dell’Utri and Others (C-403/02) [2005] I-3565, ECLI:EU:C:2004:624 Case C-181/03P Opinion of Advocate General Poiares Maduro of 29 June 2004 in Albert Nardone v Commission of the European Communities [2004] ECR I-199, ECLI:EU:C:2004:397 Case C-438/05 Opinion of Advocate General Poiares Maduro of 23 May 2007 in International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779, ECLI:EU:C:2007:292 Case C-80/06 Opinion of Advocate General Trstenjak of 29 March 2007 in Carp Snc di L. Moleri e V. Corsi v Ecorad Srl. [2007] ECR I-4473, ECLI:EU:C:2007:200 Case C-427/06 Opinion of Advocate General Sharpston of 22 May 2008 in Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH [2008] ECR I-7245, ECLI:EU:C:2008:297 Case C-94/07 Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV.[2008] I-5939, ECLI:EU:C:2008:425 Case C-213/07 Opinion of Advocate General Poiares Maduro of 8 October 2008 in Michaniki AE v Ethniko Symvoulio Radiotileorasis and Ypourgos Epikrateias [2008] ECR I-9999, ECLI:EU:C:2008:544 Case C-555/07 Opinion of Advocate General Bot of 7 July 2009 in Seda Kücükdeveci [2010] ECR I-365, ECLI:EU:C:2009:429 Case C-58/08 Opinion of Advocate General Poiares Maduro of 1 October 2009 in The Queen, on the application of Vodafone Ltd and Others v Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-4999, ECLI:EU:C:2009:596 Case C-271/08 Opinion of Advocate General Trstenjak of 14 April 2010 in European Commission v Federal Republic of Germany [2010] ECR I-7091, ECLI:EU:C:2010:183 Case C-393/08 Opinion of Advocate General Jääskinen of 11 March 2010 in Emanuela Sbarigia v Azienda USL RM/A in the presence of: Comune di Roma, Assiprofar (Associazione Sindacale Proprietari Farmacia), Ordine dei Farmacisti della Provincia di Roma [2010] ECR I-6337, ECLI:EU:C:2010:134

274

table of cases

Case C-439/08

Case C-34/09

Joined Cases C-92/09 and C-93/09 Case C-104/09

Case C-34/10 Case C-108/10

Case C-282/10

Joined Cases C-411/10 and C-493/10 Case C-489/10 Case C-617/10 Case C-396/11

Case C-399/11 Case C-176/12

Joined Cases C-293/12 and C-594/12

Case C-390/12 Opinion 2/13

Opinion of Advocate General Mengozzi of 25 March 2010 in Vlaamse federatie van verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers (VEBIC) VZW [2010] ECR I-12471, ECLI:EU:C:2010:166 Opinion of Advocate General Sharpston of 30 September 2010 in Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] ECR I-1177, ECLI:EU:C:2010:560 Opinion of Advocate General Sharpston of 17 June 2010 in Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v Land Hessen [2010] ECR I-11063, ECLI:EU:C:2010:353 Opinion of Advocate General Kokott of 6 May 2010 in Pedro Manuel Roca Álvarez v Sesa Start España ETT SA [2001] ECR I-8661, ECLI:EU:C:2010:254 Opinion of Advocate General Bot of 10 March 2011 in Oliver Brüstle v Greenpeace eV. [2011] ECR I-9821, ECLI:EU:C:2011:138 Opinion of Advocate General Bot of 5 April 2011 in Ivana Scattolon v Ministero dell’Istruzione, dell’Università e della Ricerca [2011] ECR I-7491, ECLI:EU:C:2011:211 Opinion of Advocate General Trstenjak of 8 September 2011 in Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre [2012] ECLI:EU:C:2011:559 Opinion of Advocate General Trstenjak of 22 September 2011 in N. S. v Secretary of State for the Home Department [2011] ECR I-13905, ECLI:EU:C:2011:610 Opinion of Advocate General Kokott of 15 December 2011 in Łukasz Marcin Bonda [2012] nyr., ECLI:EU:C:2011:845 Opinion of Advocate General Cruz Villalón of 12 June 2013 in Åklagaren v Hans Åkerberg Fransson [2013] nyr., ECLI:EU:C:2012:340 Opinion of Advocate General Sharpston of 18 October 2012 in Ministerul Public-Parchetul de pe lângă Curtea de Apel Constanţa v Ciprian Vasile Radu [2013] nyr., ECLI:EU:C:2012:648 Opinion of Advocate General Bot of 2 October 2012 in Stefano Melloni v Ministerio Fiscal [2013] nyr., ECLI:EU:C:2012:600 Opinion of Advocate General Cruz Villalón of 18 July 2013 in Association de mediation sociale v Union locale des sudicats CGT, Hichem Lboubi, Union départementale CGT des Bouches-du-Rhône, Confédération generale du travail (CGT) [2013] nyr., ECLI:EU:C:2013:491 Opinion of Advocate General Cruz Villalón of 12 December 2013 in Digital Rights Ireland Ltd v The Minister for Communications, Marine and Natural Resources, The Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána Ireland and The Attorney General (C‑293/12) and Kärntner Landesregierung, Michael Seitlinger, and Christof Tschohl, Andreas Krisch, Albert Steinhauser, Jana Herwig, Sigrid Maurer, Erich Schweighofer, Hannes Tretter, Scheucher Rechtsanwalt GmbH, Maria Wittmann-Tiwald, Philipp Schmuck, Stefan Proch-aska and Others (C‑594/12) [2013] nyr., ECLI:EU:C:2013:845 Opinion of Advocate General Sharpston of 14 November 2013 in Robert Pfleger and Others [2013] nyr., ECLI:EU:C:2013:747 View of Advocate General Kokott of 13 June 2014 in Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2475

275

horizontal effect of fundamental rights in eu law

European Court on Human Rights Neumeister v. Austria, no. 1936/63, 27 June 1968, Series A no. 8 Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (‘Belgian Linguistic case’), nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, 23 July 1968, Series A no. 6 Confédération Française Démocratique du Travail (CFDT) v. European Communities, no. 8030/77, 10 July 1978, Decisions and Reports 13, p. 236 Marckx v. Belgium, no. 6833/74, 13 June 1979, Series A no. 31 Airey v. Ireland, no. 6289/73, 9 October 1979, Series A no. 32 X and Y v. Netherlands, no. 8978/80, 16 March 1985, Series A no. 91 Lopez Ostra v. Spain, no. 16798/90, 9 December 1994, Series A no. 303-C Guerra and Others v. Italy [GC], no. 14967/89, 19 February 1998, Reports 1998-I Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, 29 April 1999, ECHR 1999-III Hatton & Others v. the United Kingdom, no. 36022/97, 20 October 2001 (Referred to the Grand Chamber, which delivered its judgment in the case on 8 July 2003, ECHR 2003-VIII) Fogarty v. the United Kingdom, no. 37112/97, 21 November 2001, ECHR 2001-XI Stafford v. the United Kingdom [GC], no. 46295/99, 28 May 2002, ECHR 2002-IV Goodwin v. the United Kingdom [GC], no. 28957/95, 11 July 2002, ECHR 2002-VI Von Hannover v. Germany, no. 59320/00, 24 June 2004, ECHR 2004-VI Moreno Gómez v. Spain, no. 4143/02, 16 November 2004, ECHR 2004-X Öneryildiz v. Turkey, no. 48939/99, 30 November 2004, ECHR 2004-XII Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, no. 45036/98, 30 June 2005, ECHR 2005-VI Khurshid Mustafa and Tarzibachi v. Sweden, no. 23883/06, 16 December 2008, hudoc M.S.S. v. Belgium and Greece, no. 30696/09, 21 January 2011, hudoc Dhabi v. Italy, no. 17120/09, 8 April 2014, hudoc

European Commission of Human Rights –1998 Kahn v. Germany, no. 235/56, Commission decision of 10 June 1958, Yearbook 2, p. 256 Ian Nimmo v. United Kingdom, no. 12327/86, Commission decision of 11 October 1988, Decisions and Reports 58, p. 85 Dufay v. European Communities, no. 13539/88, Commission decision of 19 January 1989 Scientology Kirche Deutschland e.V. v. Germany (dec.), no. 34614/97, Commission decision (Plenary) of 7 April 1997

Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos) Velásquez Rodríguez v. Honduras, Judgment of July 29, 1988 Blake v. Guatemala, Judgment of January 24, 1998 Comunidad de Paz de San José de Apartadó (regarding Columbia), Order of June 18, 2002 Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18 of September 17, 2003 Myrna Mack Chang v. Guatemala, Judgment of November 25, 2003 Pueblo Indígena Kankuamo v. Colombia, Order of the President of June 7, 2011 Hermanos Gómez Paquiyauri v. Peru, Judgment of July 8, 2004 Institute de Reeducación del Menor v. Paraguay, Judgment of September 2, 2004

276

table of cases

National Courts Canada Supreme Court Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., (1986) 2 SCR 573 R. v. Salituro, (1991) 3 SCR 654 Dagenais v. Canadian Broadcasting Co., (1994) 3 SCR 835 Hill v. Church of Scientology, (1995) 2 SCR 1130 Peter Grant v. Torstar Corporation, (2009) SCC 61 Czech Republic Constitutional Court (Ústavni Soud) Pl. ÚS 19/08, Treaty of Lisbon I, 26.11.2008, No. 446/2008 Finland Supreme Court (Korkein oikeus) KKO 2004:26, 25 March 2004 (diaarinumero M2000/36) Supreme Administrative Court (Korkein hallinto-oikeus) KHO 2008:25, 22 April 2008, (diaarinumero 3705/2/06) Administrative Court of Helsinki (Helsingin hallinto-oikeus) HAO 9.10.2006, T:06/1410/1 Insurance Court (Vakuutusoikeus) VakO 6254:2005, 24.10.2006 Germany Federal Constitutional Court (Bundesverfassungsgericht) BVerfGE 7, 198; 15 January 1958 (Lüth) BVerfGE 37, 271; 2 BvL 52/71; 29 May 1974 (Solange I) BVerfGE 73, 339; 2 BvR 197/83; 22 October 1986 (Solange II) BVerfGE 81, 242; 7 February 1990 (Handelsvertreter) BVerfGE 89, 155; 2 BvR 2134/92; 2 BvR 2159/92; 12 October 1993 (Maastricht decision) BVerfGE 89, 214; 19 October 1993 (Bürgschaft) BVerfG, 2 BvE 2/08; 30 June 2009 (Lissabon judgment) BVerfG, 2 BvR 2661/06; 6 July 2010 (Mangold judgment) Federal Labour Court (Bundesarbeitsgericht) BAG, 3 December 1954, BAGE 1, 185 BAG, 27 May 1986, BAGE 52, 88 BAG, 11 March 1998, BAGE 88, 118 Federal Court of Justice (Bundesgerichtshof ) BGH, 26 June 1952, BGHZ 6, 360 (Schutz der Ehewohnung gegen Geliebte) BGH, 25 May 1954, BGHZ 13, 334 (Schacht) Greece Supreme Court (Areios Pagos) Decision 8/2008 Decision 17/2009 Court of Appeals of Athens (Efetio Athinon) Decision 8700/1982 Court of First Instance of Thessaloniki Decision 9069/2005

277

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Ireland Supreme Court (Chúirt Uachtarach na Héireann) Educational Co. Ltd. v. Fitzpatrick (No 2) [1961] IR 345 Murtagh Properties v. Cleary [1972] IR 330 Meskell v. CIE [1973] IR 121 Glover v. BLN Ltd. [1973] IR 388 P.Hosford v. John Murphy & Sons [1987] IR 621 Parson v. Kavanagh [1990] ILRM 560 Lovett v. Gogan [1995] ILRM 12 Italy Court of Cassation (Corte Suprema di Cassazione) Civil Section I, 7 June 2000, judgment no. 7713 Civil Section II, 24 April 2007, judgment no. 8961 Civil Section II, 15 April 2009, judgment no. 8941 Netherlands Supreme Court (Hoge Raad) Van Lanschot Bankiers v. Bink, HR 1 June 1990, NJ 1991, 759 South Africa Constitutional Court Du Plessis v. De Klerk, 1996 (3) SA 850 Carmichele v. Minister of Safety and Security, 2001 (4) SA 938 Khumalo and Others v. Holomisa, 2002 (5) SA 401 Supreme Court of Appeal Napier v. Barkhuizen (569/2004) 2005 ZASCA 119 Bophuthatswana Supreme Court Baloro v. University of Bophuthatswana, 1995 (4) SA 197 Durban and Coast Local Division of the Supreme Court Motala v. University of Natal, 1995 (3) BCLR 374 (D) Eastern Cape Division of the Supreme Court Gardener v. Whitaker, 1994 BCLR 19 (E) Witwatersrand Division of the Supreme Court Mandela v. Falati, 1994 (4) BCLR I (W) Holomisa v. Argus Newspapers, 1996 (2) SA 588 Spain Constitutional Court (Tribunal Constitucional de España) Melloni (STC 26/2014), of 13.2.2014 Declaration on the European Constitution (DTC 1/2004), of 13.12.2004 United Kingdom House of Lords Bulmer v. Bollinger [1974] 2 All ER 1226 Council of Civil Service Unions v. Minister for the Civil Service [1983] UKHL 6 Barclays’ Bank plc v. O’Brien [1994] 1 AC 180 Douglas v. Hello! Ltd (No. 1) [2001] QB 967; [2001] 2 WLR 992; 2 All ER 289 (No. 2) [2003] EWHC 786; (No. 3) [2005] EWCA Civ 595, [2006] QB 125 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; [2004] 2 AC 457; [2004] 2 WLR 1232; [2004] 2 All ER 995

278

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Court of Appeal (England and Wales) Associated Provincial Picture Houses v. Wednesbury Corporation [1947] EWCA Civ 1, [1948] 1 K.B. 223 Employment Appeal Tribunal Whent v T Cartledge Ltd [1997] IRLR 153 United States of America Supreme Court Marbury v. Madison, 5 U.S. (1 Cranch) 136 (1803) Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253 (1829) United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833) Edye v. Robertson, 112 U.S. 580 (1884) Shelley v. Kraemer, 334 U.S. 1 (1948) Brown v. Board of Education, 347 U.S. 483 (1954) Black v. Cutter Laboratories, 351 U.S. 292 (1956) New York Times v. Sullivan, 376 U.S. 254 (1964) Evans v. Newton, 382 U.S. 296 (1970) United States v. Postal, 589 F.2d 862, 875 U.S. Court of Appeals, (5th Cir.1979), cert. denied, 444 V8 832 Lugar v. Edmondson Oil, 457 U.S. 922 (1982) National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 191 (1988) Linder v. Portocarrero, 747 F. Supp. 1452, 1463 (S.D. Fla 1990) United States v. Morrison, 529 U.S. 598, 622 (2000) Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295 (2001) Hoffmann Plastic Compounds v. National Labor Relations Board, 535 U.S. 137 (2002)

279

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Treaties (Chronological Order) Treaty establishing the European Coal and Steel Community (ECSC), signed in Paris on 18 April 1951. Treaty establishing the European Economic Community (EEC), signed in Rome on 25 March 1957. Treaty establishing the European Atomic Energy Community (EAEC), signed in Rome on 25 March 1957, and its consolidated version, OJ C 327, 26.10.2012. Convention on certain institutions common to the European Communities, signed in Rome on 25 March 1957. Accord créant une association entre la Communauté économique européenne et la Grèce (‘Agreement establishing an Association between the European Economic Community and Greece’), JO P 26, 18.2.1963, p. 294 (OJ L 26, 18.2.1963, p. 294). Treaty establishing a Single Council and a Single Commission of the European Communities (‘the Merger Treaty’), signed on 8 April 1967, OJ 152, 13.7.1967, p. 1-22. Single European Act, signed in Luxembourg on 28 February 1986, OJ L 169, 29.6.1987. Treaty on European Union (Maastricht Treaty), OJ C 191, 29 July 1992 and its consolidated version, OJ C 325, 24.12.2002. Treaty of Amsterdam, OJ C 340, 10.11.1997. Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, OJ C 80, 10.3.2001, p. 1-87. Treaty establishing a Constitution for Europe, OJ C 310, 16.12.2004, p. 1-474. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306, 17.12.2007. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012. Charter of Fundamental Rights of the European Union, OJ C 83, 30.3.2010 and as amended OJ C 326, 26.10.2012, p. 391-407. The Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p. 17-35. Protocol on the concerns of the Irish people on the Treaty of Lisbon, OJ L 60, 2.3.2013, p. 131139.

Regulations Regulation 17/62

EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty, OJ 13, 21.2.1962, p. 204-211. English Special Edition: Series I Volume 1959-1962, p. 87-93. Règlement n° 19 portant établissement gradual d’une organisation commune des marchés dans le secteur des céréals, JO 30 du 20.4.1962, p. 933-943. (An official version available only in German, French, Italian and Dutch languages.) Regulation (EEC) No 120/67/EEC of the Council of 13 June 1967 on the common organization of the market in cereals, OJ 117, 19.6.1967, p. 2269-2283. English Special Edition, Series I Volume 1967, p. 33-45. Règlement n° 473/67/CEE de la Commission, du 21 août 1967, relatif aux certificats d’importation et d’exportation pour les céréales, les produits transformés à base de céréales, le riz, les brisures et les produits transformés à base de riz, JO 204, 24.8.1967, p. 16-20. (An official version available only in German, French, Italian and Dutch languages.)

Regulation 19/62

Regulation 120/67

Regulation 473/67

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Regulation 950/68

Regulation 1612/68

Regulation 543/69

Regulation 2603/69

Regulation 816/70

Regulation 1257/96 Regulation 2821/98

Regulation 467/2001

Regulation 1049/2001

Regulation 881/2002

Regulation 1889/2006

Regulation 168/2007

Regulation (EEC) No 950/68 of the Council of 28 June 1968 on the common customs tariff, OJ L 172, 22.7.1968, p. 1-402. English special edition: Series I Volume 1968(I), p. 275-276. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, OJ L 257, 19.10.1968, p. 2-12. English special edition: Series I Volume 1968(II) p. 475-484. Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonisation of certain social legislation relating to road transport, OJ L 77, 29.3.1969, p. 49-60. English special edition: Series I Volume 1969(I), p. 170-181. Regulation (EEC) No 2603/69 of the Council of 20 December 1969 establishing common rules for exports, OJ L 324, 27.12.1969, p. 25-33. English special edition: Series I Volume 1969(II), p. 590-597. Regulation (EEC) No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organisation of the market in wine, OJ L 99, 5.5.1970, p. 1-19. English special edition: Series I Volume 1970(I), p. 234-251. Council Regulation (EC) No 1257/96 of 20 June 1996 concerning humanitarian aid, OJ L 163, 2.7.1996, p. 1-6. Council Regulation (EC) No 2821/98 of 17 December 1998 amending, as regards withdrawal of the authorisation of certain antibiotics, Directive 70/524/EEC concerning additives in feedingstuffs, OJ L 351, 29.12.1998, p. 4-8. Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000, OJ L 67, 9.3.2001, p. 1-23. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43-48. Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the AlQaeda network and the Taliban, OJ L 139, 29.5.2002, p. 9-22. Regulation (EC) No 1889/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a financing instrument for the promotion of democracy and human rights worldwide, OJ L 386, 29.12.2006, p. 1-11. Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ L 53, 22.2.2007, p. 1-14.

283

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Directives Directive 67/548

Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, OJ 196, 16.8.1967, p. 1-98, English special edition: Series I Volume 1967, p. 234-256. Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, OJ L 45, 19.2.1975, p. 19-20. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95, 21.04.1993, p. 29-34. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16-22. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3.10.2003, p. 12-18. Directive 2004/38/EC of the European parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/ EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC, OJ L 158, 30.4.2004, p. 77-123. Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, OJ L 347, 11.12.2006, p. 1.

Directive 75/117

Directive 93/13 Directive 2000/78

Directive 2003/86 Directive 2004/38

Directive 2006/112

Decisions Decision 69/71/EEC

Decision 69/244/CEE

Council Framework Decision 2002/584/JHA

Council Decision 2008/203/EC

284

Décision de la Commission, du 12 février 1969, relative aux mesures permettant à certaines catégories de consommateurs d’acheter du beurre à prix réduit, JO L 52 du 3.3.1969, p. 9-10. (An official version available only in French, German, Italian and Dutch languages). Décision de la Commission, du 29 juillet 1969, modifiant la décision de la Commission, du 12 février 1969, relative aux mesures permettant à certaines catégories de consommateurs d’acheter du beurre à prix réduit, JO L 200 du 9.8.1969, p. 29-30. (An official version available only in French, German, Italian and Dutch languages). Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ L190, 18.7.2002, p. 1. Council Decision 2008/203/EC of 28 February 2008 implementing Council Regulation (EC) No 168/2007 as regards the adoption of a Multi-annual Framework (MAF) for the Fundamental Rights Agency for 2007-2012, OJ L 63, 7.3.2008, p. 14.

table of legislation

Council Framework Decision 2009/299/JHA

Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/ JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial set out the grounds for refusing to execute a European arrest warrant where the person concerned did not appear in person at his trial, OJ L 81, 27.3.2009, p. 24-36.

Notices, Guidelines and Other Informal Texts European Union Agency for Fundamental Rights European Union Agency for Fundamental Rights, Annual Report 2012, Fundamental rights: challenges and achievements in 2012. Luxembourg: Publication Office of the European Union, 2013. Council of the European Union Council Resolution of 28 May 1969 drawing up a programme for the elimination of technical barriers to trade in industrial products which result from disparities between the provisions laid down by law, Regulation or Administrative action in Members States, OJ C 76, 1969, p. 1. Report on European Institutions, presented by the Committee of Three to the European Council (October 1979). Presidency Conclusions of the Cologne European Council, 3-4 June 1999. Presidency Conclusions of the Tampere European Council, 15-16 October 1999. Presidency Conclusions of the Nice Council Meeting, 7-9 December 2000. European Commission First Summit Conference of the Enlarged Community, Bulletin of the European Communities, EC 10-1972, 9. Report on European Union; Bulletin of the European Communities, Supplement 5/75. Report on European Union; Bulletin of the European Communities, Supplement 1/1976, pp. 11-35; (“The Tindemans Report” of 29 December 1975). Report on the Application of the EU Charter of Fundamental Rights 2014, COM(2015) 191 final, 8.5.2015 Joint Declaration of 5 April 1977 by the European Parliament, the Council and the Commission concerning the protection of fundamental rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, OJ C 103, 27.4.1977, p. 1. For a Europe of civic and social rights, Report by the Comité des Sages, OPEC, 1996. Affirming Fundamental Rights in the European Union – Time to Act, Report of the Expert Group on Fundamental Rights, (European Commission. Employment, Industrial Relations and Social Affairs, Brussels, February 1999). Commission Communication on the Charter of Fundamental rights of the European Union, 13.9.2000, COM(2000)0559 final. Communication on the Legal Nature of the Charter of Fundamental Rights of the Union, 11.10.2000, COM(2000)644 final. Commission Proposal for a Directive of the European Parliament and of the Council on Consumer Rights, 8.10.2008, COM(2008)614 final. Communication from the Commission – Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, 19.10.2010, COM(2010)0573 final. European Parliament

285

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Joint Declaration of 5 April 1977 by the European Parliament, the Council and the Commission on the protection of fundamental rights, OJ C 103, 27.04.1977, p. 1. Resolution on the granting of special rights to be citizens of the European Community in implementation of the decision of the Paris Summit of December 1974, OJ C 299, 12.12.1977. Resolution adopting the Declaration of fundamental rights and freedoms (De Gucht report) of 12 April 1989 (A2-3/89, OJ C 120, 16.05.1989). Resolution on the Community Charter of Fundamental Social Rights of 22 November 1989 (A369/89, OJ C 323, 27.12.1989). Resolution on the Principle of Subsidiarity, OJ C 231, 17.9.1990, p. 163. Résolution sur les Conférences intergouvernementales dans le cadre de la stratégie du Parlement européen pour l’Union européen du 22.11.1990 (A3-270/90, JO C 324 du 24.12.1990). Résolution sur la citoyenneté communautaire (A3-129/91, JO C 183 du 14.06.1991). Resolution on the Constitution of the European Union (Herman report) of 10 February 1994 (A3-0064/94, OJ C 61 of 28.02.1994). Resolution on the establishment of the Charter of Fundamental Rights (B5-0110/1999, OJ C 54, 25.2.2000, p. 93). Resolution on the drafting of a European Union Charter of Fundamental Rights (Duff-Voggenhuber report) of 16 March 2000 (A5-0064/2000, OJ C 277, 29.12.2000, p. 329).

Drafting Documents of the Charter of Fundamental Rights of the European Union Record of the first meeting of the Body to draw up the Charter of Fundamental Rights of the European Union (CHARTE 4105/00, Body 1, Brussels, 17 December 1999, pp. 1-27). First meeting of the Praesidium, Outcome of proceedings (CHARTE 4107/00, Body 2, Brussels, 17 January 2000, pp. 1-5). Draft Charter of Fundamental Rights of the European Union – Horizontal questions (CHARTE 4111/00, Body 3, Brussels, 20 January 2000, pp. 1-7). Draft Charter of Fundamental Rights of the European Union. The texts adopted by the Parliamentary Assembly of the Council of Europe on 25 January 2000 (CHARTE 4115/00, Contrib. 11, Brussels, 28 January 2000, pp. 1-6). Draft Charter of Fundamental Rights of the European Union − Draft articles (CHARTE 4123/1/00, Rev 1, Convent 5, Brussels, 15 February 2000, pp. 1-11). Draft Charter of Fundamental Rights of the European Union. The text of the statement by the Council of Europe’s Mr Marc Fischbach at the meeting of the Convention on 24 February 2000 attached (CHARTE 4139/00, Contrib. 31, Brussels, 28 February 2000, pp. 1-4). Draft Charter of Fundamental Rights of the European Union. The observations by Mr Fischbach and Mr. Krüger to the document Charte 4149/00 Convent 13 (CHARTE 4178/00, Contrib. 61, Brussels, 28 March 2000, pp. 1-3). Draft Charter of Fundamental Rights in the European Union − Horizontal clauses (CHARTE 4235/00, Convent 27, Brussels, 18 April 2000, pp. 1-4). Draft Charter of Fundamental Rights of the European Union. A Common Statement of the Platform of European Social NGOs and the European Trade Union Confederation (ETUC) participating in the public hearing on 27 April 2000 (CHARTE 4286/00, Contrib. 158, Brussels, 12 May 2000, pp. 1-4). Draft Charter of Fundamental Rights of the European Union. The position and the statement by the Amnesty International presented at the hearing on 27 April 2000 (CHARTE 4290/00, Contrib. 162, Brussels, 12 May 2000, pp. 1-19). Draft Charter of Fundamental Rights of the European Union – Summary of amendments presented by the Praesidium (Reference document: CHARTE 4284/00 Convent 28) (CHARTE 4360/00, Convent 37, Brussels, 14 June 2000, pp. 1-45).

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Draft Charter of Fundamental Rights of the European Union – Amendments submitted by the members of the Convention regarding social rights and the horizontal clauses (CHARTE 4372/00, Convent 39, Brussels, 16 June 2000, pp. 1-484). Draft Charter of Fundamental Rights of the European Union − Audition of the candidate countries on 19 June 2000 (CHARTE 4374/00, Contrib. 234, Brussels, 21 June 2000, pp. 1-6). Draft Charter of Fundamental Rights of the European Union – Compromise proposal submitted by the Praesidium for Articles 31 to 40 (social rights and horizontal clauses) (CHARTE 4373/00, Convent 40, Brussels, 23 June 2000, pp. 1-5). Draft Charter of Fundamental Rights of the European Union – Summary of amendments received and of Praesidium compromise amendments on economic and social rights and on the horizontal clauses (Articles 31 to 50) (CHARTE 4383/00, Convent 41, Brussels, 3 July 2000, pp. 1-30). Draft Charter of Fundamental Rights of the European Union. The text of the intervention made by Mr. Marc Fischbach, observer of the Council of Europe, in the debate on the horizontal provision (CHARTE 4411/00, Contrib. 268, Brussels, 13 July 2000, pp. 1-4). Draft Charter of Fundamental Rights of the European Union – Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4422/00 Convent 45 (CHARTE 4423/00, Convent 46, Brussels, 31 July 2000, pp. 1-37). Draft Charter of Fundamental Rights of the European Union – Complete text of the Charter proposed by the Praesidium following the meeting held from 11 to 13 September 2000 and based on CHARTE 4422/00 Convent 45 (CHARTE 4470/00, Convent 47, Brussels, 14 September 2000, pp. 1-18; and CHARTE 4470/00, Cor 1, Convent 47, Brussels, 20 September 2000, p. 1). Draft Charter of Fundamental Rights of the European Union – Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 Convent 50 (CHARTE 4473/00, Convent 49, Brussels, 11 October 2000, pp. 1-51). Draft Charter of Fundamental Rights of the European Union. The Comments of the Council of Europe observers on the draft Charter (CHARTE 4961/00, Contrib. 356, Brussels, 13 November 2000, pp. 1-4).

International Treaties, Conventions and Agreements International Convention respecting the Prohibition of Night Work for Women in Industrial Employment, signed at Berne on 26 September 1906 The Constitution of the International Labour Organisation (ILO), the original text of the Constitution established in 1919 with later amendments The Charter of the United Nations signed at San Francisco on 26 June 1945 The Statute of the International Court of Justice (annexed to the Charter of the United Nations, of which it forms an integral part), signed at San Francisco on 26 June 1945 The Universal Declaration of Human Rights (UDHR) proclaimed by the United Nations General Assembly in Paris on 10 December 1948 Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights, ‘ECHR’), signed in Rome on 4 November 1950, as amended by Protocols Nos. 11 and 14. European Council of Europe Treaty Series, No. 5 International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 and entered into force on 3 January 1976 International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 and entered into force on 23 March 1976 The Vienna Convention on the Law of Treaties, adopted on 22 May 1969, opened for signature on 23 May 1969 and entered into force on 27 January 1980

287

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National Legislation Canada Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Finland Perustuslaki (Constitution of Finland of 11 June 1999, 731/1999, amendments up to 1112/2011 included) Constitutional Law Committee, ‘Perustuslakivaliokunnan mietintö n:o 25 hallituksen esityksestä perustuslakien perusoikeussäännösten muuttamisesta’, PeVM 25/1994 vp Germany Bürgerliches Gesetzbuch, ‘BGB’ (German Civil Code) Grundgesetz (German Basic Law) Erläuteringen der Bundesregierung (1957) Bundestags-Druksache No. 3440 (2. Legislaturperiode) Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen, AGB-Gesetz, (1977) (Standard Contract Terms Act) Greece The Greek Civil Code of 1946 The Constitution of Greece (Σύνταγμα / Sýntagma) by the Fifth Revisional Parliament of the Hellenes 1975 and revised most significantly in the years 1986, 2001 and 2008 South Africa Constitution of the Republic of South Africa, Act 108 of 1996 Sweden Regeringsformen (‘The Instrument of Government’), (1974:152, amendments up to SFS 2014:1385) United Kingdom Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 1981 SI 1981/1794 and TUPE Regulations 2006 SI 2006/246

288