ICEL ESSAY COMPETITION WINNER 2015
Ciaran Donohue
Horizontality and the Charter: Recent Developments
INTRODUCTION
The horizontal effect of the EU Charter of Fundamental Rights1 has been among the most
contested issues surrounding the Charter since its entry into force in 2009. Recent case law of
both national2 and EU3 courts adds a further layer of complication to the existing thicket of
doctrine and principle on the horizontal effect of Directives and general principles of EU law.
For many, Article 51(1) of the Charter, which limits its scope of application to the EU ‘and the
Member States only when they are implementing Union law’, confines the Charter’s
application to ‘vertical’ situations.4 However, it is now apparent that fundamental rights can
be invoked to effect the set aside of national law in private disputes.5 This approach owes its
origins to the infamous Mangold6 line of case law. The purpose of this essay is to consider
how and when Mangold will apply to the Charter in light of the CJEU’s recent ruling in AMS,7
and offer a critique of the latter ruling. The essay will also examine the striking interpretation
of AMS at national level, in recent decisions of the UK Court of Appeal. It is argued that the
CJEU’s approach to the horizontal effect of Charter rights deprives private parties and national
courts of any certainty as to when such effects will arise, and fails to appreciate the legal and
political importance of the issue. In demarcating the reach of the Charter into individuals’
private relations, horizontal effect touches on sensitive issues such as the balance of
competence between the Member States and the Union, the much-disputed status of the
Charter, and the role of the EU’s rapidly developing fundamental rights regime.
1
Charter of Fundamental Rights of the European Union [2010] OJ C83/02.
Benkharbouche v Embassy of Sudan [2015] EWCA Civ 33.
3
Case C-176/12 Association de Médiation Sociale ECLI:EU:C:2014:2.
4
See, for example, Opinion of Advocate General Trstenjak in Case C-282/10 Dominguez
ECLI:EU:C:2011:559 paras 80-83.
5
Case C-176/12 Association de Médiation Sociale, note 3 supra.
6
Case C-144/04 Mangold ECLI:EU:C:2005:709.
7
Case C-176/12 AMS, note 3 supra.
2
HORIZONTAL EFFECT OF GENERAL PRINCIPLES AND FUNDAMENTAL RIGHTS: FROM
MANGOLD TO AMS
Mangold and Kücükdeveci
The rulings in Mangold and Kücükdeveci8 are well-known and require only brief recollection.
Both concerned private (employment) disputes, where the Court instructed national courts
to disapply provisions of national law that were incompatible with a general principle of EU
law, ‘given expression’9 by an EU Directive,10 in order to give ‘full effect’ to that principle.11
The general principle at issue was the prohibition of age discrimination. While both cases dealt
with the prohibition as a general principle, Kücükdeveci places the Charter at the centre of the
Court’s reasoning, by noting that the TEU gives the Charter the same legal value as the Treaties,
and that Article 21 of the Charter enshrines the principle of non-discrimination.12
Most commentators were witheringly critical of Mangold and Kücükdeveci.13 It was opined
that the Court had undermined the purpose of direct effect and the sacred rule against the
horizontal effect of Directives.14 Furthermore, it was feared that the approach infringed the
general principle of legal certainty15 and that the use of secondary law (Directives) to identify
the content of primary law (general principles) risked confusing their distinct status.16
Horizontality and the Charter
The entry into force of the Charter sparked considerable debate concerning the possible
relevance of Mangold to Charter rights. The Court directly addressed the issue in AMS.17 The
case involved French legislation which was incompatible with Directive 2002/14 18 as it
8
Case C-555/07 Kücükdeveci ECLI:EU:C:2010:21.
Case C-144/04 Mangold, note 6 supra, para 43.
10
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation [2000] OJ L303/16.
11
Case C-555/07 Kücükdeveci, note 11 supra, para 51.
12
Ibid, para 20.
13
Editorial Comments: Horizontal Direct Effect – A law of Diminishing Coherence?', (2006) 43(1)
Common Market Law Review 1.
14
Opinion of Advocate General Sharpston in Case C-427/06 Bartsch ECLI:EU:C:2008:517 para 31.
15
Opinion of Advocate General Trstenjak in Case C-282/10 Dominguez, note 5 supra, para 164.
16
Ibid, at 157.
17
Case C-176/12 AMS, note 3 supra.
18
Directive 2002/14/EC establishing a general framework for informing and consulting employees in
the European Community [2002] OJ L80/29.
9
excluded certain employees from calculation of the requisite number of employees necessary
for the right to representation to accrue.19 The relevant Charter right was Article 27, which
guarantees workers’ right to information and consultation. The Court recognised that, since it
was impossible to interpret the national law in conformity with the Directive, it was necessary
to ascertain whether the Court was faced with a situation such as that which arose in
Kücükdeveci.20 The Court quickly distinguished Kücükdeveci, by stating simply that it was not
possible to infer from Article 27 a prohibition of the offending national legislative rule. It
specified that in Kücükdeveci, Article 21 was, unlike Article 27, ‘sufficient in itself to confer on
individuals an individual right which they may invoke as such.’21
While the judgment in AMS is far from satisfying, one important matter has been clarified. In
distinguishing Kücükdeveci, the Court unequivocally confirmed that Charter rights are capable
of having the same ‘exclusionary’ effect as the general principle of non-discrimination on the
grounds of age. Nevertheless, the ruling clearly seeks to restrict and redefine the contours of
the Mangold case law. Mangold and Kücükdeveci involved considerable interaction between
the general principle and Directive 2000/78. The general principle could be invoked because
it had been given ‘specific expression’ in a Directive. The Court endorses this in AMS, only to
contradict itself by stating that the specific condition concerning application of the right to a
given situation should be inferable from the right itself.22 It now seems that both Directive and
Charter right must specifically preclude the national rule. However, if the innovative character
of Mangold was the combined use of the Directive to identify the specific content of the right,
then why must the right now itself apply specifically to the situation? Furthermore, if this
specificity exists, then what is the point of retaining the requirement that the right be given
expression in the Directive?23
The major shortcoming of AMS is that it fails to provide a framework for determining when
the Mangold case law applies.24 It is not clear whether the Court established that Article 27
cannot, in principle, apply in the same way as Article 21, or merely that it could not apply as
such in the instant case. At paragraphs 44-45, the Court suggests the former, noting that, since
Article 27 refers to national law and practices, it must be given more specific expression in
19
Case C-176/12 AMS, note 3 supra, para 25.
Ibid, para 41.
21
Ibid, para 47 (emphasis added).
22
Ibid, para 46.
23
Frantziou, ‘Case C-176/12 AMS: Some Reflections on the Horizontal Effect of the Charter and the
Reach of Fundamental Employment Rights in the EU, (2014) 10(2) European Constitutional Law
Review 332 at 343.
24
Ibid, at 341.
20
order to become fully effective.25 However, it then states that it is not possible to infer from
the wording of the Article a prohibition of the specific legislative rule at issue.26 The latter
statement indicates that, though Article 27 requires further implementation, there may be
situations in which it will prohibit certain rules, where, for example, a legislative rule
constituted a manifest and arbitrary breach of the right. Thus, in spite of the grave
constitutional importance of the issues facing the Court in AMS, it neglected to offer any clear
guidance as to when the elusive doctrine in Mangold will apply. Clearly, the prevailing
uncertainty has the potential to lead to distinct interpretations of the Court’s case law. This
danger has materialised most recently in the United Kingdom.
Mangold in Practice: The UK
In Benkharbouche, 27 the Court of Appeal considered complaints relating to the Race
Discrimination 28 and Working Time 29 Directives against the embassy of Libya, which was
treated as a private party because it is neither a Member State nor an EU institution within
the wording of Article 51(1).30 The defendant tried to invoke provisions of the State Immunity
Act to resist the claims. The court found, however, that Section 16(1)(a) which provided for
‘immunity in all cases concerning embassy or consular employment disputes’ 31 was
incompatible with Article 47 CFREU, which enshrines the right to a fair trial and an effective
remedy. It reasoned that AMS confirmed that Mangold can be applied to the Charter.32 It then
distinguished AMS because Article 47, unlike Article 27, did not require more specific
expression. Thus, it was ‘capable of having horizontal direct effect.’ 33 The court therefore
disapplied the provisions of the SIA which prevented the EU claims from proceeding.34
25
Case C-176/12 AMS, note 3 supra, paras 44-45.
Ibid, para 46.
27
Benkharbouche, note 2 supra.
28
Council Directive 2000/43/EC implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin [2000] OJ L 180/22.
29
Directive 2003/88/EC concerning certain aspects of the organisation of working time [2003] OJ L
299/9.
30
Benkharbouche, note 2 supra, para 75.
31
Ibid, para 31.
32
Ibid, para 80.
33
Ibid, para 79.
34
Ibid, para 85.
26
The same approach was employed in Google v Vidal-Hall,35 where it was held that the UK Data
Protection Act infringed the Data Protection Directive, 36 by restricting the right to claim
compensation for non-economic loss.37 The court held that where there is a breach of right
afforded by EU law, Article 47 of the Charter is engaged.38 It concluded that since Article 47
has horizontal direct effect, then the specific legislative provision which breached the
Directive should be set aside.39
The decisions of the Court of Appeal offer an expansive interpretation of the case law of the
CJEU. The first obvious difference is that the Charter right at issue is a procedural one. This is
an important distinction. The procedural right to effective judicial protection is, by its very
nature, not linked to specific categories of Union legislation. The Court of Appeal has gone
beyond the approach of the CJEU by doing away with the requirement that there be a
substantive link between the subject matter of the right and the Directive with which national
law is incompatible. Thus in Benkharbouche, it was irrelevant that there had been no proven
breach of the relevant EU Directives. This means that in the UK, parties to horizontal disputes
can argue that national law be set aside, solely on the basis that it restricts one of the many
ingredients of the right to effective judicial protection. It seems unfair that the defendant bear
the negative consequences of the set-aside of national law in cases, like Benkharbouche and
Vidal-Hall, where the right breached is an inherently vertical one which involves State action,
as in such cases the breach cannot be attributed to the defendant himself. The judgments are
also striking as they explicitly interpret AMS as establishing the potential horizontal direct
effect of the Charter,40 something which the CJEU has never asserted.
Both Benkharbouche and Vidal-Hall lack a sound doctrinal basis. Significantly, it is unclear
where the limits to the approach lie. If there is no requirement that the national law breach a
Directive, nor that the Directive give expression to the right, then can Article 47 lead to the
set aside of national law outside of situations involving Directives? This is a logical
extrapolation of the decisions. It is submitted, however, that the Court of Appeal’s failings can
be attributed to the Court of Justice, which has, as noted above, failed to identify criteria for
the application of the Mangold formula. The two cases illustrate the dangers of arming
35
Google v Vidal-Hall [2015] EWCA Civ 311.
Directive 95/46/EC on the protection of individuals with regard to the processing of personal data
[1995] OJ L 281/31.
37
Vidal-Hall, note 35 supra, para 93.
38
Ibid, para 98.
39
Ibid, para 105.
40
Benkharbouche, note 2 supra, para 81.
36
national courts with the power to set aside provisions of national law, without providing strict
guidelines governing the exercise of that power.
The Need for Guidance
In July 2015 the Supreme Court granted Google leave to appeal as to ‘(W)hether the Court of
Appeal was right to disapply section 13(2) of the Data Protection Act 1998’.41 Thus, it remains
to be seen if the Supreme Court will affirm the radical approach of the lower court, or indeed
if it, as a court of final instance, will consider itself obliged to seek guidance from Luxembourg.
Even if the Supreme Court overturns the decision, Vidal-Hall and Benkharbouche remain
significant for illustrating the unpredictable effects of the judgment in AMS around Europe
and the dire need for guidance from the CJEU.
The set aside of the applicable national law is an extremely powerful remedy which may have
serious adverse consequences for a defendant. It is important to remember in these cases
that the defendant may have simply abided by the applicable national legislation. The real
problem in Mangold, Kücükdeveci and AMS was the failure of the Member State to implement
or implement correctly an EU Directive. Generally, in the case of such a failure, and where the
offending national law cannot be interpreted in harmony with the Directive, individuals are
left with the option of suing the Member State under Francovich.42 In effect, the approach
adopted in Mangold penalises the individual instead of the State. A refinement and
explanation for this case law is necessary, so that individuals who may suffer from reliance on
a Charter right are afforded a degree of certainty as to the effects of that right on their legal
situation.
Conclusion
The horizontal application of fundamental rights in private disputes can have real added value
for the EU fundamental rights regime. The case law shows that such set aside will usually occur
in cases which involve ‘horizontal’ rights, such as those which involve the actions of employers.
While such exclusion has the potential to operate unfairly, this is easier to swallow when one
considers that employers will typically be in a stronger position than their more vulnerable
41
UK Supreme Court news archive, available at: https://www.supremecourt.uk/news/permission-toappeal-decisions-28-july-2015.html.
42
Case C-6/90 Francovich ECLI:EU:C:1991:428.
employees and will have better access to legal advice vis-à-vis their Union obligations. Indeed,
this form of horizontal effect has the potential to engage private parties, such as employers,
in actively meeting EU fundamental rights standards. However, the worryingly expansive
decisions of the Court of Appeal demonstrate that the ruling in AMS has created a situation
of untenable uncertainty. National courts continue to seek guidance on the issue43 and the
number of references can only increase, as litigants seek to invoke the powerful remedy of
the set-aside of national law. It is time the CJEU gave this issue the attention its constitutional
importance demands. It must indicate what rights are capable of creating ‘exclusionary’
effects and provide criteria for the determination of whether such effects arise, thereby
extending a novel avenue for individuals to vindicate their Charter rights, while respecting
defendants’ right to legal certainty.
43
See Case C-351/14, Rodríguez Sanchez (pending reference from the Juzgado de lo Social de
Barcelona, Spain).