O efeito horizontal da Carta dos Direitos Fundamentais da União Europeia: da integração do mercado em direcção à justiça social?
The horizontal effect of the European Union's Charter of Fundamental Rights: from market integration towards the social justice?
Resumo: A questão de saber se os direitos fundamentais na União Europeia (seguidamente, UE) podem ser aplicados em processos entre particulares (efeito horizontal) muito dificilmente ainda é controversa como foi em tempos. Até agora, o Tribunal de Justiça da União Europeia (seguidamente, Tribunal de Justiça) reconheceu tal efeito no que diz respeito ao princípio geral da igualdade, uma vez que se expressa de diferentes formas em vários actos jurídicos da UE. Trata-se de um exemplo do Capítulo sobre "Igualdade" constante da Carta dos Direitos Fundamentais da União Europeia (em seguida, Carta), que proíbe a discriminação por diversos motivos e impõe diretrizes para a sua implementação. No entanto, a razão de ser que fundamenta a aplicação dos direitos fundamentais nas relações entre particulares é pouco explorada. Enquanto alguns autores argumentam que é a promoção da justiça social, na opinião sustentada no presente estudo afirma-se que o efeito horizontal dos direitos fundamentais da Carta visa este último objectivo apenas parcialmente. Esta tese é suportada na jurisprudência do Tribunal de Justiça e em doutrina seleccionada.
Palavras chave: Direito da União Europeia, Carta dos direitos fundamentais, efeito horizontal, princípios gerais do Direito, justiça social.
Sumário: 1. Introdução
2. Em que situações é a norma da igualdade constante da Carta aplicada nas relações entre privados?
2.1 Princípio geral da igualdade de remuneração por trabalho igual
2.2 Princípio geral da proibição de discriminação em razão da nacionalidade
2.3 Princípio geral da proibição de discriminação em razão da idade
2.4 Princípio geral da proibição de discriminação em razão da orientação sexual
2.5 Em busca de novos princípios gerais de Direito relativos à aplicação da Carta entre particulares
3. Quais as restrições respeitantes à aplicação do princípio da igualdade nas relações entre particulares?
It is now hardly a disputed matter that fundamental rights in the European Union (hereinafter EU) may apply in proceedings between private parties
(horizontal effect). So far, the Court of Justice of the European Union (hereinafter Court of Justice) has recognised such an effect with regard to the general principle of equality as it is expressed in different forms in various legal acts of the EU. Such is an example of the Chapter on ‘Equality’ of the Charter of Fundamental Rights of the European Union (hereinafter Charter)1 which prohibits discrimination on various grounds and imposes directives to implement it. It is however less explored what is a rationale for the application of fundamental rights in relationships between private parties? While some authors argue that it is the promotion of the social justice, according to this article, horizontal effect of fundamental rights of the Charter pursues the latter objective only partly. This thesis is supported by references to the case-law of the Court of Justice and selected academic publications.
Keywords: EU law, Charter of fundamental rights, horizontal effect, general principles of law, social justice.
Summary: 1. Introduction
2. When is the equality provision from the Charter applied in relationships between private parties?
2.1 General principle of equal pay for equal work
2.2 General principle of the prohibition of discrimination on grounds of nationality
2.3 General principle of the prohibition of discrimination on grounds of age
2.4 General principle of the prohibition of discrimination on grounds of sexual orientation
2.5 In search of new general principles of law concerning the application of the Charter between private persons
3. Which restrictions exist with regards to the application of the principle of equality in relationships between private parties?
1 The application of fundamental rights between private parties (horizontal effect) is a vexed topic. Fundamental rights were originally designed to be
applied in the relationship between the State and a private party (vertical effect) and not in the relationship between private parties. They aim to
protect the individual’s autonomy and integrity. Member States and EU organisms are under a positive and negative obligation to undertake positive measures
to guarantee fundamental rights and freedoms and to refrain from interference.2 The horizontal effect of
fundamental rights casts a doubt on the traditional understanding of the function of fundamental rights. It imposes an obligation on individuals which is
negative in nature, i.e. they would be obliged not to interfere with the fundamental rights and freedoms of other individuals. What justifies the influence
of fundamental rights in the relationship between private parties?
2 The wording of Article 51(1) of the Charter according to which the Charter binds Union organisms and Member States does not exclude the application of
the Charter to private persons. Whether or not this non-exclusion implies the existence of horizontal effect is disputable. This paper is based on the
thesis that the horizontal direct effect of the Charter is not in conflict with its Article 51(1) and that it is justified by the ‘weaker party's’ argument
and with societal needs such as the pursuit of the social justice. In fact, fundamental rights that are applied between private parties modify the
substance of this relationship, or as Hartcamp argues “a Treaty primary law provision produces direct horizontal effect when it may be directly applied
to legal relationships between individuals, in the sense that subjective rights and obligations are created, modified, or extinguished between
individuals”.3 In a more general manner, the horizontal effect of fundamental rights can also be considered
as an opportunity for a redistribution of wealth. Micklitz observes that although Member States of the EU developed their own models of social justice in
private law which are inherently linked to national culture and tradition, all models have a common thread, which is ‘the use of the law by the (social
welfare) state as a means to protect the weaker party against the stronger party’. This concept has been built on the premise of the redistribution of
wealth from the richer to the poorer part of the society, individually and collectively.4 Likewise, Seifert
considers that horizontal effect is intended to provide a minimum of social justice in private relations of the individuals in order to guarantee a space
of the necessary freedom to the ‘weaker’ party.5
3 It follows from the foregoing considerations that the influence of the EU law on the relationship between private parties prevents asymmetries between
these parties and aides to restore fairness in that relationship. When national courts guarantee application of fundamental rights between private parties
they enhance objectives of social justice in private relations. The examples are employment6 or consumer
relationship7 where one of the parties is in a weaker position with regard to the stronger economic and
informational power of the other party. Therefore, an intervention of the supranational law in these relationships guarantees more fairness between parties
and enhances the social justice.
4 However, it will be argued in this paper that the horizontal effect of the Charter does not pursue the social justice objective in full and that, in the
future, there is in this area a potential for the development of the future case-law of the Court of Justice which may discover new general principles of
5 In EU law, the primary focus of the horizontal effect of fundamental rights concerns the guarantee of equal treatment (prohibition of discrimination)
which reflects the attainment of economic objectives of the European Community and less of fundamental rights objectives. Besides the horizontal effect of
Articles 101 TFEU and 102 TFEU which apply between private parties in competition law cases, the horizontal effect is recognised as far as certain
provisions of the Charter are concerned. However, Charter provisions, as its article 51(1) provides, do not themselves have such an effect. Its provision
must be an expression of a general principle of law and implemented by secondary legislation in order to apply between private parties. In addition, a
situation must for the Charter to be applied fall within the scope of EU law. So far, the Court of Justice has recognised horizontal effect to some grounds
of the prohibition of discrimination from the Charter, such as age, sex, sexual orientation and nationality, because they are specific expressions of a
principle of equality. By contrast, the Court of Justice has not recognised horizontal effect to any other provision of the Charter. Such a stance of the
Court of Justice reflects the economic aspect of the creation of the internal market since the principle of equality (prohibition of discrimination) was
one of the main driving forces in the creation of the internal market before the adoption of the Charter.
6 If a contractual relationship between the private parties falls within the scope of EU law, it is subjected to a review concerning its compatibility with
fundamental rights of the EU. In this context, De Mol considers that horizontal effect means that the fundamental right can be applied as an autonomous
ground for review before a national court in a dispute between private parties.8 If a national norm is
found inconsistent with these legal instruments, then it is declared incompatible with the EU law and the contract cannot be based on it. In such cases,
the EU law has an effect of excluding the application of a national norm between private parties (exclusion effect).9 However, the horizontal effect is usually limited in time 10 up to the moment of a correct implementation of a national law with regard to the EU law.
7 The horizontal effect of fundamental rights in the EU law has been developed through the case-law of the Court of Justice. It determines which provision
and in which conditions has such an effect. The aim of this contribution is to describe the present state of affairs in the EU law by limiting it to the
applicability between private parties of provisions of the Charter on the guarantee of equality (prohibition of discrimination) from its Chapter on
‘Equality’. These provisions constitute an expression of the general principle of equality and are implemented by a secondary legislation. The present
state of law in this area shows that the objective of a social justice as far as the horizontal direct effect of the Charter provisions is considered has
been only partly achieved. In order to substantiate this thesis, a reference will also be made to the case-law of the Court of Justice which does not
recognise the application of the Charter provisions between private parties since it does not concern provisions which constitute an expression of a
general principle of law. I will not discuss the application of fundamental freedoms and consumer protection law in relationships between private parties.
These freedoms, such as the right to the free movement of workers, and the EU consumer laws are also applied between private parties, but they will not be
2. When is the equality provision from the Charter applied in the relationship between private parties?
2.1 General principle of equal pay for equal work
8 The EU does not have a general legislative competence, but may act only when a specific power to legislate may be identified in the Treaty. The
application of these rights between private parties has gone through gradual development. As it has already been mentioned, in the years following the
creation of the European Economic Community, the prevailing objective was the creation of the internal market and the priority was given to the achievement
of economic objectives contained in the Treaties. In this respect, the application of the general principle of equality (prohibition of discrimination) in
its different expressions was of a particular importance. However, France considered that its own legislation in the area of sex equality and paid leaves
was more progressive than that of the five other founding Member States and that this circumstance could have handicapped French companies operating in the
internal market. This was the reason why the European Economic Treaty contained in its Article 119 (Article 157 TFEU and Article 23(2) of the Charter) a
provision on gender equality with regard to payment.12
9 As early as the European Economic Community was founded, the prohibition of discrimination on grounds of sex from Article 119 of the EEC Treaty (Article
157 TFEU and Article 23(2) of the Charter) was limited to the gender equality to the pay and it applied only to the labour market. This prohibition was
upgraded in 1976 to the principle which is applicable between private parties13. The ‘core’ case for
horizontal effect of fundamental rights concerned Gabrielle Defrenne, an air hostess who worked for the Belgian airline Sabena, and who brought a legal
action against it in a Belgian court because it paid her less than it did to the male cabin crew doing the same work. She claimed the back-payment of the
difference. Belgian court made a preliminary reference to the Court of Justice and the central question was whether Article 119 of the EEC Treaty has
direct effect. It results clearly from its wording that it is addressed to Member States to bring it into force. However, the Court of Justice ruled that
Article 119 of the EEC Treaty confers rights directly on individuals in Member States and that it has horizontal effect. The Court of Justice emphasized
that “since Article 119 is mandatory in nature, the prohibition of discrimination between men and women applies not only to the action of public
authorities, but it also extended to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals.” 14 It grounded its judgment by objectives of social justice and stressed that “this provision forms
part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social
progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the Treaty”. 15
10 In 1978, the Court of Justice ruled that the gender equality in pay from the above mentioned provision of the EEC Treaty forms part of fundamental
rights which are general principles of Community law, the observance of which the Court of Justice has to ensure. 16 Since the principle of gender equality to the pay from Defrenne II applies between private
parties, this judgment by upgrading this principle to the general principle of law didn’t alter the material scope of application of Article 119 of the EEC
Treaty between private parties.
2.2. General principle of non-discrimination on grounds of nationality
11 Besides the guarantee of equal pay, the Treaty on European Economic Communities provided in Article 39 of the EEC Treaty (Article 45 of the TFEU and
Article 21(2) of the Charter) for a prohibition of discrimination on grounds of nationality as far as the free movement of workers is concerned. The ‘core’
case establishing a horizontal effect of this ground of the prohibition of discrimination is Angonese which concerned Mr Angonese, an Italian
citizen whose mother tongue is German and who is resident in the province of Bolzano. In response to the news published on the local Italian daily
Dolomiten, he applied to take part in a competition for a post with a private banking undertaking in Bolzano, the Cassa di Risparmio. However, one of the
conditions for entering the competition was the possession of a type-B certificate of bilingualism (in Italian and German). Even though Mr Angonese was not
in the possession of the Certificate, he was indeed perfectly bilingual. However, the Cassa di Risparmio informed Mr Angonese that he could not be admitted
in the competition because he had not produced the Certificate. The Court of Justice held that a job applicant could sue a private bank before a national
court by invoking a principle of the free movement of workers – a specific expression of the general principle of equality - from Article 39 of the EC
Treaty17, recognising thus that this provision of the Treaty has horizontal effect. The Court of Justice
reasoned that the findings in Defrenne II could by analogy apply since the general principle of equal pay for equal work and the general principle
of non-discrimination on grounds of nationality as expressed by the free movement of workers are ‘mandatory in nature’ 18 and therefore the prohibition of discrimination applied equally to all agreements intended to regulate
paid labor collectively, as well as to contracts between individuals.19 By appealing to the free movement
of workers as a justification for the horizontal effect of the abovementioned Treaty provision, the Court of Justice pursued an objective of social
2.3. General principle of non-discrimination on grounds of age
12 If the guarantee of equal pay in the EEC Treaty was limited to the labour market, the Treaty of Amsterdam which was adopted in 1997 provided in Article
13 a legal basis for the adoption of legislative measures which go beyond the prohibition of discrimination in the labour market. It prohibits a wide
variety of discrimination practices. Besides discrimination on grounds of sex, it prohibits discrimination on grounds of racial or ethnic origin, religion
or belief, disability, age or sexual orientation. However, this provision lacked direct effect and presupposed the adoption of the secondary legislation by
the legislator of the EU.
13 Among others, the directive 2000/7821 concerning the general framework for combating discrimination on
the grounds of religion or belief, disability, age or sexual orientation in the area of employment and occupation was adopted on the basis of this
provision of the Treaty of Amsterdam. Directives, however, lack horizontal effect.22 As Mangold
witnesses, a certain directive may contain provisions which are an expression of a certain general principle of law. Such is the case of a directive
2000/78 which contains provisions that are expressions of the general principle of non-discrimination on grounds of age and, therefore, can be applied
between private parties. In Mangold, the referring national court asked the Court of Justice whether Article 6(1) of the directive 2000/78 must be
interpreted as precluding Paragraph 14(3) of the TzBfG23, a provision of German law, which authorises,
without restriction, unless there is a close connection with an earlier contract of employment of indefinite duration concluded with the same employer, the
conclusion of fixed-term contracts of employment once the worker has reached the age of 52.
14 Mr. Mangold was a 56-year-old worker employed on a fixed term contract in a permanent full-time job. As mentioned above, according to the German law,
fixed term contracts are unlawful unless they can be objectively justified. However, if the employee is over 52, that requirement does not apply.
15 Article 6(1) states that, notwithstanding Article 2(2), Member States may ensure that differences of treatment on grounds of age shall not constitute
discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment
policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. The Court of Justice
concluded that Paragraph 14(3) of the TzBfG, must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued
since it takes into a consideration the age as the sole factor.
16 Given, however, that the directive 2000/78 has not been transposed by the federal Republic of Germany at the time the Court of Justice decided the case
and that the dispute in the main proceedings concerned private parties, that directive could not have been applied directly between those parties.
Directive 2000/78 does not itself lay down the general principle of equal treatment in the field of employment and occupation, but only lays down a general
framework to combat discrimination on the grounds of religion or belief, disability, age or sexual orientation. However, the Court of Justice made a bypass
to this limitation and developed, by applying quite an innovative approach, a new general principle of non-discrimination on grounds of age. 24 The Court of Justice justified this development by stating that the source of the actual principle
underlying the prohibition of those forms of discrimination being found, as is clear from the third and fourth recitals in the preamble to the Directive
2000/78, in various international instruments and in the constitutional traditions common to the Member States. 25
17 This finding has important consequences. The Court of Justice, by referring to its previous case-law in Simmenthal26 and Solred27,
‘it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case
within its jurisdiction, the legal protection that individuals derive from the rules of Community law and to ensure that those rules are fully effective,
setting aside any provision of national law which may conflict with that law.’ 28
18 By imposing an obligation on national courts to apply in proceedings between private parties the general principle of prohibition of discrimination on
grounds of age, the Court of Justice in Mangold pursues social justice objectives. Since the directive 2000/78 also refers to the combat of
discrimination on the grounds of religion or belief, disability and sexual orientation, it remains an open question whether the Court of Justice can extend
in future cases the approach from Mangold to these other grounds of discrimination which apply in the area of occupation and employment.
19 Kücükdeveci confimed and clarified Mangold. It concerned the compatibility with the EU law of national legislation providing that periods
of employment completed by an employee before reaching the age of 25 were not taken into account when calculating the notice period for dismissal. The
employer calculated the notice period as if the employee had three years’ length of service, although he had been in its employment for 10 years. The Court
of Justice, referring to Mangold and Defrenne II, ruled that the general principle of non-discrimination as given expression in directive
2000/78 and in Article 21(1) of the Charter applies in proceedings between private parties. The Court of Justice reiterated, by referring to Mangold
, 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 law that constitutes a specific application of the general principle of equal
treatment.29 Consequently, the Court of Justice held that:
“it is for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78,
to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full
effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle” (hereinafter: the Mangold/Kücükdeveci approach).30
20 Since the Mangold/Kücükdeveci approach enables a weaker party to refer to the prohibition of discrimination on grounds of age vis-à-vis other
private party, the prevailing objective of this approach is the pursuit of social justice. In fact, by applying the general principal of non-discrimination
on grounds of age in a relationship between private parties, the Court of Justice pursues a social justice objective. Likewise, Angonese is
justified with the promotion of the free movement of workers.31
21 Despite the positive aspects of this orientation of the Court of Justice, it is also exposed to critics. Notably, a more serious deficit of the Mangold and less of the Kücükdeveci is that the Court of Justice did not provide in these cases a clear reasoning as to the relation between
a directive, on one hand, and a general principle or a provision of the Charter, on the other hand.32 In
particular, it should have reasoned more clearly that a provision of the Charter or of a directive has direct effect in horizontal situations only if it is
an expression of a general principle of law. De Mol considers that de facto a directive has such an effect whereas de iure it is a general
principle of law and a provision of the Charter which are horizontally effective.33
2.4. General principle of prohibition of discrimination on grounds of sexual orientation
22 In Römer34 the Court of Justice ruled that the prohibition of discrimination on grounds
of sexual orientation is a general principle of law. According to the facts of the case, Mr Römer worked for the Freie und Hansestadt Hamburg, as an
administrative employee and lived since 1969 continuously with Mr U. They entered into a registered life partnership, in accordance with the German law,
and Mr Römer requested for the amount of his supplementary retirement pension to be recalculated on the basis of a more favourable deduction since he
considered that he was entitled to be treated in the same manner as a married, not permanently separated, pensioner. In his opinion, his right to equal
treatment with married, not permanently separated, pensioners results, in any event, from Directive 2000/78.
2.5. In search of new general principles of law concerning the application of the Charter between private persons
23 The entry into force of the Charter in 2000 and the recognition of its binding effect in 2009 represent an important extension of the grounds of
prohibition of discrimination. These grounds might instigate an important and substantial contribution to the social justice if they become horizontally
applicable in the future case-law of the Court of Justice. In its Article 21 (1), the Charter prohibits “any discrimination based on any ground such as
sex, race, colour, ethic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national
minority, property, birth, disability, age or sexual orientation”. The same Article provides in its second paragraph that: ”within the scope of
application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those
Treaties, any discrimination on grounds of nationality shall be prohibited”. This latter prohibition applies in relation to the citizenship of Union or
with one of the provisions on the free movement.
24 So far and according to the well-established case-law of the Court of Justice, this provision is applicable between private parties with regard to the
prohibition of discrimination on grounds of age35, sexual orientation,36 sex37 and nationality 38. It is yet to be defined whether the Court of Justice will recognise horizontal direct effect to other
grounds of non-prohibition as well.
25 First, further extension of the Mangold/Kücükdeveci approach and the horizontal effect of the grounds of non-discrimination mentioned in Article
21 of the Charter could not be excluded if one takes into account that the directive 2000/78, although in the context of professional and employment area,
prohibits not only discrimination on the grounds of age but also discrimination on the grounds of religion or belief and disability.
26 Second, what is the appropriate solution as to the applicability between private parties of other grounds of prohibition of discrimination enumerated in
the Article 21 (1) of the Charter, such as race, colour, ethic or social origin, genetic features, language, political or any other opinion, membership of
a national minority, property and birth? Taking into an account the present case-law of the Court of Justice, the answer to this question should rather be
positive since the grounds of non-discrimination mentioned in that provision are specific expressions of a more substantive general principle of equality
which is a general principle of law. This conclusion results from the reasoning of the Court of Justice in Mangold 39 and Kücükdeveci40
, according to which the directive only provides a general framework to combat discrimination in the area of employment and occupation whereas its source
is the general principle combating those forms of discrimination which can be found in various international instruments and in the constitutional
traditions common to the Member States. The Court of Justice relied on this argument in Römer41.
27 This argument derives from the constitutional principle of the hierarchy of norms according to which a lower ranking norm draws its inspiration and
legitimacy from a higher ranking constitutional norm and shall be interpreted in conformity with the latter. It means that a directive as a legal act of
secondary law shall be interpreted in conformity with the Charter and general principles of law, which constitute acts of primary law. 42 Similarly, Advocate General Bot emphasised that the hierarchy of legal norms of the EU law according
to which a directive, that has been adopted to facilitate the implementation of the general principle of equal treatment and non-discrimination, cannot
reduce the scope of that principle.43
28 Thirdly, by employing the wording “such as”44, Article 21(1) of the Charter enumerates grounds of
discrimination in a non-exhaustive manner. It can be argued, on the basis of the arguments exposed, that grounds of prohibition of discrimination which are
not enumerated in that provision may also constitute, on the basis of the application of the Mangold/Kücükdeveci approach, general principles
29 It follows from the foregoing considerations that Article 21 of the Charter has a large potential scope of material application as far as its horizontal
effect is considered and is thus susceptible to contribute importantly in the future to the social justice in the EU. It is however yet to be defined
whether the Court of Justice will exploit this potential in its future case-law and thus importantly contribute to the further development of the social
justice in the EU.
3. Which restrictions exist with regard to the application of the Charter in the relationship between private parties?
30 The horizontal effect of the Charter has been developed by the Court of Justice and is not an unlimited one. If it is true that the Court determines
which provision and in which conditions has such an effect it is, in this respect, limited in several ways.
31 First, the scope of application of the Charter is a question connected with its horizontal effect. In this context, Article 6(2) of the Treaty on
European Union provides that the provisions of the Charter shall not extend in any way the competences of the Union as defined in Treaties. Likewise, the
Charter, pursuant to Article 51(2) thereof, does not extend the field of application of EU law beyond the powers of the EU or establish any new power or
task for the EU, or modify powers and tasks as defined in the Treaties.
32 According to the existing case-law of the Court of Justice, the situation must fall within the scope of EU law in order for the Charter to apply 45 which means that it must fall within the scope of the Treaties, a regulation or a directive. On the
contrary, the Charter cannot be applied to a situation that does not fall under the scope of EU law.46 In
such situation, the Court of Justice will reject the applicability of the EU law. For example, in her opinion in Bartsch47 the Advocate General Sharpston argued that the situation giving rise to
the reference does not fall under the scope of EU law.
The case concerned the occupational pension scheme of Bosch-Siemens Hausgeräte GmbH (‘BSH’). Paragraph 6 (4) of the scheme’s guidelines provided that a
pension should be paid to the widow(er) of an employee who has died during his or her employment relationship, if certain conditions have been met.
However, payments will not be made if ‘the widow/widower is more than 15 years younger than the former employee.
The widow, Mrs Bartsch, was born in 1965, whereas Mr Bartsch, was born in 1944 and died in 2004 whilst employed by BSH. Therefore, one of the conditions
for the widow’s pension was not met. The respective Advocate General considered that there was no pertinent specific substantive rule of Community law
governing the situation in question. In those circumstances, she considered that the general principle of equality, and specifically equal treatment
irrespective of age as identified by the Court of Justice in Mangold, cannot be applied horizontally. In so saying, she added that she accepted that
such a general principle can be applied (both vertical and horizontally) to the extent that it does so within a specific EU law framework 48. The Court of Justice followed her opinion.49 Likewise, in a recent case Julian Hernández e.a.50the Court of Justice considered that
Article 13 EC (now Article 19 TFEU) could not, as such, bring within the scope of the EU law, for the purposes of the application of fundamental rights as
general principles of the EU law, a national measure which does not come within the framework of the measures adopted on the basis of that article. In this
case, the referred court expressed uncertainty as to whether the difference in treatment between employees who are the subject of an unfair dismissal and
employees who are the subject of an invalid dismissal must be considered contrary to Article 20 of the Charter since the national legislation provides for
payment by the Spanish State of outstanding remuneration after the 60th working day following the date on which actions challenging dismissals were brought
solely in cases where the dismissal is declared to be unfair, and not in cases where the dismissal is declared to be invalid.
33 Secondly, if a particular situation falls within the scope of EU law, it raises the question whether it should concern a fundamental right that is
applied horizontally. A Charter provision as such cannot apply horizontally according to Article 51(1) of the Charter which governs the Charter’s scope of
application providing that individuals may invoke fundamental rights vis-à-vis the institutions, bodies, offices and agencies of the Union and to
the Member States only when they are implementing Union law. However, as mentioned above, a provision of the Charter applies horizontally only if it is an
expression of a general principle of law. This results from the application of the Mangold/Kücükdeveci approach.
34 Thirdly, the Charter distinguishes between rights and principles. While the first can be horizontally applicable, the latter are socio-economic
principles from the Chapter ‘Solidarity’ of the Charter51 which do not have horizontal effect.
This is illustrated by Heimann52 and Dominguez53. The first case concerns a compatibility with the Article 7(1) of the Directive
2003/88 of a social plan agreed between an undertaking and its works council, under which the paid annual leave of a worker on short-time working is
calculated according to the rule of pro rata temporis. Whereas in the second case Ms Dominguez, who has been employed by the CICOA 54, following an accident on the journey between her home and her place of work, was absent from work
from 3rd November 2005 until 7th January 2007. Ms Dominguez claims for 22.5 days’ paid leave in respect to that period and, in the
alternative, a payment in lieu of leave. The referring court had doubts about the compatibility with Article 7 of directive 2003/88 of the Article L. 223-4
of the French labour code (Code du Travail) according to which the period of suspension of her contract of employment, following the accident on the
journey to work should be treated as being equivalent to actual work time for the purpose of calculating her paid leave. The Court of Justice decided that
national provisions or practices that make entitlement to paid annual leave conditional on a minimum period of ten days’ or one month of actual work during
the referenced period, are contrary to Article 7 of the mentioned directive.
35 Both abovementioned cases concern the interpretation of Article 31 (2) of the Charter – entitlement of every worker to paid annual leave – where the
Court of Justice emphasised that the right to a paid annual leave must be regarded as a particularly important principle of European Union social law. 55 It is to be noted that this right can be, according to the Article 52(5) of the Charter, implemented
by legislative and executive acts taken by institutions, bodies and agencies of the Union, and by acts of Member States when they are implementing Union
law, in the exercise of their respective powers. Additionally, principles shall only be cognisable in the interpretation of such acts and in the ruling of
their legality. In other words, provisions of the Charter that contain principles do not have horizontal effect because they are not an expression of a
general principle of law.
36 Fourthly, a provision like Article 27 of the Charter which provides which workers must, at various levels, be guaranteed information and consultation in
the cases and “under the conditions provided for by European Union law and national laws and practices” is conditional upon the adoption of further
measures. Several Articles of the Charter include more general formulations limiting their direct effect such as: “under the conditions established by
national laws and practices” (Articles 28, 30 and 35) or “in accordance with the rules laid down in Union law and national laws and practices” (Article
34). Even if it is not expressly stated in Article 31(2), the right to a paid annual leave is also conditional upon further implementation measures since
at least its length and the authority for its approval must be determined in advance so that this right can be applied in practice. As mentioned, in order
to the Article 27 of the Charter be fully effective, it must be given more specific expression in EU or national law.56 In such a situation, a provision of the Charter lacks horizontal effect as it is illustrated byAssociation de médiation sociale (AMS) since it is ‘not sufficient in itself’ to have such an effect. 57 In this case the Union départementale CGT des Bouches-du-Rhône appointed Mr
Laboubi as representative of the trade union section created within the AMS. The AMS challenged that appointment. It took the view that it had staff
numbers of fewer than 11 and, a fortiori, fewer than 50 employees and that, as a result, it was not required, under the relevant national
legislation, to take measures for the representation of employees, such as the election of a staff representative. The AMS considered that it was necessary
to exclude from the calculation of its staff numbers, in accordance with Article L. 1111-3 of the Labour Code, apprentices, employees with an
employment-initiative contract or accompanied‑employment contract and employees with a professional training contract (‘employees with assisted
contracts’). However, the AMS is an association governed by private law, even if it has a social objective. Due to AMS' legal nature, the defendants in the
main proceedings cannot rely on the provisions of Directive 2002/14, as such, against that association.
37 Likewise, the Court of Justice concluded that it is not possible to infer from the wording of Article 27 of the Charter or from the explanatory notes to
that Article 3(1) of Directive 2002/14, as a directly applicable rule of law, lays down and addresses to the Member States a prohibition on excluding from
the calculation of the staff numbers in an undertaking a specific category of employees initially included in the group of persons to be taken into account
in that calculation.58. The Court of Justice added that this finding cannot be called into question by
considering Article 27 of the Charter alongside with the provisions of Directive 2002/14.59 In other
words, such provisions lack horizontal effect because they do not constitute an expression of a general principle of law.
38 Lastly, in the future, one may expect an increase of cases where the Court of Justice will be confronted with situations that raise the question of the
right to rely, in proceedings between private persons, on directives that contribute to ensure the observance of fundamental rights, since among the
fundamental rights contained in the Charter a number are already part of the existing body of the EU law in the form of directives. 60
39 Case-law of the Court of Justice previously analyzed follows only partly the social justice objective partly. On one side, the present case-law is
unfortunately and predominantly influenced by the preoccupations stemming out of the creation of the internal market, such as the guarantee of equality, a
circumstance that blocks a further development of horizontal effect of the Charter beyond its provisions on equality. The horizontality of the Charter's
provisions is still influenced by the economic objectives of the internal market and not by fundamental rights concerns. On the other side, an ever growing
case-law on the horizontal effect of Article 21 of the Charter may be an inspiration for the Court of Justice to overcome this self-restriction and to
apply horizontal effect also to other provisions of the Charter. By substantially widening the horizontal effect of the Charter beyond its equality
provisions, it would contribute importantly to a redistribution of wealth in the internal market and to an increase of fairness in contractual relations in
the EU. Or, as Smits argues, the values behind fundamental rights reflect our societal norms and are thus an important tool as on how to assess a private
40 However, one may find an extension of the horizontal effect of the Charter beyond equality provisions as a too ambitious one. In fact, one of the
challenges of the Court of Justice may be the extension of the horizontal effect to all grounds of prohibition of non-discrimination from Article 21since
at the present time there are only few grounds of prohibition of discrimination, such as age, sexual orientation, sex and nationality which enjoy full
applicability in relations between private parties. The potential to apply provisions of the Charter on horizontal effect to other anti-discrimination
grounds enumerated in Article 21 of the Charter has not been yet exhausted by the Court of Justice and remains a challenge for its future case-law. Römer shows a positive tendency of the Court of Justice in applying the Mangold/Kücükdeveci approach to ever newer grounds of
prohibition of discrimination from Article 21 of the Charter. However, it should be noted whether Römer announces the beginning of a positive and
lasting trend in the future or whether it remains an isolated try. Taking into account that all grounds within the Article 21 are of an ‘equal value’,
there shall be no barriers in the future case-law of the Court of Justice to recognise horizontal effect with regard to the prohibition of discrimination
on the grounds of race, colour, ethic or social origin, genetic features, language, political or any other opinion, membership of a national minority,
property and birth. However, the approach of the Court of Justice shall be prudent and moderate and shall also take into account whether a particular
ground of discrimination has been accomplished or not by a directive. In this later case, the recognition of a horizontal effect shall be avoided since
general principles of law and Charter provisions are too abstract by its wording and would therefore not enable private parties to deduce which are their
rights and obligations. Since it does not enumerate exhaustively the grounds of prohibition of discrimination, Article 21 of the Charter presents the
possibility of a ‘discovery’ of new grounds of prohibition of discrimination, such as material standing, education or any other personal circumstance.
Article 21 of the Charter, therefore, presents future challenges with regard to the development of the social justice in the EU.
41 In cases where the Court of Justice assesses the validity of an EU norm in the light of Article 21 of the Charter, the horizontal effect seems to be an
irrelevant circumstance for the Court of Justice. Thus, in Association Belge des Consommateurs Test-Achats e.a. 62 horizontal effect of the prohibition of discrimination on grounds of sex from Article
21(1) of the Charter was purely incidental. This case concerned the validity of Article 5(2) of Directive 2004/113 63 in light of the (general) principle of equal treatment for men and women, enshrined in Articles 21 and
23 of the Charter. The problem was that this provision enabled the Member States in question to maintain without temporal limitation an exemption from the
rule of unisex premiums and benefits. The Court of Justice ruled that this works against the achievement of the objective of equal treatment between men
and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter. However, this case-law of the Court of
Justice plays an equally important role in the achievement of the social justice.
42 Finally, the pursuit of the social justice is inherent to the EU law since the Preamble to the Charter and Article 2 of the Treaty on European Union
stipulate, that the Union is founded on universal values of human dignity, freedom, equality and solidarity. The recognition of the horizontal effect of
the Charter’s rights on Equality contributes thus to these values on which the Union has been founded. It is true, as Micklitz observes, that these values
are not fully accomplished in the established legal order and that provision must be read as a Leitnorm, of no direct legal consequences 64, this is certainly not true for the value of non-discrimination and equality between men and women
which figures in the Article 21 of the Charter.
43 The answer to the question whether horizontal effect of the Charter pursues social objective in full can unfortunately not be answered positively in its
entirety. Therefore, as the case-law of the Court of Justice currently stands, the horizontal effect of fundamental rights from the Charter is a large
development potential for the future case-law of the Court of Justice and a possibility for the discovery of new general principles of law.