New developments in the enforcement of the EU Charter of Fundamental Rights before national courts

 Marton Varju

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  • the Court upheld its judgment in Case C-385/08 Confédération générale du travail concerning the calculation of the legal thresholds for setting up bodies representing staff
  • the judgment reaffirmed the fundamental principles governing the direct and indirect effect of directives
  • the Court upheld its judgment in Case C-555/07 Kücükdeveci concerning the interpretation of domestic law in light of EU law, and reinforced the extension in that judgment of the scope of that duty to the substantive provisions of the EU Charter of Fundamental Rights
  • the judgment did not overrule the possibility established in Kücükdeveci for the enforcement of directives in horizontal legal disputes between private parties, nevertheless, it imposed limitations on the Kücükdeveci principle; the limitations are in line with the original foundations of EU legal doctrine in the area and benefit the application of EU law by national courts
  • the Court established as a principle that the obligation to interpret national law in light of the EU Charter (the general principles of EU law) in a horizontal legal dispute between private parties must not lead to declaring the relevant provision of national law incompatible with EU law in case the interpretation of the relevant provision of the EU Charter (the relevant general principle of EU law) does not give rise to a specific, well-defined obligation (burdening the Member States). In other words, the enforcement of the EU Charter in such circumstances is subject to the condition that the relevant provision of the Charter ‘is sufficient in itself to confer on individuals an individual right which they may invoke’.

The judgment of the Grand Chamber of the EU Court, which reinforced the earlier unorthodox developments in the case law and imposed a rather conservative limitation on that jurisprudence, was delivered in a French case necessitating the interpretation of a specific provision of EU social law. In the case before the national court, which had been examined by the Conseil constitutionnel, the question was raised whether the provisions of the French Labour code regulating the collective rights of employees with a standard of protection lower that that laid down in Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community (OJL 80, p. 29) is precluded by EU law. The relevant provision of French law regulated, providing a lesser protection for the collective rights of employees, the calculation of legal thresholds for setting up bodies representing employees in contradiction with the provisions of the directive. In light of the judgment delivered in Case C-385/05 Confédération générale du travail and Others [2007] ECR I-0611, establishing the incompatibility of the French provisions with EU law was inevitable. The French Labour Code, favouring the interests of employers, excluded from the calculation of the legal threshold certain categories of employees, and as a result, it emptied the rights provided by the directive of their substance and prevented the effective implementation of the clear and precise obligation concerning the formation of employee representative bodies. It follows from the judgment that the broad discretion available to the Member State in the field of social regulation and deregulation must be exercised in harmony with the standards laid down in EU social law and policy.

In the case, which dealt with a horizontal legal dispute between private individuals, the question of enforcing provisions of EU directives before national courts required a separate examination. This question was of special relevance as the enforceability of the EU directive in question in the case would have led to declaring the violation of EU law by the relevant provisions of the French Labour Code. Having recalled the general principles and limitations of enforcing non- or incompletely implemented directives before national courts (Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835), the Court made it clear that in the given case the provisions of Directive 2002/14/EC cannot be invoked in order to establish the incompatibility of the French provisions with EU law. In light of the fundamental principle laid down in Case C-555/07 Kücükdeveci [2010] ECR I-0365, the examination of this question could not, however, be closed.

In the meaning of the judgment in Kücükdeveci (and the preceding judgment in Case C-144/04 Mangold [2005] ECR I-9981), national courts are obliged to take into account the general principles of EU law providing the general legal-constitutional foundations of specific provisions of directives, and in this connection they are required to ensure the protection and full effectiveness of rights provided to individuals in EU law, which involves the specific obligation to disapply provisions of national law which violate the relevant general principles of EU law. In the present case this question was posed as whether the fundamental right provided in Article 27 of the EU Charter concerning the collective rights of employees, which provides the fundamental rights basis of the provisions of Directive 2002/14/EC, could as interpreted alone or together with Directive 2002/14/EC be invoked ‘in a dispute between individuals in order to preclude, as the case may be, the application of the national provision which is not in conformity with that directive.’

In its response, the Court first held that the provisions of the Charter, on their own or together with directives, are enforceable before national courts. The legal boundaries of this were defined with reference to the horizontal provisions of the Charter regulating the applicability of the Charter, as interpreted recently in Case C-617/10 Åkerberg Fransson (nyr.). In harmony with the broad interpretation laid down in the jurisprudence preceding the creation of the Charter, ‘the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law’.

The Court reaffirmed the obligations of national courts following from the Kücükdeveci judgment. Having regard the different legal characteristics of fundamental rights and freedoms recognized in the Charter, it, however, refined the applicability of those obligations by declaring that the fundamental rights laid down in the Charter may only be invoked before domestic courts in case they impose well-defined obligations on the Member States and, with this, they confer on individuals an individual right which they may invoke. This meant that the enforcement of the rights listed in the EU Charter was subjected to the condition established much earlier in connection with the direct effect of provisions of EU law. This development ensured that the doctrinal framework applicable to the direct enforcement of EU law at the Member State level is extended to the provisions of the Charter, which made a welcome distinction between the enforceable (normative) and the non-enforceable (declarative) provisions of the Charter simplifying with this distinction the application of EU law for national courts. Although, on the whole, it is rather straightforward to establish which provisions of the Charter will meet the new conditions, it is not excluded that in connection with individual fundamental rights and freedoms further preliminary references from national courts may be necessary.

This further interpretation of the Kücükdeveci principle could be regarded as an attempt by the EU Court to re-establish the balance between the requirement of legal certainty and the effectiveness and legitimacy implications of the direct enforcement of the Charter, which seems to have been upset by the judgment in Kücükdeveci. The direct enforcement of the Charter had to be subjected to conditions as the legal nature of Charter rights and freedoms was far from unclear. In the context of the judgment, this necessity must be balanced against the opportunity that with the mediation of the Charter the enforcement of provisions of directives, which give expression to fundamental rights and freedoms, in legal disputes between private parties could be secured, and furthermore, a more direct link between EU law and EU citizens could be forged. This latter aspiration was somewhat muted by the fact that the judgment prevented the enforceability of the Charter in an area (social law and policy) where, with an effect on the entirety of the EU constitutional framework, that development could have counterbalanced the predominantly economic priorities of the EU polity and it could have compensated the social deficit of the European Union. This hiatus is not remedied by the fact that the Court attempted to offset the unfavourable outcome of its judgment by making a reference to the rather uncertain availability for employees of the legal remedies available under EU law against infringements of the directive by French employers.

 

 The views expressed above belong to the author and do not in any way represent the views of the HAS Centre for Social Sciences.