On 15 January 2014, the CJEU issued its long awaited judgement in the case of AMS (Case-176/12 ) in which it concluded that article 27 of the Charter of Fundamental Rights of the European Union does not have horizontal effect and can thus not be invoked in a dispute between private parties. This blog entry examines the judgments as well as the -different- Opinion of the Advocate General.
I. Facts and judgment
AMS is an association governed by private law. Its main objective is reintegration of unemployed persons. It challenged and consequently suspended the appointment of Mr. Laboubi as a trade union representative. AMS was of the opinion that this appointment was not required since AMS only had 11 staff members. The French Labour Code only obliges the appointment of a representative for workplaces with more than 50 employees. In its calculation, AMS excluded between 120 and 170 employees with particular contracts (‘accompanied-employment’) from the calculation. This practice was in line with the French Labour Code (Article L. 1111-3). The trade union argued that the latter provision was not in accordance with Directive 2002/14 providing for the consultation of employees. Nonetheless, the trade union could not invoke the Directive, because of the prohibition of horizontal direct effect in legal disputes between private parties, as the case in hand. The trade union thus based its argument on Article 27 of the Charter dealing with workers’ right to information and consultation within the undertaking:
Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.
In that light the Cour de Cassation in April 2012 referred preliminary questions to the CJEU asking whether article 27 can be invoked in a dispute between private parties. Continue reading