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.
The CJEU rather swiftly concluded that the French provision in the Labour Code is incompatible with Directive 2002/14 (paras. 24-29). The CJEU, however, repeated its settled case-law as to the prohibition of horizontal direct effect of directives, even when they are clear, sufficiently precise and unconditional (para. 36). Nor was an EU conforming interpretation of the French provision possible since this would result in a contra legem interpretation (para. 39-40).
The CJEU was thus left with answering the question as to “whether the situation in the case in the main proceedings is similar to that in the case which gave rise to Kücükdeveci (Case C-555/07 Kücükdeveci  ECR I-365), so that Article 27 of the Charter, in and of itself or in conjunction with the provisions of Directive 2002/14, can 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.” (para. 41). The CJEU, without much explanation, concluded that the case is different from Kücükdeveci. It argued that Article 27 of the Charter is not “a directly applicable rule of law”, since it is generally formulated and not sufficient in itself to confer on individuals a subjective right they can invoke before a national court (para. 46-47). On the basis of the wording of Article 27 and the explanatory notes to that Article, the CJEU argued that “for this Article to be fully effective, it must be given more specific expression in European Union or national law” (para. 45). By contrast, the principle of non-discrimination on the ground of age which was at issue in Kücükdeveci and which is laid down in Article 21 (1) of the Charter was considered to be sufficiently clear for individuals to rely on it and thus to have horizontal direct effect. The CJEU answered the preliminary question in the negative and simply reiterated its Francovich judgement by arguing that the injured party can claim compensation from the French government for the damages suffered as a result of the non-transposition of the Directive by the government.
II. What the CJEU did say
The CJEU repeated and hence confirmed its earlier judgement in Akerberg Fransson (Case C-617/10  ECR-1-0000, para. 19) by arguing that the Charter is applicable “in all situations governed by European Union law”, including the case at hand. What is noteworthy about this seemingly harmless statement, is that this line of reasoning might enable the CJEU in future cases directly to apply the Charter itself in legal disputes between private parties, instead of using the Charter as proof of the existence of a general principle (Case C-555/07 Kücükdeveci  ECR I-365, para. 22). That is to say, the CJEU did not rule out that some parts of the Charter can be invoked in a dispute between private parties. It merely held that it was specifically Article 27 of the Charter that could not be relied upon given its wording and the explanatory notes to the Charter (para. 48). This seems to leave open the possibility that other provisions which are more precisely formulated can be independently relied upon by individuals (see also M. Markakis’ post). At the same time, however, the CJEU nuanced or put restrictions as to the direct effect of the Charter in relations between private parties by applying the criteria for direct effect of Directives (precise and sufficient wording and not dependent on any implementing measures etc.) to the Charter.
III. What the CJEU did not say
The disappointing feature of AMS is that the CJEU spent so few words on exactly how it can be determined whether a provision is sufficient to confer an individual right on individuals. The short analysis of the CJEU (paras. 45-47) stands in sharp contrast with the Opinion of the Advocate General Cruz Villalón. In his opinion, the AG went to great lengths to answer the question as to whether Article 27 of the Charter is a principle or right, In fact, almost half of the AG’s opinion was devoted to the issue of the distinction between rights and principles and the consequence of such categorisation (paras. 43-80), which eventually led to the conclusion that Article 27 may have horizontal direct effect (para. 80 AG) (for a good discussion of the Opinion, see B. Pirker’s post of 11 September 2013). The CJEU avoided any explicit discussion of this kind (see in a similar vain, B. Pirker’s post of 16 January 2014).
The basis for the AG’s conclusion was a close reading of Article 52(5) Charter:
The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.
The Charter does not itself clarify whether a provision can be labelled a ‘right’ or ‘principle’. Neither do the Explanations to the Charter shed any concrete light on this question, except for giving a few examples of both categories (para. 43 AG). After arguing that Article 27 is a principle (paras. 43-56 AG), the AG held that there is nonetheless a possibility for principles to be effective before courts on the basis of the second sentence of Article 52(5) of the Charter. That is to say, individuals can rely on ‘implementing acts’ which “give specific substantive and direct expression to the content of the ‘principle’” (para. 63). The AG argued that article 3(1) of the Directive 2002/14 is a good example of such an implementing act and is thus capable of being part of the content of Article 27 and which may therefore be directly invoked before courts (paras. 65-66 AG).
In fact, the CJEU did not discuss whether Article 27 is a ‘principle’ or a right at all. The CJEU thus did not fulfil the “task” which was given to it by the Advocate General “to ascertain the possible status as a ‘principle’ of Article 27 of the Charter”. The CJEU has therefore still left the question as to what the role of ‘principles’ can be in judicial review and how they can be “judicially cognisable” in the sense of the last sentence of Article 52(5). In her post, R. English also lamented the CJEU’s “arbitrary picking and choosing between one rights and another” as a result of which parties cannot predict which provision of the Charter can be directly applicable. By not delving into this issue, the CJEU did not really elucidate in great detail in what respects article 27 of the Charter is so different from article 21 of the Charter.
However, the AG’s opinion itself is also unfortunate in some respects. It concludes that that there is a “strong presumption” that the provisions in Chapter IV on solidarity belong to the category of ‘principles’ (para. 55 AG). At the same time, he held that on the basis of Article 52(5) of the Charter there are limited possibilities for individuals to directly rely on principles before a national court and derive rights from them (para. 42 and 68 AG). These two lines of reasoning lead to a rather simplistic -and also factually incorrect- depiction of several of the provisions in Chapter IV. Most of the Articles in this chapter (broadly speaking; Articles 28-33) are –contrary to what the AG seems to imply- formulated fairly concretely and seem, based purely on a textual interpretation, capable of conferring a subjective right on individuals given their specific wording. Article 29, for example, stipulates that “everyone has the right to…”, while Articles 30 and 31 (1) and (2) determine that “every worker has the right to…”. In addition, several of these articles have been directly applied by courts. See, for example, the line of cases of the CJEU as to the entitlement of every worker to paid annual leave, as laid down in article 31(2) of the Charter (see, for example, Heiman/ Toltschin v. Kaiser GmbH (Joined Cases C-229/11 and C-230/11 ).
Only a handful of Articles (including Article 27 which played a role in the case at hand, but also Articles 34-38) include more general formulations or caveats limiting their direct effect such as: “under the conditions established by national laws and practices” (Article 35) or “in accordance with the rules laid down Union law and national laws and practices” (Article 34). “The Union recognises and respects” (Article 36). In arguing that Chapter IV predominantly includes principles, the AG implicitly reinforces the existing dichotomy between enforceable and justiciable civil and political rights, on the hand, and so-called economic, social and cultural rights, on the other hand. So although the preamble of the Charter claims with great emphasis that all Charter rights are equally important, there is still a world to win here.