The judgment of 22 May 2014 in Glatzel is the first judgment in which the CJEU explicitly discussed article 51(1) and 52(5) of the Charter on Fundamental Rights, which distinguishes between (individual) rights and (programmatic) principles.
In Glatzel, the CJEU issued a preliminary ruling on the request of a German court about the compatibility with the Charter of Annex III to Directive 2006/126/EC (amended by Directive 2009/113/EC) laying down minimum standards relating to the physical fitness to drive a motor vehicle as regards visual acuity. The German court asked whether those physical conditions for drivers constitute discrimination on the grounds of disability and, hence, violate the principle of equal treatment (Article 20 of the Charter), and more specifically, the principle of non-discrimination on the grounds of discrimination (Article 21(1)) as well as the principle of integrating of integrating persons with disabilities (Article 26). The CJEU eventually concluded that it did not have sufficient information to conclude that the Annex is invalid.
There are several interesting points which could be looked at more closely, such as the way in which the CJEU used the UN Convention on the Rights of Persons with Disabilities (CRPD) (para. 45, 68-72) as well as the way in which the CJEU carefully examined whether there is an objective justification of different treatment (see below). These two issues –the application of the CRPD and the elaborate justification test- have been the focus of previous judgments of the CJEU (see for example for the former, Z (Case C-363/12 ).
I. The distinction between rights and principles: a background and earlier cases of the CJEU
This post will, however, scrutinise the novel feature of this judgment: the fact that the CJEU has expressed itself for the first time on Article 51(1) and Article 52(5) of the Charter. These provisions make a distinction between rights and principles in the Charter. Article 51(1) provides:
The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
Article 52(5) stipulates:
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 inclusion of these provisions and this distinction between rights and principles was primarily the result of the opposition of UK, and also some other countries like the Denmark and the Netherlands, to the inclusion in the Charter of ‘social rights’ as legally enforceable claims. The UK eventually agreed with the inclusion of the Charter into the draft Constitution on the condition that the distinction between rights and principles was further clarified. The distinction was thus the result of a hard won battle and formed a crucial element in the Charter’s adoption.
In Glatzel, the CJEU first examined thoroughly the validity of Annex III with Article 21(1) of the Charter (para. 41-79). Article 21(1) stipulates:
Any discrimination based on any ground such as sex, race, colour, ethnic 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 shall be prohibited.
In its review of Article 21(3), the CJEU also examined whether the three elements of the proportionality principle are complied with. Although the CJEU did not spell out these elements in very explicit terms, it examined them in a rather detailed fashion: suitability (51 and 55), necessity (51 and 54), and proportionality (para. 59-66). After this quite extensive review, the CJEU performed another test of the compatibility of Annex III with Article 26 (para. 74-79). Article 26 provides:
The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.
The CJEU could have avoided this “second” review by, for example, examining the validity of Annex III with Articles 21(1) and 26 in an integrated way, as Advocate-General Bot did in his Opinion (para. 41-58). Alternatively, the CJEU could also have tested the validity against Article 21(1) and applied the same reasoning mutatis mutandis to its review of Article 26. In not doing so, the CJEU emphasised the different nature of Article 26 as not being a ‘right’, but a “mere” principle. This is also remarkable in the light of earlier cases in which the CJEU (deliberately) refrained from pronouncing itself on the distinction between rights and principles. Examples are AMS (Case-176/12 ) with dealt with Article 27 of the Charter on the worker’s right to information and consultation within the undertaking, and Dominguez (Case C-282/10 ) on Article 31(2) on the right to paid annual leave. In both cases, the Advocate-Generals paid attention to this distinction in their Opinion. In AMS, the CJEU avoided using the terminology of ‘rights’ and ‘principles’ in the sense of Article 52(5) and framed the issue in terms of (horizontal) direct effect of a Charter provision (for an earlier discussion of the AMS judgment, see here). The earlier case law makes it particularly noteworthy that the CJEU used the languages of ‘principles’ and the above quoted provisions of the Charter in Glatzel. This is even more so because Advocate-General Bot did not reflect on the (principled) nature of Article 26 of the Charter in his Opinion.
II. More guidance for the future for making the distinction between rights and principles
The CJEU labelled Article 26 of the Charter as a principle. It primarily did so on the basis of the Explanations to the Charter, to which it made a passing reference (para. 74). The CJEU also looked at the wording of the article. The CJEU mentioned that Article 26 ‘does not require the EU legislature to adopt any specific measure’ and that ‘in order for that article to be fully effective, it must be given more specific expression in EU law or national law’ (para. 78). The yardstick that the CJEU thus used is the question as to whether the provision depends upon further concretisation in laws. This approach corresponds to the scholarly literature in which it has often been argued that rights are formulated more precisely and unconditionally. It is more likely that a provision is a right when it clearly endows an individual with a subjective entitlement or claim (referring to rights) or whether it specifically stipulates clear-cut obligations towards an individual. Rights generally do not depend upon legislative implementation and concretisation, while principles do.
The CJEU should, first of all, be applauded for being explicit about the different nature of Article 26. The CJEU could hardly have done otherwise. Had the CJEU again foregone a reference to Article 52(1) and 52(5) it would have gone directly against the text of the Explanations which explicitly mention Article 26 as an example of a principle. Nonetheless, the dichotomy that the CJEU (and literature) implies is misleading. Rights are also formulated in abstract or broad terms and often need further (legislative) concretisation and sometimes also positive action. In addition, the CJEU has in previous cases not shied away from attaching direct effect to provisions of primary and secondary EU law which are formulated broadly or include references to limitations and conditions. In Kraaijeveld (Case C-72/95 ), the CJEU, for example, dealt with rather broadly formulated provisions in the Environmental Impact Assessment Directive. It held that the fact that member states had certain discretion ‘does not preclude judicial review of the question whether the national authorities exceeded their discretion’. In Baumbast (Case C-413/99 ), the CJEU concluded that Article 21 TFEU constitutes a directly effective right, despite references in that Article to the limitations and conditions that could be laid down in EU secondary law.
III. A too narrow interpretation of Article 52(5) and the acts which can be reviewed
The CJEU held that ‘reliance on Article 26 thereof before the court is allowed for the interpretation and review of the legality of legislative acts of the European Union which implement the principle laid down in that article, namely the integration of persons with disabilities’ (emphasis added) (para. 74). This interpretation is in line with a narrow and literal reading of Article 52(5) (see above for a full quotation) which provides that principles ‘shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. ‘Such acts’ refers to the acts mentioned in the previous sentence: ‘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’. The CJEU therefore went on to consider whether Directive 2006/126 is a legislative act which implements the principle of Article 26. It held that ‘in so far as Directive 2006/126 is a legislative act of the European Union implementing the principle contained in Article 26 of the Charter, the latter provision is intended to be applied to the case in the main proceedings’ (para 76). In doing so, the CJEU seems to favour a rather restrictive interpretation of Article 52(5) by limiting judicial review only to measures implementing a principles.
This approach is remarkable in the light of the CJEU’s case law and a scholarly consensus that both favour a broader interpretation. Paradoxically, the case law that is referred to in the Explanations with the idea of underlining a judicial review limited to acts implementing principles actually support a broader review. The Explanations refer to case law on the ‘precautionary principle’, as laid down in Article 191(2) TFEU (Pfizer (Case T-13/99 ) and on Article 33 TFEU related to the principles of agricultural law, including the principle of market stabilisation and of reasonable expectations’ (Van den Berg). In doing so, the Explanations seem to underscore that rights are ‘autonomous’ whereas principles are not. Nonetheless, the CJEU has as a matter of fact not limited its review to mere implementing acts of these principles in these and other cases. In Pfizer, the Court of First Instance, for example, held: ‘It is not disputed by the parties that the principle also applies where the Community institutions take, in the framework of the common agricultural policy, measures to protect human health’ (Pfizer, para. 114 and 125). The precautionary principle has been given a more autonomous reading in the recent case law of the CJEU as well. There have been several cases in which the principle was applied by the Court although there was no reference to the principle in the (implementing) measure in question (Monsanto (Case C-236/01 ). Principles have thus started to exercise a function beyond the one envisaged in the Explanations. In Artegodan (T-74/00 ), the CFI, for example, held that even though ‘the precautionary principle is mentioned in the Treaty only in connection with environmental policy, it is broader in scope’ and can be an autonomous general principle of EU law which can be relevant in other areas such as public health and safety.
The narrow and literal interpretation has also been questioned by several scholars from the point of view of the effet utile of EU law. A restrictive interpretation would prevent judicial review of clear violations of principles when the EU or member states fail or refuse to take action or when there are no measures that do specifically aim to implement a specific principle. The majority of commentators therefore favour a second interpretation of Article 52(5), which limits judicial review on the basis of principles to the way in which the review is conducted by courts (see, for example, the Commentary of the Charter of the EU Network of Independent Experts on Fundamental Rights, p. 407). They argue that the intensity of the review of acts and practices in the light of principles should be more limited than for rights. This means that judges should exercise more restraint and limit themselves to examining whether the margin of appreciation has been exceeded and whether there have been manifest errors.
IV. CJEU silence on the role of principles as standard for legal review
Article 52(5) stipulates that principles can be used as an interpretational tool or legality review. The CJEU, however, did not reflect any further on this possibility, besides its paraphrase of Article 52(5) at the start of its analysis. It merely mentioned that Article 26 ‘cannot itself confer on individuals a subjective right which they may invoke as such’ (para. 78). This reasoning is valid and in line with the wording of Article 52(5), the Explanations (‘They [principles] do not however give rise to direct claims for positive action by the Union’s institutions or Member States authorities’) as well as the preparatory works of the Charter (The Final Report of the Working Group II of the Second Convention noted in this context that ‘principles are different from subjective rights’).
But the CJEU did not acknowledge that principles can on the basis of Article 52(5) have a judicial function beyond this traditional narrow understanding of direct effect. While principles can indeed not act as a ‘sword’ or ‘épée’ (as a source of a new right), they can certainly act as a shield or ‘bouclier’ and offer protection against conflicting EU or national norms. This means that when a litigant has standing on the basis of another ground than the principle, a judge can strike down a legislative or executive act on the basis of a principle in the Charter. As said, the CJEU did unfortunately not reflect on this possibility. By only conducting a review of the validity of Annex III with Article 21(1) and not Article 26, the CJEU seems to emphasise that principles can not be used in judicial review at all.