Jun 7, 2010
EU Charter of Fundamental Rights after Kücükdeveci
Earlier this year the European Court of Justice handed down its decision in Kücükdeveci – prompting a deluge of commentary from the EU blawgosphere (see some meta-blogging here).The case concerned a claim of age discrimination based on a German employment law that did not take periods of work served prior to the employee’s 25th birthday into account when calculating the notice period prior to dismissal. The German law was incompatible with the requirements of Directive 78/2000, the transposition period for which had passed prior to the applicant’s dismissal. However, as the respondant in the case was a private party, the general prohibition on allowing untransposed Directives to be relied upon against a private party would ordinarily have hindered Ms Kücükdeveci’s case. However, the Court of Justice held that the principle of non-discrimination on grounds of age was a general principle of EU law which was given “specific expression” in the Directive [para 21]. The Court also made reference to Article 21(1) of the EU Charter of Fundamental Rights which declares that “[a]ny discrimination based on … age … shall be prohibited” [para 22]. As a result the Court held that
It follows that it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings [para 27].
The Court proceeded to examine the matter at hand and concluded that the principle, as given expression by the Directive, precluded the German national legislation. The case has been much commented-upon as it appears to further erode the prohibition on the horizontal direct effect of directives. There were previously three ways in which that prohibition was eroded: (1) by the Court of Justice’s broad conception of the state; (2) by requiring national law to be interpreted in a manner that conforms with unimplemented directives (which was not possible in this case); and (3) by requiring national law to be set aside if it has not met with procedural or technical requirements laid down in a directive. To this list it is necessary to add the proviso that unimplemented directives may be implemented against private parties where they constitute the expression of a general principle of EU law. This has potentially wide-ranging implications and Adjudicating Europe claims that it is an example of the Court of Justice integrating Europe through law. The obvious question that arises is which general principles of EU law as given expression in which directives can be relied upon in proceedings between private parties? Adjudicating Europe has addressed the matter of private law, and it is not proposed to further consider private law principles here.
Rather, let us stick with public law and in particular the principles contained in the EU Charter of Fundamental Rights. In his Opinion in the case, Advocate General Bot made clear that the Court needed to address the likelihood of increased litigation between private parties based on the Charter:
[G]iven the ever increasing intervention of Community law in relations between private persons, the Court will, in my view, be inevitably confronted with other situations which raise the question of the right to rely, in proceedings between private persons, on directives which contribute to ensuring observance of fundamental rights. Those situations will probably increase in number if the Charter of Fundamental Rights of the European Union becomes legally binding in the future, since among the fundamental rights contained in that charter are a number which are already part of the existing body of Community law in the form of directives… In that perspective, the Court must, in my view, think now about whether the designation of rights guaranteed by directives as fundamental rights does or does not strengthen the right to rely on them in proceedings between private parties. The present case offers the Court an opportunity to set out the answer which it wishes to give to that important question [para 90].
The Court of Justice’s decision does not set out criteria to explain which principles/rights/directives may be relied upon in this way and which may not. Kücükdeveci and Mangold (an earlier case with similar ratio) both addressed non-discrimination – perhaps one of the most basic substantive rights in the EU. Recent analysis in the German Law Journal by Anja Wiesbrock drew on the Audiolux case and opined that:
in Audiolux the Court clarified that in order to qualify as a general principle of Community law, a principle must have a “constitutional status,” rather than being “characterised by a degree of detail requiring legislation to be drafted and enacted at community level by a measure of secondary community law.”According to AG Trstenjak, in order to establish the existence of a general principle of EU law, it is required that the principle has constitutional status in EU law and the national legal orders and that the alleged principle boasts general validity within the EU legal order.
Enter the Charter of Fundamental Rights. Article 6(1) of the Treaty on European Union (after amendment by the Lisbon Treaty) notes that the Charter “shall have the same legal value as the Treaties”. The Charter is to be interpreted in light of the Explanations published alongside it in the Official Journal and it is generally considered to be an expression of existing rights rather than a declaration of new ones. However, the decision in Kücükdeveci may be read as underlining the potential significance of the Charter as the benchmark against which national legislation that falls within the scope of EU law may be measured. Ultimately this may have implications in a wide range of areas where the Charter provides for individual rights and the Union has legislated. Although it was first solemnly proclaimed almost a decade ago and there has been much critical debate on its content in the last ten years, Kücükdeveci provides the impetus for a fresh look at the Charter’s content to ascertain exactly what tools for litigants may lie in its fifty rights.
