–Alison Young, Fellow and Tutor in law at Hertford College, University of Oxford
[cross-posted from UK Constitutional Law Blog]
Concerns are often raised as to the impact of EU’s human rights provisions in English law, particularly concerning the impact of the EU’s Charter of Fundamental Rights and Freedoms. How far does the Charter apply and, in particular, can this be used in purely horizontal situations – i.e. where a dispute arises between two private parties and EU law is sought to be used, in and of itself, to impose an obligation on an individual they would not otherwise have but for the effect of EU law? The UK government is currently carrying out a review on the balance of competences between the EU and its Member States. Unfortunately the call for submissions on the EU and human rights closed before the decision of the Grand Chamber of the Court of Justice of the European Union in C-176/12Association de médiation sociale v Union locale des syndicats CGT (AMS) was delivered on 15 January. Whilst the decision does provide some answers to the complex nature of the application of the Charter in national law, it raises more questions than it resolves.
AMS concerned the appointment of Mr Laboudi as the local CGT union representative at AMS. AMS is an association in Marseille that implements social mediation measures and measures for the prevention of crime in Marseille. The French law implementing Directive 2002/14, which establishes a framework for informing and consulting with employees, required Unions to designate a representative for firms with 50 or more employees. However, in calculating the number of employees, the French law did not take account of apprentices. AMS employed 11 full time members of staff and employed between 120 and 170 individuals on ‘accompanied employment contracts’. AMS argued that those employed on ‘accompanied employment contracts’ were apprentices. Therefore, it had less than 50 employees and CGT were not able to insist on the appointment of a Union representative at AMS. CGT argued that the French law was contrary to the Directive and Article 27 and that they were able to insist on the appointment of Mr Laboudi as their representative. Two questions arose. First, does Directive 2002/14, either by itself or as interpreted in line with Article 27 of the Charter require that those employed on ‘accompanied employment contracts’ be counted as employees for the purposes of the Directive? Second, could the Directive, interpreted in line with the Charter, be used in a dispute between private parties so as to exclude national law?
The first issue was relatively straightforward. The court concluded that the Directive does not permit Member States to exclude certain categories of employees from its provisions. The second issue was more complicated. The provision of the Directive was sufficiently clear and precise to have direct effect. But, as a Directive, it was not capable of having horizontal direct effect: As the union and AMS were both private parties, the Directive could not be relied on. Nor was it possible to interpret the French law in line with the Directive. Any duty to interpret national law in line with Directives reaches its limit when it would require a contra legem interpretation, as would be the case here. The question remains, however, whether Article 27 of the Charter, protecting the worker’s right to information and consultation, could nevertheless apply to this dispute between two individuals.
For the Charter to apply, two hurdles need to be cleared. First, as established in C-617/10 Åkerberg Fransson, it has to be demonstrated that the situation before the court is ‘governed by European Union law’ as the Court of Justice of the European Union ‘has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law’. [paragraph 19, Fransson]. As the French law in question was designed to implement Directive 2002/14, then the case clearly was one that was governed by European Union law. Second, it needs to be established whether the Charter was able to have horizontal direct effect. The answer given is ‘yes – but not always and not in this specific case’. Article 27 requires that ‘[w]orkers 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 Community law and national laws and practices.’. The Court concluded that ‘for this article to be fully effective, it must be given more specific expression in European Union or national law’. [AMS paragraph 45]. Therefore, the Charter could not be invoked in this instance to exclude the operation of national law in a dispute between parties. Nor could the Charter and the Directive operate together to grant horizontal direct effect to the Charter provision and exclude the operation of national law in a dispute between private parties. If the Charter did not have the ability to apply in this manner in and of itself, then it could not acquire this ability by being combined with the Directive [AMS paragraph 49]. So, the only remedy available to the applicant is to invoke the principle of state liability, established in C-6/90 Francovich, to claim damages from the French state for its failure to implement the provisions of the Directive. What is important here is what is not said. At no point did the Grand Chamber state that the provisions of the Charter, like Directives, cannot have horizontal direct effect. This leaves open the possibility that the Charter could be used in and of itself to exclude the application of national law in a dispute between private parties when the Charter provision did not need to be given more specific expression in European or national law.
Which Charter provisions can have horizontal direct effect?
The judgment leaves open more questions than it answers: although we know that the Charter can exclude the application of national law in a dispute between parties, it is hard to know which Charter rights will do so. What we do know from the judgment is that Article 27 is an example of a Charter provision that does not have horizontal effect, whereas Article 21(1) of the Charter, as applied in C-555/07 Kücükdeveci is provided as an example Charter right that is capable of having such an effect [see AMS paragraph 49].
Article 21(1) of the Charter states:
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.
Article 27 of the Charter states:
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 Community law and national laws and practices.
There are two obvious differences between the two Articles. First, Article 21(1) specifically prohibits certain conduct, whereas Article 27 guarantees information and consultation as provided for by Community law or national laws and practices. Second, the Articles are in different Chapters of the Charter. Article 21(1) is in the Equality Chapter and Article 27 is in the Solidarity Chapter. It could be argued that these differences point to the greater clarity and precision to be found in Article 21 as contrasted with Article 27. However it is hard to conclude that clarity is the sole distinguishing feature. Whilst Article 21 may be clearer in that it provides for the protection of a particular right – the right not to be discriminated against on the grounds lists in the Article – there is still uncertainty surrounding its scope. Does it extend to a protection against indirect and direct discrimination and how do we distinguish between these two concepts? Would it be breached if the discrimination occurred because of positive action – e.g. a policy making it easier for people of a particular social origin to enter University courses? How does the law determine the relative comparator to ensure that discrimination does not occur? The difference is perhaps better understood not as turning on the relative clarity of the Charter provisions, but, instead, as to whether the clarification of the scope of the right is regarded as better suited to the judiciary or better suited to the legislature or executive. There may also be a secondary factor of whether the right is one where there should be greater or lesser area of discretionary judgment granted to the national courts as opposed to the European Union. This stems perhaps from Article 27’s reference to ‘national laws and practices’.
Cruz Villalón AG, in his opinion, drew on the distinction between rights and principles to help determine which Charter provisions could have horizontal direct effect. Whilst Charter rights are meant to have the same legal effect as Treaty provisions, principles, according to Article 52(5) of the Charter, ‘may be implemented’ by legislative or executive acts of the Union institutions, or of the Member States when implementing European Union law and are ‘judicially cognisable only in the interpretation of such Acts and in the ruling on their legality’. However, although the Charter draws this distinction, and provides a few examples in the Explanations to the Charter, there is no precise account of this difference. Cruz Villalón AG starts his analysis by remarking that Article 27, as a social right, was a ‘right’ by virtue of its subject matter, but a ‘principle’ by virtue of its operation [paragraph 45]. He was influenced, first, by a similar distinction drawn in the constitutional documents of some of the Member States – Ireland, Spain, France, Austria and Poland – as well as concerns regarding the protection of social and economic rights, which could lead to the judicialisation of public policy. Second, referring to the language of the Charter, he argues that principles impose obligations on public authorities, whereas rights are designed to protect individuals in defined legal situations. Action is needed by the public authority to transform the principle into a defined legal right (paragraphs 50-51]. The wording of Article 27 demonstrates that it is designed to impose an obligation on public authorities. This is confirmed by its content, which is too vague to provide for the specification of a particular Act. Moreover, there were examples of this specification of Article 27 in EU legislation prior to the enactment of the current version of the Charter – including in Directive 2002/14. [paragraphs 54 and 55]. In addition, the Charter provision is found in the ‘Solidarity’ Chapter, classifying it as a social right, which leads to the presumption that the provision is a principle and not a right. All three factors led Cruz Villalón AG to conclude that Article 27 was best understood as a principle and not as a right.
It is hard to know how much of this analysis of the AG was endorsed by the Grand Chamber. The Grand Chamber makes no reference at all in its judgment to the distinction between rights and principles. Moreover, the Court of Justice reaches an opposite conclusion to Cruz Villalón AG, who advised that Directive 2002/14 could be regarded as the specification of Article 27 by a public authority and that its provisions could then be relied upon in a dispute between private parties, in a manner similar to Kücükdeveci. Yet, despite the differences as to outcome, and the lack of reference to principles, both the court and the AG recognise that Charter rights appear to be more likely to apply to a dispute between private parties if they:
(i) Are clear and precise enough to give rise to individual rights in and of themselves without the need for legislative intervention/intervention by a public authority
(ii) Can be understood as the expression of a right that can be relied upon by an individual as opposed to an expression of an obligation to be imposed on a public authority
(iii) Are not social or economic rights.
It is not clear how far any of these criteria are necessary or sufficient to determine the of horizontal application of a Charter provision. They are probably best understood as indications or guidelines.
How should the court make this assessment?
Even if we can provide some clarity as to what may influence the classification of a Charter right as one that can or cannot have horizontal direct effect, it is not clear whether these issues are discussed in the abstract or in relation to the specific facts of the case before the court. Article 27 of the Charter guaranteed worker information and consultation. Article 3 of Directive 2002/14 provides that Member States have a choice between whether the provisions of the Directive apply to firms with more than 50 employees in one Member State, or to firms with more than 20 employees in more than one Member State, and that it is for the Member States to determine how these employee numbers are to be calculated. Consequently, nothing in Article 27 or in Directive 2002/14 provided a clear answer to the factual issue before the court. In the words of the Grand Chamber:
It is not possible to infer from the wording of Article 27 of the Charter or from the explanatory notes to that article that Article 3(1) of Directive 2002/14, as a directly applicable rule of law, lays down and addresses to the Member States a prohibition on excluding from the calculation of the staff numbers in an undertaking a specific category of employees initially included in the group of persons to be taken into account in that calculation. [paragraph 46]
This can be contrasted with the situation in Kücükdeveci
as the principle of non‑discrimination on grounds of age at issue in that case, (author’s emphasis) laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such. [paragraph 47]
This reading of the judgment of the Grand Chamber also provides an explanation for the different conclusions of the Court of Justice and Cruz Villalón AG. This, in turn, suggests that the decision of the Grand Chamber may have a wider application than at first appears. Cruz Villalón AG concluded that the Charter could have horizontal direct effect, despite its classification as a principle, because it had been given substance by the Directive. The court concluded that, given that Article 27 did not have horizontal direct effect in and of itself, it could not have horizontal direct effect when applied in combination with Directive 2002/14 [paragraph 49]. This would appear to imply that, for the Grand Chamber, a Charter provision that is not sufficiently clear and precise can never have horizontal direct effect in and of itself. Even if a Directive were enacted to implement an unclear Charter provision, the Charter, in combination with the Directive, could not have horizontal direct effect. However, if we interpret the Grand Chamber’s comments as relating to the specific issue before the court, a different conclusion is reached. If a Directive were to add to an unclear Charter right in a manner that did provide an answer to the specific question before the court, even if the Directive did not clarify all applications of the unspecific Charter right, then it may be that the Charter as applied through the Directive can have horizontal direct effect in a manner similar toKücükdeveci. Therefore there may be two situations in which the Grand Chamber would grant horizontal direct effect to a Charter provision:
(i) When the Charter provision is sufficiently clear and precise
(ii) When the Charter provision is not sufficiently clear and precise, but nevertheless the Charter in addition to a Directive related to the Charter provision provides an answer to the specific question before the court.
Is ‘clarity’ enough?
The judgment of the Grand Chamber appears to focus predominantly on whether the Charter right is sufficiently clear and precise to have horizontal direct effect. Yet, this question is relevant not just to horizontal direct effect, but to direct effect more generally. Any provision of European Union law needs to be sufficiently clear, precise and unconditional if it is to have direct effect at all. This need not mean that an assessment of whether a Charter provision can have horizontal direct effect adds nothing to our assessment of whether it can have direct effect. But it does lend further grist to the mill in support of reading the decision of the Grand Chamber as one that distinguishes between Charter provisions that require specification from further legislative acts as opposed to merely focusing on their clarity and specificity. However, there is still one assessment missing from the Grand Chamber’s assessment that is present in the opinion of Cruz Villalón AG – whether the Charter provision is one that issuitable for application between private parties. For Cruz Villalón AG this was the case for Article 27 of the Charter. Article 27 refers to worker’s rights. Therefore it is clearly suitable for horizontal application. The objective of the Article would not be achieved if private employers were not meant to be subject to its obligations, once these were fleshed out by the action of public authorities of the EU or the Member States.
This issue of ‘suitability’ for horizontal application should be a necessary, albeit not a sufficient, component of the assessment of whether a Charter provision should have horizontal direct effect. Horizontal direct effect operates to impose obligations on private individuals. It is precisely this element that creates concerns as to the horizontal application of human rights. To impose an obligation on an individual in this manner may be problematic if the individual herself has human rights that could potentially conflict with her obligation to uphold the human right of another. This is not to argue generally against horizontal direct effect of Charter provisions. Nor is it an argument against the horizontal direct effect of Charter provisions that could give rise to conflicts between different human rights. However, it is an argument for further assessment of the need for care when assessing whether a Charter provision should have horizontal direct effect. Where the imposition of obligations on individuals could give rise to human rights conflicts there may be a greater need to ensure that these potential human rights conflicts have been taken into account through the specification of particular duties on private individuals by the legislature of the EU or by the legislature or judiciary of Member States that may be more aware of the relative importance of different human rights in their particular Member State.
The decision of the Grand Chamber in AMS paves the way for the potential horizontal application of Charter provisions, with the possible disapplication of national laws in disputes between private parties when these disputes occur within the sphere of European Union law. It is not clear from the decision whether this will apply to the vast majority, or merely a minority of Charter provisions. I would argue that Charter provisions should be capable of having horizontal direct effect, but that this should be limited to Charter provisions that:
(i) are suited to imposing obligations on private parties, and
(ii) are clear and precise enough to give rise to individual rights in and of themselves without the need for legislative intervention/intervention by a public authority, or
(iii) are sufficiently clear and precise when applied in combination with a Directive to provide a clear answer to the specific issue before the court.
It remains to be seen how far the decision in AMS will be applied in the future; but the case does illustrate the potential for the Charter to play a more important role in the protection of human rights than the Human Rights Act 1998, in particular as the former may provide for the disapplication of legislation whereas the latter does not. Whether this will occur in practice remains to be seen.