Handle with Care!”—Some Considerations on the Approach of the European Court of Justice to the Direct Effect of General Principles of European Union Law
© Springer International Publishing Switzerland 2015
Laura Pineschi (ed.)General Principles of Law – The Role of the JudiciaryIus Gentium: Comparative Perspectives on Law and Justice4610.1007/978-3-319-19180-5_8“Please, Handle with Care!”—Some Considerations on the Approach of the European Court of Justice to the Direct Effect of General Principles of European Union Law
(1)
Research Fellow in European Union Law, University of Parma, Parma, Italy
Abstract
Since its inception, the European Court of Justice has conceived its mandate as encompassing the competence to identify and use in adjudication unwritten general principles of law, by drawing them, in particular, from the legal orders of the Member States or international law instruments. In order to safeguard the flexibility of this source of law, the Court has not engaged in an in-depth investigation of the very concept of “general principle of European Union law”, the methodology for the identification of general principles and the reconstruction of their content, their scope of application and their effects. This chapter focuses on one specific issue that is in need of further conceptual clarification: the capacity of general principles (or at least some of them) to be relied on by individuals before national courts to have conflicting national law set aside (direct effect), in particular in disputes vis–à–vis other individuals (direct horizontal effect). The relevant case law of the European Court of Justice is highly ambiguous if not even obscure. For this reason, it has attracted widespread criticisms. Accordingly, the main purpose of the chapter is to understand whether that case law is more in need of argumentative clarity or of solid normative justifications.
1 Introduction
For European Union lawyers, the expression “general principles” designates an unwritten, legally-binding source of Union law whose contours have been—and continue to be—shaped by the case law of the European Court of Justice (hereafter, the “Court”). This chapter focuses on one specific issue in need of further conceptual clarification: the capacity of general principles of European Union law (hereafter, “general principles”) to be invoked by individuals before national courts in order to obtain the setting aside of conflicting national law.1 The provisions of European Union law (hereinafter, “EU law”) that possess this capacity have “direct effect”. This is “vertical” or “horizontal” depending on whether it is relied on by an individual against the State (or an organ of it), or against another individual.2 In order to have direct effect, a provision must be clear, sufficiently precise, and unconditional.3 Whilst a provision that fulfils this test may be invoked against the State, the case law of the Court suggests that this is not sufficient for horizontal effect. However, it is unclear which additional characters the provision should have. Things become even more opaque when one analyses the case law on the direct effect of general principles, as no reference can generally be found to the test of clarity, precision and unconditional character.
This lack of clarity and transparency in the reasoning of the Court is problematic from a theoretical point of view and has practical repercussions on the life of individuals. When a provision of EU law is amenable to direct effect, an individual may be able to enjoy a subjective right4 whose exercise, or even existence, is precluded by national law. At the same time, if the provision entails direct horizontal effect, another person—the counterpart in the legal relationship—may have to take a conduct, or be the subject of consequences, different from what national law prescribes.
The topic of the direct effect of general principles therefore constitutes a privileged observatory to appreciate both the potential inherent in this source of EU law and the responsibility of the Court in handling it.5
The attention received in recent years by two judgments where the Court has granted horizontal direct effect to a general principle, Mangold and Kücükdeveci,6 could suggest that it is pointless to discuss the issue once again. At least two reasons support a different conclusion. First, Mangold and Kücükdeveci are complex judgments, and the granting of direct horizontal effect to a general principle is not the only issue that has attracted the criticisms of commentators.7 By focusing solely on it, this chapter seeks to understand whether the problem lies (only) with the lack of argumentative clarity in the legal reasoning of the Court or, rather, sound legal reasons supporting the granting of direct horizontal effect to general principles are also missing. Second, the first judgment delivered by the Court on the horizontal application of the EU Charter of Fundamental Rights (hereafter, the “Charter”),8 Association de médiation sociale (AMS),9 provides some new insight also on direct effect of general principles that is worth discussing.
As a starting point for our enquiry, it is helpful to introduce the concept and functions of general principles (Sect. 2) and to clarify in which situations their direct effect may be relevant (Sect. 3). The main challenges posed by the granting of direct horizontal effect to general principles in Mangold and Kücükdeveci, and by the legal reasoning of the Court, will then be thoroughly discussed (Sect. 4). Finally, before drawing some conclusive remarks, the relevance of AMS in the discourse on horizontal effect of general principles will be explored (Sect. 5).
2 General Principles as a Source of European Union Law: Concept and Functions
Against the background of the thorough discussion of these issues in other studies,10 we can confine ourselves to observe that the Court has extrapolated general principles of law from both the EU legal order itself and from the legal orders of the Member States. The first category includes general principles drawn from specific provisions of the EU Treaties,11 which the Court has regarded as expression of broader rules, or from the very nature, spirit and objectives of the Union.12 Reference can be made to the principles of solidarity,13 of institutional equilibrium,14 of reciprocal cooperation between the institutions and the Member States15 and amongst the EU institution,16 or the principle requiring Member States to compensate individuals of damages ensuing from breaches of EU law.17 To identify the general principles of the second type, the Court has followed a comparative method, though it has never conditioned the identification of a general principle to its recognition in all the Member States. However, the dividing line between the two sets of general principles is not clear-cut. Some general principles that the Court has drawn primarily from the legal orders of the Member States find specific expression in Treaty provisions, such as, for instance, the principles of equality and non-discrimination,18 proportionality,19 and legal certainty.20 At the same time, the distinction is not without any relevance: whilst the general principles with a basis in the Treaties have the status of EU primary law, the others rank in-between the Treaties and EU legislation.21
An important set of general principles that the Court has drawn “from outside” the EU legal order concerns the protection of fundamental rights. The founding Treaties of the European Communities22 did not contain any express provision aimed at providing protection for individuals whose fundamental rights were adversely affected by acts adopted by the Community institutions, or by the Member States when acting within the framework of the Treaties. In its seminal judgment Internationale Handelsgesellschaft, the Court held that “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice”.23 As sources of inspiration, it later referred to “the constitutional traditions common to the Member States”, and to “international treaties for the protection of human rights on which the Member States have collaborated, or of which they are signatories”.24 Over the years, the Court has characterized as general principles several fundamental rights, very often drawing inspiration from the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).25 Some examples are the rights to effective judicial protection,26 to respect for private and family life,27 to property,28 to human dignity,29 the right to take collective action, including the right to strike,30 the freedoms of expression,31 association32 and religion,33 and the principle of legality of criminal offences and penalties.34 Several fundamental rights that have been recognized as general principles are now to be found also in the Charter, which forms an integral part of EU primary law since 1 December 2009.35
The foregoing allows us to discard preliminary objections to the capacity of general principles to have direct effect. The “generality” of general principles does not necessarily amount to vagueness or indeterminacy. They do not correspond (or, at least, not all of them) to Dworkinian “principles”.36 Their generality rather refers to the fact that they “embody fundamental principles of the European Union and of its Member States”.37 From the point of view of their content, they “embrace rules of widely varying content and degree of completeness, ranging from interpretative maxims to fully fledged norms”.38
The general principles of Union law perform different functions.39 The Court has often relied on them to fill normative gaps in EU legislation, or even in the Treaties (as in the case of general principles protecting fundamental rights). They also assist the interpretation of Union acts, and provide grounds for their review. Those based on the Treaties, having the status of EU primary law, can also affect the interpretation of other provisions with the same rank. This is the case, inter alia, of the general principles drawn from the ECHR or from the constitutional traditions common to the Member States, given that a specific Treaty provision, Article 6(3) TEU, refers to them.
General principles are binding also over the Member States whenever a situation falls “within the scope of Union law”.40 Then, national measures must be interpreted in light of the relevant general principle(s) and, in case of conflict, the national court must strive to achieve an interpretation of the domestic provision that is consistent with Union law, “taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law”.41 However, this duty, which is known as the duty of consistent interpretation of national law with EU law, does not allow a domestic court to rely on an interpretation of the national provision against the law (contra legem).42 If the conflict between the general principle and the domestic provision cannot be overcome through consistent interpretation, the question of whether general principles can entail direct effect comes to the fore.43
3 When Is the Direct Effect of General Principles Relevant?
The notion of “scope of Union law” defines the “sphere”44 where general principles are binding at the national level. This means, in essence, that general principles are not free-standing rules. In order to trigger their application, it is not sufficient that an individual claims that a national measure runs counter to one or more of them. One must preliminarily verify whether another binding provision of Union law, which is not a general principle itself, applies to the specific situation at issue. That “other” provision, which is sometimes referred to as “trigger rule”, brings the situation within the scope of Union law, allowing the application of the general principles. It also follows from the case law of the Court that a provision of the Treaties that merely confers a power on the Union does not possess this capacity,45 unlike the EU acts possibly adopted in the exercise of that power.
An individual can therefore seek to invoke the direct effect of a general principle only when the conflicting national provision has a connection with another rule of EU law of the kind just described. This is the case with respect to the following categories of provisions: national measures adopted in order to discharge specific duties flowing from EU primary or secondary law, such as legislation implementing EU directives,46 or enforcing EU regulations47; national measures that substantially give effect to a Union obligation, though not adopted specifically on that purpose48; national provisions that govern or affect the enjoyment or the exercise of (ordinary) rights conferred on individuals by Union law49; national measures that derogate from EU primary or secondary provisions based on reasons of public interest.50 This list, far from being exhaustive, only encompasses the situations that occur more frequently. The notion of “scope of Union law” is inherently dynamic and at present the Court is mostly elaborating it in its case law on the application of the Charter, which is similarly premised on the existence of a “trigger rule”.51
The previous taxonomy of national measures falling within the scope of Union law also helps us to reveal a tension between the granting of direct horizontal effect to general principles and the requirement of legal certainty, which the Court has characterised as “a fundamental principle of [Union] law”.52 When a national measure that regulates the relationship between two individuals (for instance, a working relationship) is in conflict with a general principle, the private party who had acted in conformity with the domestic legislation could lose her case because of the direct application of the general principle. This situation is problematic from the point of view of legal certainty, which requires that rules are “clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly”.53 The concern related to legal certainty is not, however, the only one that emerges from the case law of the Court, on which we shall now turn.
4 A Troublesome Marriage: The Direct Effect of General Principles in the Recent Case Law of the Court
The Court’s rulings in Mangold and Kücükdeveci arose from working disputes between private law employers and their employees, who claimed to have suffered age-discrimination. On both occasions, the Court granted horizontal effect to the general principle prohibiting discrimination on grounds of age, whose existence was established for the first time in Mangold. After briefly outlining the two judgments, this section reviews the main challenges stemming from the granting of direct effect to general principles, as highlighted by the two judgments. Whilst both cases concern primarily horizontal effect, some of the following criticisms and considerations are relevant also with respect to the granting of direct effect to general principles in a vertical situation.
4.1 Mangold and Kücükdeveci
In Mangold, the national court doubted the compatibility with Union law of the German legislation that, by way of derogation from the general rule, did not make the conclusion of fixed-term contracts conditional on the existence of an “objective reason” when the worker was aged 52 or over.54 The national court submitted a preliminary reference55 to the Court, asking it to clarify whether the applicable national rules were in conflict with Directive 2000/78/EC, which has established a general framework for combating discrimination in the field of employment and occupation.56 Since the previous case law of the Court showed that provisions of directives cannot entail direct horizontal effect, even when they are clear, sufficiently precise and unconditional,57 the referring court also wondered whether the national legislation should have been set aside, had it resulted to be incompatible with EU law.
The Court found that the domestic legislation did not comply with Article 6(1) of the Directive, which allows Member States to introduce or maintain differences of treatment on grounds of age that are objectively and reasonably justified by a legitimate aim, provided that this is pursued through appropriate and necessary means. Although the promotion of vocational integration of unemployed older workers was regarded “as justifying, ‘objectively and reasonably’, … a difference of treatment on grounds of age” such as that at issue, the measure failed the necessity test.58 Therefore, the Court had to address the question of the consequences to be drawn from the incompatibility.
After reiterating its case law on the lack of direct horizontal effect of directives, the Court affirmed, crucially, that “the principle of non-discrimination on grounds of age must … be regarded as a general principle of Community law”.59 In the Court’s view, Directive 2000/78/EC has not introduced this general principle in the EU legal order; rather, it has the “sole purpose” of creating a framework aimed at strengthening the principle of equal treatment in the fields of employment and occupation.60 As a further step, it observed that the domestic legislation fell within the scope of Union law, because it had been adopted to implement another directive,61 notably Directive 1999/70/EC on the Framework Agreement on fixed-term work.62 Finally, the Court instructed the national court “to provide … the legal protection which individuals derive from the rules of Community law, and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law”.63 Part of the doctrine,64 and also some Advocates General65 within the Court, harshly criticized Mangold, pointing at the opaque reasoning as regards the very existence of a general principle prohibiting discrimination on grounds of age and the possibility to apply it horizontally.
In spite of this, the Court reiterated its conclusion a few years later in Kücükdeveci. Another German court had raised doubts on the compatibility with Union law of a national provision which, as an exception to the rule that the notice period for dismissal must be proportional to the length of the service, excluded from calculation periods prior to the completion of the employee’s twenty-fifth year of age. The Court was requested to clarify whether there was a conflict with “the Community law prohibition of discrimination on grounds of age”.66 The national court also sought to establish whether the parameter to test the compatibility of the domestic provision was the general principle of non-discrimination on grounds of age, or rather Directive 2000/78/EC, whose period of transposition had expired at the time of the facts. Furthermore, since the issue arose again in the context of a dispute involving an employee and its private employer, the national judge asked whether the disapplication of the national provision was conditional on a finding of incompatibility by the Court, in order to protect the legitimate expectations of individuals.
At the outset, the Court recalled that the prohibition of discrimination on grounds of age is a general principle of Union law, and that Directive 2000/78/EC merely gives specific expression to it.67 It then considered that the national provision at issue fell within the scope of Union law because it dealt with a matter covered by Directive 2000/78/EC.68 For the first time, the Court held that the expiry of a directive’s transposition period has “the effect of bringing within the scope of European Union law [domestic legislation] which concerns a matter governed by that directive”.69 The point raised by the national court as regards the parameter for the assessment of compatibility received a sibylline answer. Throughout the judgment, the Court referred to “the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78”,70 and assumed the coincidence between the content of the general principle and the proportionality test as established by Article 6(1) of the Directive.
Since the national provision failed the proportionality test, the Court had to address the question regarding the consequences of its incompatibility with Union law. It recalled that, whilst directives cannot be granted direct horizontal effect, the duty of consistent interpretation applies also in horizontal disputes.71 Yet, the national provision at issue could not be brought in conformity with Union law without resorting to a contra legem interpretation.72 Relying on Mangold, the Court recalled that the principle of non-discrimination on grounds of age is a general principle of Union law; if need be, national courts hearing disputes between individuals must disapply any national legislation contrary to that principle, in order to ensure the legal protection that individuals derive from EU law and its full effectiveness.73 Finally, the Court pointed out that the disapplication of the conflicting national provision is not dependent on a finding of incompatibility by the Court itself. Unless the question arises before a last instance court, the national judge is simply entitled to make a reference for a preliminary ruling.74
4.2 The Reasoning of the Court on the Test Bench
In Mangold and Kücükdeveci the Court assumed that the general principles of Union law are amenable to direct effect also in horizontal disputes.75 Two main objections can be raised in this respect, which will be referred here below as the “technical” challenge and the dogmatic challenge. A third one, the legal certainty challenge, cuts across the two.
4.2.1 The “Technical” Challenge
Whilst general principles are not inherently unable to have direct effect,76 their capacity to satisfy the substantive requirements for direct effect (clarity, sufficient precision and unconditional character) is often problematic. As was seen, general principles of Union law are quite heterogeneous from the point of view of their content. The actual context in which they are invoked may also play a role. The approach of the Court in Defrenne II, an early case on direct horizontal effect, is worth recalling.77
The Court discussed whether Article 119 EEC (now, 157 TFEU) could be invoked in a horizontal dispute. This requires the Member States to ensure “the application of the principle that men and women should receive equal pay for equal work”. From the outset, the Court pointed out that “the principle of equal pay forms part of the foundations of the Community”.78 The whole reasoning focused more on the principle encapsulated by Article 157 TFEU than on this Treaty provision qua Treaty provision.79 This makes the judgment pertinent to a discussion on the direct effect of general principles. The Court made a distinction between “the core and the fringe”80 of Article 157 TFEU, arguing that this covers both discrimination, which “may be detected on the basis of a purely legal analysis of the situation”, and discrimination which “can only be identified by reference to more explicit implementing provisions of a Community or national character”.81 The discrimination suffered by the applicant was ascribed to the first typology, and the national referring court was instructed to set aside contrasting provisions, including discriminatory clauses in individual contracts.82
The general principle prohibiting discrimination on grounds of age is itself a specific expression of the general principle of equal treatment, whose existence the Court had identified long before the adoption of Directive 2000/78/EC. Its normative core—notably, the fact that “comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified”—is sufficiently clear and unconditional.83 In other words, although the Court did not emphasise this point in Mangold and Kücükdeveci, one cannot infer from them that any enquiry into the actual justiciability84 of the general principle is not needed.85 In fact, if that were the case, legal certainty would be seriously compromised, and so would the principle of institutional equilibrium. In the words of Advocate General Trstenjak, the latter principle requires that the Court:
In this connection, Advocate General Jarabo Colomer has argued that the direct effect of general principles:
[R]espect[s] the rule-making power of the Council and of the Parliament [and] observes the necessary self-restraint in developing general principles of Community law which might possibly run counter to the legislature’s aims.86
This consideration could not be objected if the Court granted direct effect to general principles that are not justiciable as such. This, however, is more the “pathology” than the “physiology” of the direct effect of general principles.88
[D]istorts the nature of the system of sources, converting typical [EU] acts, [the directives] into merely decorative rules which may be easily replaced by the general principles.87
A few more lines must be devoted to the approach of the Court in Kücükdeveci. As already noted, the Court did not give a clear answer to the question whether the national measure should be tested against the general principle prohibiting age discrimination or against Directive 2000/78/EC. On the one hand, it checked whether the case fell within the scope of Union law, thus suggesting that the general principle was the parameter. On the other, throughout the judgment the Court referred to the general principle prohibiting age discrimination “as given expression by Directive 2000/78/EC”, notably in its Article 6(1), which it regarded as fulfilling the threshold criteria for direct effect. This may create the impression that, in Kücükdeveci, the Court has introduced a precision to the scope of the rule that directives lack horizontal effect, without acknowledging the horizontal effect of the general principle concerned.89 In other words, the provisions of a directive that meet the threshold criteria for direct effect could be invoked also in horizontal disputes when they give expression to a general principle of Union law, no matter whether directly effective by itself. This solution would maximize the effectiveness of general principles of Union law, and of a set of provisions contained in directives. It would also have the advantage to limit the differentiated treatment between public and private employees that may ensue from the rule that directives lack horizontal effect.90 Yet, this approach is not theoretically cogent and it would significantly inhibit legal certainty. Luckily, the Court has rejected it in AMS.91
Incidentally, from the point of view of the principles of legal certainty and institutional equilibrium, the question of whether a general principle must satisfy, by itself, the threshold criteria for direct effect arises also with respect to vertical cases. This is a corollary of the broad notion of “State” endorsed by the Court, which encompasses also subjects, occasionally regulated by private law, that are not involved in the process of implementing Union law.92 Furthermore, whilst in Kücükdeveci the national measure breached a general principle spelt out in a provision of a directive, there may also be cases where the conflict arises with respect to a general principle not endorsed by the EU law provision that triggers its application to the case.93
Before moving to the dogmatic challenge, some attention must be paid to the argument that the theoretical framework underpinning Mangold and Kücükdeveci would be the principle of primacy of Union law over national law, rather than direct effect.
For the purpose of this discussion, it is sufficient to recall that the so-called “primacy model” relies on a distinction between exclusionary effect and substitution effect.94 Exclusionary effect means that a conflict between a provision of Union law and a national provision can be solved by setting aside the latter and applying some other provisions of national law. In other words, EU law has only a foreclosing effect. By contrast, substitution effect means that, in case of a conflict, the EU law provision does not only set aside conflicting national law, but also becomes the rule that governs the (horizontal) relationship. Under the primacy model, exclusionary effect is a corollary of the primacy of Union law over national law, whereas only substitution effect amounts to direct horizontal effect. Consequently, there would be no need for a preliminary investigation of whether the general principle fulfils the “technical” requirements of clarity, precision and unconditional character. Mangold and Kücükdeveci would be about exclusionary effect only: the Court simply instructed the national court to set aside the conflicting national provisions, which in both cases were exception to general rules, and to decide the cases with the “remaining” national provisions, i.e., the general rules.
Although the Court has never upheld the distinction between substitution and exclusionary effect, some elements in Mangold and Kücükdeveci, amongst which the lack of any assessment of the justiciability of the general principle as such, may suggest that primacy, rather than direct effect, provides the theoretical underpinning of these judgments.95 Yet, the primacy model entails a number of shortcuts. Once the conflicting national provision has been set aside, it may not be clear which other provision should apply. Furthermore, the distinction between substitution and exclusionary effect is a “false dichotomy”, because in both situations “the disputes [are solved] on the basis of a rule different from the one prescribed by the national legislation”.96 Thus, in terms of legal certainty, the primacy model is no less problematic than the model, sometimes referred to as “trigger model”, that rejects the distinction between exclusionary and substitution effects.97 In fact, the primacy model also seems less theoretically cogent, if not even “arbitrary”98: the way in which national law is structured ultimately determines whether EU law merely forecloses, or is rather a substitute. In any event, the Court has rejected in AMS the possibility of relying on the principle of primacy to explain its reasoning in Mangold and Kücükdeveci, and to extend it to similar cases.
4.2.2 The Dogmatic Challenge
Assuming that Mangold and Kücükdeveci involve direct horizontal effect of general principles, the reasoning of the Court in these judgments raises a second major objection. The Court apparently assumed that, being inherent in the system established by the Treaties, general principles of Union law can be a source of rights and obligations for individuals.99 Since the Court has resorted to the general principles of Union law as limits to the action by public authorities (of the Union and, subsequently, of the Member States, though only “within the scope of EU law”), it is not self-evident that they prevail also in horizontal relationships.100 Moreover, direct horizontal effect is more problematic than its vertical counterpart from the point of view of legal certainty. In spite of this, the Court has evaded the issue.
In reality, such an evasive attitude is not peculiar to Mangold and Kücükdeveci: an analysis of the judgments in which the Court has acknowledged the direct horizontal effect of some Treaty provisions shows that there is no transparent, dogmatically convincing justification of that effect. At the same time, however, Mangold and Kücükdeveci fit with that case law, because both appear to be premised “on the imperative of equality as a constitutional value”.101 So far, the Court has recognized direct horizontal effect to Treaty provisions concerning the prohibitions of discrimination based on nationality (Article 18 TFEU)102 and between male and female workers as regards “pay” (Article 157 TFEU),103 the free movement of workers (Article 45 TFEU)104 and services (Article 56 TFEU),105 and the freedom of establishment (Article 49 TFEU).106