CELS Lunchtime Seminar: 'The Horizontal Effects of Charter Rights given Expression to in EU Legislation, from Mangold to Bauer'

Speaker: Professor Elise Muir, Leuven University 

For almost two decades now, EU institutions have been developing a legislative acquis that puts flesh on the bones of specific fundamental rights. Common examples are EU legislation in the field of anti-discrimination, and EU legislation on the right to a fair trial in criminal proceedings. The legislative instruments employed show a complex relationship with the fundamental rights to which they give expression. They seek to strike a balance between that right, on the one hand, and other fundamental rights or key EU interests, on the other.

That complexity is further shown through judicial review, as well as judicial interpretation of legislative instruments giving expression to fundamental rights, which inevitably exposes competing visions of the design and scope of the said fundamental rights. The legislature’s approach may diverge from that of the Court of Justice of the European Union (‘the Court’), or of other European courts. The sensitivity of the matter has been particularly well illustrated in recent years by cases such as Test-Achats in which the Court declared that part of the Directive on equal treatment between men and women in the access to and supply of goods and services was invalid. Similarly, the series of cases and legislative revisions related to mutual trust in the Area of Freedom, Security and Justice (AFSJ), in relation to the Dublin system as well as the European Arrest Warrant, shed light on the difficulties of articulating the protection of fundamental rights and the proper functioning of the area without internal borders through EU legislation. 

In these well-known cases, fundamental rights enshrined in norms having the legal value of primary EU law have acted as a benchmark against which legislative developments at the EU level were checked. The competing visions of the EU legislature, the Court as well as the European Court for Human Rights have attracted much attention. The underlying tension can be conceptualised in fairly traditional terms: legislation was being tested against, or interpreted in light of, higher ranking norms.  

Yet, what if EU secondary law could also influence the content and scope of EU fundamental rights protected at the level of primary law? This reverse process, by which EU legislation may influence the fundamental rights enshrined in instruments such as the Charter of Fundamental Rights of the European Union (‘the Charter’), has been subject to very little academic attention to date. Several fairly recent Court rulings in Egenberger, IR, Bauer, Max-Planck and Cresco, suggest that such a conceptual shift in that direction may be happening. These cases constitute an invitation to reflect on whether, and if so, to what extent, EU fundamental rights’ legislation, read in conjunction with the Charter, could have an impact on the scope of application, substance and/or legal effects of the Charter. 

This approach to the relationship between legislation and fundamental rights is somewhat counter intuitive. It requires thinking that a derivative norm can affect features of a higher-ranking constitutional norm. Fundamental rights lawyers are traditionally used to fundamental rights norms looking hierarchically downwards, that is, being used as benchmarks, as well as filtering through the decision-making process in a number of sophisticated ways. Nevertheless, it will be argued that the Court’s recent case law can be understood as allowing EU legislative guidance on fundamental rights to interact with the rights enshrined in norms having the same rank as EU primary law, in an upward process. The selected cases shed light of the types of constitutional implications that may derive from overlaps between legislation and constitutional norms on fundamental rights.

The upward process thereby introduced does not concern many fundamental rights yet, but the approach is rapidly expanding. As we shall see, it raises several important constitutional questions. I will therefore map out the main features of the latest Court case law on horizontal effects of Charter provisions given expression to in EU directives. I will then critically reflect on how these cases may be defining the future conditions for the horizontal direct effect of the Charter. I will conclude in favour of a narrow reading of this new line of cases. 

Enquiries to: cels@law.cam.ac.uk