| dc.description.abstract | In 2018, in Bauer and Broßonn, the Court of Justice of the European Union (CJEU) ruled
that a worker can enforce the right to paid annual leave against his or her employer based
on the Charter of Fundamental Rights of the European Union (Charter). This horizontal
effect of the Charter, its invocation between private parties, has long been a controversial
topic in EU law and it has found renewed relevance concerning fundamental rights
attributed to workers (labour rights). Previously, in AMS in 2014, the CJEU had denied
the worker’s right to information and consultation within the undertaking to be applied
between private parties. In its jurisprudence, the CJEU appears to have developed two
criteria for horizontal direct effect, namely the unconditional and the mandatory nature
of the provision in question. The thesis will argue that, in its current form, this test remains
insufficient and causes legal uncertainty, for employees and employers alike. The aim of
this thesis is to address this uncertainty in further developing these criteria to be able to
assess the potential of labour rights to be applied horizontally. Therefore, the main
research question is to clarify when labour rights have horizontal effect. This logically
leads to the sub-question what the criteria for horizontal effect should be and whether the
CJEU’s criteria can be specified to provide a more effective test. Furthermore, the
horizontal effect of the Charter regularly comes into play in the context of EU directives
which famously lack said effect. Therefore, another sub-question concerns how EU
directives should be taken into account, if at all.
Doctrinal legal analysis will be employed, with a heavy emphasis on grammatical,
historical, systematic and teleological interpretation of individual provisions of the
Charter. A doctrinal legal analysis of the theoretical foundations of horizontal effect will
provide the basis for suggesting a practical test to answer the main research question. This
practical test will be employed to analyse the CJEU’s jurisprudence on this issue and to
evaluate its current approach.
The objective of the first part of the thesis is to engage in the theoretical issues behind
horizontal effect from a general constitutional and EU law perspective. Firstly, this
includes the problem of the relationship between fundamental rights and private law,
specifically in labour and employment law. Secondly, the horizontal effect of labour
rights will be discussed, leading to the question if the differences between labour rights
and more traditional civil and political human rights justify different results regarding
their horizontal application. Lastly, from the perspective of EU law, the horizontal effect
of Charter provisions also poses the systematic challenge of their relationship with EU
directives which cannot be applied directly horizontally. In its second part, the thesis
provides a critical evaluation of the growing jurisprudence against the backdrop of the
theoretical analysis. The individual chapters will focus on the case law regarding Articles
21(1), 27 and 31(2) of the Charter, evaluating the CJEU’s judgments based on the more
comprehensive requirements proposed in the first part. In its last part, it will examine the
potential of the right to fair and just working conditions in Art. 31(1) of the Charter – still
undetermined by the CJEU – to be applied horizontally.
The thesis found that the distinction between rights and principles in the Charter is
instrumental for the question of horizontal effect. According to Art. 52(5) of the Charter
and the respective Explanations to the Charter, principles require an implementing act to
be justiciable. They are only judicially cognisable in the interpretation and review of the
legality of such acts. Rights, on the other hand, can also be used for a claim to positive
legal action. Although the CJEU has only rarely expressly acknowledged this distinction in its jurisprudence, the case-law, in particular the legal reasoning found in AMS, suggests
that principles cannot have horizontal effect. In contrast, the thesis will argue that
principles should still have horizontal direct effect, albeit in a limited sense. It should be
possible to rely on a principle to oblige a judge to disapply a conflicting provision of EU
law or national law. The difference in justiciability would still be guaranteed because only
rights could be used as a basis for claims to positive legal action. Moreover, an inherent
characteristic of is that they provide significant legislative discretion. Consequently, this
increases the threshold to disapply a conflicting provision. Therefore, although
potentially every labour right can be applied horizontally, even if categorised as a
principle, the extent of their justiciability differs depending on this categorisation.
The CJEU’s criteria for horizontal direct effect, an unconditional and mandatory nature,
are currently inadequately defined. For both criteria, the case-law suggest an emphasis on
the text of the individual provision, which may lead to ambiguous results because of the
vagueness of the phrasing in the Charter. Concerning the mandatory nature, the CJEU
has often emphasised that the fundamental right has found protection as a general
principle of EU law or essential principle of EU social law. This does not serve as a
practically useful criterion for most labour rights in the Charter. These unwritten rules
cannot provide any clarity when they have not previously been part of the CJEU’s
jurisprudence.
The thesis suggests that the definition should take into account that the role of horizontal
effect of labour rights should be to serve as a limitation of legislative discretion and to
address the imbalance of power inherent in the employment relationship. The
unconditional nature should be defined as the need for an implementing act into EU or
national law to specify the legal prerequisites of the provision. This is directly related to
Art. 52(5) of the Charter and requires that there is no legislative discretion given regarding
the legal prerequisites of the fundamental right. The mandatory nature should be
characterised as creating an obligation to achieve a particular result, meaning that the
legislative discretion is limited regarding the legal consequence of the provision. This
requires an interpretation of the provision concerning wording, history, systematic
structure and purpose. The purpose of the fundamental right should be the most important
criteria in this procedure. Its purpose should be related to the imbalance of power inherent
in the employment relationship.
Moreover, the case law highlighted that the criticism of horizontal effect regarding a
conflation of EU directives and Charter could be mitigated by a more prominent use of
Art. 52(1) of the Charter. This provision states that every limitation of a fundamental right
should respect their essence and should be subject to the principle of proportionality. This
provision is especially relevant regarding Art. 21(1) of the Charter because of its
prohibitive character but it also concerns labour rights whose specificities often require a
balancing of rights and interests by the legislature, in EU law most prominently in the
form of EU directives. Directives can be used to specify the requirements of Art. 52(1)
of the Charter. More specifically, the directive provides the result of a balancing
procedure which is the test of proportionality. In this case, it is adequate that the judiciary
respects the legislature’s balancing of rights and interests instead of overwriting these
considerations. | en |
