Does the EU Rights Charter apply to private disputes? Sometimes, sometimes not…

Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement

The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.

This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year.

Factual and legal background

The applicant company is involved in the introduction of measures for the prevention of crime in the city of Marseille (France). Its objective is also to promote the reintegration into working life of unemployed persons or persons with social and professional difficulty in gaining access to employment. In this connection, the AMS offers them the opportunity to gain professional training in the field of social mediation after having followed an individual career plan.

In June 2010, the departmental labour union appointed a representative of the trade union section created within the AMS.  The AMS challenged that appointment. It took the view that it had staff numbers of fewer than 11 (a fortiori fewer than 50 employees) and that, as a result, it was not required under the relevant national legislation to take measures for the representation of employees, such as the election of a staff representative.

Under French law, AMS was correct in excluding from the calculation of its staff numbers apprentices, employees with an employment-initiative contract or accompanied‑employment contract and employees with a professional training contract (‘employees with assisted contracts’). The trade union argued that the relevant French provision was in breach of Directive 2002/14/EC providing for the consultation of employees, since it excludes a specific category of employees from the calculation of the staff numbers of an undertaking. The problem for the trade union is that Directives are not “horizontally effective”, i.e.  applicable in disputes between individuals. So they argued that the case was covered by Article 27 of the Charter of Fundamental Rights of the European Union, according to which ‘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 Union law and national laws and practices’.

In those circumstances, the Cour de cassation decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1)      May the fundamental right of workers to information and consultation, recognised by Article 27 of the [Charter], and as specified in the provisions of Directive [2002/14], be invoked in a dispute between private individuals in order to assess the compliance [with European Union law] of a national measure implementing the directive?

(2)      In the affirmative, may those same provisions be interpreted as precluding a national legislative provision which excludes from the calculation of staff numbers in the undertaking, in particular to determine the legal thresholds for putting into place bodies representing staff, workers with [assisted] contracts?

The CJEU’s Decision 

The CJEU took the view that Article 3(1) of Directive 2002/14 must be interpreted as precluding a national provision, such as Article L. 1111-3 of the Labour Code, under which workers with assisted contracts are excluded from the calculation of staff numbers when setting up bodies representing staff. Nevertheless it is an established principle in the case-law that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties (see Pfeiffer and Others, paragraph 109, and Case C-555/07 Kücükdeveci [2010] ECR I‑365, paragraph 46).

On the other hand, Article 27 of the Charter, as a “fundamental right”, is “guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law” (see Case C-617/10 Åkerberg Fransson [2013] ECR I-0000, paragraph 19).  Consequently, since the national legislation at issue in the main proceedings was adopted to implement Directive 2002/14, Article 27 of the Charter was applicable to the case in the main proceedings.

However, that was not the end of the story. The Court went on to consider the nature and wording of the “rights” under Article 27, and concluded that the provision could not, as such, be invoked in a private dispute, in order to disapply a national provision which is not in conformity with Directive 2002/14:

That finding cannot be called into question by considering Article 27 of the Charter in conjunction with the provisions of Directive 2002/14, given that, since that article by itself does not suffice to confer on individuals a right which they may invoke as such, it could not be otherwise if it is considered in conjunction with that directive. [48]

The Court concluded with the observation that a Francovich action would still be available for a party injured as a result of domestic law not being in conformity with EU law, even where he or she cannot avail themselves of the protection of the  Charter.

Comment

That the Court found it so easy to distinguish Article 27 from the Charter right at issue in Kücükdeveci does nothing to clarify the muddied waters of the Charter’s relationship to the rest of EU law and for that matter the rights enshrined in the Council of Europe’s Convention on Human rights. The CJEU avers that

the principle of non-discrimination on grounds of age at issue in  [Kücükdeveci ], laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they make invoke as such (para. 47).

but its arbitrary picking and choosing between one right and another renders nugatory its sweeping statement that Charter Rights should be held to be applicable ‘in all situations governed by European Union law’. If parties cannot know or predict which of those rights are going to be applicable,  how are they to frame their disputes in the national courts? And what is behind the CJEU’s thinking in this case? Are perhaps what used to be called civil and political rights, such as the right to be protected against discrimination on various grounds, to be deemed applicable in all disputes governed by EU law, even those between private parties, whereas those body of rights related to trades-union or labour laws and other forms of social and economic entitlements not sufficiently … er, ‘sufficient’ to have horizontal effect? If that is the case, then why not come out and say it?

In his interesting post on the decision Menelaos Markakis at the Oxford Human Rights Hub declares that “[t]he importance of this Grand Chamber ruling far surpasses the circumstances of this particular case.” But does it? It seems to me that it simply signals to member states that every time a litigant refers to the Charter in a matter involving EU law, the whole thing must be referred as a request for a preliminary ruling to the CJEU. This is expensive, extravagant and unprincipled adjudication. Let’s hope the next time a Charter point is being decided, there is some rather more useful guidance is provided, on which member states courts can rely.

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