8.3.1.2 Charter provisions as grounds of justification: direct horizontal effect?

384. This section briefly recapitulates the relevant case law of the Court of Justice on the effect of the Charter in horizontal legal relationships. In general, the Court’s case law on the effect of fundamental rights and Charter provisions is, to say the least, not very illuminating. To this day it is not crystal clear whether or not Charter provisions as such can have direct horizontal effect in the sense that conduct of private parties can be directly assessed in light of a Charter provision or that private parties, without interference of other legislative provisions, are obliged to comply with rights and obligations stipulated in Charter provisions as such.1

385. At least some Charter provisions seem apt to have direct horizontal effect, namely those which as Treaty provisions or general principles already had direct horizontal effect before the Charter entered into force, for example (some of) the fundamental freedoms (Article 15(2) Charter), the right to non-discrimination on account of nationality (Article 21(2) Charter), and the right to equal pay of men and women (entrenched in Article 23 Charter).2 However, the Court of Justice has not (yet) (unambiguously)3 confirmed that a Charter provision can be invoked to directly assess a private party’s conduct in the way that it has in relation to Treaty provisions in for example Defrenne II, Bosman, Angonese, Laval and Viking.

386. In Viking and Laval the Court of Justice remained silent about whether or not the right to collective action, now entrenched in Article 28 Charter, can be invoked directly by a private party against another private party; the Court of Justice just held that the right to collective action can be an overriding reason of public interest which, in principle, justifies a restriction of one of the fundamental freedoms guaranteed by the Treaty.4 In Bauer and Broûonn the Court of Justice, referring to Egenberger,held that private parties “where appropriate” may be “directly required to comply with certain provisions of the Charter”.5 That is the case when the particular Charter provision is sufficient in itself to confer on private parties a right they may actually rely on in disputes between private parties in a field covered by Union law and therefore falling within the scope of the Charter.6

387. As pointed out earlier, the Court’s choice of words is not unambiguous concerning the specific type of horizontal effect.7 Collectively, the rulings in AMS, Dansk Industri, Egenberger, Bauer and Broûonn and Cresco Investigation must, in my view, be understood in the sense that

Although these rulings strongly hint toward the direct horizontal effect of certain Charter provisions, the ‘real’ direct horizontal effect awarded to a number of Treaty provisions has not been unequivocally awarded to any Charter provision yet. The far-reaching effect of Articles 21 and 31(2) Charter has, so far, always taken place in the context of a compatibility review of national legislation against that Charter provision; the Court of Justice has not (yet) held that also in other situations those Charter provisions directly impose obligations and confer rights upon private parties, and can be invoked as such in disputes between them, such as in Defrenne II, Bosman, Angonese, Laval, Viking and cases in the realm of Article 101 TFEU. Regardless of the parallel drawn by the Court itself, the various techniques in those cases differ.10 The horizontal effect of Charter provisions as introduced in the case law series from Kücükdeveci to Cresco Investigation rather is a crossbreed between indirect horizontal effect, namely through a substantive compatibility review of national law11 on the one hand, and direct horizontal effect on the other, namely by directly imposing obligations upon a private party after a national provision has been set aside. Needless to say there remains a task for the Court to clarify the effect of Charter provisions in horizontal legal relationships – in general, but also more specifically in relation to the justification of restrictions of fundamental freedoms.

388. From AMS it becomes clear that Charter provisions that include the phrase “under the conditions provided for by Union law and national laws and practices” are not sufficiently clear to confer on private parties a right which they can invoke as such. Therefore, like Article 27 Charter and unlike Article 21 Charter and Article 31(2) Charter, Article 28 Charter is conditional and can thus not directly confer a right upon a private party, as the right exists “in accordance with Union law and national laws and practices”. As a result, Article 28 Charter cannot be invoked in order to require the disapplication of a provision of national law that is incompatible with that Charter provision in horizontal proceedings and neither does Article 28 Charter have direct horizontal effect. Despite that, according to the Court in Viking and Laval the right to collective action can be a legitimate interest for a restriction of a fundamental freedom. That implies that for the justification of a restriction of a fundamental freedom it is irrelevant that the right to collective action either as a principle or as Article 28 Charter lacks direct horizontal effect. In my view, the lack of direct horizontal effect of a Charter provision is irrelevant for the justification of a breach of a fundamental freedom, because the Charter provision is balanced against the fundamental freedom in a proportionality assessment (§8.3.1.3) without the fundamental freedom being hierarchically superior to the Charter provision (§8.3.1.4). In this balancing assessment the fundamental freedom and the fundamental right are invoked as interests. This means that in that specific balancing assessment it is irrelevant whether the Charter provision as such has direct horizontal effect.12 However, this conclusion does not mean that we are not in need of clarification of the question which private interests can justify a restriction of a fundamental freedom. In that respect, I agree with Sieburgh that a number of Charter provisions can be used as a vehicle to subsume such private interests under Union law.13 Subsequently, it must be clarified under which conditions such private interests can justify a restriction of a fundamental freedom.