Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/3.2.2.1:3.2.2.1 The effect of Article 45 TFEU in horizontal legal relationships

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/3.2.2.1

3.2.2.1 The effect of Article 45 TFEU in horizontal legal relationships

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

45. In Angonese the Court of Justice confirms1 that the prohibition of discrimination on the basis of nationality as entrenched in Article 45 TFEU can be invoked by a private party vis-à-vis another private party, and that agreements as well as other acts by private parties can be scrutinised in light of this fundamental freedom.2 In other words, the non-discrimination principle entrenched in Article 45 TFEU, which is a special application of the general prohibition of discrimination on account of nationality as entrenched in Article 18 TFEU3, has direct horizontal effect.4 Further, if an employer discriminates against a (potential) worker on the basis of nationality and, as a consequence of this discrimination, impedes the free movement of this particular worker – or a group of workers to which he can be said to belong to – this discriminatory conduct is prohibited in the light of Article 45 TFEU.5 Due to the interrelated character of the right to non-discrimination on account of nationality and the free movement of workers, Craig and De Búrca refer to them as “twin principles”.6

46. The Court has conscientiously composed its reasoning, which heavily relies on the principle of effectiveness, the uniform application of Union law and the coherency of the other fundamental freedoms and prohibitions of discrimination in the Treaty.7 Given the earlier case law of the Court, like Walrave and Koch8, Wouters, Bosman, Olympique Lyonnais and Defrenne II,the confirmation of the direct horizontal effect of the principle of non-discrimination in the context of the free movement of workers could have been anticipated9.10 These cases concerned the scrutiny of collective agreements in light of the free movement of workers.11 In Angonese, however, the Court of Justice applies Article 45 TFEU to the condition laid down by an individual employer (the Bank). With this the Court adds a new dimension to the effect of the free movement of workers.12 After having recalled its considerations in Walrave and Koch, Bosman, Defrenne II the Court holds:

“35. Such considerations must, a fortiori, be applicable to Article [45] of the Treaty, which lays down a fundamental freedom and which constitutes a specific application of the general prohibition of discrimination contained in Article [18 TFEU]. In that respect, like Article [157 TFEU], it is designed to ensure that there is no discrimination on the labour market.

36. Consequently, the prohibition of discrimination on grounds of nationality laid down in Article [45] of the Treaty must be regarded as applying to private persons as well.”13 [Edited: I.A.]

Lane and Nic Shuibhne conclude from this that “Angonese is therefore a clear extension of Article [45, I.A.] and an irrefutable recognition, and ex cathedra pronouncement, of an obligation imposed directly upon private employers”.14 Hence, individual horizontal legal relationships can be scrutinised directly in the light of Article 45 TFEU and, if need be, this provision can be applied directly to modify a horizontal legal relationship in order to assure the effective protection of the right to free movement of workers in conjunction with the right not to be discriminated on account of nationality.15

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