4.2.1.3 The case of AMS

143. In AMS1 the Court of Justice was asked whether in horizontal proceedings Article 27 Charter can be invoked in order to disapply any national provision incompatible with it.2 Put more generally, the Court was given the chance to further clarify when the Mangold-approach applies, or at least, to which rules of Union law it applies.3

The AMS case concerned the compatibility of Article L. 1111-3 Code du Travail (French Labour Code), a provision on the calculation of employees in the context of a representation system, with Article 27 Charter concerning the right of workers to information and consultation. A trade union (the Union locale des syndicats CGT; hereinafter: CGT or trade union) appointed Mr Laboubi as the representative of the trade union section created within AMS and did so based on the calculation of employees on the basis of the relevant French provision implementing Directive 2002/144. AMS challenged the appointment of Laboubi relying on Article L. 1111-3 Code du Travail. Then, Laboubi and a subdivision of CGT claimed that Article L. 1111-3 Code du Travail is contrary to EU law, in particular Article 27 Charter.5

First, the Tribunal d’instance de Marseille put the constitutionality of Article L. 1111-3 Code du Travail into doubt. The Tribunal referred the case to the Cour de cassation, which passed the case on to the Conseil Constitutionnel.6 The Conseil Constitutionnel stated that the provision was not in conflict with the French constitution.7 Nevertheless, the Tribunal rejected the claims sought by AMS and decided that Article L. 1111-3 Code du Travail should be disapplied anyway, due to its incompatibility with Union law, especially with the right to information as codified in Article 27 Charter.8 The Tribunal d’instance de Marseille thus upheld the argument brought by Laboubi and the trade union and disapplied Article L. 1111-3 Code du Travail.9

AMS appealed the case to the Cour de cassation, which made a reference for a preliminary ruling to the Court of Justice asking whether the fundamental right of workers to information and consultation, recognised by Article 27 Charter and specified in Directive 2002/14, may be invoked in a dispute between private parties in order to assess the compliance of a national measure implementing the Directive with Union law.

144. Contrary to Advocate General Cruz Villalón10, the Court of Justice answers the question in the negative and states that “the facts of the case may be distinguished from those which gave rise to Kücükdeveci insofar as the principle of non‑‑discrimination on grounds of age at issue in that case, laid down in Article 21(1) Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such. Accordingly, Article 27 Charter cannot, as such, be invoked in a dispute, such as that in the main proceedings, in order to conclude that the national provision which is not in conformity with Directive 2002/14 should not be applied”.11 Further, the Court of Justice concludes that Article L. 1111-3 Codedu Travail is indeed at odds with the Directive; that consistent interpretation is impossible; and that the only option that remains for AMS would be to bring a claim for State liability for wrongful implementation on the basis of Francovich.12