4.2.2.4 A criterion for a rule of Union law to have this effect

161. The Court of Justice distinguishes between the various rights and principles adopted in the Charter. As comprehensively discussed, according to Mangold and Kücükdeveci national courts are under certain circumstances obliged to set aside legislation of national origin that is incompatible with the general principle of non-discrimination on the basis of age or on the basis of religion – codified in Article 21 Charter.1 Pursuant to AMS Article 27 Charter concerning the worker’s right to information is not of such nature that national courts are obliged to set aside provisions of national origin as a result of a substantive compatibility review against this Charter provision. Consequently, the Charter contains rights and principles that differ in character.

162. The issue whether, in the context of a dispute between private parties, a provision of national law can – or: must – be set aside as a result of a substantive compatibility review against a Charter provision seems to be decided on the basis of the content and character of the provision as well as to the extent to which the respective right or principle is embedded in the legal orders of the Member States.2 One of the standards the Court of Justice seems to apply in order to assess whether or not a Charter provision can have such an effect is whether the respective right or principle “is sufficient in itself to confer on individuals an individual right which they may invoke as such”.3 This standard seems to reflect the criteria for direct vertical effect, but the Court has not explicitly made that connection.4 A similar approach was taken by Advocate General Trstenjak in her Opinion to Dominguez. There she argued that the right to paid leave was not sufficiently clear and precise to be directly applied to legal relationships between private parties.5Further case law by the Court of Justice should clarify which rights and principles can be invoked to set aside a national provision that is substantively incompatible with Union law in horizontal proceedings.6

163. Furthermore, placing Dansk Industri in a broader perspective, it is likely that whichever principle or right in the Charter that in itself is sufficient in itself to confer on private parties a subjective right that they may invoke as such and that may thus bring about the disapplication of a conflicting provision of national origin in the context of horizontal proceedings, cannot function as such a standard autonomously; i.e. according to the Court’s case law the dispute between private parties must be governed by EU law, which includes the applicability of national legislation that was adopted to implement a directive to the case at hand.7