8.3.3 Private autonomy and other fundamental rights

399. In various instruments the Union regulates the protection of fundamental rights other than the fundamental freedoms. The instruments of Union law that concretise fundamental rights and that are relevant in the context of horizontal legal relationships especially relate to the right to privacy (Article 7 Charter), the right to protection of personal data (Article 8 Charter)1, the right to freedom of thought, conscience and religion (Article 10 Charter), the right to property (article 17(1) Charter), the right to intellectual property (Article 17(2) Charter)2, the right not to be discriminated (Articles 21 and 23 Charter)3, the right to fair and just employment conditions and the right to paid leave (Article 31 Charter)4.5 The regulation of those fundamental rights in the sphere of private law is likely to restrict the fundamental right to private autonomy: the more voluminous the body of mandatory rules, the more restricted the freedom of action of private parties.6 I will not discuss whether or not this development is to be applauded.7 Instead, I briefly illustrate how, in the current state of the law, the Court of Justice positions the principle of private autonomy in relation to other fundamental rights.

400. Since directives do not have direct horizontal effect, the rights they confer upon private parties cannot be invoked as such. The fundamental rights adopted in the Charter that are concretised in directives have effect via implementation measures and via the technique of consistent interpretation.8 A private party can invoke the measures that implement the directive and claim consistent interpretation of national law or, as a last resort, request the disapplication of a national provision that is incompatible with a fundamental right that complies with the AMS-criterion. Apart from this, in 2018 the Court of Justice has confirmed that certain Charter provisions can directly bind private parties,9 be it that that technique still has to crystallize10 and that for the applicability of the Charter the dispute between private parties must concern a field covered by Union law11.

401. In a number of cases in diverse areas of law the Court of Justice has ruled that a private party can invoke Article 16 Charter as a legitimate aim that justifies the restriction of a fundamental right concretised by a certain directive, provided that the means to achieve that aim are in tune with the principle of proportionality. It concerns cases in which the Court clarifies how national courts should interpret open norms on the restriction of a fundamental right in conformity with Union law. For example, in Sky Österreich, a case on a restriction of the right to property as concretised in a directive, the Court pays attention to Article 16 Charter and holds that the freedom to conduct a business is not absolute and could be subject to a broad range of interventions.12 That the right is indeed subject to interventions is reflected by the fact that most attempts to invoke it as a ground of justification for a restriction of Union law turned out to be fruitless.13 Only in Scarlet Extended14and Alemo-Herron15 did the Court accept a restriction of rights on the basis of Article 16 Charter. In Scarlet Extended the Court held, with reference to Promusicae, that “the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights” and that “in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of private parties who are affected by such measures”.16 In the circumstances of this case, the protection of Article 16 Charter outweighs the protection of the holders of copyrights.17

In Alemo-Herron the Court held that the particular directive “cannot be interpreted as entitling the Member States to take measures which, while being more favourable to employees, are liable to adversely affect the very essence of the transferee’s freedom to conduct a business”.18 The outcomes in these cases can hardly be generalised. Therefore, it is difficult to draw universal conclusions about the effect and impact of Article 16 Charter.

402. An example that I will elaborate on to a larger extent is Achbita. In this case a private employer dismissed a female employee who refused to comply with the company’s neutral dress code policy that prohibited the use of a headscarf and any other visible religious, political or philosophical symbols.19 The case falls within the scope of application of Directive 2000/78 combatting discrimination in employment. The Belgian Cour de cassation referred a preliminary question to the Court of Justice on the interpretation of the concept of direct discrimination. The Court of Justice holds that the case is an example of indirect discrimination. Indirect discrimination may be justified if the restriction serves a legitimate aim, which achievement is pursued by an appropriate and necessary measure.20 The interpretation and concretization of this proportionality assessment must of course be in conformity with Union law, including the Charter of Fundamental Rights. As regards the possible justification of the indirect discrimination in question the Court holds:

Subsequently, the Court briefly remarks that in the light of this legitimate aim the prohibition to visibly wear signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that the policy is genuinely pursued in a consistent and systematic manner, which is for the national court to ascertain.22 Further, the Court states that as regards the requirement that the prohibition is limited to what is strictly necessary, the prohibition must be limited to employees who interact with customers. Whether that is the case is for the national court to ascertain.23 Lastly, the Court suggests that the national court must assess whether alternatives less onerous than dismissal would have been possible in the present case, such as offering a position to Ms Achbita in which she would not have visible contact with customers. The Court gives the national court the task to “take into account the interests involved in the case and to limit the restrictions on the freedoms concerned to what is strictly necessary”.24

Next to the Court’s suggestion, this ruling is a model example of how the Court can instruct national courts to carry out a fully-fledged proportionality assessment in a horizontal legal relationship involving fundamental rights: the Court demarcates the borders within which the national court can manoeuvre and leaves it to the national courts to determine the concrete outcome in light of the specific circumstances of the case.

403. In conclusion, the rulings discussed show, once more, that proportionality assessments are the nucleus of the concrete impact Union law has on horizontal legal relationships. Regardless of which effect the Court of Justice gives to a particular instrument of Union law in horizontal legal relationships, in the rulings discussed the question whether or not a subjective right is infringed is assessed on the basis of a proportionality test. The abstract margins of such a proportionality assessment are more or less clear – i.e. no arbitrary restrictions, no less onerous and equally effective means available to achieve the aim pursued by the restriction, and the restriction must be reasonable or proportionate stricto sensu. Nevertheless, the mootpoints highlighted above require clarification. In particular as concerns Article 16 Charter it would be useful to know when subjective rights that Union law confers upon private parties restrict Article 16 Charter, and under which conditions Article 16 Charter can justify a restriction of such subjective rights.25 According to Sieburgh, real and mutual private autonomy demands that not only private interests but also the public order and thus public interests are respected.26 The protection of fundamental rights – including fundamental freedoms – can be of both private and public interest. Therefore, the protection of fundamental rights in principle justifies the restriction of the freedom of action that private parties have. Yet, the fact that the potential of Article 16 Charter in horizontal legal relationships is a controversial matter is illustrated by the Opinions of Kokott in Achbita and of Sharpston in a similar case.27 Kokott suggested that the restriction of the freedom of religion was justified by the employer’s freedom to conduct a business as enshrined in Article 16 Charter.28 Sharpston took a stance that is diametrically opposite to that of Kokott. The Court however acknowledged that Article 16 Charter, within certain limits, can justify a restriction of the freedom of religion.29