5.5 When national law is substantively incompatible with a directive

251. It is settled case law that a directive cannot of itself impose obligations on a private party and that directives can therefore not be relied upon as such against a private party.1 In line with this, and in harmony with the fact that the duty of consistent interpretation does not include the obligation to interpret the law contra legem, a national court cannot, on the basis of Union law, set aside a legislative provision in horizontal proceedings on the ground that this provision is substantively incompatible with a directive. A national court is allowed to carry out a substantive compatibility review of the national provision against a directive in the context of horizontal proceedings,2 but it is not permitted, on the basis of Union law, to set aside the national provision in case the national court finds that this provision is incompatible with the particular directive.3 Nevertheless, the Court of Justice has held that in horizontal proceedings national courts must disapply legislative provisions that are incompatible with a provision of Union law – not being a directive – that is sufficient in itself to confer rights upon private parties which can be invoked as such4, “in disputes between them in a field that is covered by EU law”.5 By deploying such rules of Union law in this way, the limited horizontal effect of directives can be bypassed.6 It is recalled that such a disapplication of national law does not equate to contra legem interpretation or the direct application of a directive.7

252. In Dominguez the question arose whether Article 31(2) Charter, codifying the right to paid leave, could be invoked by a private party in order to challenge the applicability of a national provision in horizontal proceedings. Advocate General Trstenjak delivered a comprehensive Opinion in which she reasons that given the different nature of Article 31(2) Charter in comparison to Article 21 Charter, this general principle of European Union social law cannot be deployed by national courts to set aside a legislative provision that is incompatible with it.8 Although the preliminary questions posed by the Cour de cassation must have tempted the Court of Justice to elaborate on this issue, the Court clammed up instead and did not seize the chance to clarify whether the Mangold-approach could apply also to principles or fundamental rights other than the prohibition of age discrimination, like the right to paid leave. In literature great disappointment has been expressed about the fact that the European Court remained silent as the grave as concerns the possibility to extend the application of the Mangold-approach to the right to paid leave as entrenched in Article 31(2) Charter.9 The Court’s approach was labelled accurately as “judicial minimalism”.10

253. The fact that the Court tiptoed around the matter in Dominguez implied that the right to paid leave did not fall within the same category as the prohibition of age discrimination. That approach would be in line with the criterion laid down in AMS two years later. After all, Article 31(2) on the right to paid leave requires further elaboration by either Union instruments or by national implementation measures as regards the conditions for and the duration of the paid leave. Yet, in Bauer and Broûonn11 the Court of Justice clarified that, as such, the right to paid leave or allowance in lieu as entrenched in Article 31(2) Charter is unconditional and sufficiently clear so that it can be invoked by a private party to claim the disapplication of an incompatible national provision in horizontal proceedings.12 As noted in no. 245 in §5.3.3, the temporal effect of the Charter is also relevant to the question whether or not Article 31(2) Charter can be invoked as such. As argued in that section it is probable that the right to paid leave or allowance in lieu can be invoked as such only in legal situations that took place after 1 December 2009 and not in ones occurring before that date. That means that, pursuant to Union law, a national court in a case like the one in question is not obliged to disapply the problematic provision, and that it ‘only’ has to comply with the obligation of consistent interpretation as discussed in §5.3.

254. All in all, a national court that has found that a national provision cannot be interpreted in conformity with a directive and that cannot interpret national law contra legem, has to inquire whether it can set aside the particular national provision on the ground that it is in conflict with a provision of Union law that in itself is sufficiently precise to confer a right upon a private party. As indicated elsewhere,13 further clarification by the Court of Justice as regards the rights and principles that fall within this category is desired.