7.2 (Partial) nullity of juridical acts infringing Union law with direct horizontal effect: the example of Article 45 TFEU

310. It has been demonstrated that nullity is a remedy that can apply to juridical acts incompatible with Article 45 TFEU.1 In the context of this study, the question arises whether nullity is indeed a proportionate remedy for an infringement of Article 45 TFEU – or other Treaty provisions with direct horizontal effect. To answer this question it is relevant to assess the extent to which the remedy shows expressions of proportionality, and whether the application of this remedy corresponds to the standards laid down by the Court of Justice.

311. The Italian courts in Angonese stated that on the basis of Italian law the discriminatory part of the bando di concorso was null and void, because it was contrary to Article 45 TFEU, which is a provision of mandatory law (norma imperativa). Pursuant to Article 1324 in conjunction with Article 1418 Codice civile a juridical act that is in conflict with a legislative provision of mandatory law is null and void, unless the legislative provision infringed provides otherwise.2 The nullity of an act infringing a provision of mandatory law does not have to be prescribed by this particular provision: “basta che una norma imperativa sia stata violata”. It concerns absolute nullity that can be invoked by anybody having an interest in doing so.3

However, a juridical act infringing a provision of mandatory law escapes the remedy of nullity if the particular provision excludes nullity as a remedy in case of an infringement. This occurs if in relation to the infringement of that provision the law provides for another remedy, like partial nullity, voidability and ineffectiveness. In case a provision does not explicitly exclude nullity or provides for another remedy, the conclusion that nullity is not the desired remedy can nonetheless follow from the rationale of the provision.4 The criteria for this assessment are well established in case law: the sanction of nullity applies if the mandatory legislative provision infringed concerns an absolute prohibition or injunction that aims to protect a public interest (interesse generale).5 Clearly, the public character of the interest protected by a particular provision is an argument in favour of the conclusion that a juridical act infringing such a provision is null and void. In the judgments in Angonese the Italian courts solely state that Article 45 TFEU is a provision of mandatory law and then immediately conclude that the requirement in the bando di concorso is null and void, without further elaborating upon the character of the interests this provision aims to protect.

To avoid potential disproportionate consequences of integral nullity of a juridical act, Article 1419 Codice civile provides for partial nullity of a juridical act that is null and void on the basis of Article 1418 Codice civile. Article 1419 Codice civile stipulates that solely the problematic part of the juridical act is null and void and the remaining part stays intact, unless the entire juridical act would not have come about without the part that is null and void. The latter exception to partial nullity embodies the protection of private autonomy, as it protects parties from being bound to a juridical act they never wanted to be bound to in the first place. When it concerns an agreement, in order to determine whether part of the agreement is null and void or whether the integral agreement is struck by nullity, it has to be assessed what the objectives of the parties were, and what the essence of the agreement is.

312. As discussed, under Dutch law it is unlikely that a job offer like the bando di concorso in Angonese would qualify as a juridical act.6 However, if it would qualify as a juridical act, it is noted that the Dutch regime on nullity differs from the Italian regime. When not the establishment or conclusion of a juridical act, but its content and/or necessary implication is in conflict with a provision of mandatory law, the juridical act is null and void under Dutch law only if the infringement of this statutory provision qualifies as an infringement of public policy or good morals. It is for national courts to, in light of the viewpoints laid down by the Hoge Raad in Esmilo/Mediq, assess whether the content or necessary implication of the juridical act that infringes Article 45 TFEU is in also conflict with public policy and is therefore null and void on the basis of Article 3:40(1) BW.7 The relevant viewpoints primarily focus on the character of the legislative provision infringed: provided that the legislative provision infringed does not prescribe any sanction for an infringement of that provision, and the provision is of a fundamental nature and aims to protect the interests at stake in a particular case, nullity on the basis of Article 3:40(1) BW is a proportionate remedy. The only party-related aspect in the viewpoints is the awareness of the parties of the problematic character of their juridical act. In that respect it can be argued that the awareness of the parties that their act was unlawful, may be a strong argument to sanction the particular juridical act with nullity. Yet, the awareness of parties that their act was unlawful is not decisive as such: the other viewpoints have to be considered too to arrive at a balanced, proportionate conclusion. If the assessment leads to the conclusion that nullity is not desired, the particular juridical act remains intact, which means that the infringement of the particular legislative provision of mandatory law has no legal consequences in terms of the validity of the particular juridical act. In sum, the assessment of the viewpoints laid down in Esmilo/Mediq contributes to a balanced conclusion on whether or not nullity of a juridical act is the appropriate and proportionate remedy for an infringement of a provision of mandatory law that does not implicitly or explicitly provide for a form of invalidiy as a remedy for an infringement of the particular provision.

313. Like in Italian law, in Dutch law the collision of the content of a juridical act with a provision of mandatory law does not compellingly lead to integral nullity of the juridical act. Article 3:41BW provides that a juridical act can be partially null and void. On the basis of this provision the lawful part of a juridical act remains unaffected insofar as that remaining part of the juridical act is not bound to an indissoluble tie to the part of the juridical act that is null and void.8 In this respect, the option of partial nullity prevents nullity from reaching further than the extent to which its objective would be justified.9

There is a subtle difference between the Italian provision on partial nullity and the Dutch one. I recall that under Article 1419 Codice civile a juridical act cannot be partially null and void if the entire juridical act would not have come about without the particular part that is affected by nullity. As said, this rule aims to protect the private autonomy of the parties involved. The Dutch provision on partial nullity, however, takes a more objective approach by assessing the interconnection between the problematic part and the rest of the juridical act, without solely focusing on the private autonomy of the parties.

314. It is recalled that absolute nullity of the respective juridical act is the only remedy provided by Article 3:40(1) BW: the paragraph is not as flexible as Article 3:40(2) BW. The latter relates to juridical acts of which the establishment or conclusion infringes a rule of mandatory law. Article 3:40(2) BW distinguishes three options,including the option of voidability in case the particular legislative provision infringed purports to protect only one of the parties involved.10 It is an ongoing point of debate whether the absolute nullity of a juridical act that is contrary to public policy or good morals is always proportionate. Some authors advocate a more flexible regime and argue that, in analogy with the regime provided for by Article 3:40(2) BW, voidability should be an option next to absolute nullity in cases in which a juridical act as regards its content or necessary implication, is contrary to public policy or good morals.11 If we place this discussion in the context of juridical acts of which the content and/or necessary implication is in conflict with Treaty provisions such as Article 45 TFEU the following should be noted. In principle, nullity is an effective and appropriate remedy for juridical acts that infringe Article 45 TFEU. Further, the elements of necessity and proportionality stricto sensu are reflected in the assessment on the basis of the viewpoints laid down in Esmilo/Mediq as well as in Article 3:41BW on partial nullity.12 Moreover, considering that the Court of Justice assimilates the free movement of workers with fundamental rights, and the fact that Article 45 TFEU aims to protect not only individual interests but also general interests, it is unlikely that voidability would be a preferred remedy for juridical acts incompatible with Article 45 TFEU. All in all, the sanction of absolute nullity – or partial nullity – for infringements of provisions like Article 45 TFEU is not excessive: it does not go beyond what is necessary to achieve the objective of protecting the effectiveness of Article 45 TFEU.13 In my view, the same can be argued in relation to other Treaty provisions with direct horizontal effect.14

315. In conclusion, the integral or partial absolute nullity of a juridical act that is in conflict with Article 45 TFEU is, in principle, an appropriate, proportionate remedy which contributes to restoring an unequal relationship and protecting the weaker party (the worker) and, subsequently, which respects the fundamental right to non-discrimination and the right to free movement of workers. Both the Italian and the Dutch rules on nullity and partial nullity and their application to Article 45 TFEU seem to correspond to the right to a proportionate remedy as further elaborated on by the Court of Justice. However, considering the fact that in the concrete case of Roman Angonese the job competition had already ended some time ago, the nullity of the bando di concorso in this concrete case was symbolic rather than that it actually provided Angonese – and other workers in the same position – the opportunity to participate in the job competition. Consequently, the nullity of the bando di concorso can in this specific case not be said to be an effective remedy in itself. As a result, Angonese additionally claimed compensation for damages, and this claim was sustained by the Italian courts.