8.6.2 The role of the Court of Justice

441. When clear legislative instruments of the European legislature governing remedies for infringements of Union law are absent, the Court of Justice is the obvious institution to map out such a framework in the context of preliminary proceedings.1 The competence of the Court of Justice to interpret Union law includes the clarification of the effect of rules of Union law in horizontal legal relationships. Most of the Court of Justice’s rulings that form the footing of this study have been criticized, not only for being notoriously intransparant or incomplete, but especially for their legitimacy, the particular interpretation of Union law and its consequences.2 Unfortunately, critical literature often fails to give insight into what would have been the Court’s ‘better’ alternative. Without elaborating upon the specific criticism here,3 this section aims to generally illustrate the inconvenient position of the Court of Justice in cases like the ones that are at the bedrock of this study.

442. In relation to wrongful implementation of directives that confer rights and obligations upon private parties, it is recalled that from the analysis in §8.4 it can be derived that it is unrealistic to think that a private party can always successfully claim compensation from the Member State. Further, the question of State liability is irrelevant when a private party directly – i.e. without relying on problematic national legislation – has infringed a right that Union law confers upon another private party if a claim against the first party is possible, either on the basis of EU law or of national law. For these reasons and in respect of the effectiveness of the rights and obligations that Union law confers on private parties, it is relevant to explore the horizontal effects of Union law.4 The rulings that clarify the effect of certain rules of Union law in horizontal legal relationships strongly rely on the effectiveness of Union law.5 The ‘effectiveness-argument’ applies not only to the direct horizontal effect of rules of Union law, but also to the obligation of national courts to interpret national law consistently with Union law and the obligation to disapply national provisions that are incompatible with certain rules of Union law. In addition to the principle of effectiveness, the Court of Justice – logically – also strongly relies on the supranational character of Union law, the principle of primacy, as well as the specific objective of the particular rule of Union law – e.g. the protection of a weaker party such as an employee, a discriminated private party, or a consumer.

443. One can hardly blame the Court for strongly relying on the supranationality, primacy and effectiveness of Union law. Those principles are fundamental to the system and rationale of the European Union. That is not different when it comes to the effect of Union law in horizontal proceedings and the restriction of the procedural autonomy of Member States in the context of the right to effective judicial protection and the right to an effective remedy for infringements of Union law in horizontal legal relationships. Consequently, it is inherent in the institution and the fundamental principles of the Union that the Court of Justice, when confronted with preliminary questions on fundamental topics, sometimes delivers fundamental rulings that may have a considerable impact on – some of – the laws of Member States and on private parties. This is inevitable. As the proverb goes: one cannot bake an omelette without breaking the eggs.

Against this background, the effect given to Union law in cases like Angonese, Laval, Mangold, Kücükdeveci, Dansk Industri, Egenberger, and Bauer and Broûonn is explained by safeguarding the full effectiveness of the rule of Union law in question. A different interpretation most likely would have jeopardized the effet utile and even brought the risk of that rule of Union law becoming a dead letter given the impossibility for private parties to invoke and enforce the particular rule or principle.6 Nonetheless, it is true that the implications of this effect for the infringing parties are significant and, as argued by some, unreasonable.7 Indeed, as discussed in Chapter 7 and in the preceding sections, some of the implications of these rulings of the Court of Justice are somewhat unfortunate and demand attention. Yet, this does not necessarily mean that the rulings in themselves are erroneous or disproportionate, especially if we look at the alternative options in a broader perspective.

444. As regards the interpretation given to Union law in for example Mangold, Kücükdeveci and Dansk Industri the Court has been accused of stepping outside its competences.8 However, the question truly is: when it comes to the interpretation of rules of Union law in horizontal legal relationships, what exactly are the boundaries for the Court of Justice? It is not crystal clear which aspects of procedure and remedies are subject to Union law and which are left to the Member States.9 The constitutional principles of subsidiarity and proportionality10 are important in matters in relation to which the Union and Member States have shared competences.11 Once the Union has adopted instruments that confer rights upon private parties, the effective judicial protection of those rights becomes a crucial aspect of the effectiveness of Union law. In view of that right, which is entrenched in Article 47 Charter, the Court of Justice has considerable space to clarify what does and what does not comply with the right to effective judicial protection of the rights that Union law confers upon private parties.12 On the other hand, in the absence of remedies provided by Union law and with an eye on the principles of subsidiarity and proportionality, the question is how far the Court of Justice may go in interfering with national remedies.13 Reich notes that even in cases where the Court of Justice required an “upgrading” of national remedies, a wide margin of discretion was left to national courts to accomplish the right balancing between rights and interests.14 Yet, the Court of Justice’s ruling in Dansk Industri that national courts are prohibited to prioritize the protection of legitimate expectations at the costs of the effective judicial protection of Article 21 Charter is a clear example of an interpretation of Union law that affects the civil remedies and practices of Member States – an area that is not harmonized by Union law and where the autonomy of Member States thus has to be respected by leaving, within certain limits, discretion. However, the demarcation of those limits is not an easy exercise: too much restriction of the autonomy of Member States will lead to resistance, which is illustrated by the ruling of the Danish Supreme Court in which it refused to obey the ruling of the Court of Justice in Dansk Industri.15 On the other hand, leaving Member States the freedom to apply instruments or practices that may jeopardize the effectiveness and the effective judicial protection of fundamental rights that Union law confers upon private parties is not desirable either. All in all, colliding rulings like these reflect that exchange between Union law and private law of the Member States is still in its infancy. In a relatively young area of law, such clashes occur and they are as inevitable as they are necessary. After all, they shed light on the issues that require more attention from all the actors involved.