The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality

Author:Eleni Frantziou
DOI:http://doi.org/10.1111/eulj.12137
Publication Date:01 Sep 2015
The Horizontal Effect of the Charter
of Fundamental Rights of the EU:
Rediscovering the Reasons
for Horizontality
Eleni Frantziou
Abstract: This article analyses the horizontal effect of the Charter of Fundamental
Rights of the European Union. Horizontal effect has been an integral part of the Union’s
application of fundamental rights, especially in the field of equality. However, the
codification of fundamental rights in the Charter raises important questions as to how
horizontal effect will continue to apply in the EU, particularly in the aftermath of the
Court’s reticent rulings in cases such as Dominguez and Association de Médiation
Sociale. This article argues that the emphasis on prior approaches to horizontal effect in
recent rulings fails to address the profound constitutional issues that the horizontal effect
of a fundamental rights catalogue raises, which concern the role of private responsibility
within the developing constitutional order of the European Union. It therefore calls for
a more systematically theorised approach towards the horizontal application of funda-
mental rights under the Charter framework.
I Introduction
Just over 5 years ago, the Charter of Fundamental Rights of the European Union
acquired legally binding force.1Its provisions include the rights enshrined in the
ECHR, a broad set of employment rights, as well as EU citizens’ rights, to mention
but a few. Thus, the Charter appears to confirm the ‘fundamentally constitutive
status’ of these rights in the EU legal order and can play a constructive role in their
further development.2The Charter’s interpretation also raises several questions
regarding the future of the Union’s fundamental rights regime, which are of
‘profound constitutional complexity’.3Whether and, if so, to what extent the
Charter’s provisions will affect private parties through the application of the
horizontality doctrine is one such question. The horizontal effect of a bill of rights
can impact how individuals live with and behave towards each other in a particular
1Together with the entry into force of the Treaty of Lisbon, on 1 December 2009.
2C. Thornhill, ‘The Formation of a European Constitution: An Approach from Historical-Political
Sociology’, (2012) 8 International Journal of Law in Context 354, 382.
3P. Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’, (2002) 39 Common
Market Law Review 945, 946.
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European Law Journal, Vol. 21, No. 5, September 2015, pp. 657–679.
community, and can greatly influence the way we perceive the role of private actors
in the application of fundamental rights standards. Despite the importance of the
issues it raises though, the horizontality debate in EU law has, until now, mainly
focused on the status of particular rights (as directive based or treaty based) and on
the limits of the Charter’s scope under Article 51 thereof.4This paper argues that,
while these considerations may be important in technically analysing the
horizontality doctrine, they are not instructive in respect of the first-order reasons
that actually justify its application.
The ascription of binding effect to the Union’s first comprehensive bill of rights,
even if it is one that merely enhances the visibility of existing rights,5has ‘clear
constitutional overtones’.6It is necessarily linked with debates regarding the Union’s
democracy deficit, its future and the relationship between the EU and the Member
States in respect of fundamental rights issues. Discussing the Charter’s horizontal
effect thus raises questions that cannot be answered either by simply making reference
to prior case law or by invoking the Charter’s scope as an absolute benchmark. A
much more forward-looking assessment is necessary: rather than making abstract
references to ‘the Charter’ at large, it is essential to discuss the content of its provi-
sions and the potential effects of their horizontal application. In addition, in granting
horizontal effect to any or all of these provisions, an important question of principle
must be tackled, namely whether horizontal effect is compatible with the values that
the Charter is intended to advance within the Union and the role it plays in its
evolving constitutional framework.
Of course, it is impossible to discuss these complex issues exhaustively in one paper,
so it is necessary to set out some of its limitations from the start. This article takes
on a reconstructive exercise: it analyses the Court’s case law from the angle of
horizontal effect qua tool in constitutional rights adjudication, rather than looking at
horizontal effect qua EU doctrine, strictly construed and detached from conceptual
underpinnings. It thus seeks, primarily, to identify the shortcomings of the Court’s
practice in this field from the perspective of rights protection at the supranational level.
Secondly, it seeks to highlight the important possibilities for rights protection that a
more thorough assessment of horizontality can give rise to. These are of deep value to
the individuals claiming them: they concern important aspects of their lives, such as
work, family and personal development. The horizontal effect of the Charter is
inextricably linked with the extent to which the EU affects these questions. Although
the article does not prescribe a single horizontality formula to address all of them, it
seeks to steer the debate in their direction, so that they can start to feature more
prominently in the reasoning underlying the horizontality doctrine in the field of
fundamental rights in the future.
The article begins by illustrating why the current debates regarding the text and
scope of the Charter are insufficient in tackling the horizontality question (Section II).
4See, for example, Case C-176/12, Association de Médiation Sociale v. Hichem Laboubi (hereafter ‘AMS’),
judgment of 15 January 2014, nyr; Opinion of Advocate General Trstenjak, delivered on 8 September
2011 in Case C-282/10, Dominguez v. Centre Informatique Du Centre Ouest Atlantique, judgment of 24
January 2012, nyr.
5House of Lords EU Select Committee, ‘The Treaty of Lisbon: An Impact Assessment’ (HL Paper 62,
August 2007) paras 5.37–5.41.
6G. De Burca and B. Aschenbrenner, ‘The Development of European Constitutionalism and the Role of
the EU Charter of Fundamental Rights’, (2003) 9 Columbia Journal of European Law 355, 372.
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