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

• Date: 01 September 2015
• DOI: http://doi.org/10.1111/eulj.12137
• Published date: 01 September 2015
• Author: Eleni Frantziou

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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