Adjudicating Europe

The Court of Justice in Kücükdeveci (para 21) has clearly confirmed its decision in Mangold (para 75). Indeed, it made clear that the existence of a principle of non-discrimination on grounds of age must be regarded as a general principle of European Union law. This ruling will certainly upset – which is per se perhaps a good thing – the followers of Roman Herzog (see “Stop the European Court of Justice”, 8 September 2008, Centrum für Europäische Politik). In this article published some days before C-427/06 Bartsch , one could read inter alia that the attitude of the Court of Justice was arrogant, that both labour market policy and social policy are still core competences of the Member States, that EU directives do not apply to Member States directly, but first have to be transposed by the national legislative, and that the ban on age discrimination is based on an adventurous construction since only 2 Member States (Finland and Portugal) have such a type of constitutional provision. The general principle of EU law was therefore fabricated and there was no common value or principle.

Points taken….but that was without considering the enormous impact of the EU Charter of Fundamental Rights. In the paragraph 22 of Kücükdeveci, the Court of Justice states that “[i]t should also be noted that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the Charter, ‘[a]ny discrimination based on … age … shall be prohibited”. It is true that this paragraph does not give any reason as to the scope ratione temporis of the EUCFR. And it will be criticized for this without any doubts. Yet this paragraph constitutes the missing stone of the Mangold ruling and thus brings an additional (late) key argument regarding this polemical decision. With Kücükdeveci, the EUCFR appears clearly as a superior norm of EU law and the most important source of inspiration when it comes to general principles of EU law. In passing, this situation where the EUCFR backs up a principle will be atypical in the Lisbon Treaty era since the binding EUCFR should be used as the starting point.

The consequences of Kücükdeveci are huge. One of my favorites is that it results in an extension of the scope of EU law by expanding the reach of the general principles. In light of AG Sharpston in Bartsch (para 69), we had three situations in which a national measure may fall within the scope of EU law leading to the application of general principles 1) a situation of implementation of EU law (Wachauf scenario); 2) a situation of derogations under EU law (ERT scenario); 3) and a specific substantive rule of EU law which is applicable to the situation (Karner scenario).  We have now the Kücükdeveci scenario in which a national horizontal situation fall within the scope of EU law when a non-implemented Directive contains a general principle/ EU fundamental rights. This is very far-reaching…. Kücükdeveci will be both hated and glorified….Kücükdeveci should be read in light of Audiolux (see Pescatorius post on this blog)….Kücükdeveci brings hope…Many thanks to the Court of Justice for this courageous decision!

Cartesio

Today, on 2 February 2010, Pierre Pescatore passed away.

European Law, Law, Europe, has lost a great mind, a great man, a great European.

Hardly any single individual has contributed to European Law in the way and scope that Pierre Pescatore did.

We at Adjudicating Europe played a modest tribute to his immense contribution. One of our editors took the name of Pescatorius in a most deeply felt tribute.

His work, his judicial influence, his legacy, will be forever with us.

Europe has lost an outstanding European, but history certainly has plans for him.

He will therefore be forever with us.

- The Editors

Kücükdeveci is a groundbreaking decision.

For the first time, direct effect has given way to the principle of primacy as the cornerstone of EU Law. The relevant applicative criterion is not the concrete content of the provision nor its ability to confer rights in a direct and precise manner. As stated in paragraphs 50 and 51, the relevant criterion for application is primacy:

“50      It must be recalled here that, as stated in paragraph 20 above, Directive 2000/78 merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal treatment (see, to that effect, Mangold, paragraphs 74 to 76).

51      In those circumstances it for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, paragraph 77).”

A new category of rule has thus emerged in EU Law: Directives laying down general principles of European Union law. These provisions have full direct effect as a result of the principle they are expressing in writing, even in relationships between private parties. In Mangold and Kücükdeveci the principle was non-discrimination on the grounds of age. This rule should from now on extend to all the equality Directives (particularly the sex equality Directives, a form of discrimination openly banned in the Treaty for many years). Also, if fundamental rights are “principles of Union law”, the Kücükdeveci rationale should also extend to all Directives implementing any of the rights enshrined in the Charter (see, for example, the data protection Directive, also applicable in horizontal relationships). As for private law principles of Union law (certainly the ones most exposed to conflicts inter privatos), the Court appears to be more cautious: in Audiolux it openly denied that the principle of protection of minority shareholders was an autonomous principle of Union law on its own right. However, legitimate expectations is such a principle: could it be derived from it a general private law principle of good faith?

Kücükdeveci must be read in the light of Audiolux, a five-judge chamber judgment of huge importance. It should be remembered that the Court explained there, in a pedagogic way that intended to confer legitimacy to its case-law, how principles are formed in Union law. For that purpose, the Court refused to acknowledge the existence of private law principles on the sole grounds of soft law. Therefore, a clear message was sent: deciphering private law principles of Union law is not an easy task. Any principle will simply not do.

However, it will be hard for the Court to sustain this case-law only within the terrain of Directives laying down principles. Eventually, the line will stop drawing a frontier and shall eventually spill-over to all Directives. That is why the judgment is so important: it is the first building block in the construction of a genuine integrated legal order, made up of Union and national law, with a sole uniting criterion: primacy. Koen Lenaerts and Tim Corthaut already explored this evolution in their celebrated European Law Review article (Koen Lenaerts and Tim Corthaut, “Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’,” (2006) 31 EL Rev 287), and it seems to be no coincidence that Lenaerts himself is sitting in Kücükdeveci. If he had anything to do with the final result of the judgment, European Union law certainly owes him a tribute.

The other impressive aspect of Kücükdeveci has to do with the Charter. In paragraph 22, the Court has given the Charter retroactive effects, taking it all the way back to the time when the relevant facts of the case took place. There has been a loud reaction to this point, but some counter-arguments should be made (just in case the Court has NOT wanted to give such effects to the Charter): maybe the Court is sending a message to the referring judge in case the effects of the original facts are still alive and thus a response can be given today, in the light of the Law as it stands today, to legal relationships as they now appear. Another reading of paragraph 22 is that the Court has simply reinforced its legitimacy by claiming that the infamous principle of non-discrimination on the grounds of age has been laid down in this new Charter. If that is the case, there is no retroaction of the Charter, but simply an assertion claiming the Court’s legitimate right to develop principles as derived from the constitutional traditions of Member States. And the Charter is the best expression of the said traditions when it comes to fundamental rights.

But maybe not. Maybe something has changed. Maybe the Court has interpreted that Lisbon has reinforced its authority in a way that it has never enjoyed in the past. After all, a Charter of fundamental rights is not the ordinary type of thing you run into every day. Maybe the Charter is a momentous text that has given the Court the will and drive to legitimize its decision-making process and reinforce thus its judgments. And if so, the Court can not afford to simply look towards the future. In that circumstance, the Court MUST apply the Charter even when the cases are coming from the distant (and not so distant) past. This is the type of application that most Constitutional Courts do shortly after being created, in the first years of development of their jurisdiction in the interpretation of the Constitution: fundamental rights cannot be disregarded, no matter when the relevant facts took place.

Taking a quick guess, I will stick to this last option.

Once again, the Court is integrating through Law. The political process reacted to the entry into force of Lisbon with the usual mediocrity: who is the real President of the European Council, the Spanish premiere or van Rompuy? how many Commissioners elect will the Parliament manage to kill? If the President of the European Council is a man, should the High Commissioner be a woman?

Huge dilemmas for the future of Europe, indeed.

When politics become irrelevant and only focus on irrelevant matters, the Court has proved again that it is up to the task that politicians are obviously not up to. Kücükdeveci should be read in that light, as another effort from the Court in pushing the process, in making it go further, in a gradual and discrete fashion but armed with the weapons of the Law.

The Court can be criticized (and it should very well be), but nobody can accuse it of being an irrelevant institution in the construction of a European Union.

Read in that light, I say:

Long live Kücükdeveci.

And long live (very long, please) the European Court of Justice.

- Pescatorius

I have read the Kücükdeveci judgment with great interest. I am happy for Ms Kücükdeveci. She has won her case. However, I am not sure about the reasoning of the Court. If my reading of the decision is correct, then the Court has laid down the following new rule of EU law:

“When a directive gives expression to a general principle of EU law, such as prohibition of discrimination on the grounds of age, it is relieved of its legal nature of a directive. Consequently this kind of directive does not bind the Member States only, but applies also between the individuals. National courts shall disapply any conflicting national provision that runs contrary to the general principle of EU law as expressed in the directive.”

This new rule is grounded in the following logical premises:

1. Prohibition of discrimination on the grounds of age is a general principle of EU Law (Mangold).
2. General principles of EU Law are – in effect – directly applicable (Mangold).
3. Directive 2000/78 only gives expression to one of such general principles.
4. Directive incorporating a general principle is not a directive properly so called and therefore can engender horizontal direct effect.

I believe that logical coherence of this argumentative structure is deficient already on the first premise. In the words of AG Mazak in Palacios de la Villa Par. 97: “In the light of the foregoing considerations I do not regard as particularly compelling the conclusion drawn in Mangold as to the existence of a general principle of non-discrimination on grounds of age.”

The problems accentuate on the second premise. To explain why, I will again simply rely on AG Mazak in Palacios de la Villa (Par. 133-138):

“[…] The Court did not therefore accept that Directive 2000/78 has horizontal direct effect; rather, it bypassed the lack of it by ascribing direct effect to the corresponding general principle of law.

In adopting that approach the Court set foot on a very slippery slope, not only with regard to the question whether such a general principle of law on the non-discrimination on grounds of age exists, but also with regard to the way it applied that principle.

I do not maintain that general principles of law would, as a general rule, fall short of the substantive requirements for direct effect (to be unconditional and sufficiently precise). My point is that the concept of general principle relates to a particular form of rule rather than to a particular content: it describes a source of law which may embrace rules of widely varying content and degree of completeness, ranging from interpretative maxims to fully fledged norms like fundamental rights or the highly developed body of Community principles of sound administration and procedure.

Accordingly, the function of general principles varies, too, depending both on the principle in question and the actual context in which it is used. General principles can, for instance, serve as interpretative criteria, as a direct yardstick by which to gauge the lawfulness of Community acts or even to found an enforceable claim to a particular legal remedy in Community law.

It should be observed, however, that as a rule, in a context such as the circumstances of the present case, where a directive has been adopted, such an act of secondary Community law may be interpreted in the light of the general principles underlying it and measured against those principles. Thus general principles of law – referred to by the Court on the basis of Article 220 EC as part of primary Community law – are given expression and effect through specific Community legislation. That is in fact the approach followed by the Court in Caballero to which it made reference in Mangold. In that case, too, the general principle of equality and non-discrimination is not applied autonomously, but as a means of interpreting Council Directive 80/987/EEC.

A problematic situation could arise, however, if this concept were to be turned practically upside down by allowing a general principle of Community law which, as in the present case, may be considered to be expressed in specific Community legislation, a degree of emancipation such that it can be invoked instead or independently of that legislation. 

Not only would such an approach raise serious concerns in relation to legal certainty, it would also call into question the distribution of competence between the Community and the Member States, and the attribution of powers under the Treaty in general. It should be recalled in this connection that Article 13 EC expressly reserved to the Council the power, acting in accordance with the procedure provided for under that article, to take appropriate action to combat, inter alia, discrimination on grounds of age – which it has chosen to do by means of a directive. In my view the limitations which this specific Community act entails, notably with regard to horizontal direct effect, should not therefore be undermined by recourse to a general principle.” (emphasis added).

The controversies spurred by the Mangold decision are well known. I am afraid Kücükdeveci is Mangold II: an even bolder, but simultaneously also more porously argued decision. At least for me this is not the right way of redefining the very fundamentals of EU law. Just wait and see.

Eurostein

Is the preliminary reference procedure equivalent to a constitutional reference before a Constitutional Court under national law?

The question appears even more important when dealing with national systems with “concentrated” (as opposed to decentralized) systems of judicial review of legislative action (the majority in Europe, by the way). After all, the preliminary reference is a remedy that works in a broader framework that allows judges (via Simmenthal) to set aside illegal provisions. Not so in constitutional references in those Member States, precisely designed to keep and safeguard the monopoly of the Constitutional Court in the review of legislation.

Apparently, they are “equivalent”. And therefore, no unjustified differences must be introduced in the detriment of those who make use of the Community (Union now, sorry) remedy.

This interesting conceptual point was cleared today in Transportes Urbanos. A minor, albeit important, Grand Chamber case.

May you all have a good read!

-Pescatorius

On Tuesday, the Court’s Grande Chambre will deliver its highly awaited decision in the Kücükdeveci case, an important reference on the scope of Directives with horizontal effect and the duties of national judges to set aside national legislation incompatible with the former. According to Advocate General Bot, in his powerful Opinion delivered last year, the time should come for horizontal Directives to have direct effect, at least when the effect entails no discretion on the part of the national judge.

We will see if the Court follows his Advocate General. But if it does, the decision will be of the utmost importance (although the Mangold background and the Court’s very settled case-law on the matter appears to be too heavy a burden to allow any developments).

Dear readers,

Adjudicating Europe wishes you all a very happy and good new year.

Also, we want to thank you for making this blog a huge success.

Since September 2009, Adjudicating Europe has received 79519 pageviews, quite an accomplishment considering the short time-period that has gone by since the blog was launched and the highly specialized area it deals with. We have attracted readers from France, the UK, Germany, the US, Russia, Bulgaria, Spain, Mexico, Italy, Sweden, Slovenia, the Czech Republic and many other countries. We have received many comments from our active readers, and this all encourages the editors of the blog to keep on going with even more enthusiasm in 2010.

Happy new year to everyone.

The Editors

The entry into force of the Lisbon Treaty has led (and will progressively lead) to significant changes in both the organisation and jurisdiction of the Court of Justice of the European Union. As is well-known by now, following the elimination of the ‘pillar’ structure, the whole court system of the EU is designed as the Court of Justice of the European Union, encompassing three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Besides the simplification of the rules for the creation of specialised courts and the new arrangements for the appointment of Members of the Court (very much inspired by those followed at the CST), the Treaty of Lisbon’s greatest impact on the European judicial architecture relates to the jurisdiction of the Court itself. Indeed, under Article 19 TEU, the jurisdiction of the Court extends to the law of the EU, unless the Treaties provide otherwise. Thus, following the repeal of Articles 35 EU and 68 EC, the Court acquired general jurisdiction to give preliminary rulings in the area of freedom, security and justice. Yet, the acts in the field of police/judicial cooperation in criminal matters adopted before the entry into force of the Treaty have been grandfathered for the duration of 5 years (see Article 10 of Protocol No 36). No similar restrictions have been adopted as regards visas, asylum, immigration and other policies related to the free movement of persons (i.e. judicial cooperation in civil matters, recognition and enforcement of judgments). As for the Common Foreign and Security Policy (CFSP), the Court’s jurisdiction remains subject to significant limitations (275 TFEU and 40 TEU). The Court got also a new judicial actor: national parliaments (although represented by their governments) may take a case before the Court if they consider that a legislative act is contrary to the principle of subsidiarity (Protocol 2 Art. 8). The Committee of the Regions, in turn, becomes entitled to bring actions for annulment for the purpose of protecting its prerogatives.

Yet the most intriguing changes to the Court’s day-to-day running relates to the improvement of the judicial review of EU acts. Indeed, the new Treaty does not only extend the preliminary ruling procedure to the validity (and interpretation) of acts emanating from all EU “bodies, offices or agencies” and the legality check to the acts of the European Council, but it also eases the conditions for the admissibility of actions brought by individuals against EU acts. Under Article 263 (4) (former Article 230.4), “any natural or legal person may […] institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures”. The loophole vocally identified by the CFI in Jégo-Queré (but systematically denied by the ECJ) within the EU system of legal remedies seems to have been filled: in the absence of implementing measures of a EU act, Article 234’s preliminary reference procedure cannot be a viable solution to the problem raised by the strict conditions of admissibility enshrined in former Article 230 TEC (para 47). Indeed, contrary to the rhetoric of completeness enlightening the ECJ case law, the EU system of legal remedies was not “complete” and expecting individuals to breach the law in order to enjoy access to justice is hardly reconcilable with a “Community based on the rule of law”. As a result, under Lisbon, any natural or legal person may challenge the legality of “regulatory acts” which are of direct concern without having to show individual concern when these acts don’t entail implementing measures. Hence, having the requirement for individual concerned being dropped for challenges directed against ‘regulatory acts”, the Plaumann test will survive only with reference to non “regulatory acts”. By codifying the Jégo-Queré judgment, this new provision, which also builds upon Article III-365 of the defunct Constitutional Treaty, is likely to improve the access to justice within the EU. However, lacking a definition of ‘regulatory act’ within the Lisbon Treaty, it will be up to the Courts to determine, when called upon to interpret this notion, whether and how much the EU judicial gates will, as a result, be opened to individual action. There seems to be at least two equally plausible interpretations of the notion of “regulatory acts”. The first approach identifies them with all EU acts of general scope and producing legal effects, regardless of their legislative nature. Under this interpretation, all EU regulations would qualify as “regulatory acts”. Conversely, the second interpretation, by drawing inspiration on the European Convention’s legislative works, suggests that “regulatory acts” would encompass only non-legislative acts, i.e. acts different than those adopted under Art. 289 TFUE (legislative procedure). According to this interpretation, the democratic input provided for by the intervention of the Parliament should act as a boundary to the individuals’ access to justice. While the former reading would open the EU judicial gate, by ruling out the application of the Plaumann test for all acts not entailing implementing measures (thus fully codifying Jégo-Queré), the latter instead would keep the status quo for any challenge to legislative acts. This would leave unsolved the Jégo-Queré conundrum for those legislative acts not entailing implementation measures. But quid of “quasi-legislative” acts subject to the regulatory procedure with scrutiny (by the EP)?

Regardless of the interpretation which will finally be given by the EU judiciary, Article 263.4 is likely to improve individuals’ access to justice within the EU. This outcome is not only crucial in bringing the EU closer to full compliance with the ECHR (at the time of its forthcoming accession to this instrument) but is also a homage to the tenacity of many past unsuccessful plaintiffs.

Mancinus-