Reference for a preliminary ruling: Cour de cassation - France.
Social policy - Directive 2002/14/EC - Charter of Fundamental Rights of the European Union - Article 27 - Subjecting the setting up of bodies representing staff to certain thresholds of employees - Calculation of the thresholds - National legislation contrary to European Union law - Role of the national court.
Outcome of the case:
In the light of the arguments set out, I propose that the Court reply in the following terms to the questions referred for a preliminary ruling by the Cour de cassation:
28) Before proposing an answer to the question concerning the horizontal effect of fundamental rights, I think it is appropriate to address what I consider to be an error. That error is the argument that the Charter contains a provision on the effectiveness or, more properly, the lack of effectiveness of fundamental rights in relations between individuals. According to that argument the provision in question is the first sentence of Article 51(1), according to which ‘[t]he provisions of this Charter are addressed to the institutions … of the Union … and to the Member States ...’.
29) On the basis of that wording, the argument which I reject draws a contrary, or should it be preferred inclusio unius est exclusio alterius, inference that, since the provisions of that Charter are addressed to the institutions of the Union and to the Member States, they are not addressed to individuals. ( 3 )
31) In my view, and without there being any need to undertake an exhaustive interpretation of Article 51(1) of the Charter, it is quite clear that the issue which that provision essentially sought to address was the extent to which the fundamental rights enshrined in the Charter are binding, first, on the institutions of the Union and, secondly, on the Member States. In my opinion there is nothing in the wording of the article or, unless I am mistaken, in the preparatory works or the Explanations relating to the Charter, which suggests that there was any intention, through the language of that article, to address the very complex issue of the effectiveness of fundamental rights in relations between individuals. ( 5 )
32) Finally, I consider that the above reasoning is not invalidated by the second sentence of Article 51(1) of the Charter, where it declares that ‘[t]hey’, that is the Union and the Member States, ‘shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties’. It is clear that the purpose of that sentence is not, even collaterally, to preclude the relevance of the fundamental rights of the Charter to private law relations. The purpose of that sentence is to introduce, first, the summa divisio between ‘rights’ and ‘principles’ and, secondly, a caveat regarding any change in the allocation of competencies to the Union, as established in the Treaties, as a result of the entry into force of the Charter.
33) If, as I believe, that is the case, it would mean that, in that regard, an interpreter of the Charter is faced with the same, often uncertain, prospect that an interpreter of the Constitutions of the Member States generally faces.
34) Coming now to the crux of the matter, and in view of certain opinions which are expressed in this regard, it might seem that the idea of horizontal effect was a concept unknown to European Union law, which had to be addressed for the first time as a result of the incorporation of the Charter into European Union primary law. However, the idea that the fundamental freedoms of movement ( 6 ) or particular principles such as non-discrimination on grounds of sex ( 7 ) are relevant in private legal relations is an old and well-established one. That being so, the idea that the fundamental rights of the Charter other than the fundamental freedoms or the principle of equality could have a system which is separate and, so to speak, of lower status in the Charter as a whole seems highly problematic.
35) In short, and as the referring court rightly points out, since the horizontal effect of fundamental rights is not unknown to European Union law, it would be paradoxical if the incorporation of the Charter into primary law actually changed that state of affairs for the worse.
38) Finally, the horizontal effect of fundamental rights operates very differently for each right or, more simply, for the various groups of rights. There are rights which, by their very structure, are not addressed to individuals, just as there are rights whose relevance in relationships governed by private law it would be inconceivable to deny. It is neither necessary nor even permissible on this occasion to consider that matter further. It is sufficient to focus on the right at issue, the right of workers to information and consultation within the undertaking, referred to in Article 27 of the Charter.
41) The foregoing leads me to the intermediate conclusion, and one which is subject to what is stated below, that Article 27 may be relied on in a dispute between individuals. In other words, that possibility cannot be denied on the basis of the argument that the Charter, as a consequence of the provisions of Article 51(1), has no relevance in relations governed by private law.
42) The issue which must be addressed next is that the Charter contains both ‘rights’ and ‘principles’, within the meaning of its general provisions. In the event that the right to information and consultation is a ‘principle’, Article 52(5) of the Charter contains very specific provisions, as I have already stated, with regard to the limited possibilities of relying on a ‘principle’ before a court. The task before the Court in this situation is to ascertain the possible status as a ‘principle’ of Article 27 of the Charter.
43) The innovations introduced by the Charter in the 2007 version include, in particular, the prominent distinction between ‘rights’ and ‘principles’ introduced in Article 51(1) and set out in the heading of Article 52, the effects of that distinction being given specific expression, in so far as ‘principles’ are concerned, in Article 52(5). However, it is striking that the Charter does not assign the fundamental rights to either of the two groups, as is usual in comparative law. ( 12 ) The Explanations confine themselves to proposing a few examples of each but unfortunately those examples do not include the right at issue. ( 13 ) For the purposes of the present case, and as I have already pointed out, that becomes a problem, though certainly not one which is insurmountable.
44) First, it is necessary only to point out that, within the structure of the Charter, the general category chosen for the title of the Charter itself, ‘fundamental rights’, must relate to all its contents. In other words, none of the content of the Charter, in terms of its substantive provisions, should be excluded from the category of ‘fundamental rights’. That having been established, it is necessary, and this may seem less obvious, to point out that the fact that specific substantive content of the Charter is described as a ‘right’ elsewhere in the Charter does not in itself prevent it from potentially belonging to the category of ‘principles’ within the meaning of Article 52(5).
45) Both in the actual Charter and in the constitutional traditions of the Member States, it is common to regard as ‘rights’ or ‘social rights’ that substantive content relating to social policy which, because it cannot create legal situations directly enforceable by individuals, operates only following action or implementation by the public authorities. They are (social) ‘rights’ by virtue of their subject-matter, or even their identity, and ‘principles’ by virtue of their operation.
46) The authors of the Charter, with more or less justification, sought to make matters clearer by using the verb ‘respect’ in relation to the effectiveness of rights and the verb ‘observe’ in relation to that of principles. That does not seem clear to me. However, I consider that the requirement in the second sentence of Article 51(1) ‘to promote the application’ of the ‘principles’ is more meaningful. That requirement is important and at the same time expressive of the essence of ‘principles’. In what follows, I shall seek briefly to explain the significance of the presence of such provisions in the Member States’ declarations of rights and, now, in the Charter, with a few references to the origin of such provisions, before proposing that the right at issue be understood as a ‘principle’.
47) The Convention entrusted with drafting the first version of the Charter was already aware of the benefits of drawing a distinction between ‘rights’ and ‘principles’. Those categories would serve not only to facilitate a broad consensus within the first Convention, but also to facilitate the practical implementation of the provisions of the Charter. ( 14 ) The authors of the Charter relied on the experience of some Member States, where a similar distinction had allowed full justiciability of ‘rights’ and a reduced, or in some cases no, justiciability of ‘principles’.
49) In summary, the Member States which draw a distinction similar to that provided for in Article 52(5) of the Charter have established a category complementary to that of ‘rights’, a category incapable of giving rise to individual rights which can be directly relied on before the courts, but which is endowed with normative force at the constitutional level allowing the review of acts, primarily those of a legislative nature. ( 22 ) That idea also reflects the concern within the Convention entrusted with drafting the Charter and within the Convention on the Future of Europe. Several Member States feared that the recognition of particular economic and social rights would result in the judicialisation of public policy, particularly in areas of significant budgetary importance. In fact, what would ultimately be called ‘principles’ were described in the initial drafts as ‘social principles’. ( 23 ) Although that adjective would later be removed, it is clear that the main concern of the authors of the Charter concerned rights to social benefits and social and employment rights. ( 24 )
50) The wording of the Charter shows that ‘principles’ contain obligations upon the public authorities, thus contrasting with ‘rights’, whose purpose is the protection of directly defined individual legal situations, though the specific expression of ‘principles’ at lower levels of the legal order is also possible. Public authorities must respect the individual legal situation guaranteed by ‘rights’, but in the case of a ‘principle’ the obligation is much more general: its wording determines not an individual legal situation, but general matters and ones which govern the actions of all public authorities. In other words, the public authorities, and in particular the legislature, are called upon to promote and transform the ‘principle’ into a judicially cognisable reality, while at all times respecting the objective framework (the subject-matter) and its purposive nature (the results) as determined by the wording of the Charter establishing the ‘principle’. ( 25 )
51) The fact that ‘principles’ are characterised by the concept of obligation can also be seen in the explanations relating to Article 52 of the Charter, the interpretative value of which is confirmed by the Treaty on European Union itself in the third subparagraph of Article 6(1). The explanations offer several examples of ‘principles’, which seem to be laid down as obligations addressed to ‘the Union’, broadly understood as including all the Institutions and also the Member States when they implement European Union law. ( 26 ) Accordingly, Article 25, expressly referred to in the explanations, states that the European Union ‘recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life’. The same recognition and respect must, according to Article 26, be given with regard to the right of persons with disabilities ‘to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’. Once again, the obligation on the European Union is set out in Article 37 of the Charter, which requires it to integrate and ensure ‘[a] high level of environmental protection and the improvement of the quality of the environment … in accordance with the principle of sustainable development’.
52) What of Article 27 of the Charter? The first thing which should be noted is that the incorporation into the Charter of the right of workers to information and consultation within the undertaking as the first article of the title ‘Solidarity’ is anything but chance. That social right is, as stated in the explanations, the reflection of Article 21 of the European Social Charter ( 27 ) and points 17 and 18 of the Community Charter of the Fundamental Social Rights of Workers. Moreover, it is a right found in the secondary legislation prior to the entry into force of the Charter, not only in the aforementioned Directive 2002/14, but also in other acts of European Union labour law, such as Directive 98/59/EC ( 28 ) and Directive 94/45/EC. ( 29 )
53) That said, and given all the difficulties involved in filling out the meaning of the Charter, where it has, so to speak, discontinued its task, I would give more weight to the arguments which allocate the substantive content of Article 27 of the Charter to the category of ‘principle’, rather than to arguments allocating it to the category of ‘right’. Primarily, there is a structural reason which confirms that it is an obligation upon the public authorities in the sense set out in point 50 of this Opinion.
55) There is also a systematic argument. The group of rights included under the title ‘Solidarity’ incorporates mainly rights regarded as social rights with respect to their substance, for the content of which a form of wording such as that in Article 27 is preferred. That means that there is a strong presumption that the fundamental rights set out in that title belong to the category of ‘principles’. Although that position in the system of the Charter can never be anything but a presumption, in the case of Article 27 this is a feature additional to the ones listed above.
56) The foregoing is sufficient to support my proposal, as an intermediate conclusion, that the right of workers to information and consultation within the undertaking, as guaranteed in Article 27 of the Charter, should be understood as a ‘principle’ for the purposes of Articles 51(1) and 52(5).
60) The European Union and the Member States are under an obligation to ‘promote’ the ‘principles’ set out in the Charter (Article 51(1)), and for that purpose are to adopt those ‘implementing’ measures which are necessary to ensure that such promotion is effective. In spite of the use of the word ‘may’, it is clear that this is not an absolute discretionary power, but a possibility subject, as has just been noted, to a clear obligation in Article 51(1) of the Charter, requiring the European Union and the Member States to ‘promote’ the ‘principles’. It is clear that such promotion will be possible only through the ‘implementing’ acts to which Article 52 subsequently refers.
61) Similarly, a close examination of the wording of the first sentence of Article 52(5) of the Charter confirms that the article refers to legislative measures to implement the ‘principles’, with the consequences which are detailed below.
62) In fact, the first sentence of Article 52(5) states that the ‘principles’ of the Charter may ‘be implemented’ by acts of the European Union and of the Member States. Those implementing acts must be understood as acts necessary to give specific legislative expression to a ‘principle’ and having no other purpose than that of providing it with sufficient substance for it to attain substantive independence and, ultimately, become a judicially cognisable right. The wording cannot be understood in any other way, since the obligation is addressed not only to the executive, but also to the legislature. Therefore, where the article refers to ‘implementation’ it is referring primarily to a specifically legislative implementation.
63) Taking this a step further, I consider that it is possible to identify, from among the legislative implementing acts referred to in the first sentence of Article 52(5) of the Charter, particular provisions which can be said to give specific substantive and direct expression to the content of the ‘principle’. That differentiation is essential, since, otherwise, in areas as extensive as social policy, the environment or consumer protection, the ‘implementation’ of a ‘principle’ would consist of nothing less than an entire branch of the legal system, such as the whole of social law, environmental law and consumer law. That result would render nugatory and disruptive the function which the Charter confers on ‘principles’ as a criterion for interpreting and reviewing the validity of acts, since it would be impossible to carry out that function.
64) By thus distinguishing between acts giving specific substantive and direct expression to the content of a ‘principle’ and other acts, whether legislative acts or their individual implementing acts, it is therefore possible to safeguard the effectiveness of both the ‘principles’ contained in the Charter and the objective pursued by Article 52(5), which is purely to guarantee protection, albeit conditional, for those articles of the Charter requiring legislative implementation.
65) Article 3(1) of Directive 2002/14 actually provides a good example of what I have described as acts giving specific substantive and direct expression to a ‘principle’. That article, as its heading states, addresses the ‘scope’ of the rights defined in Directive 2002/14. In turn, the title of Directive 2002/14 is also relevant for the present purposes, since it states that it has the objective of ‘establishing a general framework for informing and consulting employees in the European Community’, which coincides exactly with that of Article 27 of the Charter.
66) In that context, Article 3(1) of Directive 2002/14 provides the content of the ‘principle’ with substantive and direct expression: the personal scope of the right to information and consultation. Needless to say, establishing of the status of the holder of a right is an essential precondition for its exercise, from which it is possible to identify the special protection provided for by the Charter. It is in this regard that Article 3(1) of Directive 2002/14 may be referred to as an example of the substantive and direct expression of Article 27 of the Charter and, therefore, is capable of forming part of the content of Article 27 which may be relied on before the courts, as I shall now explain.
See also paras: 67–72 ; 74, 76, 78–81, 83, 85, 87, 90, 92, 94, 95, 97, 98