Horizontal Effect and the Charter

Abstract:

The Charter of Fundamental Rights of the European Union is an act of the primary law of the EU. Whilst its Article 51(1) provides that individuals may invoke fundamental rights vis-à-vis the EU or its Member States, it is silent on the issue of whether fundamental rights can be invoked vis-à-vis other individuals.[2] This discrepancy can be partly clarified by looking into the case law of the Court of Justice. So far, the Court of Justice has recognised such a possibility with regard to the general principle of equality as it is expressed in different forms in the chapter on ‘Equality’ of the Charter and in the directives which implement it. The question this contribution aims to resolve is whether the case law of the Court of Justice opens up such a possibility for other provisions of the Charter as well. The Court of Justice has, however, rejected such a possibility as far as socio-economic fundamental rights from the chapter on ‘Solidarity’ of the Charter are concerned, despite the fact that these provisions are made concrete by directives and the national legislation which implements them. I will argue that this position of the Court of Justice is not consistent with its existing case law on the horizontal effect of the Charter and undermines its full effectiveness.