Op-Ed: “The Effectiveness of Directives in Horizontal Conditions: the Constitution Unchained? (Ok.L. v. X)” by Fien Van Reempts – Cyber Information

Introduction

On 20 February 2024, the Court docket of Justice in Ok.L. v. X (C-715/20) held that Article 47 of the Constitution could also be invoked along side Directive 1999/70 in a dispute between non-public people so as to disapply nationwide laws contravening that directive.

Whereas the opportunity of counting on Constitution provisions together with a directive so as to generate the disapplication of nationwide laws contravening that directive is nothing new, the modalities of doing so in Ok.L. v. X would possibly look like. That is the case in so far as this risk is confirmed for (i) Article 47 of the Constitution, independently, that’s to say irrespective of one other provision of the Constitution; and (ii) together with a directive which doesn’t concretise a proper enshrined within the Constitution.

Are these developments really novel, unchaining using the Constitution in horizontal conditions so as to render directives efficient in horizontal conditions from earlier constraints thereon, or had been these constraints by no means in place to start with?

The effectiveness of directives in horizontal conditions: of doorways and home windows

It’s well-established that directives lack horizontal direct impact, as first affirmed in Marshall (152/84). Most lately, the scope of the prohibition on the horizontal direct impact of directives was clarified in Popławski II (C-573/17), excluding the likelihood for directives to be relied upon in horizontal conditions for each functions of exclusion (disapplication of the contravening nationwide laws), in addition to for substitution (direct reliance on the directive).

Nevertheless, when the Court docket closes a door, it could be clever to verify whether or not there has not been any window left on a latch. Enter the (in)well-known judgment of the Court docket in Mangold (C-144/04), the place the Court docket recognised the likelihood for people to depend on the horizontally immediately efficient basic precept of non-discrimination, so as to allow the disapplication of nationwide laws contravening a directive giving concrete expression to that basic precept, as later clarified in Kücükdeveci (C‑555/07). In Egenberger (C‑414/16), the Court docket prolonged this reasoning to the Constitution, rendering it doable for a person to depend on horizontally immediately efficient provisions of the Constitution, so as to allow the disapplication of nationwide laws contravening a directive displaying an intrinsic hyperlink to the Constitution proper at stake. This type of effectiveness of the Constitution has step by step unfolded, with the Court docket recognising only some provisions of the Constitution able to horizontal direct impact and solely having occurred the place an intrinsic hyperlink could possibly be established between the related Directive provision and the Constitution proper.

The judgment of the Court docket of Justice

In Ok.L. v. X,  the Court docket addressed whether or not Polish nationwide laws, in requiring an announcement of causes on the termination of a contract just for contracts of indefinite nature, was incompatible with clause 4 of the framework settlement on fixed-term work annexed to Directive 1999/70, laying down a prohibition to discriminate between fixed-term employees and comparable everlasting employees in respect of employment situations, and in that case, what the implications of such incompatibility would entail within the context of a horizontal dispute.

The Court docket first decided that the nationwide laws at problem is incompatible with Directive 1999/70 by not requiring an announcement of causes for the termination of fixed-term contracts to be given by the employer, whereas such an announcement is required for everlasting employees, thereby depriving fixed-term employees of essential data for assessing the justifiability of the dismissal, thereby proscribing their entry to authorized proceedings.

Concerning the obligations for the nationwide courtroom stemming from that incompatibility, the Court docket reiterated that Union regulation can not require the nationwide courtroom to disapply the nationwide laws based mostly solely on its incompatibility with Directive 1999/70. Nonetheless, because the Member State implements Union regulation by nationwide laws, the dispute at hand falls inside the scope of the Constitution. The Court docket held that in proscribing the entry of a fixed-term employee to authorized proceedings, the nationwide laws undermines the elemental proper to an efficient treatment as laid down in Article 47 of the Constitution. Accordingly, the Court docket concludes that in a horizontal dispute, the nationwide courtroom should assure the judicial safety afforded to people by Article 47 of the Constitution by disapplying any contravening provision of nationwide regulation.

Unbiased use of Article 47 of the Constitution

A primary ingredient rendering the current case noteworthy is the reliance on Article 47 of the Constitution as the only real Constitution provision for the aim of the disapplication of nationwide laws contravening a directive in a horizontal state of affairs.

Having, with out a lot rationalization, disregarded Article 21(1) of the Constitution due to an absence of pertinence, and never touching upon Article 30 of the Constitution, the Court docket assessed the nationwide laws’s compatibility with the Constitution solely in reference to its Article 47. Whereas already referred to in Egenberger in relation to the horizontal direct impact of the prohibition of non-discrimination, Article 47 of the Constitution was solely utilized together with article 21(1) of the Constitution for the aim of the disapplication of contravening nationwide laws. Moreover, whereas the Court docket took its time to claim that article 21(1) of the Constitution  ‘is enough in itself to confer on people a proper which they could depend on as such in disputes between them’ (para. 76), and the the explanation why that is the case, no such specific affirmation of horizontality was rendered in relation to Article 47 was, inflicting doubts as as to whether or not that provision even had horizontal direct impact. (fn1)

The impartial use of Article 47 of the Constitution within the current case, producing the disapplication of nationwide laws contravening Directive 1999/70, can thus be thought-about an specific clarification of the horizontal direct impact of Article 47 of the Constitution. Nonetheless, if contemplating that what the Court docket in Egenberger did was in reality an earlier recognition of that provisions horizontal direct impact, the assertion in that case that Article 47 of the Constitution was able to being relied upon as such ‘by itself’(para. 78), implies that the Court docket’s specific doing so in Ok.L. v. X, shouldn’t come as a shock.

No ‘particular expression’ or ‘concretisation’ of Constitution provision by the directive : untying the knot ?

The second ingredient of the judgment that may undoubtedly increase some eyebrows within the authorized scholarship, is that the directive relied upon along side Article 47 of the Constitution isn’t intrinsically linked with that Constitution provision in an equal method to the directive provisions in earlier case regulation. There, the directive provision at stake displayed an intrinsic hyperlink with the Constitution provision in ‘laying down […] a basic framework’ in safety of the proper enshrined within the respective Constitution provision (Egenberger, para. 75), giving ‘concrete expression’ to that proper (Keolis Agen (Joined Instances C‑271/22 to C‑275/22), para. 28), or being the successor of the directive that proper was based mostly on (Bauer, para. 55-56). In Ok.L. v. X no such hyperlink appeared to be current.

Whereas earlier case regulation in a.o. Kücükdeveci and Smith (C‑122/17) definitely appeared to require such an intrinsic hyperlink between the directive provision and the related basic precept or Constitution proper earlier than the latter could possibly be referred to as upon so as to generate the disapplication of nationwide laws contravening the previous in a horizontal dispute, later case regulation makes clear that such a hyperlink isn’t truly presupposed. In Egenberger and Bauer, the Court docket made clear that the Constitution provisions relied upon for such an effectiveness of directives in horizontal conditions are ‘enough in [themselves]’ and ‘[do] not must be made extra particular by provisions of EU or nationwide regulation’. The operate of the directive is then to set off article 51(1) of the Constitution, enabling an evaluation below its horizontally immediately efficient provisions. The Court docket’s occupation with nonetheless establishing the intrinsic hyperlink between the related provision of the directive and the Constitution proper in these instances, is then attributable to the strategy it employs for the verification of the compatibility of the nationwide laws with the Constitution proper. Since its case regulation in Mangold, the Court docket has relied on the substance of the directive to ascertain the de facto compatibility of the availability of nationwide regulation with Union regulation. The de jure penalties of such incompatibility are then drawn from the horizontal direct impact of the final ideas, or the rights enshrined within the Constitution provisions. To ensure that this methodology to ship an accurate consequence, i.e. whether or not or not the laws is appropriate with the final precept or proper enshrined within the Constitution provision at stake, the intrinsic hyperlink as described above is a obligatory prerequisite. (fn 2)

In Ok.L. v. X, the Court docket doesn’t make use of the identical methodology of verification, subsequently doesn’t want to ascertain this intrinsic hyperlink. As in earlier instances, the wrong implementation of the directive brings the dispute inside the scope of software of the Constitution in keeping with its article 51(1). Nevertheless, in Ok.L. v. X the Court docket doesn’t base its verification of the compatibility of the nationwide laws with the Constitution provision on its compatibility with the substance of the directive. As a substitute, it holds that in its incompatibility with the directive, the nationwide laws at problem additionally undermines the proper enshrined in Article 47 of the Constitution. In different phrases, whereas the intrinsic hyperlink as displayed in earlier case regulation allowed for the Court docket to conduct its verification of compatibility in order that it could possibly be held that as a result of the nationwide laws contravened the Directive, it contravened the Constitution, within the current the case the nationwide laws, in its incompatibility with the directive additionally infringes Article 47 of the Constitution.

Conclusion: some consequential clarifications

Whereas in gentle of the prohibition of the horizontal direct impact of directives, and the moderately casuistic method with which the Court docket has approached the effectiveness of directives together with the Constitution in horizontal conditions previously, the current judgment would possibly seem to unchain using the Constitution for this goal, rendering it far easier to avoid the shut door on the horizontal direct impact of directives by escaping out of the window. This assertion is simply half true. As proven above, the effectiveness of directives together with the Constitution has not been chained by any impossibility of Article 47 of the Constitution to be relied on as the only real Constitution provision, nor by any requirement of an intrinsic hyperlink between the related Directive provision and the proper enshrined within the Constitution since Mangold reasoning was prolonged to the Constitution itself in Egenberger.

Then once more, the second half of the assertion has some fact to it. If we take into account that it was now explicitly clarified that

  • A Directive should not be giving a selected expression to, or concretisising a Constitution proper to ensure that nationwide laws incompatible with that directive to have the ability to be disapplied in a horizontal state of affairs, however that it suffices that in incorrectly implementing the directive, the nationwide laws has additionally infringed or undermined that Constitution proper; and that
  • The Constitution proper in query will be the proper to an efficient treatment as laid down in Article 47 of the Constitution;

a rise of the quantity of instances by which a directive will probably be held efficient in horizontal conditions together with the Constitution may be very lifelike. As the consequences of making use of directives in such a fashion are quasi indistinguishable from the consequences of making use of the directive by itself, such a improvement is liable to additional diminish the relevance of the shut door on the horizontal direct impact of directives. As at all times, time will inform whether or not or not within the aftermath of this newest judgment, this certainly proves to be the case.

Fien Van Reempts is a PhD researcher on the College of Antwerp and Analysis Basis Flanders – FWO (n°11PJ224N). Her analysis is titled: ‘The effectiveness of directives in horizontal conditions: a reassessment within the submit exclusion/substitution-dichotomy period’.

(fn1): E Muir, ‘The Horizontal Results of Constitution Rights Given Expression to in EU Laws, from Mangold to Bauer’ (2019) 12 REALaw 185, 208 – 209.

(fn2): J Lindeboom, ‘Continuïteit en verandering in de rechtspraak over de doorwerking van richtlijnen in de nationale rechtsorde’ (2022) 9/10 NtER 1, 5-6.

SUGGESTED CITATION: Van Reempts, F.; “The Effectiveness of Directives in Horizontal Conditions: the Constitution Unchained? (Ok.L. v. X)”, EU Regulation Dwell, 05/03/2024, https://eulawlive.com/op-ed-the-effectiveness-of-directives-in-horizontal-situations-the-charter-unchained-k-l-v-x-by-fien-van-reempts/

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