The European Court of Justice and Fundamental Rights Reasoning in the AMS Case
The AMS judgment of the CJEU is of great importance for the (potential) horizontal application of the EU Charter of Fundamental Rights, but raises more questions than it answers. Does the Court’s reasoning do justice to the importance of human rights?
Almost two weeks ago, the Grand Chamber of the Court of Justice of the European Union (the CJEU; the Court) handed down its judgment in the case of Association de mediation sociale (AMS). The case concerned the horizontal application of the EU Charter of Fundamental Rights (the Charter), and has already been discussed in various other blog posts. Rather than adding yet another interpretation of the ruling, my post aims at viewing the judgment in the light of the critique that has recently been targeted at the CJEU’s reasoning in fundamental rights cases. Does this ruling - and indeed, the reactions to it so far - confirm the concern that the Court’s minimalist reasoning does not always do justice to the importance of fundamental rights issues?
The AMS judgment
To start with, however, a short introduction to the case seems nevertheless worthwhile. The case concerned a French association (AMS) that participates in the implementation of measures for the prevention of crime in the city of Marseille. When a trade union representative was appointed, AMS brought a challenge before the French courts. Under French law, only when a workplace has over 50 employees can such a representative be appointed, and this threshold had not been met. According to the trade union, however, the French law was in breach of EU law (Directive 2002/14/EC) for excluding certain categories of employees from the calculation of staff numbers. Since according to settled case law the relevant directive could not have horizontal effect in a dispute between private parties, the trade union relied on Article 27 of the Charter, according to which ‘Workers and their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices’.
The French Cour de cassation referred preliminary questions to the CJEU, asking whether the fundamental right of workers to information and consultation, recognised by Article 27 of the Charter, and as specified in the provisions of Directive 2002/14, could be invoked in a dispute between private parties in the first place, and if so, whether these could preclude the national legal provisions. The CJEU held that the French law was in breach of Article 3(1) of Directive 2002/14, but that this provision could indeed not be invoked in the proceedings at hand. With regard to Article 27 of the Charter it first noted that ‘the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law’ (para. 42, referring to Åkerberg Fransson). Accordingly, ‘since the national legislation at issue … was adopted to implement Directive 2002/14, Article 27 is applicable to the case in the main proceedings’ (para. 43).
However, the Court did not stop there. The fact that the Article applied did not mean that it was also ‘fully effective’. According to the Court, ‘full effectiveness’ was precluded by the wording of Article 27, because it is not possible to infer from this Article, ‘or from the explanatory notes … that Article 3 (1) of Directive 2002/14, as a directly applicable rule of law, lays down and addressed to the Member States a prohibition on excluding from the calculation of the staff numbers in an undertaking a specific category of employees…’ (para. 46). Since Article 27 itself is not clear enough to confer on individuals a right which they can invoke as such, it can also not be invoked together with the directive.
The Court of Justice as a Human Rights Adjudicator
In her 2013 article ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’, Gráinne de Búrca reflects on the reasoning of the CJEU in cases concerning the Charter since it became formally binding in 2009. She notices the increase of fundamental rights adjudication before the Court as well as the apparent decrease in references made to international and comparative law and the European Convention on Human Rights in particular. Besides questioning this latter development, she also more generally asks ‘whether the long-standing judicial style of reasoning – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to [the CJEU’s] expanded role’ (p. 168). Her conclusion is that the arguments the Court might have for not developing a more discursive and fuller style of reasoning (like the European Court of Human Rights), fail to convince. Indeed, as De Búrca notes, ‘transparency and reason-giving are central principles of EU law’. The Advocate General’s Opinion ‘is not a substitute for properly reasoned judicial decisions’, and is moreover dispensed with more and more often and relatively easily (p. 180).
Although the AMS judgment does not solely concern the interpretation and application of a human rights norm, and indeed involves a matter of the working of EU law in particular, it is nevertheless interesting to reflect on the case in the light of De Búrca’s remarks. First of all, it is striking that the Court does nothing with the extensively reasoned Opinion of Advocate General Cruz Villalón, who concluded that Article 27 could have horizontal effect. Cruz Villalón paid significant attention to Article 27 and the question whether it should fall into the category of ‘rights’ or ‘principles’ (Article 52 of the Charter), to conclude that it must be understood as a principle but that this does not bar the invocation of the Article. The Court, on the other hand, does not make mention of the distinction between rights and principles at all, but simply holds that Article 27 is not specific enough. As one commentator noted: does the Court perhaps want to preclude the more ‘social and economic entitlements’ from having horizontal effect, but without saying so?
Indeed, as is shown by the various comments on the AMS judgment, it raises a lot of doubts as to its actual meaning and scope. Should it be considered noteworthy that ‘the Charter is applicable in all situations governed by European Union law’ (even if applicability does not mean that it is ‘fully effective’)? Is the judgment so unclear that ‘every time a litigant refers to the Charter in a matter involving EU law, the whole thing must be referred as a request for a preliminary ruling to the CJEU’ (‘expensive, extravagant and unprincipled adjudication’)? Or, interestingly: does the fact that the Court (in one sentence) distinguishes the case from Kücükdeveci, suggest that when an Article does ‘confer on individuals an individual right’, it can (always) be invoked in a dispute between individuals (para. 47)? In the end, it seems that the AMS judgment might indeed be of far-reaching constitutional relevance, though this relevance is likely only to be carved out with the help of many more, minimalist and case-based judgments.