Julian Kulaga, 4th Year Student LLB “English Law and German Law” at King’s College London / Humboldt University of Berlin
Introduction
As a general rule, individuals cannot rely on the provisions of EU Directives themselves in proceedings between two private parties[1] even when such provisions are clear, precise and unconditional[2] and even after the state has not transposed the directive by the prescribed deadline.[3]
However, in 2005, the CJEU decided in Mangold that a directive establishing a general framework for equal treatment had horizontal direct effect because it was the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age.[4] Yet Mangold is considered to be one of the most controversial cases due to the uncertainty this exception creates[5] while relying on an unwritten general principle.[6]
Since the entry into force of the Treaty of Lisbon in 2009, Article 6(1) TEU puts the Charter of Fundamental Rights of the European Union[7] on an equal footing with the TEU and the TFEU.[8] This has raised the question whether an unconditional and sufficiently clear and precise directive can have direct horizontal effect whenever any general principle of EU law, including human rights protection, is sufficiently connected to the application of the respective directive.[9]
As a result, in two recent cases, Kücükdeveci[10] and AMS,[11] the CJEU had to determine whether a directive could be invoked in a dispute between two private parties in conjunction with one the fundamental rights embodied in the Charter. Continue reading “Distinguishing “individual rights” from “principles””