The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?
| DOI | 10.1177/1023263X1101800106 |
| Date | 01 March 2011 |
| Published date | 01 March 2011 |
| Author | Mirjam de Mol |
| Subject Matter | Article |
18 MJ 1–2 (2011) 109
THE NOVEL APPROACH OF THE CJEU ON
THE HORIZONTAL DIRECT EFFECT OF THE
EU PRINCIPLE OF NON-DISCRIMINATION:
(UNBRIDLED) EXPANSIONISM OF EU LAW?
M M*
ABSTRACT
e application of the EU princ iple of non-discrimination in private disputes is a sen sitive
issue. Recent case-law of the CJEU (cases Mangold and Kücükdeveci) conveys a novel
app roa ch t hat dis tur bs th e pa tte rn o f th e pr evi ous cas e la w. e result of the novel approach
is the possibility of horizontal direct e ect in a much broader range of situations than
before. It for instance leads to the de facto hor izontal direct e ect of anti-discrimination
directives. e approach seems to go beyond the mere circumvention of the lack of
horizontal direct e ect of anti-discr imination directives. It seems that the horizontal direct
e ect of the principle applies in all cases falling within the scope of EU law. is raises an
important question: when should pr ivate legal relationships be considered as falling within
the scope of EU law? is question is a challenge for future case law. A prudent approach
is recommended.
Keywords: general principles of law; horizontal direct e ect; non-discrimination; scope
of EU law; third part y e ect
§1. I N TRODUC TION
is contribution focuse s on the horizontal direct e ect of the EU principle of non-
discrimi nation as enshrined in A rticle 21 of the Char ter of Fundamental R ights. According
* Maastricht Unive rsity. I am grateful to Art hur Hartkamp, Hilde gard Schneider, Bruno de Witte and
the guest ed itors of this spec ial MJ issue for thei r useful com ments. I am al so thank ful to Tamara
Lewis for proofre ading. All errors remai n mine of course. Comments a re welcome at mirjam.demol@
maastrichtuniversity.nl.
Mirjam de Mol
110 18 MJ 1–2 (2011)
to this provision, discrimination based on grounds such as sex, race, colour, ethnic or
social origin, genet ic features, language, religion or belief, politic al or any other opinion,
membership of a national minority, property, birth, disability, age, sexual orientation
(Ar ti cl e 21 (1)) or n at ion al ity (A rt icl e 21 ( 2)) i s pr ohi bit ed . e application of t his principle
in private disputes is a sensitive issue. It raise s essential questions regarding the divi sion
of competences between the Union and Member States, t he internal EU separation of
powers between the CJEU and EU legisl ator (institutional balance) and the public-private
divide. Until very recently, only two prohibitions aga inst discrimi nation could be invoked
in private disputes, namely discrimination based on sex and nationality. In addition,
they could only be invoked i n a limited number of situations. e recent cases Mangold1
and Kücükdeveci2 show that currently, other prohibitions against discrimination can
also apply direct ly in horizontal cases, including t he prohibition against discrimination
based on age, sexual orientation or disability. Moreover these recent cases ta ke a novel
approach to the horizontal direct e ect of the principle of non-discri mination.3 is
results in the possibil ity of horizontal direct e ect in a much broader range of situations
than before. is contribution will ex plain why the Mangold/Kücükdeveci approach
must be considered novel and overreaching, and explores the potential consequences.
Suggestions wil l be made to keep this expansionist approach in check.
§2. GENERAL REMARKS
A. DEFINITION OF HORIZONTAL DIRECT EFFECT
ere is no un ivocal meani ng of the concept of horizontal di rect e ec t. In th is contribut ion
the concept will be us ed to refer to the e ect of EU law in national proceed ings between
private parties (horizontal disputes). is e ect will be considered as ‘direct’ if EU law
applies as an autonomous ground for review before a national court.4 e use of EU law
as an autonomous ground for review can be contrasted with the use of EU law as tool
of interpretat ion of national legislation (indirect e ect). e de nition of direct e ect
includes two kinds of review on the basis of the EU principle of non-discri mination.
e rst concerns direct review of the private legal relationships as such (horizontal
1 Case C-144/04 Mangold [2005] ECR I-09981.
2 Case C-555/07 Kücü kdeveci, Judgment of 19 Ja nuary 2010, not yet reported.
3 is approach is highly controversial, as evidenced by the great amount of criticism from the
media, severa l Advocates Genera l and the Member States. For furt her references see De Mol, ‘Ca se
note Kücükdeveci : Mangold Revisited – Horizontal Di rect E ect of a Gene ral Principle of EU Law’,
6 European Constitutional Law Review 2 (2010), p. 293–294.
4 On this de nition of direct e ec t see also De Witte, ‘Direct e ect, supremacy, and the nature of the
legal order’, in P. Graig and G. de Búrc a, e Evolution of EC Law (Oxford University Press, Oxford
2003), p. 178–213; S. Prechal, Directives in EC Law (2nd ed., Oxford University Press, Oxford 2005),
p. 226–270.
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