The Horizontal Effect of the EU Charter of Fundamental Rights: a Constitutional Analysis

The Horizontal Effect of the EU Charter of Fundamental Rights: A Constitutional Analysis Eleni Frantziou A thesis submitted for the degree of Doctor of Philosophy University College London, Faculty of Laws Declaration ‘I, Eleni Frantziou, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis.’ 2 Abstract This thesis analyses the horizontal effect of the Charter of Fundamental Rights of the European Union from a constitutional perspective. It advances two main arguments: firstly, it argues that the horizontal effect of the Charter cannot be usefully discussed based on the existing EU horizontality doctrine. In the case law, horizontality is primarily associated with the exercise of horizontal direct effect. It is characterised by a series of technical rules as to how the latter may be produced and has a case-specific nature that lacks overall constitutional coherence. However, the horizontal effect of a fundamental rights list has organisational implications for society, which go beyond specific intersubjective disputes. Secondly, the thesis argues that a constitutional model of horizontality is required. This model necessitates constitutional reasoning by the Court of Justice, in the sense of public justification. In light of the Charter’s inherently political role in the EU project, its application to private relations rests upon a reconstruction of the EU public sphere. It requires an explicit recognition of the public character of certain private platforms of will formation (e.g. the workplace) and a discussion of the role of fundamental rights therein. At the same time, a constitutionally adequate model of horizontality involves an acknowledgment of the supranational character of EU adjudication. The horizontal effect of fundamental rights is applied in different ways in the constitutional orders of the Member States. As the Charter’s purpose was to coordinate the standard of fundamental rights protection and not to harmonise the structures through which it is delivered, national courts remain responsible for assessing the technicalities of its operation. Thus, while the determination of horizontal applicability falls upon the Court of Justice, the parameters of horizontal effect (e.g. direct, indirect or state-mediated effect) rest with national courts. 3 Acknowledgments Throughout my PhD, I have received an extraordinary amount of support. First and foremost, I am grateful to Professor Piet Eeckhout. His mentorship has made a profound impact on my research, as well as on a series of academic choices over many years. Thank you for believing in me and encouraging me to embark on this project. I am also extremely grateful to Dr Virginia Mantouvalou. Her careful guidance and comments, as well as her support more broadly, have been an invaluable help to me during this project. I could not have hoped for a better supervisory team. I must also thank Professor Seyla Benhabib, for welcoming me to Yale and acting as my advisor during my research stay. I have benefitted immensely from her doctoral workshop and sharp vision in all matters of discourse ethics and the right to have rights – her impact on my work is clearly reflected in the thesis. I would like to thank Professors George Letsas and Colm O’Cinneide, whose pervasive questions in the initial stages of my research pushed me to think about its theoretical implications. I am very grateful to Lea, Alex, and Jess, for commenting on draft chapters. I am also truly indebted to Matt and Alex, for reading and commenting on my final draft. I owe special thanks to Inga and my father, for taking on the daunting task of proofreading. On an institutional level, I am grateful to the UCL Faculty of Laws, both for funding my research and for providing me with a stimulating, research- intensive environment. I am also indebted to the Yale-UCL Collaborative Exchange Programme for organising and funding my research visit to the United States, as well as to Yale University, for providing me with a wonderful range of facilities. My time there was extremely enriching, both professionally and personally, and my PhD experience would have been inferior without this opportunity. Finally, I must express my appreciation to friends and family who distracted me from my work, especially since as they may not all receive their due individually in the next few lines. The PhD experience of co-suffering has formed 4 Acknowledgments several lasting friendships within the UCL PhD community and beyond. They are the greatest gift that this project has offered. These years saw me through many changes and I feel lucky to have been able to rely on a wonderful group of friends during this time. Most of all, I am grateful to my family. Their unwavering support and continued belief in my abilities, both before and during this project, have been my greatest source of strength. Thank you for always being there. Last but not least, I would like to express my gratitude to my grandfather. His love of knowledge has been an inspiration for me. This thesis is dedicated to his memory. 5 Table of Contents Declaration ............................................................................................................. 2 Abstract .................................................................................................................. 3 Acknowledgments .................................................................................................. 4 Table of Contents ................................................................................................... 6 Introduction ......................................................................................................... 10 The Charter of Fundamental Rights and horizontal responsibilities ................. 10 Methodology and originality of the research ..................................................... 17 Structure of the thesis ......................................................................................... 20 1 The Horizontal Effect of Fundamental Rights as a Constitutional Problem ................................................................................................................. 26 1.1 Introduction ........................................................................................... 26 1.2 Horizontal rights in a multi-layered global polity: some conceptual foundations ..................................................................................................... 27 1.3 The constitutional operation of horizontality ........................................ 33 1.4 Three types of horizontality ................................................................... 40 1.5 Conclusion: the horizontal effect of constitutional rights and the EU Charter ............................................................................................................ 51 2 The Charter of Fundamental Rights and the Question of Horizontality . 55 2.1 Introduction ........................................................................................... 55 2.2 Understanding the Charter’s constitutional significance: its content, drafting history and links to further political integration in the EU ............... 56 2.3 The current debate about the Charter’s horizontality ............................ 69 2.3.1 Article 51 EUCFR ........................................................................... 71 2.3.2 The Charter’s drafting intricacies and the distinction between rights and principles ..................................................................................................... 76 2.4 Conclusion: The horizontal effect of the Charter from a constitutional perspective ...................................................................................................... 79 3 From Defrenne to the Charter: Understanding the EU Horizontality Heritage ................................................................................................................ 83 3.1 Introduction ........................................................................................... 83 6 Table of Contents 3.2 Vertical and horizontal individual rights as means of advancing integration within the common market .......................................................... 85 3.2.1 A horizontal conception of rights: Van Gend en Loos and Defrenne II . 86 3.2.2 The lack of direct horizontal effect of directives ................................ 91 3.3 Counteracting the distinction between Treaty rights and directives ..... 95 3.3.1 Emanations of the state .................................................................... 95 3.3.2 Application of indirect horizontality as a substitute for the lack of direct horizontal effect ........................................................................................... 99 3.3.3 A conceptually flawed application of state-mediated effect ............... 101 3.3.4 Fundamental rights-specific horizontality: direct horizontal effect through the general principles of EU law ..................................................... 106 3.4 Conclusion: ‘a law of diminishing coherence’ ................................... 112 4 Old Problems, No New Responses: The Horizontal Effect of the Charter in the Court’s Case Law ................................................................................... 117 4.1 Introduction ........................................................................................

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