Criticizing the horizontal direct

effect of the EU general principle

of equality
Dr. Thomas Papadopoulos*

European Human Rights Law Review-E.H.R.L.R. Issue 4 [2011], 437-447

(Sweet & Maxwell).

ABSTRACT
This article discusses recent case law of the Court of Justice of the European
Union (CJEU) on the horizontal direct effect of the general principle of
equality at EU level. The CJEU, in Mangold, held that the general principle of
equality is capable of horizontal direct effect. It was argued that equality as a
fundamental human rights principle enjoys the status of a general principle of
EU law after Mangold. The horizontal direct effect of the general principle of
equality infers that equality as a fundamental human rights principle is further
developed. In Kücükdeveci, the CJEU confirmed the horizontal direct effect of
the general principle of non-discrimination on grounds of age. However, the
CJEU, in Kücükdeveci, did not use the EU Charter of Fundamental Rights in order
to underpin its arguments on horizontal direct effect of the general principle of
equality Following the criticisms of the Advocate Generals in other cases, this
article argues that the CJEU’s approach on the horizontal direct effect of the
general principle of equality presents significant defects. Many issues on the
horizontal direct effect of the general principles of EU law remain obscure;
the CJEU should definitely clarify these issues in its future rulings.

Keywords: horizontal direct effect, EU law, general principle of equality,

fundamental human rights, CJEU’s case law.
Legislation: Council Directive 2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment and occupation,
EU Charter of Fundamental Rights,

* Dr. Thomas Papadopoulos, LLB (Thessaloniki), MJur (Oxford), MPhil

(Oxford), DPhil (Oxford)-International Hellenic University, University of Central
Greece and Attorney at law (Greece). This article was written, while the author was a
visiting researcher at Harvard Law School. I would like to thank Prof. Dr. Athanassios
Kaissis for his interest in my research. The usual disclaimer applies.
e-mail thomas.papadopoulos@yahoo.com or thomas.papadopoulos@bnc.oxon.org

Electronic copy available at: http://ssrn.com/abstract=1912212

1)Introduction: human rights and the EU general principle of equality.
In EU law, the protection of human rights was promoted significantly by the Court
of Justice of the European Union (CJEU). In its case law, the CJEU recognized
human rights as general principles of EU Law. 1 However, the protection of human
rights in the EU is not only judicial. Art 2 TEU states that “the Union is founded on
the values of respect for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights, including the rights of persons belonging to minorities.
These values are common to the Member States in a society in which pluralism, non-
discrimination, tolerance, justice, solidarity and equality between women and men
prevail”. Moreover, Art. 6 (3) TEU states that “fundamental rights, as guaranteed by
the European Convention for the Protection of Human Rights and Fundamental
Freedoms and as they result from the constitutional traditions common to the Member
States, shall constitute general principles of the Union's law”.2 Therefore, the
protection of human rights in the EU requires people to be treated equally and not to
be discriminated against on impermissible grounds. 3 In general, discrimination could
constitute a human rights violation, when two persons who are equal in terms of skills
and abilities are treated unequally because one of them has a specific characteristic
(e.g. is female). 4
The prohibition of discrimination on grounds of certain personal characteristics
(e.g. race, sex, religion, age) has come to be the most important element in a
substantive and solid structuring of the human right to equality.5 Equality as a
fundamental human right has been used to justify the regulation of non-discrimination
and, as a matter of fact, to provide a sufficient or adequate basis for it. The goal of
equality was mentioned as a very important reason for the adoption of anti-
discrimination law. 6 Legal systems frequently combine non-discrimination law with a
requirement to promote equality as a fundamental human right and to proclaim
diversity and pluralism.7 In EU law, equality was perceived as an attribute of human
dignity and constitutes a fundamental human right. The prohibition of discrimination
on grounds of sex which was established quite early (1970s) was supplemented by
measures prohibiting discrimination on other grounds (e.g. race, age). 8 It was argued
that equality as a fundamental human rights principle enjoys the status of a general
principle of EU law after the Mangold9 ruling of the CJEU. The CJEU, in Mangold10,

1
Case 29/69 Stauder [1969] ECR 419, Case 11/70 Internationale Handelsgesellschaft [1970] ECR
1125, Case C-260/89 ERT [1991] ECR I-2925, Case C-274/99P Connolly [2001] ECR I-1611, Case C-
36/02 Omega [2004] ECR I-9609,
2
C. McCrudden and H. Kountouros ‘Human rights and European equality law’ in H. Meenan (ed)
Equality Law in an Enlarged European Union (CUP, Cambridge 2007) 87-88.
3
S. Foster Human Rights & Civil Liberties (Pearson 2nd edition, Harlow 2008) 662, R. Burchill
‘Equality and non-discrimination’ in A. Conte and R. Burchill (eds) Defining Civil and Political Rights
(Ashgate, Farnham 2009) 289.
4
A. C. L. Davies Perspectives on Labour Law (CUP, Cambridge 2004) 123.
5
M. Nowak ‘Civil and political rights’ in J. Symonides (ed) Human Rights: Concept and Standards
(UNESCO Publishing-Ashgate, Aldershot 2000) 98.
6
However, there are strong critiques of the concept of equality as a sufficient justification for the
prohibition of discrimination. N. Bamforth and others Discrimination law: theory and context (Sweet
& Maxwell, London 2008) 173, 175.
7
E. Ellis EU Anti-Discrimination Law (OUP, Oxford 2005) 7.
8
T. Tridimas The general principles of EU law (OUP 2nd ed., Oxford 2006) 59-60.
9
Case C-144/04 Mangold v Helm [2005] ECR I-09981. Where the subject matter is fundamental
human rights, the principle of universal humanity is the most appropriate way of interpreting equality.
This principle is based on the idea that all persons deserve a certain type of treatment by virtue of their

Electronic copy available at: http://ssrn.com/abstract=1912212

held that the general principle of equality is capable of horizontal direct effect. This
seems to imply the evolution of a fundamental human rights principle through
horizontal direct application of the general principle of equality, if the CJEU confirms
this approach in subsequent case law.11 In other words, the horizontal direct effect of
the general principle of equality infers that equality as a fundamental human rights
principle is further developed.
In Kücükdeveci12, the CJEU confirmed the horizontal direct effect of the general
principle of non-discrimination on grounds of age. Following the criticisms of the
Advocate Generals in other cases, this article argues that the CJEU’s approach on the
horizontal direct effect of the general principle of equality presents significant defects.
In spite of the approaches of its Advocates Generals, the CJEU did not review its
decision in Mangold in respect of the existence of a general principle of EU law
prohibiting age discrimination.13 In Bartsch14, the analysis of Advocate General
Sharpston on the horizontal direct effect of general principles presents a great interest.
The main points of her analysis will be discussed. Advocate General Shapston
concludes that one should be slow to exclude the possibility that a general principle of
EU law may, in appropriate circumstances, be applied horizontally. 15 The
relationship between the EU Charter of Fundamental Rights and horizontal direct
effect is also discussed. This article concludes that many issues on the horizontal
direct effect of the general principles of EU law remain obscure; the CJEU should
definitely clarify these issues in its future rulings.

2)Mangold and the general principle of equality.

The horizontal effect of the fundamental principle of equality as structured by
Mangold16 is very important. This case was about discrimination on grounds of age
which was prohibited by Directive 2000/7817. The purpose of Directive 2000/78 is to
lay down a general framework for combating discrimination on the grounds of religion
or belief, disability, age or sexual orientation as regards employment and occupation,
with a view to putting into effect in the Member States the principle of equal treatment.
The CJEU, in Mangold18, held that the general principle of equality is capable of
horizontal effect. This conclusion could enhance the horizontal effect of the EU

humanity and membership of the human race. N. Bamforth and others, Ibid 180, J. Raz, The morality of
freedom (Clarendon press, Oxford 1987) 228. .
10
Case C-144/04 Mangold v Helm [2005] ECR I-09981. S. Prechal ‘Enforcement of EC Labour Law:
some Less Felicitous Consequences?’ in F. Pennings and others (eds) Social Responsibility in Labour
Relations (Kluwer, AH Alpen aan den Rijn 2008) 17.
11
C. McCrudden and H. Kountouros, Ibid 90.
12
Case C-555/07 Kücükdeveci [2010] ECR nry.
13
Opinion of Advocate General Sharpston Case C-427/06 Bartsch v Bosch und Siemens Hausgeräte
(BSH) Altersfürsorge GmbH.[2008] ECR I-07245 para. 37.
14
Opinion of Advocate General Sharpston Case C-427/06 Bartsch v Bosch und Siemens Hausgeräte
(BSH) Altersfürsorge GmbH.[2008] ECR I-07245.
15
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 85.
16
Case C-144/04 Mangold v Helm [2005] ECR I-09981. In Barber, Advocate General Van Gerven
argued that a provision of international law (the prohibition of sex discrimination included in the
relevant UN covenants) could possibly of its own accord apply in a horizontal relationship between
private parties. Opinion of Mr Advocate General Van Gerven Case C-262/88 Barber [1990] ECR I-
1889, para 53.
17
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation [2000] O J L 303/16.
18
Case C-144/04 Mangold v Helm [2005] ECR I-09981. S. Prechal ‘Enforcement of EC Labour Law:
some Less Felicitous Consequences?’ in F. Pennings and others (eds) Social Responsibility in Labour
Relations (Kluwer, AH Alpen aan den Rijn 2008) 17.

3
fundamental freedoms. More specifically, it was held that it is the responsibility of the
national court, hearing a dispute involving the principle of non-discrimination in
respect of age, which is a general principle of EU law, to provide, in a case within its
jurisdiction, the legal protection which individuals derive from the rules of EU law and
to ensure that those rules are fully effective, setting aside any provision of national law
which may conflict with that law, even where the period prescribed for transposition of
a directive based on that general principle, such as Directive 2000/78 establishing a
general framework for equal treatment in employment and occupation, has not yet
expired.19
In Mangold, the CJEU observed that Directive 2000/78 does not itself lay down
the principle of equal treatment in the field of employment and occupation. Rather, it
establishes a general framework for combating discrimination on the grounds covered
by the directive, ‘the source of the actual principle underlying the prohibition of those
forms of discrimination being found, as is clear from the [first] and fourth recitals in
the preamble to the directive, in various international instruments and in the
constitutional traditions common to the Member States’. 20
The principle of non-discrimination on grounds of age must thus be regarded as a
general principle of European Union law. Where national rules fall within the scope
of European Union law, and reference is made to the CJEU for a preliminary ruling,
the CJEU must provide all the criteria of interpretation needed by the national court to
determine whether those rules are compatible with such a principle.21 Consequently,
observance of the general principle of equal treatment, in particular in respect of age,
cannot as such be conditional upon the expiry of the period allowed the Member
States for the transposition of a directive intended to lay down a general framework
for combating discrimination on the grounds of age, in particular so far as the
organisation of appropriate legal remedies, the burden of proof, protection against
victimisation, social dialogue, affirmative action and other specific measures to
implement such a directive are concerned.22 In those circumstances it is the
responsibility of the national court, hearing a dispute involving the principle of non-
discrimination in respect of age, to provide, in a case within its jurisdiction, the legal
protection which individuals derive from the rules of EU law and to ensure that those
rules are fully effective, setting aside any provision of national law which may
conflict with that law.23 EU law and, more particularly, Art 6(1) of Directive 2000/78,
must be interpreted as precluding a provision of domestic law which authorizes,
without restriction, unless there is a close connection with an earlier contract of
employment of indefinite duration concluded with the same employer, the conclusion
of fixed-term contracts of employment once the worker has reached the age of 52. It is

19
Case C-144/04 Mangold para. 75-77. See also: C. Barnard ‘Social Policy Revisited in the Light of
the Constitutional Debate’ in C. Barnard The Fundamentals of EU Law Revisited: Assessing the Impact
of the Constitution Debate (OUP, Oxford 2007) 138, J. Jans ‘The effect in national legal systems of the
prohibition of discrimination on grounds of age as a general principle of Community law’ [2007] LIEI
53-66, M. Schmidt ‘The principle of non-discrimination in respect of age: dimensions of the CJEU’s
Mangold Judgement’ [2005] GermLJ 505-522, A. Masson and C. Micheau ‘The Werner Mangold
Case: An Example of Legal Militancy’ [2007] EPL 587-593.
20
Case C-144/04 Mangold para.74, Opinion of Advocate General Sharpston Case C-427/06 Bartsch v
Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH.[2008] ECR I-07245, para 30.
21
Case C-442/00 Rodríguez Caballero [2002] ECR I-11915, paras 30 to 32, Case C-144/04 Mangold
para. 75.
22
Case C-144/04 Mangold para. 76.
23
See, to that effect, Case 106/77 Simmenthal [1978] ECR 629, para 21, and Case C-347/96 Solred
[1998] ECR I-937, para 30.

4
the responsibility of the national court to guarantee the full effectiveness of the
general principle of non-discrimination in respect of age, setting aside any provision
of national law which may conflict with EU law, even where the period prescribed for
transposition of that directive has not yet expired. 24

3)Case C-555/07 Kücükdeveci: confirmation of the horizontal direct effect of the

general principle of non-discrimination on grounds of age.
In the Mangold judgment of 2005, the CJEU acknowledged the existence of a
principle of non-discrimination on grounds of age which must be regarded as a
general principle of European Union law. Directive 2000/78 on equal treatment in
employment and occupation gives expression to that principle. While prohibiting
discrimination on grounds of age, the directive allows the national legislature to
provide that in certain cases a difference of treatment, although based on age, does not
constitute discrimination, and is therefore not prohibited. In particular, a difference of
treatment on grounds of age is permissible if it is justified by a legitimate aim of
employment, labour market or vocational training policy, and the means of achieving
that aim are appropriate and necessary. The Charter of Fundamental Rights of the
European Union25, which since the entry into force of the Treaty of Lisbon has the
same legal value as the Treaties, also prohibits all discrimination based on age.26
In Kücükdeveci, the CJEU found that European Union law, more particularly the
principle of non-discrimination on grounds of age as given expression by Directive
2000/78, must be interpreted as precluding national legislation, such as that at issue in
the main proceedings, which provides that periods of employment completed by an
employee before reaching the age of 25 are not taken into account in calculating the
notice period for dismissal.27
The role of the national court when called on to give judgment in proceedings
between individuals in which it is apparent that the national legislation at issue is
contrary to European Union law, the CJEU has held that it is for the national courts to
provide the legal protection which individuals derive from the rules of European
Union law and to ensure that those rules are fully effective. 28 In this respect, where
proceedings between individuals are concerned, the CJEU has consistently held that a
directive cannot of itself impose obligations on an individual and cannot therefore be
relied on as such against an individual.29
However, the Member States’ obligation arising from a directive to achieve the result
envisaged by that directive and their duty to take all appropriate measures, whether
general or particular, to ensure the fulfillment of that obligation are binding on all the
authorities of the Member States including, for matters within their jurisdiction, the
courts.30 Directive 2000/78 merely gives expression to, but does not lay down, the
principle of equal treatment in employment and occupation, and that the principle of

24
Case C-144/04 Mangold para. 77-78.
25
Article 21(1) of the Charter.
26
CJEU PR No 4/10.
27
Case C-555/07 Kücükdeveci [2010] ECR nry, para 43.
28
Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, para 111, and Case
C-268/06 Impact [2008] ECR I-2483, para 42, Case C-555/07 Kücükdeveci [2010] ECR nry, para 45.
29
Case 152/84 Marshall [1986] ECR 723, para 48; Case C-91/92 Faccini Dori [1994] ECR I-3325,
para 20; and Pfeiffer and Others, para 108, Case C-555/07 Kücükdeveci [2010] ECR nry, para 46.
30
Case 14/83 von Colson and Kamann [1984] ECR 1891, para 26; Case C-106/89 Marleasing [1990]
ECR I-4135, para 8; Faccini Dori, para 26; Case C-129/96 Inter-Environnement Wallonie [1997] ECR
I-7411, para 40; Pfeiffer and Others, para 110; and Joined Cases C-378/07 to C-380/07 Angelidaki and
Others [2009] ECR I-0000, para 106, Case C-555/07 Kücükdeveci [2010] ECR nry, para 47.

5
non-discrimination on grounds of age is a general principle of European Union law in
that it constitutes a specific application of the general principle of equal treatment.31 In
those circumstances, it is for the national court, hearing a dispute involving the
principle of non-discrimination on grounds of age as given expression in Directive
2000/78, to provide, within the limits of its jurisdiction, the legal protection which
individuals derive from European Union law and to ensure the full effectiveness of that
law, disapplying if need be any provision of national legislation contrary to that
principle.32 The need to ensure the full effectiveness of the principle of non-
discrimination on grounds of age, as given expression in Directive 2000/78, means that
the national court, faced with a national provision falling within the scope of European
Union law which it considers to be incompatible with that principle, and which cannot
be interpreted in conformity with that principle, must decline to apply that provision,
without being either compelled to make or prevented from making a reference to the
CJEU for a preliminary ruling before doing so.33

4) Subsequent criticism by the Advocate Generals of the CJEU.

Mangold has attracted a certain amount of academic criticism. The general theme
of the criticism is that the CJEU (of its own volition, without good reason and against
the wishes of the legislature) extended the scope of a directive, to give it effect before
the end of its transitional period and in horizontal circumstances, by making an
innovative reference to a general principle of EU law. Consequently, it was argued
that the CJEU has undermined the purpose of direct effect. Furthermore, the ruling is
criticized for having produced a situation of considerable legal uncertainty. 34
Four Advocates General have commented on Mangold. In Chacón
Navas35, Advocate General Geelhoed noted the potentially far-reaching economic and
financial consequences of claims to equal treatment based on the prohibitions set out
in Art 19 TFEU (ex Art 13 EC Treaty). The interpretation of measures based on Art
19 TFEU (ex Art 13 EC Treaty) must not be stretched by relying on the words
‘[w]ithin the limits of the powers conferred by [the Treaty] upon the Community’ in
that article, and still less by relying on the general policy of equality. Such an
approach would impinge upon decisions made by the Member States in the exercise
of powers which they still retain. Accordingly, he advocated a more restrained
interpretation than that adopted by the CJEU in Mangold.36 In Lindorfer37, Advocate
General Sharpston suggested that the prohibition of age discrimination identified by
the CJEU in Mangold was a particular expression of the general principle of equality
before the law. Accordingly, she felt that the better reading of Mangold was that
discrimination on grounds of age had always been precluded by the general principle
of equality, and that Directive 2000/78 had introduced a specific, detailed framework

31
Mangold, paras 74 to 76, Case C-555/07 Kücükdeveci [2010] ECR nry, para 50. For an interesting
approach, see also: M. Finck ‘Case C-555/07 Kücükdeveci-Integrating through law’ Freilaw - Freiburg
Law Students Journal 2 [2010] 1-7.
32
Mangold, para 77 Case C-555/07 Kücükdeveci [2010] ECR nry, para 51.
33
Mangold, para 77 Case C-555/07 Kücükdeveci [2010] ECR nry, para 53. See also: K. Stump ‘When
can age matter?’ [2010] ColJEurL 53, Editorial Comments ‘Horizontal Direct Effect-a law of
diminishing coherence?’[2006] CMLRev 1-8..
34
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 31.
35
Opinion of Advocate General Geelhoed Case C-13/05 Sonia Chacón Navas [2006] ECR I-6467,
para 46 -56.
36
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 32-33.
37
Opinion of Advocate General Sharpston Case C-227/04 P Lindorfer [2007] ECR I-6767 paras 52-58.

6
for dealing with, inter alia, that discrimination.38 Advocate General Mazák offered an
extended criticism of Mangold in Palacios de la Villa39. He noted that the
international instruments and constitutional traditions referred to in Mangold enshrine
the general principle of equal treatment, but that it was a bold proposition and a
significant move to infer from that the existence of a specific principle prohibiting age
discrimination. A general principle of equality potentially implies a prohibition of
discrimination on any ground which may be deemed unacceptable, so that specific
prohibitions constitute particular expressions of that general principle. However, it is
quite a different matter to infer from the general principle of equality the existence of
a prohibition of discrimination on a specific ground and the reasons for doing so are
far from compelling. Moreover, neither Art 19 TFEU (ex Art 13 EC Treaty) nor
Directive 2000/78 necessarily reflect an already existing prohibition of all the forms
of discrimination to which they refer. Rather, the underlying intention was in both
cases to leave it to the EU legislature and the Member States to take appropriate
action to that effect. That is what the CJEU, too, seems to suggest in Grant40, in which
it concluded that EU law, as it stood, did not cover discrimination based on sexual
orientation. 41 Most recently, Advocate General Colomer has taken the view in
Maruko42 that the ‘essential character’ of the right to non-discrimination on the
ground of sexual orientation is of a different order to that which the CJEU attributed
to the principle of non-discrimination based on age in Mangold. 43

5) The stance of the CJEU.

The CJEU has now delivered its judgments in those four cases. Despite (or possibly,
in the light of) the comments of its Advocates General, in none of those judgments did
the CJEU review – or indeed mention – its decision in Mangold in respect of the
existence of a general principle of EU law prohibiting age discrimination. 44 In
Lindorfer, the CJEU had reopened the oral procedure and convened a new hearing at
which it had asked the parties to express their views on, inter alia, the scope of the
principle prohibiting age discrimination when calculating actuarial values in the

38
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 34. In her opinion in Carp, AG
Trstenjak stated that it was the Court’s intention to highlight the prohibition of discrimination based on
age and to set out the forms of legal protection available to workers who suffer harm as a result of such
discrimination. The prohibition of discrimination based on age reflects a decision of a universal and
moral nature which is integral to EU law, even though it is laid down in a directive, which, in principle,
does not have horizontal direct effects. For the purposes of Article 10 EC Treaty, the Member States
must take account of a value-judgement of that nature. When taking decisions concerning relationships
between individuals, the organs of the Member States and the public bodies on which they confer
authority must also respect the value-judgements and decisions contained in EU law. That is the
rationale underlying Mangold. In disputes concerning discrimination based on age, that judgment
serves as a guideline for the national courts where the national law does not provide the same
protection as EU law. Consequently, in the case of disputes arising in other sectors, there is no valid
reason why we should not apply the standard case-law, under which provisions contained in directives
or decisions addressed to the Member States are not recognized as having horizontal direct effect.
Opinion of Advocate General Trstenjak Case C-80/06 Carp para.70
39
Opinion of Advocate General Mazák Case C-411/05 Palacios de la Villa [2007] ECR nry, paras 87-
97 and paras 132-138. See also G. Thusing and S. Horler ‘Case Note-Case C-555/07 Kücükdeveci
[2010] ECR nry’ CMLRev [2010] 1161, 1170.
40
Case C-249/96 Grant [1998] ECR I-621.
41
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 35.
42
Opinion of Advocate General Colomer Case C-267/06 Tadao Maruko [2008] ECR nry, para 78.
43
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 36.
44
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 37.

7
transfer to the EU pension scheme of rights acquired under a national pension scheme.
Nevertheless, it decided the case purely on the basis of sex discrimination. It is less
surprising that the CJEU omitted any reference to age discrimination in Chacón
Navas and Maruko, which concerned, respectively, disability discrimination and
discrimination on the basis of sexual orientation. 45 Palacios de la Villa specifically
concerned age discrimination. There, the CJEU first determined that the national
legislation at issue (according to which the fact that a worker had reached the
retirement age laid down by that legislation led to automatic termination of his
employment contract) created a difference in treatment directly based on age. The
CJEU next established that Directive 2000/78, whose transposition period had already
expired at the material time, was applicable to the events giving rise to the dispute
before the national court. Hence, it was able to decide the case by reference to the
directive. The CJEU ruled that the measure was objectively and reasonably justified
by a legitimate aim relating to employment policy and the labour market and accepted
that it was an appropriate and necessary means to attain that aim. The CJEU made no
mention of a general principle prohibiting age discrimination. 46 The CJEU’s
approach in Palacios de la Villa, which analyses national legislation that explicitly
provides for unfavourable treatment on the ground of age through the prism of
Directive 2000/78 and concludes that it is acceptable, is very different from the
approach in Mangold, in which the CJEU stated that it was the responsibility of the
national court to set aside any provision of national law which conflicts with the
principle of age discrimination.47 In Bartsch (as in Mangold) the period for
transposing Directive 2000/78 had not expired at the material time. The question
whether there is a specific principle of EU law prohibiting age discrimination is
therefore again potentially before the CJEU. 48

6) Advocate General Sharpston on the horizontal direct effect of general

principles.
Advocate General Sharpston focuses on the vertical direct effect. It is trite EU law
that general principles of law are capable of being invoked vertically against the State.
Thus for example the CJEU has held that various national measures were precluded
by EU law on the basis that they were incompatible with the general principle of
equal treatment or with specific manifestations of that principle, such as the
prohibition of discrimination on grounds of nationality in various contexts, respect for
fundamental rights, the principle of the protection of legitimate expectations and the
principle of proportionality. 49
Advocate General Sharpston asks whether the finding of Mangold could be
generalized by being expanded to every general principle of EU law. The question is
whether any general principle of EU law is, or should be, capable of horizontal

45
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 38.
46
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 39.
47
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 40.
48
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 41. Moreover, Mangold, as
well as subsequent cases, did not examine satisfactorily a very important aspect for the application of
the general principle of equality. The requirement that the application of general principles demands a
situation falling within the scope of the TFEU needs to be clarified further by the CJEU. It seems that
only if a link with EU law is established, the general principle of equality could be invoked before the
CJEU.
49
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 79.

8
application. 50 To the extent that general principles are applied vertically, they allow
individuals to assert fundamental rights against the State. However, to restrict reliance
on such rights to vertical situations risks creating the same (sometimes artificial)
distinction between the public and private sector as is familiar in the case of
directives.51
Moreover the CJEU has on occasion recognized that the general principle of equal
treatment can be applied horizontally when it is incorporated in a substantive Treaty
article. Thus, in Walrave and Koch it held that the prohibition of discrimination on
grounds of nationality contained in what are now Arts 18, 45 and 56 TFEU (ex Arts
12, 39 and 49 EC Treaty) applied not only to the action of public authorities but also
to rules of private bodies which seeks to regulate in a collective way gainful
employment and services and that the rule on non-discrimination applied in judging
all legal relationships located within the European Union. Walrave and Koch
concerned a private association which had a regulatory function and which could
therefore perhaps be assimilated to an emanation of the State. The CJEU went further
in Angonese, which concerned access to employment in a private bank, and ruled that
‘the prohibition of discrimination on grounds of nationality laid down in [Art 39 EC]
must be regarded as applying to private persons’.52 In Mangold, the CJEU applied the
general principle of equal treatment (including equal treatment irrespective of age) to
a private dispute between individuals, albeit one governed by national rules of public
law put in place to implement an EU law obligation (Directive 1999/70). Advocate
General Shapston concludes that that one should be slow to exclude the possibility
that a general principle of EU law may, in appropriate circumstances, be applied
horizontally. 53

7) The opinion of Advocate General Colomer in Michaeler-the relationship

between directives and general principles.
Advocate General Colomer in his opinion in Michaeler also criticizes the approach
of Mangold to horizontal direct effect of general principles. Advocate General
Colomer censures the (horizontal) application of a specific general principle in this
case and insists on the application of the directive itself. The primary role of specific
general principles such as the general principle of non-discrimination on grounds of
age should be interpretative and should be applied independently only in specific
situations (there are no applicable directives).
The CJEU should be very cautious when applying directives and general principles
of law simultaneously. Indeed, their coexistence would be of more use to the CJEU if
it were argued that directives, once they have become part of the legal system, must
be interpreted in such a way that they complement the general principles but the two
are not placed on an equal footing, because if, following the adoption of a directive,
the principles were to govern matters which fall within the scope of that directive, it
would seriously detract from the latter’s function and nature. It would be preferable,
where they are invoked in cases concerning directives, if the general principles of law
acted as criteria for interpretation. In that way, the relationship between the principles

50
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 80.
51
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 83.
52
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 84. See also: A. Hartkamp
‘The effect of the EC Treaty in Private Law: On Direct and Indirect Horizontal Effects of Primary
Community Law’ [2010] ERPL 527-548.
53
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 85.

9
and directives would create a climate more likely to guarantee legal certainty and
more in keeping with the institutional equilibrium underlying a system of sources
such as the EU one. 54. However, if there are no applicable directives, the general
principles of EU law would come into play as autonomous rules of law. 55
This approach of Advocate General Colomer seems to imply that directives would
continue not to have horizontal direct effect and that the general principle of equality
should not be used in order to confer direct effect in horizontal relationships. The
above conclusion could also be based on the hierarchy of norms in the EU legal order:
a directive which has been adopted to facilitate the implementation of the general
principle of equal treatment and non-discrimination cannot reduce the scope of that
principle.56

8) The EU Charter of Fundamental Rights and horizontal direct effect.

After the entry into force of the Treaty of Lisbon, the EU Charter of Fundamental
Rights had become legally binding. This leads to a substantial reinforcement of
European Union governance by the rule of law. Before, it was the case law of the
Court of Justice that obliged the EU to respect fundamental rights. Now, the Charter
embodies in a single, coherent and legally-binding instrument the fundamental rights
which are binding upon the EU institutions and bodies.57 The Charter can now more
easily be used as a standard for judicial review of EU provisions, as well as, of
national provisions implementing EU legislation. 58
Mangold and Kücükdeveci argue that the general principle of equality on grounds
of age, which simultaneously constitutes an unwritten, court-made fundamental right,
has horizontal direct effect.59 The CJEU did not adopt a human rights perspective in
order to analyze the horizontality of this fundamental right. It accepts the existence of
horizontality without any discussion on this fundamental right. This lack of
consideration certainly does not contribute to the further development of equality as
fundamental human rights principle.
The CJEU, in Mangold, did not refer to the EU Charter of Fundamental Rights. Art
21 of the Charter prohibits discrimination on grounds of (inter alia) age. This binding
legal status of the EU Charter of Fundamental Rights is taken into account for the first
time in Kücükdeveci where the CJEU refers to the EU Charter of Fundamental
Rights.60 In this case, the CJEU stresses the general principles of the European Union

54
Opinion of Advocate General Colomer Joined Cases C-55/07 and C-56/07 Othmar Michaeler para.
22.
55
Opinion of Advocate General Colomer Joined Cases C-55/07 and C-56/07 Othmar Michaeler para.
23.
56
Opinion of Advocate General Bot Case C-555/07 Kücükdeveci [2010] ECR nry para. 70. M. de Mol
‘Kücükdeveci: Mangold Revisited – Horizontal Direct Effect of a General Principle of EU Law-Court
of Justice of the European Union (Grand Chamber) Judgment of 19 January 2010, Case C-555/07, Seda
Kücükdeveci v. Swedex GmbH & Co. KG’ EuConstLR, 6: 293–308, 2010, 301.
57
Report from the Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions “2010 Report on the Application of the EU
Charter of Fundamental Rights” COM(2011) 160 final, Introduction, 1. It should also be mentioned
that in 2010, the European Commission adopted a Strategy to make sure the Charter is effectively
implemented, so that people can enjoy their rights in practice, Communication from the Commission of
19 October 2010 on the Strategy for the effective implementation of the Charter of Fundamental Rights
by the EU, COM/2010/0573 final
58
D. Chalmers and G. Monti European Union Law-Updating Supplement (CUP, Cambridge 2008) 69.
59
M. de Mol Ibid 301.
60
S. Peers ‘Supremacy, equality and human rights: comment on Kucukdeveci (C-555/07)’ E.L. Rev.

10
as a source of human rights rules. However, other cases decided after the entry into
force of the Lisbon Treaty have referred exclusively or primarily to the EU Charter of
Fundamental Rights as a source of human rights rules. 61 Recently, the CJEU referred
explicitly to the Charter in discrimination cases before it.
In Association belge des Consommateurs62, the national court asked whether a
specific provision of Directive 2004/11363 is valid in the light of the principle of equal
treatment for men and women. The CJEU referred to Article 6(2) TEU which
provides that the European Union must respect fundamental rights as guaranteed by
the European Convention for the Protection of Human Rights and Fundamental
Freedoms and as they result from the constitutional traditions common to the Member
States, as general principles of Community law. Then, it stated that those fundamental
rights are incorporated in the Charter, which, with effect from 1 December 2009, has
the same legal status as the Treaties.64 The Court referred to the specific Charter
provisions applicable to this specific case. Articles 21 and 23 of the Charter state,
respectively, that any discrimination based on sex is prohibited and that equality
between men and women must be ensured in all areas. Since recital 4 to Directive
2004/113 expressly refers to Articles 21 and 23 of the Charter, the validity of Article
5(2) of that directive must be assessed in the light of those provisions. 65 This latter
approach was also followed by the CJEU in another recent case before it (Volker und
Markus Schecke and Eifert). 66
The significance of Association belge des Consommateurs lies in the application of
the general principles of European law, which are embodied in the articles of the
Charter, to a horizontal relationship such as private insurance. Directive 2004/113
should apply only to insurance and pensions which are private, voluntary and separate
from the employment relationship. In this case, the CJEU affirms that the principle of

2010, 35(6), 849, 855. T. Roes ‘Case Note- Case C-555/07, Seda Kücükdeveci v. Swedex GmbH & Co.
KG’ 16 Colum. J. Eur. L. 497 2009-2010 , 507.
61
For example: Mayor v Herencia yacente de Rafael de las Heras Dávila (C-323/08) judgment of
December 10, 2009; Jasna Deticek v Maurizio Sgueglia (C-403/09 PPU) judgment of December 23,
2009; Abdulla and others (C-175/08, 176/08, 178/08 & 179/08) judgment of March 2, 2010; S. Peers
Ibid 856. See also, M. Connolly ‘Victimising third parties: the Equality Directives, the European
Convention on Human Rights, and EU general principles’ E.L. Rev. 2010, 35(6), 822-836 , 834.
Moreover, in J. McB. V L. E61, the Court discussed Article 52(3) of the Charter. It follows from Article
52(3) of the Charter that, in so far as the Charter contains rights which correspond to rights guaranteed
by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. However,
that provision does not preclude the grant of wider protection by European Union law. Hence, the
CJEU ruled that since the content of Article 7 of the Charter (respect for private and family life) and
Article 8 of the ECHR(right to respect for private and family life) is the same, Article 7 of the Charter
must be given the same meaning and the same scope as Article 8 of the ECHR, as interpreted by the
case-law of the European Court of Human Rights. It is obvious that this provision results in a
harmonious interpretation of the various rights. CJEU-P.R. No 98/10
62
Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des
ministres. [2011] ECR, nry,
63
Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment
between men and women in the access to and supply of goods and services (OJ 2004 L 373, p. 37).
64
Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des
ministres. [2011] ECR, nry, para. 15-16.
65
Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des
ministres. [2011] ECR, nry, para. 17. National law that falls within the scope of Union law must be
examined in the light of the Charter provisions. This judicial examination seems not to be so
complicated in cases where the Charter provides fundamental rights and EU adopts secondary Union
legislation. Hence, the fact that the principle of equality between men and women was given “specific
expression” in Directive 2004/113 might facilitate this examination.
66
Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [2010] nry, paragraph 46.

11
equal treatment for men and women, which is also included in Articles 21 and 23 of
the Charter, applies to horizontal situations. The CJEU refers to the Charter articles in
order to enhance the application of the general principle of equality to horizontal
situations. These references to the legally-binding Charter strengthen the rationale of
the CJEU’s rulings with regard to equality as a fundamental principle of the European
Union.
The CJEU, in Kücükdeveci, did not use the EU Charter of Fundamental Rights in
order to underpin its arguments on horizontal direct effect of the general principle of
equality. The reference, here, to the EU Charter of Fundamental Rights seems to be
subsidiary and does not contribute to the establishment of the horizontal direct effect.
The CJEU might be hesitant to apply the relevant provisions of the Charter to a
horizontal relation because the Charter catches only public authorities and Member
States. Art 51 (field of application) of the Charter does not mention private parties67;
this is probably why the CJEU did not used the Charter in order to strengthen its
reasoning on horizontality of a general principle of EU law. Nevertheless, the CJEU
could have used articles of the Charter constituting expressions of general principles
of European law in order to apply them to horizontal relations.68 In this way, the
CJEU’s reasoning that a general principle of EU law enjoys horizontal direct effect
would have been enhanced because this general principle would have been expressed
in the text of the Charter. It could be asserted that, if the general principles of EU law
have horizontal direct effect, the Charter encompassing fundamental human rights as
general principles also applies horizontally. This assertion derives from the fact that
the Charter applies whenever EU law is being implemented.

9) Unanswered questions and obscure points.

The conclusions of Mangold on horizontality as confirmed and refined by
Kücükdeveci raise some questions which were left unanswered by the CJEU.
An important issue which was not examined by the CJEU is the scope of
horizontality. Was the horizontal direct effect conferred only to the general principle
of non-discrimination on grounds of age? Or does it apply to non-discrimination on
other grounds, to other social rights, or to human rights in general?69 Apart from age
and nationality, does also the prohibition of discrimination on grounds of religion or
belief, disability, sexual orientation, racial or ethnic origin and sex have horizontal
direct effect? What about the grounds mentioned in EU Charter of Fundamental
Rights (language, political or any other opinion, membership of a national minority,
property and birth)? Do they also have horizontal direct effect? 70 It was argued that
discrimination on grounds of age touches some distinct questions for discrimination
law, and that it is not clear whether an analogy could be drawn with other prohibited
grounds of discrimination.71
On the other hand the CJEU held in two decisions that it is for the national courts
hearing disputes between individuals to set aside any provision of national law that is

67
M. de Mol Ibid 302.
68
M. de Mol Ibid 304.
69
S. Peers Ibid 856.
70
M. de Mol Ibid 303.
71
C’ O’Cinneide ‘Comparative European Perspectives on Age Discrimination’ in Fredman and
Spencer (eds) Age as an equality issue(Hart publishing, Oxford 2003) 215, N. Bamforth and others
Discrimination Law: Theory and Context (Sweet and Maxwell, London 2008) 158.

12
contrary to the principle of non-discrimination in respect of age.72 It remains to be
seen whether the CJEU will extend such horizontal direct effect to other general legal
principles such as the principle of non-discrimination in respect of sex. Above all,
prior to any further development of that kind, it would be necessary to discuss the
dogmatic foundations of that contested horizontal direct effect73 and its limits.74
Moreover, the case of directly effective provisions of a directive and their effect on
the horizontal direct effect of the general principle of equality were not examined by
the CJEU in Kücükdeveci .Was the horizontal direct effect conferred only in cases that
the articles of the relevant directive would otherwise be directly effective?75
The CJEU did not scrutinize the nature of the general principle of equality which is
a mean to protect private individuals against the state. It simply assumes that the
general principle of equality enjoys direct effect in this particular framework (age
discrimination).76
Although the general principle of non-discrimination on grounds of age derives from
the various international instruments and the constitutional traditions common to the
Member States, within the international and national legal orders the horizontal direct
effect of the general principle of equality is not construed in the same way.77 Different
approaches with regard to the horizontal direct effect of the general principle of
equality are adopted by the various international and national legal orders. The CJEU
is not engaged with this legal diversity of horizontality and confers arbitrarily
horizontal direct on this general principle.
It could be argued that there is a clash between the horizontal direct effect of the
general principle of equality and the general principle of legal certainty. The
establishment of horizontal direct effect of the general principles of EU law means
that private parties could not rely only on their national law. They must also take into
account the abstract and unwritten general principles of EU law in order to see if the
national provisions are compatible with them. This is certainly against legal certainty
which is also a general principle of EU law.78 The CJEU did not comment on the
point of legal certainty. The validity of national provisions which are infringing the
general principle of equality79 must be analysed thoroughly by the CJEU because
national courts need guidance when they are called to set aside national provisions
conflicting with EU law. As a result, the issue of legal certainty remains obscure.

72
Case C-144/04 Mangold [2005] ECR I-9981, para 77, and judgment in Kücükdeveci, at para 51.
73
See: Opinion of Advocate General Tizzano Case C-144/04 Mangold [2005] ECR I-9981, paras 83,
84 and 100, the Opinion of Advocate General Mazák Case C-411/05 Palacios de la Villa [2007]. ECR
I-8531, paras 133-138, and the Opinion of Advocate General Sharpston Case C-427/06 Bartsch [2008]
ECR I-7245, paras 79 -93.
74
Opinion of Advocate General Kokott, Case C-104/09 Roca Alvarez [2010] ECR nry para. 55, G.
Thusing and S. Horler ‘Case Note-Case C-555/07 Kücükdeveci [2010] ECR nry’ CMLRev [2010]
1161, 1170.
75
S. Peers Ibid 857.
76
M. de Mol Ibid 301.
77
M. de Mol Ibid 302.
78
T. Roes Ibid 515. M. de Mol Ibid 307.
79
G. Thusing and S. Horler Ibid 1171.

13
10)Conclusion
Mangold was criticized by many Advocate Generals in their opinions.80 This case
touches the sensitive issue of the direct effect of equality and was considered to be
inconsistent with the legal framework of horizontal direct effect. Mangold and
Kücükdeveci follow the same approach with regard to the horizontal direct effect: a
general principle of European Union law(equality) must be applied by national courts
as an autonomous ground for judicial review and any national rules incompatible with
this general principle must be set aside. 81
The opinion of Advocate General Sharpston in Bartsch82 reveals the substantial extent
of this criticism. She refers to the opinion of Advocate General Geelhoed in Case C-
13/05 Chacon Navas, herself in Case C-227/04 P Lindorfer, Advocate General Mazak
in Case C-411/05 Palacios de la Villa and Advocate General Ruiz-Jarabo Colomer in
Case C-267/06 Maruko.83 Advocate General Sharpston scrutinizes the general theme of
the criticism in Mangold. She stated that the CJEU (of its own volition, without good
reason and against the wishes of the legislature) conferred horizontal direct effect on a
directive before the end of its transitional period, by making an innovative reference to
a general principle of European Union law. She adds that the ruling is criticized for
having produced a situation of considerable legal uncertainty.84 However, Advocate
General Sharpston suggests that it is not wise to exclude at the outset the possibility that
a general principle of EU law could have horizontal direct effect. This latter comment
should not be overestimated. It is argued that this does not mean that the Mangold
approach should be accepted and that the general principle of equality enjoys horizontal
direct effect in every possible situation.85
Certainly, the CJEU should seek sooner or later to clarify the obscure points that
were left unanswered and should provide the conditions of a sophisticated, rather than
an occasional application of the horizontal direct effect of the general principle of
equality. Given the ever increasing intervention of EU law in relations between private
persons, the CJEU will be inevitably confronted with other situations which raise the
question of the right to rely, in proceedings between private persons, on directives
which contribute to ensuring observance of fundamental rights. These situations will
definitely increase because the Charter of Fundamental Rights of the European Union is
legally binding and some of the fundamental rights contained in that Charter are a

80
Nevertheless, some authors welcome this ruling by analysing it in the light of the hierarchy of norms.
They did not consider as something surprising that the general principles of EU law can have direct
effect and can apply to a horizontal relationship. J. Jans ‘The effect in national legal systems of the
prohibition of discrimination on grounds of age as a general principle of Community law’ [2007] LIEI
53, 59, 66, 62. X. Groussot and H.H. Lidgard ‘Are there general principles of Community law affecting
private law?’ in U. Bernitz and others (eds) General Principles of EC Law in a Process of Development
(Kluwer, AH Alpen aan den Rijn 2008) 173.
81
M. de Mol Ibid 300. For an analysis of the negative effects of the horizontal direct effect of the EU
general principles, see: M. Safjan and P. Miklaszewicz ‘Horizontal effect of the general principles of
EU law in the sphere of private law’ [2010] ERPL 475.
82
Opinion of Advocate General Sharpston Case C-427/06 Bartsch v Bosch und Siemens Hausgeräte
(BSH) Altersfürsorge GmbH.[2008] ECR nry paras 33-41.
83
Case C-13/05 Chacon Navas [2006] ECR I-6467, Case C-227/04 P Lindorfer [2007] ECR I-6767,
Case C-411/05 Palacios de la Villa [2007] ECR I-8531 and Case C-267/06 Maruko, nyr. D. A. Wyatt
‘Horizontal effect of fundamental freedoms and the right to equality after Viking and Mangold, and the
implications for Community competence’ [2008] CYELP 1, 14. For interesting comments, see: A.
Dashwood ‘From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?’ [2007]
CYELS (Hart, Oxford 2007) 107.
84
Opinion of Advocate General Sharpston Case C-427/06 Bartsch para. 31.
85
D. A. Wyatt Ibid 15.

14
number which are already part of the existing body of EU law in the form of directives.
86

86
Opinion of Advocate General Bot Case C-555/07 Kücükdeveci [2010] ECR nry para. 90, G. Thusing
and S. Horler Ibid 1170.

15