Double Direct Effect? The UK Supreme Court’s revisiting of the direct effect conditions in Dillon

 

 

Dr Eleni Frantziou, Associate Professor in Public Law and Human Rights, Durham Law School, and Dr Sylvia de Mars, Reader in Transnational Public Law, Newcastle Law School

 

Photo credit: Samuel Lennox, via Wikimedia Commons

 

Introduction

 

Is there anything left to say on the direct effect of EU law? Yes, according to the UK Supreme Court, which handed down its much-awaited judgment in Dillon et al on 7 May 2026. The UK reference above is not a typo: despite Brexit, aspects of the EU/UK Withdrawal Agreement (‘WA’) have direct effect under the conditions provided for in EU law, in line with Article 4 WA. In Dillon, the UK Supreme Court was asked to interpret whether one provision of this agreement – Article 2(1) of the Ireland/NI Protocol (‘Protocol’), which is itself a core part of the WA (Article 182 WA) – is directly effective and, if so, on what terms.

 

The case concerned the Legacy (Troubles and Reconciliation) Act 2023, which set out a broad range of immunities for serious crimes committed in Northern Ireland during the Troubles. The principal claimants were one direct victim and three relatives of victims killed in the conflict – a wife, mother and sister who, as O’Donoghue observes, were but minimally acknowledged by the UKSC. They challenged the immunities provisions of the Act under the ECHR and EU law.

 

In this post, we focus only on the EU law dimensions of the case and, particularly, on the question of direct effect. In our view, Dillon raises significant questions about the correct application of the direct effect conditions, the ultimate arbiter of which is the CJEU. In particular, we argue that the UKSC’s interpretation of direct effect in Dillon is inconsistent with EU law, because it creates an unprecedented requirement of ‘double direct effect’: it applies the direct effect conditions to both a provision of the Withdrawal Agreement/Protocol and to measures referenced in this provision.

 

Why was EU law still relevant in Dillon in 2026?

 

One of the most contentious aspects of the Withdrawal Agreement negotiations was the status of Northern Ireland. It is widely documented that EU membership was one of the principal catalysts for the Belfast/Good Friday Agreement (‘BGFA’) that officially marked the end of the Northern Ireland conflict known as ‘the Troubles’. As EU membership by both the UK and Ireland had ensured free movement between the Irish north and south, the creation of special arrangements that secured this after Brexit was a crucial aspect of the UK’s exit negotiations.

 

These special arrangements were embedded into the Ireland/NI Protocol (as of 2023 also known as the ‘Windsor Framework’ in the UK), which was appended to the Withdrawal Agreement as a core part of it dealing with a specific ‘withdrawal’ issue.  The Protocol provides for continued north/south cooperation, avoiding a hard border and protecting both trade and cross-border work. Importantly for the purposes of the Dillon case, the Protocol also notes in recital 7 of its Preamble that ‘Union law has provided a supporting framework for the provisions on Rights, Safeguards and Equality of Opportunity of the 1998 Agreement’ (‘RSEO’) and includes a specific non-regression guarantee with respect to this part of the BGFA. To this end, Article 2(1) of the Protocol provides:

 

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the Belfast/Good Friday Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

 

It was this article of the Protocol that formed the basis of the EU law claim in Dillon. The claimants’ argument went as follows: since the UK had been subject to the Victims’ Rights Directive (‘VRD’) before Brexit and this had been implemented in NI through domestic measures, the immunities created by the Legacy Act reduced the level of protection of fundamental rights available during the UK’s membership of the EU, and were therefore in conflict with Article 2 of the NI Protocol. This claim was made possible by Article 4(1) WA, which states that the “Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States” and the test for individuals to rely on a provision of the Withdrawal Agreement before domestic courts is that such a provision should “meet the conditions for direct effect under Union law.”

 

In line with the widely known Van Gend en Loos formula, a provision of EU law has direct effect if it confers rights to individuals that are clear, precise, and unconditional, rather than being subject to the adoption of further measures by either Member States or the EU.  The wording of Article 2(1) of the Protocol prima facie meets these conditions with ease. The right conferred by Article 2(1) is to not have ‘rights, safeguards or equality of opportunity’ as set out in the BGFA and in Annex 1 of the Protocol diminished. This paragraph contains a ‘textbook’ negative obligation. It requires no further measures at all – the UK simply needs to refrain from introducing new measures that reduce the level of protection of EU fundamental rights as it stood on 31 December 2020.

 

The claimants consequently argued that, since Article 4 WA also provides for the Agreement to have primacy and, at paragraph 2, requires that domestic courts be capable of disapplying incompatible provisions, the immunity provisions of the Legacy Act had to be disapplied. Two courts in Northern Ireland had found for the claimants, disapplying the offending provisions – but the government challenged this on appeal to the UKSC. It argued that if Article 2 was to have direct effect, it could only do so by reference to obligations that were themselves clear, precise and unconditional.

 

The Supreme Court sided with the government. It found that Article 2 could not always have direct effect, but only under certain circumstances, namely when the measures cross-referenced in Article 2 were themselves directly effective.  It is worth setting out its reasoning in some detail.

 

The UKSC commences, at paragraph 112, by citing the so-called Demirel test.  Demirel is one of the early cases in which the CJEU considered whether provisions in bilateral agreements signed by the EU could have direct effect; and it found at paragraph 14 that:

 

…a provision in an agreement concluded by the European Union with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in

its implementation or effects, to the adoption of any subsequent measure... (emphasis added)

 

So far, so good.  While, as we discuss further below, the treatment of the Withdrawal Agreement (or Protocol) as part of ordinary EU external relations law is questionable, this does reflect the commonly used test for evaluating the direct effect of bilateral agreements involving the EU.

 

However, the UKSC proceeds with the following statement in paragraph 113:

 

The obligation imposed on the United Kingdom by article 2(1) of the Windsor

Framework relates to rights, safeguards or equality of opportunity “as set out in” the RSEO chapter. It is therefore necessary to consider whether, having regard to the wording and to the purpose and nature of the RSEO chapter and of article 2(1) of the Windsor Framework, those provisions read together impose a clear and precise obligation which satisfies the test for direct effect.

 

In our view, the words “therefore necessary” make a huge argumentative leap, hitherto unseen in any EU law treatment of direct effect. In this single short paragraph, the CJEU takes the Demirel test but applies it simultaneously to the Withdrawal Agreement and its provisions and the BGFA’s RSEO chapter’s provisions. In other words, the UKSC reasons that Article 2 of the Protocol cannot have direct effect as such: for it to be directly effective, anything it references must also be directly effective.  This leads to its even more confounding finding, which is – ultimately – that Article 2 of the Protocol sometimes has direct effect – but at other times it does not. This is because, according to the UKSC, it is impossible to identify a clear and precise obligation without reference to the RSEO chapter. As the UKSC puts it at paragraph 116, “[i]t is only in this way that the obligation not to diminish rights, safeguards or equality of opportunity acquires any content.”

 

This aspect of the ruling – which we dub ‘double direct effect’ –presents a deep challenge to settled understandings of the direct effect of EU law.

 

The fallacy of the UKSC’s direct effect

 

The UKSC’s ruling does not question the possibility of Article 2 of the Protocol to have direct effect, nor does it challenge the terms of direct effect. According to the Court, as per paragraph 112, the relevant conditions are the conditions set out in EU law. But the choice of EU law is already telling of the ruling’s direction and tone: rather than going straight for the Van Gend en Loos conditions, the Court refers to the Demirel test on the direct effect of international agreements.

 

While this choice is defensible to a degree as the WA is, after all, a bilateral agreement, the confidence with which the UKSC resorts to it is puzzling. Unlike association agreements, such as the one between the EU and Turkey at stake in Demirel, or even the UK/EU Trade and Cooperation Agreement, EU competence for which resides in external relations law (Article 217 TFEU), the Withdrawal Agreement is a very specific type of agreement. The competence to conclude it is found in the constitutional part of the Treaty on European Union – Article 50 TEU – and it is Article 50 (2) that sets out that the terms of withdrawal are to be negotiated in accordance with Article 218(3) TFEU. The Withdrawal Agreement is thus a category in its own right: it is not about a third state negotiating the terms of its association with the EU, however deep, but about a Member State negotiating its departure from the bloc in line with its own constitutional requirements, as set out in Article 50 TEU.  The exceptionality of the Withdrawal Agreement has been raised indirectly in litigation before the CJEU and, albeit that the Court has not had specific occasion to address what this means for direct effect, it has emphasised the significance of Article 50 TEU as the essential legal context for analysing the provisions of the Withdrawal Agreement (see, e.g., Préfet du Gers I, para 54). 

 

But even if we were to accept that the Withdrawal Agreement should be treated just like any other bilateral treaty, its own terms make its ‘intention’ clear, given the express wording of Article 4 WA on the application of the direct effect conditions – a very unusual stipulation that, to our mind, would not go unnoticed by the CJEU. In fact, as Gallo and Labus note, specific exclusions of direct effect are the norm in the external relations context, as is indeed the case for the TCA, Article 5 of which preclude direct reliance by individuals on its provisions. The choice of the Demirel conditions is, therefore, significant for at least two reasons: first, it is important symbolically. The UKSC makes a choice to treat the Withdrawal Agreement as one of many international agreements the UK has signed. This automatically limits any perceived onus on its part to read the ‘purpose and nature’ of the Withdrawal Agreement or the Protocol as resulting in different obligations than other international law. Second, the reliance on the Demirel test and its focus on not only the precision and unconditionality of the relevant provisions, but also the ‘purpose and nature’ of the agreement, enables the UKSC’s further findings about Article 2(1) WA. For, as already highlighted above, rather than treating ‘purpose and nature’ as pertaining to the Withdrawal Agreement and its provisions, the UKSC understands this test as applying to the RSEO section of the BGFA.

 

The ‘purpose and nature’ of the BGFA is summarised in paragraph 119 as “establishing peace in Northern Ireland after decades of sectarianism and civil conflict”. This reference appears to preclude a reading of the BGFA as aiming to secure cross-community equality in a broader sense, which makes reliance on Article 2 for the purposes of ensuring the non-diminution of EU fundamental rights altogether less likely. It will be far more difficult to link provisions in the RSEO chapter to EU law if it is essential to prove that their purpose and nature was ‘establishing peace’. This focus on the Demirel condition of the nature and purpose of the agreement thus appears to negate, at least to an extent, the practical relevance of Article 2 as a non-regression clause. Rather than protecting the ‘supporting framework’ of fundamental rights that membership of the EU meant for the peace process in tune with the Protocol’s Preamble, the interpretation could prove to be much narrower– a possibility that remains to be fleshed out further in subsequent case law.

 

Beyond the type of direct effect it chooses, though, the UKSC also commits, in our view, a fundamental, substantive error of EU law in its application of the direct effect conditions. This error rests on the finding that Article 2(1) is a provision that could sometimes, but not always, have direct effect – depending on what else it references. This position does not withstand scrutiny from the perspective of EU law. 

 

It is trite EU law, including under Demirel, that the direct effect conditions refer to ‘a provision’. Leaving the categorical exclusion of certain forms of direct effect for certain instruments (eg, the horizontal direct effect of directives), the CJEU has never held that a provision can both have and lack direct effect. The test is a clear binary: the provision either meets the conditions and it is directly effective or it does not, and it is not.

 

In this sense, it may have been more coherent for the UKSC to state that Article 2 is not directly effective at all. That, however, would have created the problem that some of the EU law explicitly referred to in the provision (the Equality directives) are par excellence directly effective obligations. Finding that Article 2(1) lacks direct effect altogether would have created a procedurally awkward situation, whereby the Annex to the Protocol has direct effect and supremacy in accordance with Article 4(1) WA, but its ‘activating’ provision does not. It was also clear that the provision was thought to have direct effect when negotiated and the UK government did not challenge the right of individuals to invoke it with respect to the annexed Directives; while the UKSC made it clear that UK government interpretations of its own commitments made when concluding the WA were of no help in determining of Art 2 of the Protocol was directly effective (see paragraphs 123-124 of the judgment), it seems to have wanted to avoid making the existence of that Annex 1 and, indeed, Article 2 itself wholly pointless from a litigation perspective. Hence, the UKSC resorts to a half-way house: if the provisions against which non-diminution is sought are themselves directly effective, then Article 2 can be invoked before domestic courts. If they are not, it cannot. Much like Schrödinger’s cat, then, direct effect is simultaneously alive and dead – it all depends on what Article 2 is referencing. 

 

This reasoning in our view misunderstands (though it does not reference) CJEU case law on the direct effect of provisions that also refer to other provisions, as well as the nature of the direct effect conditions as interpreted in EU law, more generally. For example, Charter provisions regularly give ‘specific expression’ to non-directly effective measures of directives (see, eg, the Grand Chamber rulings in Egenberger, Braathens,  KL v X). Unlike the approach espoused by the UKSC, it is not the non-directly effective measures detailing the core obligation that suddenly acquire direct effect. Rather, the presence of a directly effective measure, such as Art 47 CFR, makes the more specific obligations listed in the directives invocable in court, where they otherwise would not be. The core obligation is directly effective regardless of what it cross-references. The CJEU makes this very clear in Egenberger:

 

78. [L]ike Article 21 of the Charter, Article 47 of the Charter on the right to effective judicial protection is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such [emphasis added].

 

In other words: it is the more general provision of primary law – Article 47 of the Charter – that gives rise to a clear, precise and unconditional obligation. This does not require a cross-reference to a separate provision that is also directly effective in order to be relied upon. Rather, the only effect of the directives in the above cases is to show that the scope of EU law – and hence the relevant provision of the Charter – was engaged.

 

We found similar reasoning in CJEU judgments that involve international agreements, where the cross-referencing to Annexes and Protocols is very common. In Sevince, for instance, concerning the EEC-Turkey Association Agreement, the CJEU found in paragraph 22 that provisions in several decisions adopted under this association agreement had direct effect – and that this

 

cannot be affected by the fact that [other provisions] provide that the procedures for applying the rights conferred onto Turkish workers are to be established under national rules. Those provisions merely clarify the obligation of the Member States to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the Member States to make conditional or restrict the application of the precise and unconditional right which the decisions of the Council of Association grant to Turkish workers. (emphasis added) 

 

The analogy is, in our view, powerful: similarly to Article 2, this case concerned a standstill obligation that no further obstacles to the free movement of workers be imposed. Moreover, like Article 2, there was an expectation that national procedures would be introduced to ensure the effectiveness of this core obligation. The CJEU clearly distinguished this procedural conditionality from the primary negative duty. 

 

The idea that the ‘referred-to’ provisions do not themselves have to be directly effective for a primary provision to be directly effective is also expressly confirmed in the 2022 ruling in Deutsche Umwelthilfe, which concerned standing requirements in the implementation of the Aarhus Convention. The CJEU’s reasoning is worth citing in some detail:

 

66. [W]hile it is true that Article 9(3) of the Aarhus Convention does not have direct effect in EU law and cannot, therefore, be relied on, as such, in a dispute falling within the scope of EU law, in order to disapply a provision of national law which is contrary to it, the fact remains that, first, the primacy of international agreements concluded by the European Union requires that national law be interpreted, to the fullest extent possible, in accordance with the requirements of those agreements and, secondly, that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law...

          …

78. … the discretion conferred on the Member States to lay down rules governing the right to bring proceedings, referred to in [Article 9(3) of the Aarhus Convention], does not affect their obligation to ensure a right to an effective remedy enshrined in Article 47 of the Charter, as, moreover, also alluded to in Article 9(4) of the Aarhus Convention. Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such … Thus, that article may be relied on as a limit on the discretion left to the Member States under Article 9(3) of the Aarhus Convention.

 

This case is also analogous to what the UKSC had to consider in Dillon: a primary provision that set out a clear, precise and unconditional right (Article 47 of the Charter) – and further provisions, covering more specific situations in which such a right might apply, which are not directly effective (in Article 9(3) of the Aarhus Convention).  The CJEU had every opportunity to set out that both Article 9(3) of the Aarhus Convention and Article 47 of the Charter had to be directly effective, but did not do so – instead, it stressed that Article 47 sets out framework conditions for how a conditional, imprecise referred provision had to function.  This is in our view similar to the function that Article 2 of the Protocol carries out: it sets out the conditions that apply once the RSEO and Annex 1 directives need to be considered, in the form of setting a non-diminution test.

 

Finally, the UKSC’s understanding of the core negative obligation in Article 2 as vacuous without a contemporaneous assessment of the RSEO sets too high a threshold for clarity and precision. If this was how its reasoning worked, the CJEU would have denied the direct effect of most provisions of EU primary law. To take one iconic example, it clearly would have declined to accept the direct effect of Article 157 TFEU in Defrenne back in 1976; as Daniele Gallo puts it, “[t]he contents of the obligation of [what is now Article 157 TFEU] were considered sufficiently clear, to the extent that the Member States must ensure ‘the application of the principle that men and women should receive equal pay for equal work’, despite … that there was, at the time, relative uncertainty about the concept of ‘equal work’ as well as that of ‘work of equal value’.  (Gallo, OUP 2025, 83).

 

To summarise, the RSEO determines the scope of Article 2 and it is squarely for the Supreme Court to interpret what this means. As noted above, there may be disagreement about how narrowly the ambit of the RSEO was drawn in this ruling – disagreement which can be further discussed in the Specialised Committee on the Windsor Framework. Such disagreement, however, would concern the substantive question of diminution (i.e., was there a relevant RSEO right that has now been diminished?) – and not the relevant test for direct effect. As a matter of the direct effect conditions, there can be little doubt, based on CJEU authority on direct effect, that Article 2 can be invoked before domestic court. In turn, if disagreement arises about the direct effect conditions, the correct interpretation must be determined by the CJEU – a point to which we now turn, in concluding.

 

Is this the final word on the direct effect of Article 2 NIP?

 

Assuming that our analysis is correct, and that the application of the direct effect conditions in Dillon is inaccurate, can anything be done about it? The UKSC was not entitled to make a reference to the CJEU on the matter of direct effect, as this is not provided for under this part of the Protocol. While references are possible with regard to a limited number of other provisions, primarily relating to trade, they are not provided for in the context of the non-diminution guarantee. It is to be hoped, however, that the Joint Committee overseeing the WA will discuss these issues in its upcoming meeting, particularly given the significance of the direct effect question for ongoing litigation on Article 2 at lower levels and, more generally, for the very ability of the Dedicated Mechanism set up under the Protocol to contribute to the enforcement of the non-diminution guarantee through litigation.

 

Arguably, regardless of the outcome of the political discussion, a question should now be put to the CJEU about the correct application of the direct effect criteria by agreement of the parties. The Dillon case demonstrates the technical difficulties associated with ongoing Brexit litigation that involves EU law concepts without the possibility of interpretive clarity through the preliminary reference structure, and it is in nobody’s interest for different versions of a 60 year old test to apply in the EU itself and its closest trading partner. Ultimately, though, if no agreement is reached about what the correct interpretation of the direct effect conditions is in the context of Article 2 within the Joint Committee, an arbitration panel may be appointed to determine the issue. Its decision will be binding on both parties. Crucially, the arbitration panel would be required to make a reference to the CJEU to determine any issues of EU law before it reaches its decision. Undoubtedly, the concept of direct effect would be such an issue.

 

 

 

 

How is Part Two of the Withdrawal Agreement (citizens' rights) enforceable in the courts?

Professor Tamara Hervey, Natalia Miernik and James C Murphy (UG students), University of Sheffield

The support of the ESRC for Health Governance after Brexit and UK in a Changing Europe is gratefully acknowledged

1. Introduction

Some 3.6 million EU citizens, and their families, live in the UK. An estimated over 185,000 work in the health and social care sector, as highlighted in recent news reports. Part Two of the Withdrawal Agreement, on ‘Citizens’ Rights’ gives these people continuity of many of the rights they enjoyed in EU law. This blog post builds on earlier posts on the EU (Withdrawal Agreement) Act 2020; and the relevant parts of the Withdrawal Agreement itself. It considers what happens if those rights are not upheld. How can people affected enforce the Withdrawal Agreement? This is an important practical consideration: rights on paper without the means to enforce them are meaningless.

The ‘Citizens Rights’ provisions of the Withdrawal Agreement will continue to apply after the end of transition. They give residence rights and rights to access health care, pensions and other social security entitlements. Note, there are equivalent provisions in the EEA/EFTA Separation Agreement and the Swiss Citizens Rights Agreement (which the Withdrawal Agreement Act also gives domestic legal effect to in the UK).

Our focus here is the enforceability of the ‘Citizens Rights’ provisions of the Withdrawal Agreement in the UK. The question of their enforceability in EU Member States is a matter of EU law and of domestic constitutional law in each relevant Member State. However, because the Withdrawal Agreement is intended to impose reciprocal obligations (Article 4 (1) WA), where necessary, we also explain the enforceability of those provisions in the EU.

The starting point, which will be the relevant legal position for all instances where the UK brings into domestic law its relevant obligations under the Withdrawal Agreement, is the EU (Withdrawal Agreement) Act 2020. This gives power to adopt regulations to implement the Citizens Rights parts of the Withdrawal Agreement. If the UK executive adopts regulations that fully implement the citizens’ rights contained in the Withdrawal Agreement, then enforcing those rights in UK courts or tribunals will be a matter solely of domestic law: a claimant will be relying on rights found in UK regulations.

But what if the UK does not do so adequately? Can a claimant who believes this is the case bring a claim based on an infringement of their rights under the Withdrawal Agreement in UK courts or tribunals?

2. Enforceability of the Withdrawal Agreement in the UK

In EU law, two legal doctrines interact so as to have the effect that certain parts of EU law are enforceable by citizens using their national courts. These doctrines are known as ‘supremacy’ and ‘direct effect’. They are currently (pre the end of transition) recognised by UK courts, and applied accordingly, as required by the European Communities Act 1972.

In order for the Withdrawal Agreement to be enforceable in the UK, that effect must be created by an Act of Parliament. This is necessary because the UK is a ‘dualist’ country, where international treaties are not enforceable in the domestic legal system, unless there is domestic legislation which gives effect to them.

The EU (Withdrawal Agreement) Act 2020, section 5(1), which inserts a new section 7A into the European Union (Withdrawal) Act 2018, gives domestic legal effect to the Withdrawal Agreement, after the transition period:

‘all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement… are without further enactment to be given legal effect or used in the UK.’

This provision uses very similar wording to the European Communities Act 1972, section 2 (1), which is the part of UK law which gave EU law supremacy and direct effect in the UK legal order.

The supremacy, or primacy, of EU law means that it must be applied in preference to contradictory national law, even if the contradictory national law has been enacted later than the relevant EU law.

2.1 Supremacy

The UK House of Lords case of Factortame confirmed that the 1972 Act gave EU law supremacy in the UK. The House of Lords found that it was required to ‘disapply’ or disregard any domestic legislation that was contrary to European Community law. Lord Bridge’s judgment expressed it thus:

“under the terms of the Act of 1972 it has always been clear that it was the duty of a UK court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law”.

In the same sense, it is possible that section 7A of the European Union (Withdrawal) Act 2018 will have the same effect in that any domestic provision that contradicts the Withdrawal Agreement will be disregarded. In other words, Parliament may have given the Withdrawal Agreement supremacy in the same way the European Communities Act 1972 gave EU law supremacy.

This seems to be the intention of the Withdrawal Agreement. Its Article 4 (1) provides that the Withdrawal Agreement’s provisions “shall produce in respect of and in the United Kingdom the same legal effects” as they produce in the EU. Article 4 (2) of the Withdrawal Agreement imposes an explicit obligation on the United Kingdom to secure compliance with this agreement, ‘including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.’ (italics added).

But whether the supremacy of the Withdrawal Agreement, in the sense that contradictory domestic legislation must be ‘disapplied’ is secured by the EU (Withdrawal Agreement) Act 2020, and its amendments to the EU (Withdrawal) Act 2018 remains moot. It might be argued, for example, that the provisions of the EU (Withdrawal) Act 2018, as amended by the 2020 Act, represent a Parliamentary intention to free UK courts from the constraints implicit in the supremacy doctrine. The UK would then be in breach of the Withdrawal Agreement, because the Withdrawal Agreement would not have ‘the same legal effect’ in the UK as in the EU. But the remedy for that breach would lie elsewhere than in a claim brought by a citizen relying on a provision of the Withdrawal Agreement as disapplying contradictory national law.

2.2 Direct Effect

Whether the Withdrawal Agreement has the quality of ‘disapplying’ contradictory UK legislation or not, a further crucial question is whether the Withdrawal Agreement contains rights which can be enforced by individuals in UK courts and tribunals, such as the Social Security and Child Support Appeal Tribunals. This quality of EU law is known as ‘direct effect’.

There are two questions to be decided: first, whether the Withdrawal Agreement’s provisions on citizens’ rights have direct effect; and second whether that direct effect is effectively enacted as a matter of domestic law in the UK. The two are inter-related, because, as noted above, the Withdrawal Agreement itself provides that the agreement is to produce ‘the same legal effect’ in the UK as it does in the EU. If the Withdrawal Agreement did not provide for direct effect of the Citizens Rights provisions, then the UK need not effectively enact such direct effect into its domestic legal system.

2.2.1 Direct effect of the citizens’ rights provisions of the Withdrawal Agreement as a matter of EU law

The Withdrawal Agreement provides in Article 4 (1) that

‘... legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law’. (italics added)

The term ‘the conditions for direct effect under Union law’ could be interpreted in two ways. Either it means the conditions for direct effect of EU law itself; or it means the conditions for direct effect in EU law of international agreements to which the EU is a party. The wording of Article 4, taken literally, might suggest the latter. Article 4 WA provides for ‘the conditions for direct effect under Union law’, not ‘the conditions for direct effect of Union law’.

EU law itself is directly effective where provisions meet a set of criteria developed by the European Court of Justice in the 1970s and 80s. They are relatively generous: the provision must set out entitlements for the benefit of individuals, and impose direct duties on a Member State authority to protect those entitlements. There is a (controversial, but accepted) presumption that the nature of the EU legal order is such that individuals enjoy enforceable rights within that novel legal order.

By contrast, provisions of international agreements to which the EU is a party are directly effective in a narrower range of circumstances. First, the agreement itself, taken as a whole, in terms of its overall nature and logic, must be capable of granting enforceable rights. Second, the specific provision at issue must contain a sufficiently precise legal obligation. Both conditions must be met. The CJEU’s approach makes a distinction between the novel legal order of EU law, and ‘ordinary’ international law. There is no presumption that provisions of international agreements to which the EU is a party, even if identically worded to provisions of EU law, have direct effect. The CJEU takes account of the political context as a whole: it is not simply a decision based on legal criteria alone.

Which interpretation of Article 4 WA is correct is a moot point, and could be the subject of litigation.

Adopting the former approach would lead to the conclusion that the Citizens’ Rights provisions of the Withdrawal Agreement have direct effect. The provisions set out entitlements for the benefit of individuals, and impose direct duties on a Member State authority to protect those entitlements. They are worded almost identically to directly effective provisions of EU law.

Adopting the latter approach would, in our view, lead to the same conclusion. But the steps of legal reasoning to reach that conclusion are more complex.

First, taking into account the nature and logic of the Withdrawal Agreement as a whole, is the Agreement such an agreement as capable of creating enforceable rights? It might be argued that the Withdrawal Agreement aims to provide for as smooth an exit from the EU as possible for the UK, but at the same time taking account of what is possible given the nature of the EU. The Withdrawal Agreement must be interpreted taking into account the UK’s position that it seeks to be outside of the control of EU law. The consequent effect of that position is that citizens in an EU-UK cross border situation will cease to enjoy the many benefits of EU membership. In other words, it is in the nature of the Withdrawal Agreement that citizens in a cross-border situation will find themselves worse off after Brexit. An aspect of that consequence could be the lack of enforceability of the Withdrawal Agreement.

But the better argument is that the whole point of the Withdrawal Agreement in this context is to secure the acquired rights of citizens who are in a cross-border position, who have relied in good faith on the ‘safety net’ of EU law, and on the benefits that EU membership had hitherto given those citizens. It is not possible to secure all such rights, as the UK is no longer an EU Member State. But the aim of the Withdrawal Agreement should be understood to be to secure as many such rights and benefits as possible. Therefore, the Withdrawal Agreement should be interpreted to be the type of agreement capable of direct effect. To this argument, we might add that where the EU has intended an agreement not to have direct effect, it has more recently been explicit on the matter, excluding direct effect in the text of the agreement itself, or in the Council Decision which concludes the agreement on behalf of the EU. The EU has emphatically not done so in the case of the Withdrawal Agreement, suggesting an intention that the Agreement taken as a whole is of a type which is capable of direct effect.

Second, what of the requirement that the specific provision at issue must contain a sufficiently precise legal obligation? This is an extraordinarily technical and complex area of EU law, where the CJEU’s approach has been criticized. It is difficult to draw general principles from the CJEU’s case law. Some authors have distinguished between association, cooperation and trade agreements, where the CJEU is more likely to find provisions directly effective, and other types of international agreements to which the EU is a party, where it is less likely to do so. This observation does not help with the Withdrawal Agreement: are we to consider it more similar to an association, cooperation or trade agreement, which all aim to bring closer integration between the parties (whereas the effect of the Withdrawal Agreement is to create divergence) or another type of international agreement?

Turning to the specific measures at issue, the relevant part of the Withdrawal Agreement contains many provisions which provide precise legal obligations, imposing specific duties on national authorities and granting rights to individuals: for instance, Articles 13-28, 31-35, 39 WA all have this quality, especially when combined with the definitional/scope provisions in Articles 9, 10 and 30 WA.

We conclude that, whichever approach is taken, many of the Citizens Rights provisions of the Withdrawal Agreement are directly effective as a matter of EU law.

2.2.2 Direct effect of the citizens’ rights provisions of the Withdrawal Agreement in UK law

What about the position in UK law?

The starting point here is the interpretative presumption that Parliament intends to implement the obligations on the UK found in the Withdrawal Agreement. The European Union (Withdrawal Agreement) Act 2020 inserts section 7C into the European Union (Withdrawal) Act 2018, which makes this presumption explicit.

7C Interpretation of relevant separation agreement law

(1) Any question as to the validity, meaning or effect of any relevant separation agreement law is to be decided, so far as they are applicable—

(a) in accordance with the withdrawal agreement, ... and ...

(2) See (among other things)—

(a) Article 4 of the withdrawal agreement (methods and principles relating to the effect, the implementation and the application of the agreement),

Any question as to, inter alia, the effect of any relevant law is to be decided in accordance with the Withdrawal Agreement. Section 7C refers explicitly to Article 4 WA in this regard.

The national implementation of the obligation to secure the direct effect of relevant provisions of the Withdrawal Agreement is found in section 7A of the European Union (Withdrawal) Act 2018, as amended. It reads:

7A General implementation of remainder of withdrawal agreement

(1) Subsection (2) applies to—

(a) all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement, and

(b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement, as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom.

(2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be—

(a) recognised and available in domestic law, and

(b) enforced, allowed and followed accordingly.

(3) Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (2).

This provision, as already noted, is similar to section 2, on ‘General implementation of Treaties’ of the European Communities Act 1972:

(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.

...

(4) The provision that may be made under subsection (2) above includes … any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; ...

Just as section 2 of the European Communities Act 1972 secures direct effect of EU law in the UK’s legal system until the end of transition, so sections 7C and 7A of the European Union (Withdrawal) Act 2018 secure direct effect of the Withdrawal Agreement after transition.

During the negotiations of the Withdrawal Agreement, the UK government published an (undated) Technical Note which stated that direct effect is a principle specific to EU law and that it will cease to apply in the UK once the UK is no longer a Member State. Moreover, the note contends (para 3) that direct effect is not necessary for individuals to be able to enforce their rights under the Withdrawal Agreement:

‘The same substantive result can be achieved if the Withdrawal Agreement requires the UK to give citizens specified rights, and the UK enacts domestic legislation whose effect is to bestow those rights … EU citizens [will] be able to enforce those rights through the UK’s domestic legal system...’.

We do not agree with the analysis here. A ‘Technical Note’ as part of negotiations can only have a persuasive effect in terms of interpreting the legislative text. As explained above, the better interpretation of the legislation is that it expresses Parliamentary intention to comply with the obligations in the Withdrawal Agreement by granting relevant provisions of that agreement the legal quality of direct effect in UK law.

We note that several influential commentators, for instance, Richard Eccles, of the international law firm Bird & Bird; Emily McKenzie of Brick Court Chambers; and Steve Peers on this blog share our view that relevant provisions of the Withdrawal Agreement have direct effect in the UK post-transition.

2.3 Independent Monitoring Authority

Section 15 of the European Union (Withdrawal Agreement) Act 2020 establishes an Independent Monitoring Authority. Its general duties, laid down by statute, are to ‘promote the adequate and effective implementation and application in the United Kingdom of Part 2 of the withdrawal agreement …’ (schedule 2, section 23 (1)). Further details about the IMA are in schedule 2 of the Act. They include the independence of the authority from government; provisions on membership, including expertise on relevant matters in Northern Ireland, Scotland and Wales; provisions for payment of non-executive members; provisions for staffing; powers to delegate functions.

The IMA is to have powers to carry out inquiries, bring judicial review claims or intervene in judicial proceedings. But it is not obliged to do any of these things. The IMA is to be obliged only to carry out a preliminary review of a complaint brought by a person claiming to have a relevant right, to the effect that the UK has failed to comply with its duties in Part 2 of the Withdrawal Agreement, or a UK public authority has acted in a way which prevents that person from exercising the relevant right.  The preliminary review is so that the IMA may decide whether to carry out an inquiry. In reaching that decision, the IMA is obliged to ‘consider whether it would be more appropriate for the person who made the complaint to deal with its subject matter by other means (for example, court proceedings) than for the IMA to carry out an inquiry’.

The provisions in the 2020 Act conform with the UK’s obligations under Article 159(1) WA. This provision gives such an independent authority the power to: conduct inquiries concerning breaches of Part Two by administrative authorities; receive complaints from Union citizens and their family members for the purposes of conducting inquiries; and bring legal action before UK courts or tribunals following such complaints.

The IMA is to be appointed before the end of the transition period.

According to the government’s information, the Independent Monitoring Authority will report annually to Parliament, and will be sponsored by the Ministry of Justice.

The European Union (Withdrawal Agreement) Act 2020 provides that the IMA’s role may be transferred to another authority, by executive act, if this meets the requirements of ‘efficiency, effectiveness and economy’, taking into account the need for continued operational independence, impartiality and appropriate resourcing to carry out its functions. The government also has the power to abolish the IMA altogether (schedule 2, section 40),

‘if it appears to the Secretary of State that, in accordance with Article 159(3) of the withdrawal agreement ..., it is no longer necessary for the IMA to continue to exist’.

While the IMA, or a successor authority, is operating, those who feel that their rights under the Withdrawal Agreement have not been adequately implemented or upheld by the UK authorities may make a complaint to the independent monitoring authority (IMA). The IMA will then be able to launch an inquiry into how the UK authority has implemented the citizen’s rights under the agreement. If the IMA believes that the UK authority has failed to implement or apply the relevant rights, it has the power to bring legal proceedings against the authority. The IMA will act as the equivalent to the European Commission, which will monitor the implementation and application of citizens’ rights under the Withdrawal Agreement in the EU. This implementation process falls far short of ‘direct effect’.

The independent legal charity, the Public Law Project, has pointed out:

‘The IMA will have a key role in monitoring and protecting EU citizens’ rights after Brexit. As such, the Secretary of State should not be able to make fundamental changes, or even abolish it, by secondary legislation. Any amendments to the IMA must be by primary legislation and in accordance with the WA.’

Reliance by the UK only on this method of enforcement, especially given the executive powers to remove it without external scrutiny, would comply with the UK’s obligations under Article 4 WA, if, and only if, the relevant provisions of the Withdrawal Agreement did not have the quality of direct effect, under the terms of the Withdrawal Agreement. Given that they do have that quality (see above), we conclude, therefore, that the European Union (Withdrawal Agreement) Act 2020 expresses parliamentary intention that the relevant provisions of the Withdrawal Agreement are directly effective.

2.4 Joint Committee

The IMA is not the only body that implements the Withdrawal Agreement into UK law. Article 164(1) WA establishes a UK-EU Joint Committee which ‘shall be responsible for the implementation and application of this Agreement’. Moreover, Article 166(1) WA gives the Joint Committee the power to adopt decisions with regards to any matter within this agreement. The effect of such decisions shall be binding on the UK and the Union; they must implement such decisions under international law. While the Joint Committee does not receive complaints about breach of the provisions in the Withdrawal Agreement, it is obliged to assess, no earlier than 8 years after the end of the transition period (31st December 2028) the functioning of the IMA. The Joint Committee even has the power to decide that the UK may abolish the IMA.

The first meeting of the EU-UK Joint Committee under the Withdrawal Agreement took place on Monday 30 March 2020 by means of teleconference. The agenda for this meeting included UK / EU updates on implementation of the Withdrawal Agreement on Citizens’ Rights. During this meeting, the vice-president of the European Commission, both ‘welcomed the UK’s commitment to continue to ensure that EU citizens can register as lawful residents in the UK, so that they can enjoy their rights granted by the Withdrawal Agreement’ as well as confirming ‘that the Commission will support Member States in making sure that UK nationals in the EU will be in a position to exercise their rights under the Withdrawal Agreement, and will continue to monitor that this is done correctly.’ Both the UK and the EU agreed to ‘launch the work of the six Specialised Committees on the key areas for the implementation of the Withdrawal Agreement.’ The establishment of such Specialised Committees, most importantly the Committee on Citizen’s Rights, can be found in Article 165(1)(a) WA.

2.5 Preliminary Reference Procedure

Another element of the enforcement the Citizens Rights provisions of the Withdrawal Agreement in the UK post-transition is through a preliminary reference procedure. Article 158(1) WA provides that UK courts may refer questions of interpretation of Part 2 to the CJEU where a case commenced within 8 years from the end of the transition period before a UK court or tribunal. The legal effect of this on the UK is to be the same as the legal effect of the preliminary reference procedure governed by Article 267 TFEU (binding on the national court that submitted the question).

This aspect of the Withdrawal Agreement is brought into UK law by section 7C of the European Union (Withdrawal) Act 2018. This provides that questions about the interpretation, validity or effect of relevant law concerning the Withdrawal Agreement are to be decided in accordance with the Withdrawal Agreement. Section 7C (2)(b) refers explicitly to Article 158 WA and the jurisdiction of the CJEU under Part 2 of the Withdrawal Agreement.

3. Conclusion and summary

Until December 2020, (unless the EU and the UK agree, before July 2020, to extend the period for up to two years) EU law remains applicable. When the transition period ends, the UK’s obligations under the Withdrawal Agreement will take effect in UK law via the EU (Withdrawal) Act 2018, as amended by the EU (Withdrawal Agreement) Act 2020. These measures include the Citizens Rights provisions in the Withdrawal Agreement.

Post-transition, at least five bodies will have a role to play in the enforceability of those rights:

-       The UK executive will implement the UK’s obligations in UK law using statutory instruments, relying on powers given in the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020.

-       Also reliant upon these powers, an Independent Monitoring Authority will be set up in the UK to ensure the application and implementation of Part 2 of the Withdrawal Agreement. It will receive complaints from individuals and will have the power to conduct reviews.

-       This part of the Agreement is directly effective, and can be relied upon by individuals before domestic courts and tribunals in the UK.

-       Questions relating to interpretation of these parts of the Withdrawal Agreement may also be determined by the CJEU through a preliminary reference procedure, whereby domestic courts and tribunals refer such questions to the CJEU. 

-       General enforcement of the Withdrawal Agreement will be ensured by the Joint Committee, who will discuss and oversee implementation methods.

Barnard & Peers: chapter 26

Photo credit: Michael Reeve, via Wikimedia Commons

You can teach a new court Mangold tricks – the horizontal effect of the Charter right to paid annual leave

Filippo Fontanelli, Senior Lecturer in International Economic Law, University of Edinburgh

On 6 November 2018, the Court of Justice of the European Union (the Court) delivered three judgments relating to paid annual leave. Some of its remarks transcend the specific topic, and touch on constitutional matters: the impact of the EU Charter of Fundamental Rights on private parties, the allocation of competences between the EU and the Member States, and the application of EU secondary law.

These cases teach a couple of lessons, and raise a wider point. The lessons are useful: first, alongside the right to non-discrimination and effective judicial protection, the right to annual paid leave in the Charter has direct effect not only in vertical disputes (ie disputes between the individual and the State), but also in horizontal disputes (ie disputes between individuals), even though EU Directives dealing with the same issue still do not in themselves have such horizontal direct effect.  Second, the Charter sometimes binds State acts in a decisive manner. This occurs rarely and, curiously, so far exclusively in disputes between individuals, when the domestic law transposing a directive is not in good order.

The wider point concerns the Charter’s application to domestic measures. In these cases, EU secondary law could not displace domestic measures, because Germany had not transposed a directive correctly. The directive’s mere existence, however, warranted the Charter’s application, and in turn enabled domestic courts to disregard German law and enforce the right to annual paid leave.

The now familiar combo “unimplemented directive plus Charter right” seems a Munchhausen trick. To justify the practice, one should go back to the Mangold case (in which the CJEU ruled that, prior to the Charter having binding force, the general principles of EU law meant that the right to non-discrimination could apply between private parties even if a Member State had not implemented a Directive), and perhaps look deeper into the difference between direct applicability and direct effect, or between a norm’s application and its scope of application. After looking back and looking in-depth, it is still difficult to see precisely how the Charter applied.

The judgments

In cases C-619/16 and C-684/16 Kreuziger and Max Planck, the facts were comparable. Messrs Kreuziger and Shimizu, respectively employed by the Land of Berlin and the Max Planck Institute, had failed to take the entire period of paid annual leave to which they were entitled. After their employment ended, the former employers denied their request to receive payment in lieu of leave. German law appeared to authorise the employers’ position that a failure to request paid annual leave automatically entailed its lapse upon termination.

The Court disposed of the Kreuziger case quickly, due to the dispute’s vertical nature (the employer was a German Land). Article 7 of Directive 2003/88 (the working time Directive) clearly confers the right to paid annual leave and, accordingly, payment in lieu for the leave not taken; the Court recently ruled on this issue in Bollacke. The Court dusted off the direct effect spiel. Since “provisions of a directive that are unconditional and sufficiently precise may be relied upon by individuals, in particular against a Member State and all the organs of its administration” [21], individuals can invoke the Directive and the judges must set aside domestic law if need be. The automatic lapse of this right upon termination of employment, without any safeguard to make sure that the employee could exercise it beforehand, violated EU law.

The reasoning of the Max Planck ruling extended further, since the main proceedings concerned a dispute between private parties. The reasoning of Kreuziger was copy-pasted: Article 7 of the Directive precludes an automatic lapse of the right to paid leave triggered by a mere failure to exercise it [40]. National courts must arrive, to the extent possible, at an interpretation of domestic law consistent with the Directive.

Failing all attempts at consistent interpretation, Mr Shimizu could not rely on the Directive alone, since “Max Planck had to be considered an individual” [65], and directives normally lack horizontal direct effect [68]. The Court thus turned to Article 31(2) of the Charter on the right to annual paid leave, noting that it entailed a clear, enforceable right, withstanding only derogations in compliance with Article 52(1) of the Charter [73]. Article 31(2) of the Charter needing no implementing act to operate, it could warrant disapplication of contrary domestic law:

74           The right to a period of paid annual leave, affirmed for every worker by Article 31(2) of the Charter, is thus, as regards its very existence, both mandatory and unconditional in nature, the unconditional nature not needing to be given concrete expression by the provisions of EU or national law, which are only required to specify the exact duration of annual leave and, where appropriate, certain conditions for the exercise of that right. It follows that that provision is sufficient in itself to confer on workers a right that they may actually rely on in disputes between them and their employer in a field covered by EU law and therefore falling within the scope of the Charter.

75           Article 31(2) of the Charter therefore entails, in particular, as regards the situations falling within the scope thereof, that the national court must disapply national legislation negating the principle [that the right to paid leave and/or payment in lieu cannot lapse automatically].

The last hurdle for the direct invocability of Article 31(2) of the Charter in German courts was the dispute’s horizontal nature. The Court recycled from its own case-law the bold suggestion that Article 51(1) of the Charter, which sets out who is bound by the Charter, is ambiguous in this respect and does not preclude individuals from relying on the Charter against each other:

76           … although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union … and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility.

Notably, the Court distinguishes Article 27 of the Charter on workers’ consultation (at issue in AMS) from Article 31(2) on annual leave, because the former Charter Article refers to national and EU law limits and the latter Charter Article does not. If this is the test for whether Charter provisions can have horizontal direct effect, it should be noted that most of the Charter provisions on social rights refer to national and EU limits – but most of the other provisions of the Charter do not.

73      By providing, in mandatory terms, that ‘every worker’ has ‘the right’ ‘to an annual period of paid leave’ — like, for example, Article 27 of the Charter which led to the judgment of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2) — without referring in particular in that regard to the ‘cases’ and ‘conditions provided for by Union law and national laws and practices’, Article 31(2) of the Charter, reflects the essential principle of EU social law from which there may be derogations only in compliance with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the fundamental right to paid annual leave.

The Joined Cases C-596/16 and C-570/16 (Wuppertal v Bauer; Willmeroth v Broßonn) largely replicated the reasoning of the Max Planck and Kreuziger cases. Only, in the underlying disputes, it was rather the employees’ heirs seeking payment in lieu, on behalf of the deceased workers. According to the referring judge, German law provided that the right to unpaid annual leave, necessarily turned into payment in lieu upon the workers’ death, would not become part of their estates.

Building on prior case law (discussed here), the Court, besides noting the importance of the right under Article 7 of the Directive, stated that it should accrue, after the death, to the worker’s estate:

48      … from a financial perspective, the right to paid annual leave acquired by a worker is purely pecuniary in nature and, as such, is therefore intended to become part of the relevant person’s assets, as a result of which the latter’s death cannot retrospectively deprive his estate and, accordingly, those to whom it is to be transferred by way of inheritance, from the effective enjoyment of the financial aspect of the right to paid annual leave.

With respect to horizontal disputes (like the Willmeroth v Broßonn controversy, whereas Bauer was a public employee), the reasoning of the Court was identical to that used in the Max Planck case [87-91]. Article 31(2) of the Charter can be invoked in disputes between individuals, possibly leading to the setting aside of domestic norms like those at issue in the main proceedings.

The Charter’s effect on domestic measures

The Charter has many functions. It guides the interpretation of EU law and serves as standard of legality of EU acts. It does not enlarge the competences of the EU at the expense of the member states, but binds their action when they act as agents of the EU. In this residual scenario, delimited by the sibylline “implement[ation of] EU law” notion of Article 51(1) of the Charter, the Charter should serve as standard of EU-legality of national measures. In other words, the Charter can preclude some national measures.

The Charter applying to state measures falling “within the scope of EU law,” (a formula sanctified in Fransson [21], and unsurpassably frustrating), the following circumstances can arise:

a)      EU law does not apply to the matter, so neither does the Charter;

b)      EU law applies to the matter, and precludes the domestic measure. The Charter applies too: it might also preclude the domestic measure (“double preclusion”) or not;

c)       EU law applies to the domestic measure, but does not preclude it. The Charter applies too, and likewise does not preclude it;

d)      EU law applies to the domestic measure, without precluding it. The Charter, which also applies, precludes the domestic measure.

In the scenarios a), b) and c), the Charter is irrelevant to the ultimate determination of EU-legality.

Only in scenario d) does the Charter show its teeth, doing its standard of review job fully. Exclusively in this scenario, an otherwise EU law-compliant measure can breach the Charter and, accordingly, might be set aside by domestic judges. To this day, scenario d) has never occurred in its garden variety. Never has been the case that, for instance, a national measure that justifiably restricts one fundamental freedom (and falls therefore under the scope of Treaty law, without being precluded thereby) was found to breach the Charter. This unlikely coincidence warrants a deeper analysis (but not here), because it suggests that the Court is discreetly keeping the Charter in a locked drawer, lest member states react like the German Constitutional Court reacted after Fransson. A low-profile use of the Charter – one that essentially emptied it of its post-Lisbon potential – is what the Court’s record shows in the last 9 full years.

However, there is a hybrid category of cases, halfway between scenarios b) (double preclusion) and d) above. The paid annual leave rulings of 6 November 2018 belong in this atypical group, insofar as they relate to horizontal disputes. As far as their bearing on vertical disputes, they are squarely b)-type rulings: the measures are precluded by the Directive, and the breach of the Charter is just redundant.

The discussion below, instead, focuses only on the horizontal dimension of these rulings.

Did the Directive apply?

That the Directive applied must be assumed – otherwise the Charter would not have applied at all. Yet, the Directive could not apply to determine the outcome of the underlying dispute, for lack of horizontal direct effect. Can it be said that the Directive applied, and precluded the national measures, but was ineffective? The (ineffective) application of the Directive to the underlying scenario would then warrant the (very effective) application of the Charter. The Charter alone would warrant the disapplication of the German norms that breached both the ineffective Directive and the effective Charter.

The easier construction – that the Directive, lacking horizontal direct effect, could not apply – is untenable. Admitting that the Directive did not apply contradicts the notion that the German law fell within the “scope” of EU law, and would rule out the relevance of the Charter tout court. Some finer reasoning must support the Court’s decision. I suggest a couple of unnoticed distinctions that might help.

Direct application is not the same as direct effect: This is an all-time favourite for mid-term exams, so why not give this distinction a day in Court? Perhaps, the Directive did apply somehow (direct applicability), but could not be relied upon in domestic proceedings (lack of horizontal direct effect). This would explain the triggering of Article 51(1) of the Charter, but also the impossibility to use the Directive to solve the disputes between Mr Shimizu and Mrs Broßonn and their employers. Certainly the Directive applied, somehow. As soon as the transposition period expired, it deployed its legal obligatory effects and, even regarding horizontal disputes, triggered immediately Germany’s responsibility for failure to transpose correctly, which individuals can invoke to seek compensation without recourse to any implementing measure.

On the lack of direct effect, there is no real mystery: Article 7 of the Directive creates a precise and unconditional right, capable of invocation in domestic proceedings, so the direct effect checklist is in order. However, it can only work in vertical disputes. This distinction between direct applicability and direct effect could justify the Court’s truncated use of the Directive (sort-of applying to bring the Charter in under Article 51(1) of the Charter; not-really applying in its own right).

Scope of application is not the same as application: This is a contrived distinction, but it might operate in the background of these rulings. The Directive effectively cannot apply in domestic proceedings. However, the German law falls under the “scope” of the Directive, in a somewhat more abstract sense, as if applicable and applied were distinguishable. To accept that EU law reaches further than the circumstances to which it can actually apply is a head-scratcher. Yet, that is what the Court prescribed: domestic law must be set aside for intruding in an area that the Directive could not operate (the direct regulation of duties between private parties) but it nevertheless occupied – somehow. In the wake of Kücükdeveci (an earlier judgment on discrimination in employment), I noted the risk:

… it is necessary to evaluate the implications of Kücükdeveci: if the general principle of non-discrimination has a wider scope than the measures codifying it (the Directive), it follows that it can be invoked in a series of disputes that, despite concerning EU-regulated matters, fall outside the scope of the Directive.

Putting lipstick on Mangold

The distinctions above are nowhere mentioned in the rulings. So, if the Directive could not operate in domestic proceedings, how did the Court justify German law falling under the scope of EU law? This week’s rulings proffer only minimal reasons, but summon precedents to convey the idea that this apparent misalignment is nothing to worry about. From Bauer:

53           Since the national legislation at issue in the main proceedings is an implementation of Directive 2003/88, it follows that Article 31(2) of the Charter is intended to apply to the cases in the main proceedings (see, by analogy, judgment of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 43).

If one goes down the rabbit hole of cross-citations, however, Mangold awaits on the bottom. In terms of legal reasoning, it does not get any more controversial than Mangold. The judgment exasperated the former president of the German Constitutional Court and drafter of the Charter, who penned an op-ed wishing the Court of Justice to “Stop.” Ultimately, Mangold was criticised for encroaching into the Member States’ competence.

There are, in fact, a series of cases in which the Court prescribed the horizontal direct effect of a fundamental right, using a directive as a trampoline. Mangold was the first case, and Kücükdeveci followed. Dansk Industri (discussed here), also on discrimination on grounds of age, pulled the same trick, this time using the Charter rather than a general principle of law. AMS (discussed here) replicated the reasoning with respect to the workers’ right to consultation and information in the Charter, accepted its applicability but concluded that the Charter’s norm was not self-executing and stopped short of confirming its horizontal direct effect.

Egenberger (discussed here), very recently, asserted the horizontal effect of the right to non-discrimination on grounds of religion and the right of effective access to justice. In IR (discussed here), the Court consolidated Egenberger, and wisely recalled that non-discrimination is essentially a general principle: if the AMS explanation why the Charter applies to individuals were not compelling, the unwritten source might apply more liberally and come to the rescue just like in the good Mangold days:

69           Before the entry into force of the Treaty of Lisbon, which conferred on the Charter the same legal status as the treaties, that principle derived from the common constitutional traditions of the Member States. The prohibition of all discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, is therefore a mandatory general principle of EU law and is sufficient in itself to confer on individuals a right that they may actually rely on in disputes between them in a field covered by EU law.

Conclusion

In all the cases mentioned, individuals could not rely on the directives in domestic proceedings. Yet, each directive somewhat marked the “scope” or “cover[age]” of EU law and let the fundamental right finish the work (unless some ingrained deficiency made it non self-executing, as in AMS). The simple annotation that the German law “is an implementation of [the] Directive” sanded over the uncomfortable truth: if the Directive was insufficient to set aside the norms of German law, perhaps these norms of German law lay outside the scope of EU law, and the Charter should not have found its way in the proceedings.

A sceptical reader might wonder what “a field covered by EU law” means, and wonder whether the Charter spilled over from the EU-law scope comfort zone. An optimist one can celebrate the expansive force of social rights. Horizontal application of fundamental rights translates into the creation of EU-based fundamental duties, and lets us catch a glimpse of solidarity in the making.

Barnard & Peers: chapter 9, chapter 20, chapter 6

Photo credit: PureTravel