THE EU CHARTER AND ITS APPLICATION AND INTERPRETATION
The EU’s New Human Rights Dimension
The Relationship between the Principle of Equality and Legislative Acts
After discovering the contradiction between the different-in fact, opposite- meanings of ‘principles’ in Article 52(5) CFREU, on the one hand, and in the case law of the Court on the other, the question is what the impact of this conceptual conflict might be on the application of the classification under Article 52(5) CFREU. Would the resolution of the ‘principles versus principles’ dispute be able to preclude subordinating the principle of equal treatment to the classification under Article 52(5) CFREU?
Such subordination would evidently mean that implementation-and consequent judicial application-of the principle of non-discrimination would depend on the decision of the various EU and national institutions entitled to regulate and put the principles into formal norms. This would clearly mean a step back in terms of guaranteeing equality in Europe. Nonetheless, the argument that principles are weaker,109 in general, than legislative norms (let alone constitutional norms), and that their prevalence in the Court’s case law is the result of a necessity, connected to the lack of formal legislation on fundamental rights, seems to support this result and make the question at least justified.
The following texts are intended to provide a summary view of the interaction between the application of the principle of equal treatment and the legislation of the Member States and the Union before the adoption of the Charter as a binding document and afterwards. The short review demonstrates that this general principle expressing the fundamental value of equality-a pre-condition of human dignity and also the dignity of society-is, even in legal terms, a strong source of concrete norms, rights and duties, with or without legislative rules since the early phases of the development of the European Union. At the same time, the principle is able to adjust itself flexibly to the goals and objectives, as well as the legislative developments of the Union, while not compromising its core substance.
The Court’s Case Law before the Charter became Legally Binding
1.Pre-Equality Directives Case Law
As already mentioned, Stauder inaugurated not simply the history of Court references to general principles as sources of fundamental rights, but references to equality and privacy as general principles deriving from fundamental human rights.110 Beyond this, it also signaled the different directions of the application of the general principles. Two elements-implied or hidden in Stauder but later becoming explicit and evident-deserve mention here. The first is the link between the fundamental rights behind the principle of equality and the principle of uniform application of Union law. The implied fundamental principle in Stauder was equality between citizens falling under the personal scope of the same regulation. Later, in Karlsson, the Court made explicit reference to this connection.111 Karlsson can be mentioned as an emanation of Stauder in respect of the second element hidden in it.
The second factor, hidden already in Stauder and occurring on numerous occasions later, was the departure of the subject-matter of the case from the issue of human rights. The original role and place of equality in the Rome Treaty-the prohibition of discrimination with respect to nationality and the provision on equal pay for equal work for men and women— was merely the promotion of economic integration. No consideration of fundamental values and the dignity of the individual played a role, even though these two provisions of the Treaty had no connection whatsoever to the international human rights treaties guaranteeing equality. This was corrected later by the case law of the Court referring to the fundamental principle of equal treatment that aimed at the dignity of the human being. Stauder, the ‘seed’, implied both, and was followed by decisions that aimed either at the protection of the fundamental human rights of persons112 or at mere market integration, with less involvement of the dignity of the persons affected being in the focus of the international human rights systems, or cases in which both were at stake. While this analysis tried to distinguish the two elements-the ‘market integration’ element and the ‘human dignity’ element-in the European development of the principle of equal treatment, it must be added that in most cases they are inseparable, although perhaps the emphasis is sometimes more on one than on the other. Thus, they certainly have not been-and could not have been-separated in Court decisions and have been promoted without distinction, thereby contributing to the growing significance of this principle over the years.
2. Pre-Charter Case Law
The first regulatory manifestation of the principle of equal treatment is to be found in the title and provisions of Directive 76/207/EEC, entitled ‘on the implementation of the principle of equal treatment for men and women’ (in employment). It might be considered to support the idea expressed in Article 52(5) CFREU, namely the supremacy of formal regulation over principles. However, such an interpretation of the enactment of the principle has been demonstratively contradicted by the Court. Among others, in the P v S and Cornwall County Council decision.113 The Court declared, in response to an argument aimed at restricting the scope of the Directive, that ‘the directive is simply the expression, in the relevant field, of the principle if equality, which is one of the fundamental principles of Community law’, making clear its view of the order of precedence between the principle and the regulation. A similar view is expressed in the Grant case, here already emphasizing the ‘limited field of application’ of the Directive, in contrast to the general scope of the fundamental principle of equality.114
Since the 2000s, the extremely broad principle of equal treatment has been applied on various grounds, provided that there was a comparable situation. In Spain v Commission, the Court declared a classic and important abstract principle: ‘the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified’.115 This broad formulation of equal treatment has, over time, been repeated in a number of decisions fleetingly extending the scope of the principle of equal treatment in an almost unlimited fashion.116 While such an extended concept of equality may tend to weaken the assessment of situations of severe discrimination on the grounds of historical stereotype(s) and prejudice, these decisions have strong merit in having promoted the creation of a massive, solid and reinforced presence of the principle of non-discrimination in the Community with a broad and general coverage by the end of the twentieth century.
The year 2000 saw the adoption of the equality Directives on the basis of the authorization provided by ex-Article 13 EC (now Article 19 TFEU),117 the so-called ‘Article 13 Directives’ and, of equal rank, the adoption of the Charter of Fundamental Rights. Thus, from 2004 in certain aspects, and from 2007 within the broad scope of Title III of the EU Charter, the principle of equal treatment has had regulatory sources that could be referred to when assessing the compliance of equality regulations with Community law. This was supposed to make reference to general principles of equal treatment unnecessary.
As a ‘last minute’ case before the expiry of the implementation date in respect of the Equality Directive 2000/78, in the Mangold case118 the general principle of equal treatment prevailed over the traditional interpretation and implementation rules of the Community. Going further than in previous case law, the Court referred also to international instruments as underlying sources of the principle of non-discrimination,119 in addition to the ‘constitutional traditions common to the Member States’.120
3.The Court’sCase Law since the Charter became Legally Binding
Contrary to certain expectations, the Court continued its reference to the firm basis of general principles after the adoption of the Charter as a binding document by the Lisbon Treaty.
The reference to general principles is now confirmed and accompanied by references to the provisions of the Charter, in particular to Article 21 (on the prohibition of discrimination) and Article 23 CFREU on the equality of women and men. Interestingly, there are fewer references to Article 20 CFREU, the general equality provision. Nevertheless, the primary status of general principles in the judicial decisions of the Court has, to date, not changed in the wake of the Lisbon Treaty’s attribution of binding force to the Charter. The Court has continued to refer to them as autonomous sources of law, sometimes autonomous sources of Union rules, generating the equality provisions themselves.
In the Kücükdeveci judgment, adopted shortly after the entering into force of the Lisbon Treaty,121 the reasoning of the Court implies a sort of ranking among the three sources of the prohibition on discrimination on the ground of age. First, it declares ‘the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law prohibiting age discrimination’. Directive 2000/78 is mentioned in the second place, as an instrument that ‘gives specific expression to that principle’,122 and thirdly, it mentions (‘it should be noted’) the Charter that, under Article 6(1) of the TEU, ‘has the same legal value as the Treaties’ and, in its Article 21(1), prohibits age discrimination as well.123 In the most recent case, Test-Achats ASBL124 (on gender differentiated actuarial calculation of insurance premiums and benefits), the Court continues to refer to the ‘constitutional traditions common to the Member States, as general principles of Community law’ as the source of the fundamental rights (as guaranteed by the ECHR), underlying the disputed Directive, 2004/113/EC, on the equal treatment of women and men in the area of services.125 The reference to the Charter-incorporating those fundamental rights, deriving from the general principles-is dictated (also) by considering that the fourth recital of the Directive refers to the Charter, Articles 21 and 23.
The relatively modest case law adopted on the application of the principle of equality since the entering into force of the Lisbon Treaty shows that the force of this general principle continues to permeate existing regulations without regard to Article 52(5) CFREU. It might also be of interest and exert influence when the individual provisions of Title III are applied and analyzed in CJEU case law.
109. Leczykiewicz (n 107).
110. See above III.A. This wording that designates ‘fundamental human rights’ as the sources of general principles now resembles the phrasing of Article 6(3) TEU (‘Fundamental rights, [as guaranteed by the ECHR and as they result from the constitutional traditions of the Member States], shall constitute general principles of the Union’s law’). The reasoning of the Court decisions does not consistently make the link between the two consistently in this way. Rather it refers to the ‘respect for fundamental rights’ (emphasis added) that ‘forms an integral part’ of the general principles of law (CJEU Internationale Handelsgesellschaft (n 9) para 4).
111. ‘[N]ational rules … must be reconciled with the need to apply Community law uniformly so as to avoid unequal treatment of traders’; Case C-292/97 Karlsson and Others (n 72) para 35.
112, Case C-404/92 X v Commission  ECR I-4780.
113. Case C-13/94 P v S and Cornwall County Council , para 18.
114. Case C-249/96 Grant , para 41.
115. Case C-304/01 Spain v Commission , para 31.
116. In Case C-304/01 (n 115) the ‘comparable situation’ was the size (length) of sea going vessels with regard to a derogation from a limitation under Regulation (EC) No 1162/2001; in Case C-210/03 Swedish Match  there were tobacco products that were ‘not in the same situation’ (see paras 70 and 71); and finally Case C-344/04 International Air Transport Association and Others  ECR I-403, refers to this abstract principle of equal treatment (para 95), and the situations of airline undertakings (para 96), of means of transportation (para 97) and of airline passengers suffering cancellation or long delay (para 98) are compared.
117. Para 1 giving authorisation to legislate on discrimination on certain grounds: ‘Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council … may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.
118. Case C-144/04 Mangold  ECR I-9981.
119. Ibid para 74.
120. Ibid. This latter reference, according to the strong criticism of the Court in academic
and high judicial circles, lacks grounds, considering that the majority of the Member States have no regulation on the prohibition of age discrimination. See, for example, Pliakos and Anagnostaras (n 106) 112–13. (It might be worth noting that under Article 23 RESC on the right of elderly persons to protection, indeed, only a small minority of the Member States could demonstrate that they have explicit prohibition of discrimination on the ground of age, either in the Constitution or in lower level legislation.)
121. Case C-555/07 Kücükdeveci (January 2010) on compliance of national legislation with Directive 2000/78/EC prohibiting age discrimination.
122. Ibid para 21, underlining that the Directive does not in itself lay down the principle of equal treatment in the field of employment and occupation.
123. Ibid para 22. See also Pliakos and Anagnostaras (n 106) p 114.
124. Case C-236/09 Association belge des Consommateurs Test-Achats (1 March 2011).
125. Ibid para 16.