On Constitutional Rights and Political Choices

TRIDIMAS, Takis

doi:10.15166/2499-8249/322

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On Constitutional Rights and Political Choices

TRIDIMAS, Takis

2019 • In European Papers, 4 (2), p. 563 - 572

Editorial reviewed

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https://hdl.handle.net/10993/63897

DOI
10.15166/2499-8249/322

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Keywords :

constitutional adjudication; Court of Justice; equality; EU; fundamental rights; legislation; Law

Abstract :

[en] The influence of the Court of Justice in the evolution of equality law has been enormous. Interpreting rights provided in EU legislation as mere expressions of pre-existing constitutional rights, as the Court of Justice did in Mangold (judgment of 22 November 2005, case C-144/04 [GC]) and Kücükdeveci (judgment of 19 January 2010, case C-555/07 [GC]), poses challenges to majoritari-anism and carries the risk of ossification. Although such mirroring of legislative and constitutional rights has recently been extended beyond the right to equal treatment, whether EU law is over-constitutionalised remains an open question. EU law is remarkably malleable and constitutionali-sation coexists with indeterminacy and deference to the legislature.

Disciplines :

European & international law

Author, co-author :

TRIDIMAS, Takis ; University of Luxembourg > Luxembourg Centre for European Law (LCEL) ; King's College London, United Kingdom

External co-authors :

Language :

English

Title :

On Constitutional Rights and Political Choices

Publication date :

2019

Journal title :

European Papers

eISSN :

2499-8249

Publisher :

European Paper

Volume :

Issue :

Pages :

563 - 572

Peer reviewed :

Editorial reviewed

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since 30 January 2025

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Bibliography

1 E. MUIR, EU Equality Law: The First Fundamental Rights Policy of the EU, Oxford: Oxford University Press, 2018.
2 Ibid., pp. 16 and 54.
3 Ibid., p. 15. As Muir points out, the fundamental right that comes closest to equality in that it has given rise to a detailed EU policy is the right to data protection provided by Art. 16 TFEU, Art. 8 of the Charter, and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
4 E. MUIR, EU Equality Law, cit., pp. 2 and 6-7.
5 Ibid., p. 20.
6 Court of Justice, judgment of 8 April 1976, case 43/75, Defrenne v. Sabena.
7 Court of Justice, judgment of 17 May 1990, case C-262/88, Barber v. Guardian Royal Exchange Assurance Group.
8 Court of Justice, judgment of 22 November 2005, case C-144/04, Mangold [GC].
9 Court of Justice, judgment of 1 March 2011, case C-236/09, Association Belge des Consommateurs Test-Achats and Others [GC].
10 Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes.
11 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.
12 Court of Justice, judgment of 19 November 2009, joined cases C-402/07 and C-432/07, Sturgeon and Others.
13 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91.
14 For a critique, see T. TRIDIMAS, Reflections on Equality: Substantive Values and Policy Outcomes, in I. GOVAERE, D. HANF (eds), Scrutinizing Internal and External Dimensions of European Law, Liber Amicorum Paul Demaret, Brussels: Peter Lang, 2013, p. 457 et seq.
15 Mangold [GC], cit.; Court of Justice, judgment of 19 January 2010, case C-555/07, Kücükdeveci [GC].
16 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the Framework Directive).
17 Mangold [GC], para. 74.
18 In the light of Mangold, not only age equality but all forms of status equality referred to in Art. 19 TFEU should be seen as directly effective constitutional principles. This is strongly supported by Art. 21, para. 1, of the Charter and also by the Court of Justice, judgment of 10 May 2011, case C-147/08, Römer [GC], para. 59, and has now been confirmed by Court of Justice: judgment of 17 April 2018, case C-414/16, Egenberger [GC], and judgment of 22 January 2019, case C-193/17, Cresco Investigation [GC].
19 Court of Justice, judgment of 24 January 2012, case C-282/10, Dominguez [GC].
20 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (Working Time Directive).
21 Court of Justice, judgment of 6 March 2015, case C-316-13, Fenoll.
22 Court of Justice, judgment of 15 January 2014, case C-176/12, Association de médiation sociale [GC].
23 Art. 27 of the Charter states as follows: “Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices”.
24 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community – Joint declaration of the European Parliament, the Council and the Commission on employee representation.
25 E. MUIR, EU Equality Law, cit., pp. 111 and 117.
26 Ibid., p. 118.
27 Ibid.
28 Court of Justice, judgment of 6 November 2018, joined cases C-569/16 and C-570/16, Bauer [GC].
29 See e.g. Art. 153, para. 2, let. b), TFEU.
30 Bauer [GC], cit.
31 Directive 2003/88/EC, cit.
32 Bauer [GC], cit., para. 80.
33 Ibid., paras 81-82.
34 Ibid., para. 85. The findings made in Bauer in relation to Art. 31, para. 2, of the Charter were confirmed in Court of Justice, judgment of 6 November 2018, case C-684/16, Max-Planck-Gesellschaft zur Förderung der Wissenschaften [GC].
35 See Opinion of AG Mengozzi deliveded on 12 June 2014, case C-316/13, Fenoll, para. 52.
36 Egenberger [GC], cit., para 80.
37 E. MUIR, EU Equality Law, cit., pp. 13, 31 and 86; and see further references given therein.
38 See T. TRIDIMAS, Indeterminacy and Legal Uncertainty in EU Law, in J. MENDES (ed.), EU Executive Discretion and the Limits of Law, Oxford: Oxford University Press, 2019, p. 40 et seq.
39 See Court of Justice, judgment of 27 November 2012, case C-370/12, Pringle.
40 See Court of Justice: judgment of 11 November 2014, case C-333/13, Dano [GC]; judgment of 15 September 2015, case C-67/14, Alimanovic [GC].
41 Court of Justice, judgment of 21 December 2011, joined cases C-411/10 and C-493/10, N.S. and Others [GC].
42 Court of Justice, judgment of 8 March 2011, case C-34/09, Ruiz Zambrano [GC]. The dialogic character of sex equality case law is indeed aptly illustrated by Muir by reference to the Barber ruling and its aftermath.