European Fundamental Rights Law Literature Notes – Week 7
Lecture Notes – Safeguarding Fundamental Rights in Europe
Mark Dawson, Elise Muir and Monica Claes, ‘Enforcing the EU’s Rights Revolution: the Case of
Equality’ (2012) European Human Rights Law Review 276-291
Main argument: This article will argue that while EU law has considerably enhanced the possibilities for
individuals and groups to challenge breaches of fundamental rights to equality, the system of remedies
provided by EU law has serious weaknesses.
Introduction
The expansion of the available mechanisms to protect EU Fundamental Rights presents both a challenge and an
opportunity. The Challenge is that the expansion has the potential to create considerable confusion because of
the multi-level nature of the EU legal order.
This article will seek to explore the various remedies available under EU law to enforce EU
fundamental rights and analysing their various strengths and weaknesses.
I The Individual Enforcement of EU Equality Law
a. Enforcement against EU Institutions
Where a provision of EU secondary law violates EU primary law, the act in question may be challenged
before the CJEU. This can be done in two ways. First is the possibility of challenging EU law via a
national court; where the validity of an act of EU law is in question, national courts are obliged to
make a preliminary reference to the CJEU. Second, is the ability to challenge acts of EU law which
violate equality principles before the European Court itself via an annulment action under Article 263
TFEU, though this is subject to the high threshold set in Plaumann. This ability is thus heavily
circumscribed. If the EU accedes to the ECHR, however, individuals will also be able to bring
complaints against the EU before the ECtHR.
b. Enforcement against the Member States
Following the supremacy of EU law, an individual can seek the annulment of a domestic legal
instrument on the grounds that it violates EU (equality) law. Individuals can do more than just take
legal action against the state qua public institution but may also invoke EU law against the Member
State qua private actors (e.g. when the state acts as an employer). In both settings, individuals will
have to comply with the procedural rules applicable in the state at hand. However, despite the
requirements for equivalence and effectiveness, the variety of domestic remedies may lead to
important discrepancies in the possibility for victims of discrimination in different countries to bring
claims. In order to address this concern, the EU equality directives provide a set of minimum
procedural rights. Nonetheless, important divergences in the possibility for individuals to bring
remedies either against the state or against private parties before domestic courts remain.
c. Enforcement against Private Parties
EU equality law is also a powerful tool to claim equal treatment against private parties, which is
particularly important in those Member States where the prohibition of discrimination is not
enshrined in domestic legislation or was not of such a broad scope as it is now. The EU equality
directives address this problem and extend the protection against discrimination to private
relationships. Even if a Member State has failed to adequately give effect to the equal treatment
clauses contained in the directives, the CJEU has asserted that individuals can rely directly on the
General Principle of non-discrimination as given expression in the equality directives against a private
party in domestic courts. Despite the fact that individual applicants’ claims before national judges
ought to fulfil national procedural requirements, the variety of domestic rules raises fears that the
level of protection against discrimination in the EU actually depends on where one lives.
II The Institutional Enforcement of EU Equality Law
The two sections below consider the possibility of the EU institutions raising actions either against the Member
States, or against each other, for infringements of EU equality law.
a. Enforcement against the EU Institutions
Normally the institutional enforcement of EU law is conducted against national law, but it is also a
process that can lead EU law itself to be challenged under Article 263 TFEU. This may be useful not just
, in forming political initiatives but also in encouraging institutions to take a more proactive role in
enforcing EU equality norms.
b. Enforcement against the Member States
The infringement procedure under Article 258 TFEU and the inter-state infringement procedure of
Article 259 TFEU allow Member States to be brought before the CJEU in order to bring violations to an
end. The least utilised is the Article 259 TFEU procedure, which allows Member States to raise actions
against each other. However, the usage of both has been rare, as Member States prefer the
Commission to instigate infringement proceedings, since they fear the negative impact on bilateral
relations. The ability on the part of the Commission to enforce EU equality law should not be
underestimated, as institutional enforcement of Fundamental Rights may fill gaps in Fundamental
Rights protection that individual litigation alone would leave open, especially for groups lacking the
resources and knowledge to conduct litigation themselves. Furthermore, the possibility for
infringement actions which target general and persistent infringements of EU law could be a powerful
tool in the context of endemic violations of equality law. However, considering the fact that the
Commission is to be an “independent prosecutor” and a political actor at the same time, it may be
reluctant to prosecute to the fullest extent infringement proceedings based on violations of
Fundamental Rights. This is exemplified by the dispute in 2010 between France and the Commission
over the deportation from France of almost 1000 Bulgarian and Romanian citizens of Roma descent, in
which case the Commission eventually decided not to take legal action. Instead, it focused on other
measures to better integrate Roma communities.
III The Collective Enforcement of EU Equality Law
A third set of enforcement mechanisms concerns “collective” enforcement mechanisms that rely on either an
individual acting on behalf of a group, or associations and other bodies who may act to defend collective
interests. A first dimension of the debate on collective enforcement focuses on consumer law and competition
law and a second set of developments relates to the enforcement of environmental interests. Collective
enforcement may serve three key purposes. First, it can be used to support, represent or replace action by an
individual victim who does not have the resources to take action. Second, it may act as a preventive tool, i.e. to
discourage future violations of fundamental rights. Finally, it can be used strategically, as a way to encourage
political and societal change by forcing the political institutions to take action or by drawing the public’s
attention to violations of EU rights.
a. Collective Enforcement against EU Institutions
As in the case of individuals, two routes are available to collective actors: direct actions before the
CJEU and indirect challenges via the national courts. With respect to direct actions, associations and
special bodies are likely to encounter the same obstacles as individuals challenging acts of the EU
institutions, as the hurdle of having to prove that the applicant is directly and individually concerned
by the EU applies to organisations as well. The more common route is therefore the indirect one.
However, organisations representing collective interests meet additional difficulties because they have
no self-standing subjective right and because national legal systems have very diverse rules on the
standing of organisations depending on the rights at stake. Indeed, whether or not a case brought by
an organisation at domestic level will reach the CJEU depends on many variables, which is often
considered to be a restriction to access to judicial review and to justice in general.
b. Enforcement against Member States and Individuals
The equality directives target both Member State and private discriminatory practices and provide for
a set of mechanisms designed to trigger and encourage social change in the Member States through
the intervention of collective actors. Furthermore, the European Union has developed several
instruments designed to help eliminate discriminatory practices through social change that operate as
a complement to the mechanisms provided for in the equality directives. However, since individual
litigation should take place before domestic courts, the relevant procedural rules are to a large extent
decided at the national level, and the Member States retain a large degree of discretion to regulate
collective actors’ access to domestic courts.
Nonetheless, the CJEU seems willing to provide a dynamic interpretation of EU law, setting minimum
procedural rights to environmental organisations in order to enhance access to courts. Furthermore,
Bell has drawn attention to the mechanism for collective enforcement of the European Social Charter,
which contains extensive anti-discrimination provisions and allows a specific route for collective
complaints where national breaches are found.
Still, it is doubtful that the Commission will intervene in this field in the short term, as its recent efforts
