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Cristina Izquierdo-Sans
Carmen Martínez-Capdevila
Magdalena Nogueira-Guastavino Editors
Fundamental
Rights
Challenges
and Margin of National Appreciation
Fundamental Rights Challenges
Cristina Izquierdo-Sans •
Carmen Martínez-Capdevila •
Magdalena Nogueira-Guastavino
Editors
Fundamental Rights
Challenges
and Margin of National Appreciation
Editors
Cristina Izquierdo-Sans Carmen Martínez-Capdevila
Faculty of Law Faculty of Law
Universidad Autónoma de Madrid Universidad Autónoma de Madrid
Madrid, Spain Madrid, Spain
Faculty of Law
Universidad Autónoma de Madrid
Madrid, Spain
ISBN 978-3-030-72797-0 ISBN 978-3-030-72798-7 (eBook)

https://doi.org/10.1007/978-3-030-72798-7
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland
AG. 2021
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Preface
I can only begin by thanking my colleagues and fellow travelers in Project DER
2016-78646P. Some of them joined us from the beginning: Pedro Cruz Villalón,
Laurence Burgorgue-Larsen, Daniel Sarmiento, Carmen Martínez-Capdevila, Mag-
dalena Nogueira-Guastavino, Marian Ahumada, Nuria Bermejo, and Fernando
Pastor. Needless to say, they were an excellent team. Each and every one of them
has formidable intellectual talents and is committed to the study of fundamental
rights. I was incredibly lucky, and I tried to make the best of this opportunity. They
have all contributed ideas, activities, and proposals to the project, and their commit-
ment was always encouraging. Daniel Sarmiento, always brilliant and innovative,
organized the first seminar. He brought to our team José Antonio Gutiérrez-Fons,
who wrote an interesting study for this volume. Daniel Sarmiento is also responsible
for the final design of the book, resulting from the seminar held in Strasbourg on
April 3 and 4, 2019. Within the framework of the project, we wanted to carry out one
last activity with a certain international profile in cooperation with a particularly
prominent institution in the field of human rights. Hence the idea of holding a
seminar with the Council of Europe with the invaluable help of my friend—and
legal officer at the Council—Amaya Úbeda. As for the subject matter of the seminar,
although the project was mainly focused on the horizontal effect of fundamental
rights, I realized that some members of the team were devoting increasing attention
to the issue of human rights and the rule of law. Moreover, the national margin of
appreciation was beginning to play a leading role in the determination of the core
content of fundamental rights by international courts. I wanted all this to be the
subject of discussion in our final activity and that is how we brought it together under
the initial heading “Current Human Rights Issues.” In this context, we incorporated
Paz Andrés Sáenz de Santa María, Javier García Roca, Manuel López-Escudero,
José María Rodríguez de Santiago, Luis Arroyo, and Juan Ignacio Ugartemendia to
the team. Obviously, it was a winning bet.
As could not be otherwise, our starting point was the effect of fundamental rights
among private parties. Marian Ahumada reflects about why we always come back to
the endless debate on whether or not fundamental rights have a horizontal effect. In
v
vi Preface
her opinion, this question has no single answer—or at least not one that can provide
long-lasting criteria. Against this background, Juan Ignacio Ugartemendia offers an
excellent overview of the path followed by the CJEU. He explains how the adoption
of the CFREU has fostered recognition of such effect within the CJEU, albeit only
with regard to rights that can be invoked “as such”—that is, not with regard to the
provisions of the Charter containing “principles” that require implementing legisla-
tion either of the EU or the Member States. Carmen Martínez-Capdevila clarifies an
important point: the CJEU’s recent acknowledgment that individuals are directly
bound by certain provisions of the Charter suggests that the CJEU does not intend to
deal with the concept of “State” in this regard. It will no longer be so important to
determine whether or not a certain body is an “emanation” of the State because in
either case it will be bound by the Charter. However, the notion of “State” becomes
more relevant when it comes to principles enshrined in the Charter and implemented
through Directives. In the event of lack of or incorrect transposition, CJEU’s classic
case law on the vertical direct effect of directives comes into play. Following this
clarification, Magdalena Nogueira studies in depth one of the issues pointed out by
J. I. Ugartemendia: CJEU’s unambiguous declaration that the right to paid holiday
qualifies as a fundamental right directly applicable to relationships between private
parties. Although it is implemented in a Directive, the right to paid annual leave
applies pursuant to Art. 31(2) CFREU, which thus imposes the right’s horizontal
effect in private employment relationships. In spite of these developments, Nuria
Bermejo considers that the case law of the CJEU does not provide sufficient
elements to generally state that the fundamental rights enshrined in the Charter
have horizontal direct effect (with the only exceptions of fundamental rights granted
or acknowledged within private law relationships—in Ugartemendia’s words, rights
that can be invoked “as such”). However, even if fundamental rights do not entail by
themselves obligations on private parties, they acquire horizontal effect through a
legislative expression that determines their “social enforceability,” along with the
courts’ interpretation and application. Fundamental rights intended to be effective
within the private sphere are also covered by the aforesaid exception. According to
N. Bermejo, this technique extends the direct horizontal effect of fundamental rights.
The first part of the book ends with a brilliant analysis of the Samira Achbita
judgment by Pedro Cruz Villalón. The case is particularly well chosen, as it brings
into our debate the clash between a right unquestionably linked to individuals (such
as the prohibition of discrimination) and a substantive right. Such clashes are not
uncommon, and P. Cruz alerts us to the fact that the obligation imposed on private
parties by the prohibition of discrimination does not always endorse the exercise of
the conflicting substantive right—in this case, religious freedom.
The second part of the book focuses on human rights and the rule of law.
Laurence Burgorgue-Larsen begins by stating that the hitherto valid model of the
rule of law is exhausted. Democratic disenchantment and social despair in European
countries have fueled populism. Therefore, liberal democracies should offer more
complex and sophisticated solutions than the guarantee of human rights, which
requires a global reassessment of our contemporary societies. L. Burgorgue-Larsen
ventures some proposals in that regard. Going from the general to the specific, three
Preface vii
authors address some issues that affect the EU as a community of law. First, Paz
Andrés explains—as thoroughly as always—the importance of the judicial dimen-
sion to counter the threats to the independence of the judiciary. Judicialization can be
neither the only nor the first instrument to work out all deficiencies, but as long as the
risks do not disappear and the remaining legal and political approaches remain
unfeasible, we need the CJEU and the ECtHR—each in its role. The conclusion is
hardly disputable. Manuel López-Escudero bluntly points to a downgrading of the
requirements of the rule of law in the EMU since the 2008 crisis. The Financial
assistance mechanisms have greatly complicated legal regulation and eroded the
clarity that the requirements of the rule of law impose on any EU law provision,
excluding the judicial control of the CJEU and the application of the CFREU as a
limit to State actions. To reverse this situation, financial assistance mechanisms
should be brought under the auspices of EU law. In the last contribution of this
second part, Fernando Pastor considers the interplay between the principle of
effectiveness and the right to an effective remedy, each with its own scope under
EU law. This work shows how potential overlap is limited to situations of indirect
administration where EU law is implemented by national authorities instead of EU
institutions.
The third part of the book deals with a topical issue in the field of human rights:
States’ margin of appreciation. José Antonio Gutiérrez-Fons focuses on the elements
used by the CJEU to determine the scope of this margin of appreciation and identifies
a variable geometry defined by the subject matter, the nature of the right in question,
as well as the seriousness of the interference and its purpose. Remarkably enough,
the origin of the limitation of the right—EU or Member State—is not a factor of that
geometry. J. A Gutiérrez-Fons also explains that the CJEU does not apply double
standards, which is as relevant as welcome, and highlights that both European unity
and national diversity must be consistent with the CFREU. Javier García Roca and I
focus on the ECtHR. Javier G. Roca considers the national margin of appreciation in
the ECtHR and the “new” approach on procedural review and reasonable decision-
making. The problem seems to be that the case law construction of this margin is
somewhat fragile, it resorts to various criteria and it is often overly dependent on
context, which leads to legal uncertainty and to a certain lack of predictability in
ECtHR’s decisions. The procedural review approach—relying on the quality of a
given procedure—can be useful in certain cases. However, procedural flaws are not
the only defects subject to assessment in a convention-based review. For my part, I
have long advocated for a different dynamic in Strasbourg. Protocols No. 15 and
16 are above all a call for the co-responsibility of the States in ensuring compliance
with the ECHR. They reinforce the leading role of the national courts, strengthening
their collaboration with the ECtHR and general cooperation so that the European
system can continue to fulfill its essential role with a significantly lower workload. In
my work, I focus on the margin of appreciation enjoyed by the national courts when
interpreting the law. Finally, José María Rodríguez de Santiago and Luis Arroyo
speak of a silent revolution regarding the margin of appreciation in domestic law.
The long-established case law of the Spanish Constitutional Court on economic
rights and freedoms has been extremely deferential towards the legislature and the
viii Preface
government. The traditionally ill-defined judicial oversight is shifting in a question-

able direction: the exclusion of the proportionality test. Although clarity is always
welcome when it comes to judicial review, excluding the proportionality test does
not seem appropriate to examine the limits imposed on lawmakers. Especially when
it is replaced by much less strict standards drawn from the ECtHR, such as fair
balance, reasonable connection, or necessity. This work warns of the implicit danger
since the ECtHR and the Spanish Constitutional Court must each fulfill their own
function.
If the reader has come this far, he or she will understand my gratitude to all those
who have contributed to this work, which is an extremely interesting, rich, and
rigorous investigation of relevant and current legal issues in the field of human
rights. I would especially like to thank Pedro Cruz Villalón, whose generosity has
not diminished over time. He continues to be an inspiration for those of us who
admire and appreciate him. Finally, for different personal reasons, I delayed the
publication of this book, but Carmen Martínez-Capdevila and Magdalena Nogueira
were always there to help overcome the final hurdles. That is why today they are, on
their own merits, co-editors of this volume. To them, my friends, my deepest and
most sincere thanks.
Madrid, Spain Cristina Izquierdo-Sans

25 January 2021
Contents
Part I The Effectiveness of Fundamental Rights in Relations

Between Private Individuals
The Recurring Debate on the Horizontal Effect of Fundamental
Rights. Constitutional Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Marian Ahumada
The Horizontal Effect of the EU Charter of Fundamental Rights
in the Case Law of the Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . 11
Juan Ignacio Ugartemendia
The Concept of ‘State’ for the Purposes of the EU Charter
of Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A Principle Vanishes and a Right Arises: Paid Annual Leave
As a Fundamental Right and Its Impact on Liability for Breach
of EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Fundamental Rights and Horizontal Direct Effect Under the Charter . . . 51
Nuria Bermejo
The Horizontal Effect of Social Rights in the Light of the European
Social Charter and the European Committee of Social Rights’
Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Amaya Úbeda de Torres
Still on Hijab Bans in the Workplace. À propos de, Joseph H. H. Weiler,
‘Je suis Achbita!’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Pedro Cruz Villalón
ix
x Contents
Part II Human Rights and the Rule of Law

Populism and Human Rights. From Disenchantment to Democratic
Riposte . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Laurence Burgorgue-Larsen
Rule of Law and Judicial Independence in the Light of CJEU
and ECtHR Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Paz Andrés Sáenz de Santa María
Judicial Protection Against Austerity Measures in the EU . . . . . . . . . . . 189
Manuel López-Escudero
The Overlap Between the Principles of Effectiveness and Effective
Judicial Protection in Union Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Fernando Pastor-Merchante
Part III The National Margin of Appreciation in Luxembourg

and Strasbourg
The Margin of Appreciation in the Case Law of the Court of Justice:
Proportionality and Levels of Fundamental Rights Protection . . . . . . . . 231
José A. Gutiérrez-Fons
International Deference, The Vague National Margin of Appreciation
and Procedural Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Javier García-Roca
The National Margin of Appreciation in the Reform of the Strasbourg
System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Cristina Izquierdo-Sans
A Silent Revolution. Property and Free Enterprise Before the Spanish
Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
José María Rodríguez de Santiago and Luis Arroyo Jiménez
Part I
The Effectiveness of Fundamental Rights in
Relations Between Private Individuals
The Recurring Debate on the Horizontal
Effect of Fundamental Rights.
Constitutional Approaches
Marian Ahumada
1 A Typical Debate in Constitutional Democracies

with Constitutional Jurisdiction
Why do scholars return again and again to the horizontal effect of fundamental
rights? The arguments have not essentially changed for over half a century, and the
positions remain opposed. Meanwhile, the courts apply a rather constant case law on
the issue. Academic literature questions the doctrinal consistency of such case law—
case laws, strictly speaking—and the correctness of some judicial decisions. How-
ever, an intriguing aspect of this recurring debate is that although it is common to
underscore its practical significance, it takes place on an eminently theoretical plane,
focusing mainly on the premises of judicial decisions and only secondarily on the
results. This does not mean that the resolution of the cases is disregarded or
overlooked. Scholars admit that the same (correct) outcome can be reached by
different paths, but some of them are not deemed acceptable from a doctrinal point
of view—and doctrinal inconsistencies could lead to contradictions in the case law.
In this matter, the essential point is not to settle specific disputes, but to correctly
frame the broader issue.
Cruz Villalón has rightly pointed out that the terms Drittwirkung, horizontal
effect or state action do not refer to a notion or concept but are different ways of
naming a problem.1 The issue is not to determine “whether” fundamental rights have
effect in private law relationships. It is widely accepted that they do. However,
everything else is discussed: whether such effect is direct or indirect, whether all or
only some fundamental rights have it, in all cases or in certain circumstances, who
1
Or more precisely, a set of problems. See Cruz Villalón (2006), pp. 227–228.
M. Ahumada (*)
School of Law, Universidad Autónoma de Madrid, Madrid, Spain
e-mail: [email protected]
© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 3

C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges,
https://doi.org/10.1007/978-3-030-72798-7_1
4 M. Ahumada
determines the extent of such effects and how, with what guarantees or safeguards,
and with what legal consequences.
The answers to these questions do not depend only (maybe not even mainly) on
previous doctrinal positions regarding the concept of fundamental rights and their
role in the constitutional system. As important as the substantive, rights-centered
approach is the structural or institutional perspective, including complex competence
and procedural issues. The answer is driven by the constitutional design, both in
terms of recognition and enunciation of fundamental rights, as well as their guaran-
tees (with or without a specialized constitutional jurisdiction, individual constitu-
tional complaints, or ordinary courts empowered to apply the constitution directly or
strictly subject to statute law determinations). Also relevant is the legal tradition, i.e.,
the various techniques for regulating private law relationships (the weight of codes,
common law, special legislation or even customary law), without ignoring issues of
territorial jurisdiction in federal states where—as in the United States—private law is
primarily regulated at state rather than federal level. When all these factors are taken
into consideration, it is easier to understand the different approaches adopted by the
various legal and constitutional systems.2 It is thus a mistake to think in terms of
universal solutions supposedly valid for any constitutional system. However, the
complexity of the issue does not explain the persistence of the debate over such a
long time.
There is something else that turns the question of horizontal effect into an endless
academic debate. In the introduction to an interesting comparative study,3 Renáta
Uitz suggests that on a more abstract level the debate on horizontal effect, with all its
technical complexities and far-reaching implications, relates to another discussion:
the need to rethink and revise the approach of post-World War II democracies to
certain essential issues such as the rule of law, human rights or constitutional
jurisdiction. According to many authors, a change in approach is required to adapt
to the new state and social reality of the twenty-first century.4 This would explain the
resurgence and renewed interest in this debate.
Besides the usual considerations on the blurring between the public and private
spheres, the consequences of privatizing traditionally public functions, or the power
transferred to new “intermediate bodies” such as large corporations with enormous
2
“[D]octrines as Drittwirkung or state action appear when certain conditions prevail: constitutional
norms protecting rights are addressed to the legislative or the supreme executive power, rights are
viewed as directed against the state, courts wish to grant horizontal rights, and courts have the power
to refuse the application of some statute allowing for infringement by an individual on the rights of
other individual. If this is true, it is understandable that in legal systems where these conditions do
not exist there is no need for a concept similar to that of third party effect. The French legal system
seems to be a good example of such a system”, Troper (2005), pp. 118–119.
3
Sajó and Uitz (2005).
4
“The discourse on the horizontal effect of constitutional rights is reminiscent of a fin de siècle
search for a grand conception of constitutionalism, rule of law, human rights and also of constitu-
tional adjudication which reflects post-post WWII developments in constitutional
democracies” p. 13.
The Recurring Debate on the Horizontal Effect of Fundamental Rights.. . . 5
economic influence and international presence, the debate on horizontal effect has
recently focused on new situations. Among these are, for instance, the changing
demand for rights in increasingly complex and plural societies, the rise of
non-discriminatory regulation, the growing relevance of economic and social rights,
or the challenges that technological advances pose for the protection and guarantee
of fundamental rights.5 All this, without forgetting the new venue for discussion
opened by the implementation of the European Charter of Fundamental Rights.
Nevertheless, and leaving aside the question of the effect of the rights enshrined
in the Charter, the arguments have not essentially changed in this renewed debate—
now more aware of present conditions and circumstances. For some, what defines
fundamental rights is that they are genuine subjective public rights, thus imposing
correlative obligations upon public authorities with respect to their holders as
established in the constitution. For others, the defining feature is that these rights
are incorporated into the constitution because they protect goods and interests of
fundamental importance to individuals in a democracy, and thus must be guaranteed
against any intrusion—either public or private, by action or by omission. These
positions are not mutually exclusive at the outset, but they lead to opposite practical
conclusions regarding the effect of fundamental rights in relations between individ-
uals. Since both views find support in the theory and practice of current constitu-
tionalism, the controversy is potentially endless.
The discussion on the horizontal effect of fundamental rights is characteristic of
contemporary constitutional democracies founded on democratic constitutions. It is
not an isolated debate. On the contrary, it is intricately linked to other issues
concerning the direct applicability and immediate effect of constitutional provisions,
the role of the legislature and the judiciary in interpreting and defining fundamental
rights, and the guarantee of constitutional rights and remedies. These questions give
rise to constitutional interpretation issues while showing the complex division of
functions and balance of powers. They also reflect the conflicting dynamics between
stability and change inherent to the model of constitutional democracy that became
widespread after World War II. It is not by chance that the debate on the effect of
rights usually emerges in the early years of each country’s constitution, coinciding
with the formation of the constitutional doctrine. Interpretation issues that always
arise from “new” rules are magnified and take on a special significance when it
comes to “new beginning” constitutions in transitional contexts.6 How the question
is framed and resolved in the first instance will determine not only the general
understanding of the effect of rights in the constitutional system, but also to a
large extent the distribution of tasks between the legislature and the judiciary in
this regard. As many authors have pointed out, the existence of a constitutional
5
Among the most recent comprehensive works after the comparative study by Sajó & Uitz (eds),
van der Walt (2014), Thomas (2015) and Mathews (2018). For a specific comparative study on the
influence of fundamental rights on the interpretation of private law, see Trstenjak (2017). For a
recent assessment of the issue in Spain, see Izquierdo Sans and Rodríguez de Santiago (2017).
6
I use the expression “new beginning” in the sense coined by Ackerman (1997).
6 M. Ahumada
jurisdiction and its greater or lesser “activism” are determining factors for the further
development of the discussion.7
2 The Different Relation of Public Authorities

and Individuals with Fundamental Rights: Obligation
to Guarantee vs. Obligation to Respect
Although largely built on the criticism of case law, the academic debate on horizon-
tal effect concerns less the correct resolution of specific cases than the premises or
conditions of litigation to guarantee the protection of fundamental rights.
The eminently academic nature of this debate and its extension through time have
led to the development a specific, specialized jargon.8 More importantly, the debate
has become separate and self-referencing, ignoring its immediate connection to other
constitutional issues—some of them already mentioned. This is unfortunate. Even if
for methodological purposes it may be helpful to separately examine different
aspects of a complex issue, losing perspective is a major drawback. By focusing
on enforceability from the rights holders’ point of view, the debate on the horizontal
effect of fundamental rights has neglected the role of the legislature and the ordinary
political process in defining the system of rights and freedoms. This, in turn, begs the
question as to what type of democracy leaves to the judiciary’s discretion essential
issues regarding the content and scope of rights with no other guidance than
somewhat vague constitutional provisions.
Advocates of extending the effect of fundamental rights to the sphere of relations
between individuals often argue that theirs is not an ideological position.9 What
some interpret as an impingement on self-determination (hence an undue restriction
of individual freedom) would only be the result of the constitution’s legal effect:
constitutional provisions, including those on fundamental rights, are binding on
all—without any legal sphere exempt or alien to the constitution.
The question, however, is more complex. There are other arguments that must be
considered to decide which response is most consistent with the constitution. It is
worth recalling that, save for the oft-cited exception of Ireland, all other case law on
horizontal effect denies that the infringement of a fundamental right by an individual
should be treated as an act against the constitution, as is the case with violations
7
For an interpretation of the famous Lüth judgment (Jan.15, 1958) of the German Federal Consti-
tutional Court as characteristic of the “new beginning” period—deliberately seeking to mark a clear
and sharp break with Nazism and the previous legal order—see for example Ackerman (1997),
pp. 796–797 or Schlink (1993), pp. 722 et seq.
8
Terms like state action, Drittwirkung (or third-party effect), horizontal effect, optimization com-
mands, duty to protect, constitutional torts, and pairs of opposites as direct vs. indirect effect,
subjective public rights vs. order of objective values, or negative vs. positive rights.
9
See, for example, Bilbao Ubillos JM (2017), p. 44, Ferreres Comella (2008) p. 1184.
attributable to public authorities.10 The reason is that fundamental rights bind public
authorities in a different way: constitutional provisions that embody rights also
operate as limits, entitlements, and mandates to public authorities, which are
entrusted with the task of facilitating their exercise and ensuring their protection.
This is absolutely not the case with individuals. Although they are bound by
fundamental rights, their obligation is not to guarantee but to respect them.11 On
the other hand, to the extent that fundamental rights are held by individuals, disputes
on alleged infringements of fundamental rights usually involve a clash of rights. This
will require the judge to weigh them in order to determine whether a violation has
actually occurred, and in the event of conflict which right should prevail.
Constitutions may occasionally include rules guaranteeing fundamental rights
directly addressed to individuals. The Thirteenth Amendment to the
U.S. Constitution, prohibiting slavery, is a prime example. That is also the case
with Article 35(1) of the Spanish Constitution, which specifically prohibits discrim-
ination on the basis of sex in relation to workers’ rights. There is no doubt that in
such cases any infringement by those to whom the provision is addressed entails a
violation of the constitution. Apart from these situations, the constitutional wording
is rarely decisive in determining the horizontal effect of a given right. In anticipation
of the problem, some constitutions have attempted to provide certain guidelines.
That was the case, for instance, of the Portuguese and Greek constitutions in Europe,
and several others in Latin America and Africa. With varying formulations, they
expressly acknowledge the possibility that fundamental rights may impose obliga-
tions upon non-state actors, albeit never in general but under certain conditions
(when the nature of the right so allows or as determined by law under specific
circumstances). These constitutions take a stand for the expansive effect of funda-
mental rights, but in practice the problems of enforcing the obligations stemming
therefrom vis-à-vis individuals will not be greatly different from those posed by
constitutions with no express recognition of horizontal effect.12
3 Democratic Constitutions for Democratic Societies
There is another way to justify the expansive effect of constitutional rights in

contemporary democratic constitutions. Conceived as non-neutral constitutions13
aimed at establishing a working democracy, their approach to rights differs from
10
Thomas (2015), p. 29.
11
“The difference between “respecting” rights and securing them is absolutely key. . . by focusing
on the notion of respect, the issue of “horizontal effect” seems so much less controversial” Wright
(2014), p 293.
12
With regard to Portugal, Pereira da Silva (2016), for the case of Colombia Julio Estrada (2000).
13
On the notion of non-neutral constitution, altering the status quo and fostering social develop-
ments and redistribution of power and resources, see Susntein (1993), pp. 68 et seq.
8 M. Ahumada
that of old liberal constitutions.14 In particular, when the adoption of the constitution
puts an end to a non-democratic period (whatever its form: totalitarianism, dictator-
ship, colonial regime), it makes little sense to assume that individuals enjoyed prior
rights that the constitution only has to preserve. On the contrary, instead of mere
relying on the assumption that individuals are born free and equal in rights, these
new-beginning constitutions entrust public authorities with a variety of tasks aimed
at shaping an inclusive, tolerant, and ultimately democratic society of individuals
effectively free and equal in rights.15
Much has been written about the problems of “overconstitutionalization”16
(undermining the ordinary political process), the risks of “total constitutions”17
(reducing the scope of legislation), or the questionable advantages of “leading
constitutions” (including a comprehensive public policy program with mandates,
tasks and goals to be achieved). Some authors identify this type of constitution with a
new form of constitutionalism: “neo-constitutionalism”18 or “transformative consti-
tutionalism.”19 Its distinctive feature would be the central role now played by
constitutional law in the legal system, thereby displacing the traditional position of
legislative codes. This movement does not arise from the supremacy of the consti-
tution, but from the expansion of its material content. Other characteristics would be
the pervasiveness of fundamental rights, the inevitable protagonism of the judiciary,
the lack of trust in the legislature, and the eminent position of constitutional
jurisdiction—in charge of ensuring compliance with the constitution and, as its
supreme interpreter, entrusted with determining the content of vague constitutional
provisions.
14
According to L’Hereux-Dubé there is a clear contrast between constitutional philosophies behind
the American Bill of Rights and contemporary charters and human rights documents, “more
concentrated on balancing the rights of individuals and those of society, and on recognizing the
importance of group identity and group values”. As important as the purpose of protecting
individuals from infringements of their freedom by the state is the goal to guarantee the dignity
and equality of all people “and to ensure that the attributes of democratic societies are respected”,
L’Hereux-Dubé (1998), pp. 35–36.
15
The concept of “democratic society” may be vague, but that has not prevented it from jumping
from political science essays to human rights declarations. A reference to “democratic society”
appears in Article 29(2) of the Universal Declaration of Human Rights, as well as in Articles 8(2), 9
(2), 10(2) and 11(2) of the European Convention on Human Rights). The notion evokes a society
where the rights inherent to a democracy are enjoyed and adequately protected. That is why judges
invoke this notion to measure whether specific limitations of rights are acceptable and “necessary in
a democratic society.” (An example of the use of this standard regarding limitations on freedom of
expression in ECtHR, Castells v. Spain, judgments of 23 April 1992, paragraph 42, and Fuentes
Bobo v. Spain, judgment of 29 February 2000, paragraph 43).
16
Schlink (1993).
17
Kumm (2006).
18
Comanducci et al. (2009).
19
Originally coined to explain the force of the development clauses of the Constitution of
South Africa by Klare (1998), the notion has been embraced by Latin American constitutionalism.
The constitutionalization of private law is fostered by a conception of the system of

rights as an objective order of values, and of constitutional rights not only as subjective
public rights but also as objective legal principles in the terms of German constitu-
tional case law. The constitution becomes a normative blueprint for the whole society.
4 A Problem Without “One” Solution
When it comes to the issue of horizontal effect, no single answer emerges from
theory, or at least not one without practical drawbacks. Contemporary constitution-
alism has regarded the expansive effect of fundamental rights beyond the classic
sphere of vertical relations as inevitable in transitional processes—as a means to
adapt as swiftly as possible the pre-constitutional regulation to the new constitutional
order. Such expansive effect also strengthens the culture of rights, but it remains to
be seen whether in the long run it will provide better and fuller effect to fundamental
rights. Regarding the form of horizontal effect, Kumm sees no practical difference
for protection purposes between the model of direct applicability advocated by the
literature and the procedural approach (i.e., indirect effect) usually adopted by
constitutional courts.20
A word of caution is in order. On the one hand, as warned by international rights
bodies, it would be a step backwards if the recognition of the direct obligation of
non-state subjects towards rights holders were to allow states to shirk all responsi-
bility for violations not directly attributable to public authorities. For this reason, it is
preferable that the burden to protect should be on the state. On the other hand,
although in the area of labor law the recognition of fundamental rights has tradition-
ally sought to compensate the subordination of workers to the company, recent case
law has broken new ground. Upholding the religious freedom of employers may
justify the introduction of special rules with potential impact on employees.21
References
Ackerman B (1997) The rise of World Constitutionalism. Va Law Rev 83:771–797

Bilbao Ubillos JM (2017) La consolidación dogmática y jurisprudencial de la drittwirkung: una
visión de conjunto. In: Izquierdo Sans C, Rodriguez de Santiago JM (eds) Los derechos
fundamentales en las relaciones entre particulares. Anuario de la Facultad de Derecho de la
Universidad Autónoma de Madrid
20
Kumm and Ferreres Comella (2005), p. 251. According to Tushnet the theoretical contrast
between models would not be that relevant: “It is not clear to me why a theory of state duty is
less radical than a theory that individuals are directly bound. I believe. . . that the theories are
precisely equivalent” Tushnet (2003), p. 84 fn 22.
21
See Justice Ginsburg dissent to the US Supreme Court majority opinion in the case Little Sisters
of the Poor Saints Peter and Paul Home v. Pennsylvania et al., decided July 8, 2020.
10 M. Ahumada
Comanducci P, Ahumada M, González Lagier P (2009) Positivismo jurídico y

neoconstitucionalismo. Fundación Coloquio Jurídico Europeo, Madrid
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persa y otros estudios sobre la Constitución. CEPC, Madrid
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CEPC, Madrid, pp 1173–1187
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Julio Estrada A (2000) La eficacia de los derechos fundamentales entre particulares. Universidad
Externado de Colombia, Bogotá
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(1):146–188
Kumm M (2006) Who is afraid of the total constitution? Constitutional rights as principles and the
constitutionalization of private law. German Law J 7:341–370
Kumm M, Ferreres Comella V (2005) What is so special about constitutional rights in private
litigation? A comparative analysis of the function of state action requirements and indirect
horizontal effect. In: Sajó A, Uitz R (eds) The constitution in private relations: expanding
constitutionalism. Eleven International, The Hague
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the Rehnquist Court. Tulsa Law Rev 34:15–40
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problema de geometria viariável. Fundamentos 9:101–141
Sajó A, Uitz R (eds) (2005) The constitution in private relations: expanding constitutionalism.
Eleven International, The Netherlands
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(eds) The constitution in private relations: expanding constitutionalism. Eleven International,
The Hague
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Comparatum – global studies in comparative law. Springer, Dordrecht, p 24
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CON 1:79–98
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and beyond. Public Law:289–305
The Horizontal Effect of the EU Charter
of Fundamental Rights in the Case Law
of the Court of Justice
Juan Ignacio Ugartemendia
1 Theoretical Approaches to the Horizontal Effect

of the CFREU
Article 51.1 of the Charter of Fundamental Rights of the European Union (CFREU)
expressly lists the parties addressed and bound by it: “the institutions, bodies, offices
and agencies of the Union with due regard for the principle of subsidiarity and to the
Member States only when they are implementing Union law (. . .).” This provision
only refers to the CFREU’s binding effect on public authorities—either of the EU or
of Member States, i.e., its vertical effect. It remains silent on its “horizontal” or inter
privatos effect, that is, amongst individuals or private parties (also known as
Drittwirkung).
This silence has given rise to different and conflicting views on whether the
CFREU also directly binds individuals. For descriptive purposes, these views can be
grouped into two broad categories.
On the one hand, those who deny the (direct) binding effect of the Charter
among private parties. From this perspective, fundamental rights only have
such direct relevance between States and private parties (vertical effect). The
rights enshrined in the Charter have no immediate effect on private legal
arrangements in the sense of depriving of validity those that contravene them.
Accordingly, these rights only bind individuals indirectly, i.e., through domes-
tic legislation. This is the position held, among others, by Advocate General
V. Trstenjak in her Opinion in the Maribel Domínguez1 case, based on three
1
Opinion delivered on 8 September 2011, Case C-282/10, EU:C:2011:559 (see also her Opinion
delivered on 29 March 2007, Case C-80/06, Carp, EU:C:2007:200).
J. I. Ugartemendia (*)
Faculty of Law, Universidad del País Vasco/Euskal Herriko Unibertsitatea (UPV/EHU),
Donostia-San Sebastián, Spain

https://doi.org/10.1007/978-3-030-72798-7_2
12 J. I. Ugartemendia
main arguments:2 (1) The above-mentioned omission of Article 51.1; (2) Private
individuals cannot satisfy the legislative proviso contained in Article 52.1 of the
Charter (“Any limitation on the exercise of rights and freedoms recognized by
this Charter must be provided for by law”), a requirement that can naturally be
directed only at the EU and its Member States; and 3) As shown by the ECHR
system, the protection of fundamental rights does not require them to be “directly
binding” on private parties. It is enough for individuals to be able to rely on the
“duty of protection” incumbent on public authorities, that is, the relevant pro-
tective measures the EU and its Member States must adopt (“positive obliga-
tions,” in the words of the ECtHR). According to this first stance, individuals are
only bound “indirectly” by the Charter through the rules implementing or spec-
ifying the duty of protection.
From a different point of view, the horizontal effect of the Charter is not
completely ruled out. This is the position of Advocate General Pedro Cruz Villalón
in his Opinion in the AMS case.3 The supporting arguments can be summarized as
follows: (1) Nothing in the wording of Article 51.1—either in the preparatory works
or the Explanations—suggests the intention of addressing the horizontal effect of the
Charter. The focus was instead on its scope and binding nature regarding the EU and
the Member States;4 (2) Keep in mind that the horizontal effect of fundamental rights
is “an old and well-established” concept in EU law, for example with regard to the
“fundamental freedoms of movement,” as well as to specific principles such as
non-discrimination on grounds of sex5 or equal pay for male and female workers
for equal work.6 Therefore, horizontal effect not being an unknown concept to EU
law, “it would be paradoxical if the incorporation of the Charter into primary law
actually changed that state of affairs for the worse”7; (3) The problem of
“Drittwirkung” is that it adopts very varied forms, although it “is usually imposed,
immediately and directly, by the public authorities themselves.” It can thus be read in
terms of their “duty of protection,” following the approach of the ECtHR.8 In any
case, there are rights that, by their very structure, can only be invoked before public
2
Paragraphs 80 et seq. of her Opinion delivered in Maribel Domínguez. In this regard, see, for
example, Leczykiewicz (2013), p. 480 et seq.; Lenaerts and Gutiérrez-Fons (2014), pp. 1578–1580.
3
Opinion delivered on 18 July 2013, Case C-176/12, AMS or Association de Médiation Sociale, EU:
C:2013:491, in particular paragraphs. 28 et seq.
4
This issue was recently confirmed by the Court of Justice. See, for example, Joined Cases C-569/
16 and 570/16, Bauer, Judgment (Grand Chamber) of 6 November 2018, EU:C:2018:87, para-
graphs 87–88.
5
See in this regard paragraph 34 of the Opinion (notes 6 and 7).
6
Already since the Case 43/75, Defrenne II, Judgment of 8 April 1976, EU:C:1976:56.
7
Paragraph 35 of the Opinion.
8
Paragraph 36 of the Opinion. In this regard, it should be borne in mind that individuals holding a
position or exercising powers similar to those of public authorities may be bound by the funda-
mental rights of the EU in the same way as them (this would be the case, for example, of trade
unions, sports federations, beneficiaries of public subsidies, public service concessionaires, etc.).
See Sarmiento (2018), p. 203.
The Horizontal Effect of the EU Charter of Fundamental Rights in the Case. . . 13
authorities (and not among private individuals),9 just like there are other rights
“whose relevance in relationships governed by private law it would be inconceivable
to deny”10; and (4) Furthermore, the 2007 version of the Charter inserted the
distinction between “rights” and “principles” in its Articles 51.1 and 52.5: “the
provisions of this Charter which contain principles may be implemented by legisla-
tive and executive acts taken by institutions, bodies, offices and agencies of
the Union, and by acts of Member States when they are implementing Union law,
in the exercise of their respective powers. They shall be judicially cognizable only in
the interpretation of such acts and in the ruling on their legality.” The Charter
encompasses both “rights” and “principles” within the general category of “funda-
mental rights,” without establishing two separate groups. In fact, a “right” might
actually embody a “principle.”11 However, many fundamental rights enshrined in
the Charter are not immediately enforceable, so they must rely on the intermediation
of public authorities (either national or European). Obviously, such intermediation
implies that their horizontal effect (as rights) can only be indirect. In sum, the Charter
contains both rights inherently lacking horizontal effect and others that may have
such effect—albeit normally through implementing legislation.
.
2 An Overview of the CJEU’s Case Law
As explained above, the case law of the CJEU had already envisaged the horizontal
effect of fundamental rights prior to the entry into force of the Charter (2009). The
Court had recognized such inter privatos effect regarding the “fundamental free-
doms of movement”,12 the principle of non-discrimination on grounds of sex13
(current Article 21.1 CFREU), the principle of equal pay for male and female
9
For instance, the principles of legality and proportionality of criminal offences and penalties
(Article 49 CFREU); the right to good administration (Article 41 CFREU); or the right to
diplomatic and consular protection (Article 23 TFEU and 46 CFREU).
10
Paragraph 38 of the Opinion. Think, for example, of the principle of non-discrimination by reason
of sex, the freedom of association or the right to take collective action.
11
In this regard, see paragraphs 44–45 of the Opinion. Also Alonso García (2014), p. 393 et seq.
12
In his Opinion, Advocate General P. Cruz Villalón refers to the following judgments of the CJEU
(paragraph 34, note 6): Case 36/74, Walrave and Koch, Judgment of 12 December 1974, EU:
C:1974:140, paragraph 17; Case 13/76, Donà, Judgment of 14 July 1976, EU:C:1976:115, para-
graph 17; Case C-415/93, Bosman, Judgment of 15 December 1995, EU:C:1995:463, paragraph 82;
joined Cases C-51/96 y C-191/97, Deliège, Judgment of 11 April 2000, EU:C:2000:199, paragraph
47; Case C-281/98, Judgment of 6 June 2000, Angonese, EU:C:2000:296, paragraph 31; Case
C-309/99, Wouters and others, Judgment of 19 February 2002, EU:C:2002:98, paragraph 120; and
Case C-438/05, International Transport Workers’ Federation y Finnish Seamen’s Union, known as
“Viking Line”, Judgment of 11 December 2007, EU:C:2007:772, paragraph 33.
13
See, in this regard, Case 149/77, Defrenne, Judgment of 15 June 1978, EU:C:1978:130.
workers for equal work14 (Article 157 TFEU, current Article 23 CFREU), or the
right to take collective action as a general principle of EU law15 (Article 28 CFREU).
Linked to the above, and fostered by the entry into force of the Charter, the Court
developed a new case law recognizing the horizontal effect of certain rights when
they “converge” with a directive aimed at their protection. In other words, a
horizontal effect based on the connection or “convergence” (confluencia)16 between
fundamental rights and directives (which contribute to ensuring their observance).
3 Drittwirkung Through “Directives Which Contribute

to Ensuring Observance of Fundamental Rights”
Let us briefly describe the main features and arguments of this new case law
developed after the entry into force of the Charter in 2009 and embodied in ten
preliminary rulings of the Court of Justice—all of them issued by the Grand
Chamber and with landmark Opinions of the Advocates General (especially in the
first cases).
The key starting point was provided by Advocate General Yves Bot in his
Opinion in the Kücükdeveci case: “given the ever increasing intervention of Com-
munity law in relations between private persons, the Court will, in my view, be
inevitably confronted with other situations which raise the question of the right to
rely, in proceedings between private persons, on directives which contribute to
ensuring observance of fundamental rights. Those situations will probably increase
in number if the Charter of Fundamental Rights of the European Union becomes
legally binding in the future, since among the fundamental rights contained in that
charter are a number which are already part of the existing body of Community law
in the form of directives.”17
14
Already in its Case 43/75, Defrenne II, cit. in note 7, the Court ruled that the principle that men
and women should receive equal pay for equal work under (then) Article 119 EEC (current Article
157 TFEU) may be relied upon before the national courts in cases of discrimination arising directly
from legislative provisions or collective labor agreements, as well as when men and women receive
unequal pay for equal work which is carried out in the same establishment or service, whether
private or public. Under this article with horizontal direct effect, “each Member State shall ensure
that the principle of equal pay for male and female workers for equal work or work of equal value is
applied.” This horizontal binding effect not only applies to contracts between individuals, but also
extends to all collective agreements designed to regulate employment relationships (Case C-281/97,
Krüger, Judgment of 9 September 1999, EU:C:1999:396, paragraph 20) and to “unilateral action by
an employer vis-à-vis his employees” (Case C-333/97, Susanne Lewen, Judgment of 21 October
1999, EU:C:1999:512, paragraph 26).
15
See, for instance, Case C-341/05, Laval, Judgment (Grand Chamber) of 18 December 2007, EU:
C:2007:809, paragraph 91, in the same terms as the Judgment in the Viking Line case, cit.,
paragraph 44.
16
In the words of Cruz Villalón (2017), p. 101 et seq.
17
Opinion of Advocate General Y. Bot, delivered on 7 July 2009, Case C-555/07, EU:C:2009:429,
paragraph 90.
See below some examples of this “directives-rights” connection or, in other

words, directives that contribute to ensuring observance of fundamental rights:
– The principle of non-discrimination (Article 21 CFREU) on grounds of sex,
disability, religion, etc. in relation to Directive 2000/78/EC of 27 November
2000 establishing a general framework for equal treatment in employment and
occupation;
– Workers’ right to information and consultation within the undertaking (Article
27 CFREU), in connection with Directive 2002/14/EC of 11 March 2002
establishing a general framework for informing and consulting employees in
the European Community;
– The right to fair and just working conditions (Article 31 CFREU) linked to
Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the
organization of working time;
– And many other rights (protection in the event of unjustified dismissal, prohibi-
tion of child labor, reconciliation of family and professional life, etc.) and the
corresponding directives.
The decisions of the CJEU recognizing the Drittwirkung of fundamental rights
based on their convergence with certain directives can be divided into two groups.
The first group includes the original or first cases where the Court has successfully
admitted the inter privatos invocation or application of a fundamental right based on
its connection with a directive. These are the following judgements: Mangold,18
Kücükdeveci (2010),19 Prigge and others (2011),20 and Dansk Industri (2016).21 All
of them concerned the general principle of EU law of non-discrimination on grounds
of age (also enshrined in Article 21.1 CFREU). In short, the key elements of the case
law defining this new approach to the horizontal effect of fundamental rights are the
following: (1) The existence of a link or connection between the fundamental right
and a directive; in the aforementioned cases, Directive 2000/78/EC of 27 November
2000 establishing a general framework for equal treatment in employment and
occupation; (2) Within that connection, the directive “gives concrete expression
to” (or specifies), without establishing it, the principle of equal treatment in employ-
ment and occupation—a general principle of EU law (currently also enshrined in
Article 21.1 CFREU);22 (3) The horizontal direct effect acts as exclusion. In
particular, if the national court finds it impossible to interpret the domestic law
(in the framework of a private legal relation) in accordance with this principle “as
18
Case C-144/04, Judgment (Grand Chamber) of 22 November 2005, EU:C:2005:709, prior to the
entry into force of the Charter.
19
C-555/07, Judgment (Grand Chamber) of 19 January 2010, EU:C:2010:21.
20
Case C-447/09, Judgment (Grand Chamber) of 13 September 2011, EU:C:2011:573.
21
C-441/14, Judgment (Grand Chamber) of 19 April 2016, EU:C:2016:278.
22
See Dansk Industri, cit., paragraphs 22-23 and 35; Kücükdeveci, cit., paragraphs 20-21 and 50;
Prigge, cit., paragraph 38.
given concrete expression” by the directive,23 then it must set aside any conflicting
national provisions,24 thus (directly and immediately) depriving of legal validity any
legal arrangement or transaction that do not comply with it. These judgments provide
examples of such potential conflicts: in Kücükdeveci, the opposition or contradiction
would occur because the German Civil Code gave rise to discrimination (prohibited
by EU law) concerning the calculation of the notice period for the dismissal of
workers under a certain age. In Dansk Industri (or Ajos), to give another example,
because the Danish Act on salaried employees does not allow that severance
allowance was payable if the employee joined, at a certain age, a retirement pension
plan paid by his employer. In addition to all this, in order to recognize the horizontal
direct effect, (4) the fundamental right must be “sufficient in itself to confer on
individuals an individual right which they may invoke as such,” without need for
specific implementing regulations. If the fundamental right is not sufficient in itself,
then it would not be either in combination with a directive.
The Court established this requirement in its judgment in AMS (Association de
Médiation Social),25 a judgment confirming its earlier case law (Kücükdeveci).
However, this case law was not considered applicable in that instance since,
precisely, the fundamental right in question (the right to information and consul-
tation of employees in undertakings under Article 27 CFREU) was not sufficient in
itself to generate the direct enforceability of the subjective position. It did not
confer on individuals a specific right which could be invoked as such (in this case,
the prohibition of excluding specific categories of workers—accompanied-
employment contracts, apprentices—from the calculation of staff numbers for
the purposes of appointing a trade union representative, which the French Labor
Code did not comply with). In any event, the important point is that the Court
has applied this requirement in practically all its subsequent judgments on this
matter.
23
With regard to the relation between the directive and the general principle in question, the Dansk
Industri judgment will point out that “the scope of the protection conferred by the directive does not
go beyond that afforded by that principle. The EU legislature intended by the adoption of the
directive to establish a more precise framework to facilitate the practical implementation of the
principle of equal treatment and, in particular, to specify various possible exceptions to that
principle, circumscribing those exceptions by the use of a clearer definition of their scope”
(paragraph 23).
24
Dansk Industri, cit., paragraphs 35-37; Kücükdeveci, cit., paragraph 51; Mangold, cit., paragraph
77. See also Case C-176/12, AMS, Judgment (Grand Chamber) of 15 January 2014, EU:C:2014:2,
paragraph 47; Case C-414/16, Egenberger, Judgment (Grand Chamber) of 17 April 2018, EU:
C:2018:257, paragraphs 79 and 82; and Case C-68/17, IR / JQ, Judgment (Grand Chamber) of
11 September 2018, EU:C:2018:696, paragraph 68.
25
AMS, cit., paragraph 47. See also more recent decisions: Egenberger, cit., paragraph
76 (concerning the prohibition of all discrimination on grounds of religion or belief), and para.
78 (concerning the right to an effective remedy and to a fair trial under Article 47 CFREU); IR / JQ,
cit., paragraph 69 (concerning the prohibition of all discrimination on grounds of religion or belief).
The second group includes six judgments issued by the Court from 2018
onwards. Three of them (Egenberger;26 IR/JQ;27 and Cresco Investigation GmbH
v. Markus Achatzi28) concern the principle of non-discrimination on grounds of
religion or belief under Article 21(1) CFREU in connection with Directive 2000/78.
The other three relate to the horizontal invocation of fundamental rights enshrined in
Article 31(2) CFREU (fair and just working conditions). In particular, they refer to
the right to paid annual leave (Bauer et al.; and Max Planck Gessellschaft29), and the
right to a limitation of maximum working hours and to daily and weekly rest periods
(CCOO30). In these three cases, the relevant right was considered in connection with
Directive 2003/88 concerning certain aspects of the organization of working time.
All these judgments share the aforementioned characteristics, including their
approach to the direct effect in terms of excluding the application of any incompat-
ible national provision or the validity of any private legal arrangement based on it.31
However, some specificities that appear in them are worth mentioning. First of all,
the Egenberger ruling recognizes expressly and overtly the horizontal direct effect of
a right enshrined in the Charter. In particular, it states that the prohibition of all
discrimination on grounds of religion (which is mandatory as a general principle of
EU law and is laid down in Article 21.1 CFREU) “is sufficient in itself to confer on
individuals a right which they may rely on as such in disputes between them in a field
covered by EU law.”32 In its reasoning, the Court refers to the AMS case,33 and all its
26
Case C-414/16, Egenberger, cit.
27
Case C-68/17, IR / JQ, cit., paras. 62 et seq.
28
Case C-193/17, Judgment (Grand Chamber) of 22 January 2019, EU:C:2019:43.
29
Joined Cases C-569/16 and 570/16, Bauer, cit., and Case C-684/16, Judgment (Grand Chamber)
of 6 November 2018, EU:C:2018:874.
30
Case C-55/18, Judgment (Grand Chamber) of 14 May 2019, EU:C:2019:402. On this last
Judgment and its implications: Nogueira-Guastavino (2019), p. 929 et seq.
31
For instance, excluding the application of the German General Law on equal treatment (AGG) for
giving rise to a difference of treatment (discrimination) on grounds of religion not justified under
EU law in a recruitment procedure (Egenberger); or for allowing an unjustified dismissal on
grounds of religion (IR/JQ). In Cresco Investigation, to set aside the Austrian legislation under
which Good Friday was a public holiday only for employees who were members of certain
Christian churches—those employees being the only ones entitled to be paid if required to work
on that day. In Bauer, the German Federal Law on leave (BGBl), in relation to the German Civil
Code, since it provided that the right to paid annual leave (paid by a public or private employer) was
lost upon the worker’s death, precluding an allowance in lieu from forming part of the estate of the
deceased. In CCOO, the direct effect would be that the Directive 2003/88, interpreted in the light of
Article 31(2) CFREU (and of Directive 89/391/EEC of 12 June 1989 on the introduction of
measures to encourage), precluded a national provision (Article 34 of the Spanish Workers’ Statute)
that, as interpreted by the national case law, does not require employers to set up a system enabling
the duration of time worked each day by each worker to be measured (paragraph 71).
32
Paragraph 76.
33
In particular, paragraph 47 (which refers to the principle of non-discrimination on grounds of age
established in the Kücükdeveci case). It is worth noting that, according to Advocate General Y. Bot,
“recognition of the potential possibility of relying directly on provisions of the Charter in horizontal
disputes (. . .) constitutes the major contribution” of the AMS judgment (Opinion delivered on
subsequent decisions will reiterate this recognition based on Egenberger.34 In

addition, the Court formally and expressly recognizes that, although Article 51.1
CFREU is addressed to the public authorities without considering whether individ-
uals may be directly required to comply with certain provisions of the Charter, it
does not preclude such a possibility.35
Secondly, from the Egenberger judgment (with the precedent of the AMS case),
the fundamental right in question is referred to as meaningful and operational under
the Charter itself rather than as a general principle of EU law. Also noteworthy is the
possible variation in the role played by the directive in its connection with the
fundamental right for the purposes of the latter’s horizontal effect. According to
the first group of decisions, the directive “gives concrete expression” to the funda-
mental right without establishing it, thus providing a more precise framework for its
implementation. The second group of judgments, in turn, seems to weaken the role
of directives by insisting on their lack of horizontal effect36 and stressing the
possibility of invoking the fundamental right in question in disputes between private
parties.37
In any event, directives play an essential role in this relation, since in their
absence the crucial element connecting the specific case to the EU system of
fundamental rights would be missing.38 As is well known, the fundamental rights
guaranteed in the legal order of the EU are only applicable to national situations
governed by EU law (Article 51 CFREU).39 If the public or private legal relation
does not fall within the scope of the relevant directive, the EU system of fundamental
rights simply does not apply.40 Therefore, the horizontal effect only comes into play
on matters within the regulatory competence of the EU. Otherwise, the case will not
be subject to any fundamental rights of the EU (being the directive the only element
of connection with the Union law). However, the fact that a directive is required does
29 May 2018, Joined Cases C-569/16 and C-570/16, Bauer, EU:C:2018:337, paragraph 77). That
recognition (also with a reference to AMS) can also be read in Dansk Industri, cit., paragraph 36.
34
See IR/JQ, cit., paragraph 69; Bauer, cit., paragraph 85; Max Planck Gessellschaft, cit., paragraph
78; and Cresco Investigation, cit., paragraph 76. The CCOO judgment does not refer to this
recognition.
35
Bauer, cit., paragraphs 87 and 88; Max Planck Gessellschaft, cit., paragraphs 76 and 77 (following
in both cases the Opinion of Advocate General Y. Bot in Bauer, cit., paragraphs 77 and 78). In this
regard, see L.S. ROSSI (2019).
36
Bauer, cit., paragraphs 76 et seq.; Max Planck Gessellschaft, cit., paragraphs 64 et seq.; Cresco
Investigation, cit., paragraphs 72-73.
37
Bauer, cit., paragraphs 79 et seq.; Max Planck Gessellschaft, cit., paragraphs 69 et seq.; Cresco
Investigation, cit., paragraphs 76 et seq. In this regard, the CCOO judgment is closer to the first
group.
38
See, for instance, Kücükdeveci, cit., paragraphs 23 et seq., especially para. 25; AMS, cit.,
paragraph 43; or Bauer, cit., paragraph 53.
39
As recalled in AMS, cit., paragraphs 42 and 43; or, previously, in Case C-617/10, Åkerberg
Fransson, Judgment (Grand Chamber) of 26 February 2013, EU:C:2013:105, paragraph 19.
40
See in this regard Rossi (2019), cit.
not mean that the horizontal effect is “indirect”—i.e., resulting from regulatory
mediation—since directives lack horizontal effect by definition.41
Finally, the requirement to interpret national law in conformity with EU law (both
in relation to the directive and the fundamental right) is confirmed even with greater
emphasis.42 The CJEU recalls43 that this includes “the obligation for national courts
to change their established case law, where necessary, if it is based on an interpre-
tation of national law that is incompatible” with EU law.44
In sum, the fundamental rights of the EU can only have horizontal direct effect
where such “conforming interpretation” is not possible. In that event, the conflicting
national provision must be set aside.45 Therefore, the horizontal direct effect is
treated as subsidiary to the requirement to interpret national law in conformity
with EU law.
4 Closing Remarks
1. EU law recognizes the horizontal effect of some fundamental rights (at an internal
level). This already occurred before the entry into force of the CFREU by
reference to the fundamental freedoms and certain general principles of EU law
(subsequently also enshrined in the CFREU).
2. The CFREU does not address the question of Drittwirkung. However, the CJEU
has considered that some fundamental rights (understood as general principles
and/or rights enshrined in the CFREU) can have such horizontal effect in cases
that bring them into connection with directives that contribute to ensuring their
observance. According to this trend, particularly clear in the case law following
the entry into force of the CFREU, that horizontal effect only comes into play
wherever the Union has regulatory competence in the field of fundamental rights.
As pointed out by the Spanish Supreme Court, strictly speaking this would not
amount to recognizing the directive’s horizontal effect, but “the direct effect of
the fundamental right of the European Union implemented as such by it.”46 In
41
See, for instance, Ugartemendia (2018), p. 21 et seq.
42
Egenberger, cit., paragraphs 70 et seq.; IR/JQ, cit., paragraphs 62 et seq.; Bauer, cit., paragraphs
64 et seq.; Max Planck Gessellschaft, cit., paragraph 80; and Cresco Investigation, cit., paragraphs
74 et seq.
43
Since Dansk Industri, cit., paragraphs 33 y 34.
44
Egenberger, cit., paragraphs 72 and 73.; IR/JQ, cit., paragraphs 64 and 65; Bauer, cit.,
paragraph 68.
45
Egenberger, cit., paragraph 82; IR/JQ, cit., paragraphs 68 et seq.; Bauer, cit., paragraphs
86 et seq.; Max Planck Gessellschaft, cit., paragraph 80; and Cresco Investigation, cit.,
paragraph 80.
46
Judgment of the Spanish Supreme Court 2728/2016, of 8 June 2016, Employment division (Rec.
207/2015), ES:TS:2016:2728, Legal Ground 11, para. 2 (emphasis added). Along the same lines,
see Judgment of the same division of the Spanish Supreme Court: 4408/2016, of 17 October 2016
(Rec. 36/2016), Zardoya-Otis, ES:TS:2016:4408, Legal Ground 7, para. 2.E.
addition to giving concrete expression and a more precise framework to the

fundamental right, the directive would determine that the case falls within the
regulatory competence of the EU—and therefore, under the scope of the system
of fundamental rights of the Union itself.
3. It is worth noting that, since the entry into force of the CFREU, this type of
Drittwirkung was mostly developed in relation to the principle of
non-discrimination under Article 21 CFREU (either on grounds of age or reli-
gion). Last year, this recognition extended to solidarity rights, in particular those
enshrined in Article 31(2) CFREU (fair and just working conditions), and
specifically the right to paid annual leave and the right to a limitation of maximum
working hours and to daily and weekly rest periods.
4. The Court of Justice has recognized the horizontal effect of the fundamental
rights enshrined in the CFREU when they are sufficient in themselves to confer
on individuals an individual right which they may invoke as such. However, such
horizontal effect is not granted to the provisions of the Charter containing
“principles” [to which allude the Article 51(1) or 52(5)], that is, those fundamen-
tal rights that require implementing legislation either of the EU or the Member
States. That is also the case of the “principles governing economic and social
policy” under Chapter 3, Title I of the Spanish Constitution.
At this point, some authors have rightly questioned why the fundamental rights
conceived in the CFREU as “principles” (e.g., workers’ right to information and
consultation under Article 27) could not be similarly relied upon in connection with
a directive. There is no apparent reason why the compatibility of national legislation
with the “principle” could not be analyzed in light of the concrete expression given
to it by the relevant directive.47
References
Alonso García R (2014) Sistema jurídico de la Unión Europea. Civitas-Thomson Reuters, Madrid
Cruz Villalón P (2017) La incidencia de la carta (DFUE) en la confluencia de la eficacia horizontal
de los derechos fundamentales y la ineficacia horizontal de las directivas: de Kücükdeveci a
Dansk Industri. AFDUAM 21:101–120
Leczykiewicz D (2013) Horizontal Application of the Charter of Fundamental Rights. Eur Law Rev
38:479–498
Lenaerts K, Gutiérrez-Fons JA (2014) The Charter in the EU Constitutional Edifice. In: Peers S,
Hervey T, Kenner J, Ward A (eds) The EU Charter of fundamental rights. A commentary. CH
Beck-Hart-Nomos, Oxford and Portland, pp 1578–1580
47
See in this regard the Opinion of Advocate General P. Cruz Villalón delivered on 18 July 2013,
AMS, cit., paragraphs 60 et seq.; see also his work, already mentioned (2017), p. 113, and Alonso
García (2014), p. 295.
Nogueira-Guastavino M (2019) La STJUE de 14 de mayo de 2019, CCOO/Deutsche Bank (C-55/

18), relativa a la obligación de llevar un registro de la jornada diaria de trabajo y la aplicación
horizontal de obligaciones instrumentales. Revista de Derecho Comunitario Europeo
64:929–961
Rossi LS (2019) The relationship between the EU Charter of Fundamental Rights and Directives in
horizontal situations, EU Law Anal. http://eulawanalysis.blogspot.com/2019/02/the-relation
ship-between-eu-charter-of.html
Sarmiento D (2018) El Derecho de la Unión Europea. Marcial Pons, Madrid
Ugartemendia JI (2018) Los mecanismos de eficacia equivalente a la eficacia horizontal de las
directivas. Viejas consideraciones y nuevos apuntes. Revista Española de Derecho Europeo
68:21–53
The Concept of ‘State’ for the Purposes
of the EU Charter of Fundamental Rights
1 Introduction
Referring to the field of application of the Charter of Fundamental Rights of the EU

(CFREU), Article 51(1) states that its provisions are addressed to the institutions,
bodies, offices and agencies of the Union “and to the Member States only when they
are implementing Union law.” Therefore, Member States are bound by the Charter
where and to the extent that they apply EU law. This is hardly surprising, since EU
law is typically implemented by Member States. In the words of Eeckhout (2002),
“The Charter may well state that it is binding on the Member States ‘only’ when
implementing EU law (. . .) but this exception-style formulation in fact conceals that
this is the real importance of the Charter from the perspective of the European
citizen.”1
This provision does not introduce any novelty. On the contrary, as can be seen in
the explanations relating to the Charter, it takes up the classic case law of the Court
of Justice of the EU (CJEU) on the position of Member States with regard to
fundamental rights as general principles of EU law. The Wachauf judgment,
among others, provides a perfect example. At that time, the CJEU considered that
Community rules which, upon the expiry of the lease, had the effect of depriving the
lessee, without compensation, of the fruits of his labor and of his investments in the
tenanted holding would be incompatible with the requirements of the protection of
fundamental rights in the (then) Community legal order. It then added that, “Since
those requirements are also binding on the Member States when they implement
1
Eeckhout (2002), p. 992.
C. Martínez-Capdevila (*)
Faculty of Law, Universidad Autónoma de Madrid, Madrid, Spain

https://doi.org/10.1007/978-3-030-72798-7_3
24 C. Martínez-Capdevila
Community rules, the Member States must, as far as possible, apply those rules in
accordance with those requirements.”2
That case law and Article 51(1) CFREU clearly identify two conditions for
extending the application of fundamental rights beyond the EU’s own institutional
framework. First, a Member State must be involved; and second, it must be
implementing EU law.
This chapter examines the first requirement in order to address the following
issues: the meaning of “Member State” for the purposes of Article 51(1) CFREU
(Sects. 2 and 3); the extent to which this concept determines the enforceability of the
Charter (Sect. 4); and whether the notion of “State” in the context of the direct effect
of directives plays some role on this matter (Sect. 5). The final section of the chapter
presents some concluding remarks (Sect. 6).3
2 “Member State” Under Article 51(1) CFREU, in Light

of the Explanations
The reference to Member States in Article 51(1) CFREU gives rise to two comments
in the Explanations. The first one acknowledges that the Charter does not innovate
but reproduces preexisting case law. The second comment concerns the actual
content of the concept of “State.” As can be read at the end of the second paragraph
of the explanation, “Of course this rule, as enshrined in this Charter, applies to the
central authorities as well as to regional or local bodies, and to public organisations,
when they are implementing Union law.”
This sentence was already included (in identical terms) in the final draft of the
Explanations to the 2000 version of the Charter,4 and it does not seem to have raised
any controversy among the members of the first Convention.
The State is thus deemed to include all the authorities at the various territorial
levels within a country’s political and territorial structure, as well as any body
governed by public law. The underlying rationale is that the internal distribution
of powers and the organizational model of the Member States cannot exempt them
from their obligations under EU law. In international law this is known as “the
2
Case 5/88, Wachauf, Judgment of 13 July 1989, EU:C:1989:321, paragraph 19. In the same sense,
see Case C-260/89, ERT, Judgment of 18 June 1991, EU:C:1991:254, paragraph 43; Case C-2/92,
Bostock, Judgment of 24 March 1994, EU:C:1994:116, paragraph 16; Case C-309/96, Annibaldi,
Judgment of 18 December 1997, EU:C:1997:631, paragraph 13; Case C-292/97, Karlsson, Judg-
ment of 13 April 2000, EU:C:2000:202, paragraph 37; or, Case C-198/13, Julián Hernández,
Judgment of 10 July 2014, EU:C:2014:2055, paragraph 33.
3
Most of the literature has focused on the second element, i.e., the fact that Member States will only
be subject to Article 51(1) CFREU when implementing EU law. See in this regard Besselink (2001),
pp. 76–79; Eeckhout (2002), pp. 975–979; Groussot et al. (2011); Lenaerts (2012), pp. 378–387; or
Ward (2014), pp. 1433–1447.
4
Eeckhout (2002), pp. 955–956.
The Concept of ‘State’ for the Purposes of the EU Charter of Fundamental. . . 25
principle of the unity of the State”—counterpoint to the principle of self-

organization. In the words of AG Bot, “In order to ensure that enforcement of
Community law does not depend on the political, institutional and administrative
organisation of the Member States and in order not to interfere in that organisation,
the Court of Justice applies the principle of international law that the subject of law
which enters into commitments and which is bound to comply with its commitments
is the State as such, viewed as a single organic and functional entity.”5
While there is no univocal definition of “State” under EU law (it must be
interpreted in light of the purpose of the relevant provision),6 the attribution to the
State of the conduct of infra-State and public-law bodies is deeply rooted in this legal
order when it comes to identifying the State as an entity bound by EU law.7 This is
the case, for instance, with respect to Member States’ infringements of EU law,8 the
invocability of directives having direct effect,9 State aid,10 or public procurement.11
The literature has never questioned the Explanations in this particular point,
although some authors have regretted the lack of a more extensive definition of
“State.” Among them, Picod (2018) looks at the CJEU’s case law on the notion of
“State” in connection with the internal market freedoms (which points in the same
direction as the case law on the direct effect of directives). In his opinion, the
explanation regarding Article 51 CFREU should also include persons or bodies
that, regardless of their public or private law status, fulfill a public interest purpose
and are endowed with special powers over those whose activities they regulate.12
5
Opinion delivered on 7 June 2007, Joined Cases C-7/06 P to 10/06 P, Beatriz Salvador García, EU:
C:2007:324, point 126.
6
Quoting Haguenau, AG Ruiz-Jarabo Colomer referred to a “variable geometry approach” followed
by the CJEU in its definition of “State,” which thus “changes according to the field under
consideration and exhibits the pragmatism employed to secure the effectiveness of Community
law, in order thus to satisfy the desire for integration inherent in the Treaty” (Opinion delivered on
12 January 2006, Case C-417/04 P, Regione Siciliana v Commission, EU:C:2006:28, point 43).
7
A different issue is the content of the concept of “State” for the purposes of the institutional
provisions of the Treaties and, in particular, those regarding judicial remedies before the CJEU
(Case C-95/97, Région Wallonne v Commission, Order of 21 March 1997, EU:C:1997:184,
paragraph 6; and, Case C-180/97, Regione Toscana v Commission, Order of 1 October 1997,
EU:C:1997:451, paragraph 6).
8
See, inter alia, Case C-417/99, Commission v Spain, Judgment of 13 September 2001, EU:
C:2001:445; Case C-423/00, Commission v Belgium, Judgment of 17 January 2002, EU:
C:2002:32, paragraph 16; and, Case C-383/00, Commission v Germany, Judgment of 14 May
2002, EU:C:2002:289, paragraph 18.
9
Case 103/88, Fratelli Costanzo, Judgment of 22 June 1989, EU:C:1989:256, paragraph 31; Joined
Cases C-253/96 to C-256/96, Kampelmann, Judgment of 4 December 1997, EU:C:1997:585,
paragraph 46; or, Case C-122/17, Smith, Judgment (Grand Chamber) of 7 August 2018, EU:
C:2018:631, paragraph 45.
10
Case 248/84, Germany v Commission, Judgment of 14 October 1987, EU:C:1987:437,
paragraph 17.
11
Case C-323/96, Commission v Belgium, Judgment of 17 September 1998, EU:C:1998:411,
paragraph 27.
12
Picod (2018), p. 725.
The same could be argued of bodies that are directly or indirectly subject to the
authority or control of the State.13
No case has required the CJEU to give a ruling for or against those arguments. In
fact, as explained in the following section, its case law on the concept of “State” has
been rather uncontroversial.
In any case, the fact that an organization or entity cannot be identified with the
State for the purposes of Article 51(1) CFREU does not necessarily mean that they
escape its application. Indeed, the recognition of the horizontal direct effect of some
rights enshrined in the Charter ensures that such entities will be subject to the Charter
whenever they implement EU law (in connection with those specific rights)—even if
they are not included within the concept of State.14
Furthermore, the specific content of the concept of “State”—even for the pur-
poses of the Charter—will vary depending on the right in question. In this sense, it
seems clear that the right to an effective remedy, enshrined in Article 47 CFREU and
recognized as having direct effect by the CJEU,15 can be hardly invoked against any
of these bodies, regardless of whether they may be considered “emanations” of the
State.
3 “Member State” Under Article 51(1) CFREU, in the Case

Law of the CJEU
Until now, the CJEU has only applied the Charter to Member States in the context of
actions by core state (i.e., judicial or administrative) authorities or some infra-state
body. There has not been a single case in which the national body involved was a
public law entity or other type of organization.
Two features define the rulings of the CJEU on this matter:
First, they have raised no controversy. The concept of “State” in the context of
Article 51(1) CFREU has not triggered any debate calling the CJEU to pronounce on
a specific instance. The reason for this lack of debate is that almost all cases
submitted to the CJEU regarding State action connected with the Charter concerned
a national public authority which was undoubtedly part of the “State.” Several
examples illustrate this point: the Melloni case concerned the conformity with
Articles 47 and 48 CFREU of an action by the Spanish High Court (Audiencia
13
See Case 249/81, Commission v Ireland, Judgment of 24 November 1982, EU:C:1982:402,
paragraph 15 (on free movement of goods); and Case C-188/89, Foster, Judgment of 12 July
1990, EU:C:1990:313, paragraph 18, and Case C-413/15, Farrell, Judgment of 10 October 2017,
EU:C:2017:745, paragraphs 22-29 (on the ability to rely on directives having direct effect).
14
Regarding the horizontal effect of the Charter, see Sect. 4 infra.
15
Case C-414/16, Egenberger, Judgment (Grand Chamber) of 17 April 2018, EU:C:2018:257,
paragraph 78.
Nacional);16 in Åkerberg Fransson, the CJEU addressed the ability to rely on Article
50 CFREU before a Swedish criminal court of first instance in the context of
criminal proceedings;17 in N.S., the issue was whether the British Secretary of
State was subject to the Charter when deciding on an asylum application under
Regulation 343/2003;18 finally, Jawo concerned the conformity with Article
4 CFREU of the decision of the German Federal Office for Migration and Refugees
ordering the transfer to another Member State of an asylum seeker.19 In all four
cases, it was clear that the national bodies should be considered “State,” and none of
the intervening Governments challenged this point. At the most, some of them
rejected that the relevant action implemented EU law.20
Second, the case law of the CJEU on Article 51(1) CFREU lacks any justification
when it addresses the action of bodies whose consideration as “State” might not be
so obvious. Thus, in the Bauer case, the CJEU failed to explain why the German city
of Wuppertal was part of the “State” for the purposes of Article 51(1) CFREU.21 AG
Bot also ignored this issue in his Opinion.22 Both the Judges and the Advocate
General assumed that was the case and failed to provide any explanation.23
This, in turn, shows that the notion of “State” is so well established in other
sectors of EU law that it has naturally, automatically permeated the scope of the
Charter, since its application to infra-State bodies is based on the concept of “State”
used in those other frameworks.24
Now that the CJEU has partially recognized the horizontal direct effect of the
Charter, identifying whether a specific body is part of the “State” becomes somewhat
secondary, since it will no longer determine its enforceability.
16
Case C-399/11, Melloni, Judgment (Grand Chamber) of 26 February 2013, EU:C:2013:107.
17
Case C-617/10, Åkerberg Fransson, Judgment (Grand Chamber) of 26 February 2013, EU:
C:2013:105.
18
Joined Cases C-411/10 and C-493/10, N.S., Judgment (Grand Chamber) of 21 December 2011,
EU:C:2011:865.
19
Case C-163/17, Jawo, Judgment (Grand Chamber) of 19 March 2019, EU:C:2019:218.
20
See Case C-617/10, Åkerberg Fransson, cit. in note 17, paragraph 16; and, Joined Cases C-411/10
and C-493/10, N.S., cit. in note 18, paragraph 61.
21
Joined Cases C-569/16 and C-570/16, Bauer, Judgment (Grand Chamber) of 6 November 2018,
EU:C:2018:871.
22
Opinion delivered on 29 May 2018, Joined Cases C-569/16 and C-570/16, Bauer, EU:
C:2018:337.
23
This would confirm a point made by Sarmiento (2018), in the sense that the CJEU has endeavored
to reduce the importance of the Explanations, which are rarely mentioned in the case law of the
CJEU concerning the Charter (p. 194).
24
See notes 8–11.
4 Horizontal Application of the Charter and Partial Loss

of Relevance of the Concept of “State”
In recent years, the CJEU has acknowledged that individuals are directly bound by
certain provisions of the Charter in areas governed by EU law, even if Article 51
(1) makes no reference to them. Consequently, the notion of “State” has become less
relevant for these purposes. Unlike with the direct effect of directives, it will no
longer be so important to determine whether a certain body is an “emanation” of the
State (arguably the most problematic scenario, especially when it comes to private
law entities). In those cases, whatever its consideration (State or private party), that
body will be bound by the Charter.
This case law begins in April 2018 with the Egenberger judgment on the
prohibition of all discrimination on grounds of religion or belief under Article 21
(1) CFREU.25 It is the first time the CJEU states unequivocally that a provision of the
Charter “is sufficient in itself to confer on individuals a right which they may rely on
as such in disputes between them in a field covered by EU law.” The Court specifies
that, “Article 21 of the Charter is no different, in principle, from the various pro-
visions of the founding Treaties prohibiting discrimination on various grounds, even
where the discrimination derives from contracts between individuals.” Also, “the
fact that a court may, in a dispute between individuals, be called on to balance
competing fundamental rights which the parties to the dispute derive from the
provisions of the FEU Treaty or the Charter” does not call into question the court’s
obligation to guarantee the full effectiveness of Article 21(1) by disapplying if need
be any contrary provision of national law.26
In September 2018, in the IR case and in relation to the same right to
non-discrimination based on religion, the Court reaffirmed that, “The prohibition
of all discrimination on grounds of religion or belief, now enshrined in Article 21 of
the Charter, is (. . .) 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.”27 This judgment was handed down in response
to a request for a preliminary ruling from a national court hearing a dispute between
25
Case C-414/16, Egenberger, cit. in note 15. In Kücükdeveci, the CJEU had already recognized the
horizontal effect of the prohibition of discrimination on the grounds of age, but it based its argument
on the fact that it was a general principle of EU law rather than a principle enshrined in Article 21
(1) CFREU (Case C-555/07, Kücükdeveci, Judgment—Grand Chamber- of 19 January 2010, EU:
C:2010:21, esp. paragraphs 27, 50 and 51). Given that the Charter had by then become a binding
instrument (in contrast to when it delivered its Mangold judgment along the same lines, Case C-144/
04, Judgment of 22 November 2005, EU:C:2005:709), it is possible that the approach of the CJEU
(reiterated in DI; Case C-441/14, Judgment of 19 April 2016, EU:C:2016:278) was a way of
sidestepping the issue finally addressed in Egenberger, i.e., the horizontal effect of Article 21
(1) CFREU.
26
Paragraphs 76–80 (emphasis added).
27
Case C-68/17, IR, Judgment (Grand Chamber) of 11 September 2018, EU:C:2018:696,
paragraph 69.
private individuals. Unlike in the Egenberger case, in this instance the CJEU did not
find it necessary to point out that Directive 2000/78 gave specific expression to the
general principle of non-discrimination under Article 21(1). This provision was
sufficient in itself to confer on individuals a right which they may rely on as such,
even without combining it with a directive.
This same reasoning was expressed in Cresco regarding the same provision of the
Charter,28 as well as in Bauer and Shimizu on the right to paid annual leave under
Article 31(2) CFREU.29
It is worth noting that only in Bauer and Shimizu (which were not the first
pronouncements in this regard) did the CJEU consider the literal wording of Article
51(1) CFREU. It pointed out that this provision simply did not address the question
of whether the provisions of the Charter may be a direct source of obligations for
individuals—so no conclusion could be drawn from it: “[I]t should be noted that,
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 with due
regard for the principle of subsidiarity 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.”30
A few months earlier (in July 2018), in his Opinion in Cresco, AG Bobek referred
to the literal wording of Article 51(1) CFREU to argue against granting horizontal
direct effect to the Charter’s provisions.31
This debate was not entirely new for the Court. Like AG Bobek, AG Trstenjak
had interpreted Article 51(1) CFREU in the sense that the Charter’s provisions could
not be addressed to private parties.32 According to AG Cruz Villalón, this inference
was “clearly hasty,” since “there is nothing in the wording of the article or, unless I
am mistaken, in the preparatory works or the Explanations relating to the Charter,
which suggests that there was any intention, through the language of that article, to
address the very complex issue of the effectiveness of fundamental rights in relations
between individuals.”33 By recognizing the horizontal effect of certain rights in the
Charter in the context of employment relations, the CJEU upheld the position of AG
28
Case C-193/17, Cresco, Judgment (Grand Chamber) of 22 January 2019, EU:C:2019:43.
29
Joined Cases C-569/16 and C-570/16, Bauer, cit. in note 21; and, Case C-684/16, Shimizu,
Judgment (Grand Chamber) of 6 November 2018, EU:C:2018:874.
30
Joined Cases C-569/16 and C-570/16, Bauer, cit. in note 21, paragraph 87; and, Case C-684/16,
Shimizu, cit. in note 29, paragraph 76. That was the position of AG Bot in his Opinion in Bauer (cit.
in note 22, points 77 and 78).
31
Opinion delivered on 25 June 2018, EU:C:2018:614, points 131 ss., esp. point 140.
32
Opinion delivered on 8 September 2011, Case C-282/10, Domínguez, EU:C:2011:559, points
80–83.
33
Opinion delivered on 18 July 2013, Case C-176/12, Association de médiation social (AMS), EU:
C:2013:491, points 28–32.
Cruz Villalón—giving this instrument a legal effect beyond what would result from
a first reading of Article 51(1) CFREU.
Article 51(1) also reflects a distinction between rights and principles. Its second
sentence states that the institutions, bodies, offices and agencies of the Union, as well
as the Member States, shall “respect the rights, observe the principles and promote
the application thereof.” The former create individual or subjective rights that
(depending on the terms) may be invoked in disputes between private parties,
whereas principles lack such legal effect and require implementing measures giving
specific expression to them. It is precisely in that latter context where the concept of
“State” coined by the CJEU regarding the direct effect of directives could become
more relevant.
5 The Interplay Between the Concept of “State” Regarding

the Direct Effect of Directives and the Charter
Several provisions of the Charter proclaim the existence of a right while referring to
the conditions under EU and national law. That is clearly the case with Article
27 CFREU on workers’ right to information and consultation within the undertak-
ing, which must be guaranteed “in the cases and under the conditions provided for by
Union law and national laws and practices.”
Similarly, other provisions of the Charter set out rights in unspecified terms that
require complementing measures—even if not expressly stated. The conditions for
exercising the right outlined in the Charter must be specified by an instrument
adopted by the EU or its Member States. As the CJEU held in Glatzel regarding
Article 26 CFREU on the integration of persons with disabilities, in order for such
provisions to be fully effective, they must be given more specific expression in EU or
national law. In other words, those articles cannot by themselves confer on individ-
uals a subjective right which they may invoke as such.34
According to the right/principle dichotomy used in the Charter and echoed in the
second sentence of Article 51(1) and in Article 52(5) CFREU, the rights enshrined in
the two types of (non-self-executing) provisions mentioned above are, strictly
speaking, principles.
When the act specifying a principle in the Charter (what AG Cruz Villalón calls
“act giving specific substantive and direct expression to the content of a principle”)35
is an EU directive, there arises the concept of “State” as an entity bound by this type
of instruments and against which the provisions having direct effect are enforceable
by individuals.
34
Case C-356/12, Glatzel, Judgment of 22 May 2014, EU:C:2014:350, paragraph 78.
35
See his Opinion in AMS, cit. in note 33.
This was the context that gave rise to the judgment of the CJEU in Association de
médiation social (AMS).36 In particular, the case concerned Article 27 CFREU and
Directive 2002/14 establishing a general framework for informing and consulting
employees in the European Community. The French Court of Cassation (Cour de
cassation)—hearing the dispute between AMS and its employee appointed as union
representative—requested the CJEU to determine whether the fundamental right of
workers to information and consultation, recognized by Article 27 CFREU, and as
specified in the provisions of Directive 2002/14, could by itself or in conjunction
with the said Directive be invoked in a dispute between private individuals so as to
preclude the application of an allegedly conflicting national implementing measure
(Article L. 1111-3 of the French Labor Code).
In its judgment, the CJEU recalled its settled case law according to which even a
clear, precise and unconditional provision of a directive seeking to confer rights or
impose obligations on individuals cannot of itself apply in proceedings exclusively
between private parties.37 Then, the Court considered whether, like in
Kücükdeveci,38 Article 27 CFREU, by itself or in conjunction with the provisions
of Directive 2002/14, could be invoked in a dispute between individuals in order to
disapply the national provision not in conformity with the Directive. Relying on the
wording of Article 27 CFREU, the Court concluded that, in order to be fully
effective, such provision must be given more specific expression in EU or national
law.39 That was the essential difference with Article 21(1) CFREU at issue in
Kücükdeveci: the principle of non-discrimination on grounds of age is sufficient in
itself to confer on individuals a subjective right which they may invoke as such.40
Therefore, the defendants in the main proceedings could not rely on Article
27 CFREU as such in order to set aside the national provision which was not in
conformity with Directive 2002/14.41 According to the CJEU, this finding could not
be called into question by considering Article 27 CFREU in conjunction with the
provisions of Directive 2002/14, given that, since that article by itself does not
suffice to confer on individuals a right which they may invoke as such, it could not
be otherwise if it is considered in conjunction with that directive.42
36
Case C-176/12, Association de médiation social (AMS), Judgment (Grand Chamber) of
15 January 2014, EU:C:2014:2. In his Opinion in Kücükdeveci, AG Bot had already suggested
the Court to consider “whether the designation of rights guaranteed by directives as fundamental
rights [contained in a charter that would become legally binding] does or does not strengthen the
right to rely on them in proceedings between private parties” (opinion delivered on 7 July 2009,
Case C-555/07, ECLI:EU:C:2009:429, point 90), but the CJEU did not address the issue in its
judgment.
37
Paragraphs 36 and 37.
38
Cit. in note 25.
39
Paragraph 45.
40
Paragraph 47.
41
Paragraph 48.
42
Paragraph 49.
Therefore, the case law of the CJEU on the direct effect of directives becomes
relevant in the field of fundamental rights when the act specifying a principle in the
Charter is precisely a directive. As is well known, the concept of “State” is para-
mount to that case law, given that directives can only have vertical direct effect.
AG Cruz Villalón had suggested another approach in his Opinion. He advocated a
specific treatment for this type of directives, so that in conjunction with the Charter’s
provision given specific expression they could be relied upon in disputes between
individuals—potentially entailing the non-application of any conflicting national
legislation.
AG Cruz Villalón based his reasoning on four arguments. First, the cooperation
of the EU legislature required by Article 27 CFREU does not entail unlimited
delegation in favor of the legislature, in particular where such delegation may lead
to undermining the meaning of the second sentence of Article 52(5) CFREU
(according to which the principles in the Charter may be invoked for the purposes
of ensuring the legality of the acts giving them specific expression). Indeed, that
would be the result if, by adopting a directive, the legislature deprived individuals—
in disputes among private parties—of the judicial review of validity ensured by the
Charter. Second, there are very few directive provisions that can be said to give
specific substantive and direct expression to the content of a principle. Therefore, the
settled case law on the direct effect of directives should remain intact with respect to
almost all the provisions of present and future directives. Third, based on the CIA
Security, Mangold and Kücükdeveci judgments,43 AG Cruz Villalón’s proposal
should be considered consistent with the development of the case law, which has
allowed, also in a very specific way, objective review of national acts in the light of
directives in disputes between private parties. Fourth, AG Cruz Villalón clarified that
his proposal should not result in a situation of legal uncertainty (as alleged by
Germany in its written observations). Rather, it should produce the opposite result;
what could cause a situation of uncertainty is the possibility that the legislature might
unilaterally alter the effectiveness of the general provisions of the Charter.44
As persuasive as the above reasoning was, the CJEU did not accept it and rejected
the possibility of invoking, in disputes among private parties, directives that give
concrete expression to principles in the Charter.
A different question worth considering is that the CJEU has recently clarified—
and lightened—the requirements to identify a specific body, even governed by
private law, as an “emanation” of the State, thereby admitting the enforceability
against it of the provisions of a directive that have direct effect. The landmark
judgment in Foster45 raised the question as to whether its two conditions were
cumulative or alternative. In October 2017, the Farrell judgment specified that it
was the latter. Hence, a body or organization with special powers beyond those
43
Case C-194/94, CIA Security, Judgment of 30 April 1996, EU:C:1996:172. For Mangold and
Kücükdeveci, see note 25.
44
Opinion cit. in note 33, points 74–78.
45
Cit. in note 13.
which result from the normal rules applicable to relations between individuals will
be considered an “emanation” of the State for the purposes of the vertical direct
effect of directives, even if it is not subject to the authority or control of the State
(as was the case in the main proceedings).46 With this extensive interpretation of the
“Foster test,” the CJEU broadened the concept of “State” regarding the direct effect
of directives and, therefore, the scope of the entities against which the directive
provisions giving specific expression to principles in the Charter may be invoked.
6 Conclusions
Now that the CJEU has recognized the horizontal effect of certain rights in the
Charter, the concept of “State” for the purposes of Article 51(1) CFREU has
somewhat lost importance. Being part of the State is no longer necessary for an
entity to be subject to the Charter and to set aside any conflicting national provision.
In this regard and in light of the case law mentioned in Sect. 4, maybe there is not
much room for Picod’s proposal to include within the concept of State those persons
or bodies that, regardless of their public or private law status, fulfill a public interest
purpose and are endowed with special powers over those whose activities they
regulate.47 The same applies to bodies that are directly or indirectly subject to the
authority or control of the State. On the one hand, such persons or bodies will rarely
be bound by provisions like Article 47 CFREU on the right to an effective remedy
and to a fair trial—only enforceable against the State in the strictest sense. On the
other, the fact that these persons or bodies should be subject to other provisions in the
Charter which the CJEU has recognized as having horizontal effect (e.g., the right to
non-discrimination and to annual paid leave under Articles 21 and 31(2) CFREU
respectively) does not depend on their consideration as “emanations” of the State.
On a separate issue, by rejecting the horizontal direct effect of directives that give
specific expression to the principles in the Charter (AMS judgment), the CJEU has
deepened the gap between the two elements of the rights/principles dichotomy. Not
only rights can have direct effect, but they can also be invoked in disputes among
private individuals—depending on the terms of the relevant provision. Principles, in
turn, do not create subjective rights enforceable by private parties and cannot be
relied upon against another individual when the EU act that gives them concrete
expression is a directive. In this latter case, the full effectiveness of the Charter will
46
Case C-413/15, Farrell, cit. in note 13. This supposedly clarifying case law does not specify
whether the special powers given to the relevant body must be linked to the performance of a task in
the public interest conferred upon it by the Member State (paragraphs 28, 33 and 34). In the same
line, see Case C-17/17, Hampshire, Judgment of 6 September 2018, EU:C:2018:674, paragraphs
54 and 55; and, Case C-168/18, Günther Bauer, Judgment of 19 December 2019, EU:C:2019:1128,
paragraph 48.
47
See Sect. 2, supra.
depend on the correct and timely transposition of the directives by the Member
States.
This different approach regarding the rights enshrined in the Charter and the
directives giving specific expression to its principles seems to be in contradiction
with the idea of the Charter as a coherent and articulated system, endowed with
greater autonomy regarding fundamental rights, as pointed by Cruz Villalón
(2017)48 and suggested by other judgments of the CJEU.49
References
Besselink LFM (2001) The Member States, the National Constitutions and the Scope of the Charter.
Maastricht J Eur Comp Law 8:68–80
Cruz Villalón P (2017) La Incidencia de la Carta (DFUE) en la Confluencia de la Eficacia
Horizontal de los Derechos Fundamentales y la Ineficacia Horizontal de las Directivas: De
Kücükdeveci a Dansk Industri. In: Izquierdo Sans C, Rodríguez de Santiago JM (eds) Anuario
de la Facultad de Derecho de la Universidad Autónoma de Madrid 21. Los Derechos
Fundamentales en las Relaciones entre Particulares, Facultad de Derecho de la UAM, BOE,
Madrid, pp 101–120
Eeckhout P (2002) The EU Charter of fundamental rights and the federal question. Common Mark
Law Rev 39:945–994
Groussot X, Pech L, Petursson GT (2011) The Scope of application of Fundamental Rights on
Member States’ action: in search of certainty in EU adjudication. Eric Stein Working Paper 1
Lenaerts K (2012) Exploring the limits of EU Charter of fundamental rights. Eur Const Law Rev
8:375–403
Martínez Capdevila C (2019) La eficacia horizontal de los derechos fundamentales en la Unión
Europea: el Tribunal de Justicia prefiere ir por libre. In: Martín y Pérez de Nanclares J (ed),
González Herrera D (coord.), El diálogo judicial en la protección de los derechos fundamentales.
Tirant lo Blanch, Valencia, pp 89–95
Picod P (2018) Article 51. Champ d’application. In: Picod F, Van Drooghenbroeck S (eds) Charte
des droits fondamentaux de lÚnion européenne. Commentaire article par article. Bruylant,
Bruxelles, pp 719–736
Sarmiento (2018) El Derecho de la Unión Europea, 2nd edn. Marcial Pons, Madrid
Ward A (2014) Article 51. In: Peers S, Hervey T, Kenner J, Ward A (eds) The EU Charter of
fundamental rights. A commentary. Hart, Oxford, pp 1413–1454
48
Cruz Villalón (2017), pp. 118–120.
49
See in this regard Martínez Capdevila (2019).
A Principle Vanishes and a Right Arises:
Paid Annual Leave As a Fundamental Right
and Its Impact on Liability for Breach
of EU Law
1 The Right to Paid Annual Leave As Acknowledged

Internationally and in Terms of Comparative Law
All relevant international instruments grant workers the right to paid annual leave.
These provisions either expressly mention the fact that annual leave must be paid, or
they simply acknowledge the right to paid holiday in general terms subject to
national legislation and/or standard practice in the relevant country.
Similarly, many EU countries’ Constitutions lay down guarantees regarding
working conditions, including the workers’ right to annual periods of rest. Among
others, the Constitutions of Luxembourg (Article 11(5)), Spain (Art. 40), Portugal
(Art. 59(1)(d)) and, more expressively, Italy (Art. 36) provide for this right. How-
ever, in these countries, the essence and scope of the said constitutional right is
further specified in pieces of ordinary domestic legislation. On the contrary, new
Member States’ Constitutions thoroughly define this entitlement. See, for instance,
how the Slovak, Polish, Hungarian, Latvian and Lithuanian Constitutions compre-
hensively acknowledge the right to a minimum period of paid annual leave.
Within the European Union, ever since the Treaty of Rome, EU primary law has
sought consistency in this matter. As was the case regarding gender equality, this
quest for homogeneity is probably intended to avoid employment disparities that
could lead to social dumping. This is why it has become something of a mantra that
“Member States shall endeavor to maintain the existing equivalence between paid
This chapter has been written in January 2020.
M. Nogueira-Guastavino (*)
School of Law, Universidad Autónoma de Madrid, Madrid, Spain

https://doi.org/10.1007/978-3-030-72798-7_4
36 M. Nogueira-Guastavino
holiday schemes.” Except for the numbering,1 this wording has remained unchanged
and can be found in Art. 158 of the Treaty on the Functioning of the European Union
(hereinafter, TFEU) currently in force.
Article 7 of both the first Directive on the organization of working time, dated
1993, and of Directive 2003/88/EC, whose legal basis was Art. 137 TEC, currently
Art. 158 TFEU (providing that the Union shall support and complement the activ-
ities of Member States, seeking to improve the working environment to protect
workers' health and safety), is worded as follows:
“1. Member States shall take the measures necessary to ensure that every worker
is entitled to paid annual leave of at least four weeks in accordance with the
conditions for entitlement to, and granting of, such leave laid down by national
legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance
in lieu, except where the employment relationship is terminated.”
Article 17 of Directive 2003/88 enables Member States to set aside or derogate

certain provisions. However, regarding Article 7 of the said Directive, no exceptions
(or, better said, derogations) are allowed.
In this vein, the right to paid holiday is laid down in Art. 31(2) under Title IV of
the Charter of Fundamental Rights of the European Union (hereinafter, CFREU):
“Every worker has the right to limitation of maximum working hours, to daily and
weekly rest periods and to an annual period of paid leave.”
With hindsight, one could argue that the entitlement to paid annual leave is a
fundamental social (workers’) right. In fact, since long ago, this right could have
been considered a “general principle of EU law,” given that it could be drawn from
the constitutional traditions common to the Member States (as the CJEU pointed out
in its Judgment of 17 December 1970, Case C-11/70, Internationale
Handelgesellschaft, EU:C:1970:114) as well as from the international human rights
treaties to which Member States are parties (as stated in CJEU Judgment of 14 May
1974 in Nold, EU:C:1974:51), in spite that it is not expressly set out in the European
Convention on Human Rights (ECHR).2
Nevertheless, it has only recently been acknowledged as a fundamental right in
the European Union directly applicable in private-private relationships. Its tortuous
road to this acknowledgment makes full sense. Indeed, the very structure of this
entitlement has always raised some doubts, particularly regarding the clarity and
non-conditional nature of its wording. The issue has been whether it is an
1
This provision was renumbered as Article 143 under the Treaty of Amsterdam. Then, it became
numbered Art. 142 following the Treaty of Nice and in the Lisbon Treaty.
2
The Court highlighted its particular importance both in Case C-4/73, Nold, Judgment of 14 May
1974, EU:C:1974:51 and in Case C-36/75, Rutili, Judgment of 28 October 1975, EU:C:1975:137.
A Principle Vanishes and a Right Arises: Paid Annual Leave As a. . . 37
unconditional clearly-worded right or rather an entitlement that requires further

public action for the right’s enforcement; not only to lay down the conditions to
exercise the right, but also to specify the actual meaning of “paid” inherent to this
right. Actually, certain rulings seem to have expressly rejected this horizontal direct
effect.3
This chapter examines how this right and the application thereof has unfolded.
More specifically, it addresses how the Court has dealt with the structure and
wording of this entitlement in its latest rulings. In these recent judgments, the
Court unambiguously declares, as in Mangold or Kücükdeveci, that the right to
paid holiday qualifies as a fundamental right directly applicable to relationships
between private parties. Although it is implemented in a Directive, the right to paid
annual leave applies pursuant to Art. 31(2) CFREU (not under the Directive). Also,
this CFREU provision is the one imposing the right’s horizontal effect in private
employment relationships.4
2 The Interpretation of the Right to Paid Annual Leave

Prior to the Post-Lisbon Union’s CFREU. The Right
to Paid Annual Leave As a “Particularly Important
Principle of Community Social Law”
Prior to the entry into force of the CFREU, which under Art. 6(1) TEU shall have the
same legal value as the Treaties, the Court of Justice had declared, for the very first
time, that the entitlement of every worker to paid annual leave must be regarded as a
particularly important principle of Community social law (para. 43). This bold
statement can be found in the landmark CJEU Case C-173/99, BECTU (Broadcast-
ing, Entertainment, Cinematographic and Theatre Union), Judgment of 26 June
2001, EU:C:2001:356.
This ruling declared that, with regard to both the objective of the Directive (back
then Directive 93/104), and to its “scheme,” paid annual leave “constitutes a social
right directly conferred by that [D]irective on every worker as [a] minimum require-
ment” (para. 47). Thus, without expressly mentioning it, the judgment was already
3
Grand Chamber, Case C-282/10, Maribel Domínguez, Judgment of 24 January 2012, EU:
C:2012:33. The Court boldly rejected that the Directive on the organization of working time be
relied upon in relationships between private parties (para. 37). Also, the CJEU failed to specifically
address whether the right to paid annual leave could be considered a general principle of European
Union social law and if, as such, it could be applied to private-private relationships. However, the
Court does refer to the right to paid holiday as an individual right laid down in a Directive having
direct effect vis-à-vis the State, adding that, if the employer cannot broadly qualify as a State or
public authority, the Francovich doctrine should apply (Joined Cases C-6/90 and C-9/90).
4
The Court clearly declares this direct effect, although only regarding relationships between private
parties and public bodies (i.e., vertical direct effect), in Case C-282/10, Maribel Domínguez,
Judgment of 24 January 2012, EU:C:2012:33, paragraphs 33–38.
Another random document with
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The Project Gutenberg eBook of The Boy Scout
pathfinders
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States and most other parts of the world at no cost and with
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laws of the country where you are located before using this
eBook.
Title: The Boy Scout pathfinders
Author: George Durston
Release date: July 11, 2022 [eBook #68497]
Language: English
Original publication: United States: The Saalfield Publishing

Company, 1921
Credits: Roger Frank, Al Haines and the Online Distributed

Proofreading Team at https://www.pgdp.net
*** START OF THE PROJECT GUTENBERG EBOOK THE BOY

SCOUT PATHFINDERS ***
THE BOY SCOUT PATHFINDERS
TWELVE VOLUMES
THE BOY SCOUTS ON THE TRAIL
THE BOY SCOUTS AFLOAT
THE BOY SCOUTS IN CAMP
THE BOY SCOUTS TO THE RESCUE
THE BOY SCOUT FIREFIGHTERS
THE BOY SCOUT AUTOMOBILISTS
THE BOY SCOUT AVIATORS
THE BOY SCOUTS’ CHAMPION RECRUIT
THE BOY SCOUTS’ DEFIANCE
THE BOY SCOUTS’ CHALLENGE
THE BOY SCOUTS’ VICTORY
They sent the message quickly, accurately.
By
GEORGE DURSTON
THE SAALFIELD PUBLISHING COMPANY

Chicago AKRON, OHIO New York
Made in U. S. A.
Copyright, 1921
By
The Saalfield Publishing Co.
CHAPTER I
THE IRON BOX
Two members of any staff, even though they are only boys,
cannot disappear as though the earth had swallowed them without a
suspicion of foul play.
In the office above the chamber which had witnessed the stirring
events narrated in “The Boy Scout Firefighters,” in which both Beany
and Porky Potter had been actors, there had been great anxiety.
When General Pershing received the report, he at once sent couriers
and scouts to every station where the boys might have gone. The
sentries one and all declared that the boys had not been seen
outside of the building. This resulted in a combing out of every
cranny that could possibly hold a boy alive or dead.
The hours dragged on. There was a continual passing to and fro
for hours until at last there seemed to be absolutely nothing more to
do until morning. The tired staff threw themselves into the office
chairs, while the General, at the typewriter, commenced a letter. Out
of respect to him, there was a complete silence in the room.
On and on clicked the typewriter while the waiting men dozed or
smoked or thought of home.
“What’s that?” said one of them suddenly, listening intently.
The General stopped writing and looked at the speaker.
“What’s what?” questioned a captain, frowning.
“That tapping,” said the first speaker. “Sounds like code.”
“You have been asleep,” said the captain, grinning.
“I hear it,” said the General.
There was a general gathering up of forces, as the whole room
tried to place the faint, monotonous tapping.
“The call for help!” said the first speaker triumphantly. “I knew I
heard it. The code is my native language almost. It sounds as though
some one was calling from below the floor.”
“Send an answer, Lieutenant Reed!” ordered the General.
The young officer obeyed, while his hearers listened breathlessly.
Tap-tap went the spurred heel, dash and dot, dash and dot in many
combinations.
The reply followed swiftly. The Lieutenant, rather pale, turned to
the General. “It’s the boys!” he reported. “They are together, in a
closed chamber,—a dungeon, I take it—right below us. They are in
danger. Don’t say what. Something about spies and dynamite. Want
help instantly.”
“How?” asked the General.
“There’s a secret door in the oak panel in the hall. They gave
directions for opening it.”
“Go at once, six of you—you six nearest the door!” The officers
designated rose.
“Rush!” said Lieutenant Reed crisply. For the moment he was in
command. He alone knew how to open the panel. They hurried
outside, where Reed felt swiftly but carefully in the place described
by Porky. Twice he went over the heavy carving, pushing here and
there unavailingly. Then without a sound the secret door opened and
before any one could enter the passage that yawned in inky
blackness before them, there was a rush of running feet and the two
boys, carrying Beany’s coat between them, bolted into the hall.
Porky made a motion for silence, and listened.
There was no sound.
“Somebody chased us!” he panted. “Somebody was close behind
us in the dark!”
“Men?” asked an officer in an excited whisper.
Porky wanted to say “No, sir, rabbits!” but he knew that every one
felt nervous and edgy and, besides, he did not want to be
disrespectful to the officer who had spoken.
“They came in through the other door,” he said. “A door at the
other end of the passage that is on the other side of the two big
rooms down below there.”
“Let’s go down,” said one of the men, loosening his revolver.
“Please don’t try it!” begged Beany. “We could never get down
without light and then they would have the drop on us. It’s no use
now. Besides, they could go out of that outside door without the least
trouble after they had shot us all up.”
“The kid is right,” said Lieutenant Reed. “He knows how the land
lies down there. Come up to the General, boys, and make a report.
He will tell us what he wants done.”
Sliding the panel shut, the Lieutenant called a guard and, leaving
the hallway patrolled by a couple of stalwart Americans, the group
surrounding the two boys entered the office and saluted the General.
General Pershing bent his serious, keen gaze on the boys, then a
bright, sudden smile lighted the strong, handsome face that had
grown sad and still in the troubled, anxious months at the front.
“Always up to something, boys,” he said. “Well, your friend the
Colonel warned me how it would be. Now suppose you tell me all
about it.”
Beany with a sigh of relief lifted his blouse and deposited it on the
table. It struck the surface with a clank and as he pulled the cloth
away a regular flood of gold pieces covered the papers where the
General had been writing.
“Part of the story, sir,” said Beany. And then talking together, or
taking turns, as the spirit moved them, the boys pieced out the
account of their adventures. The part that Beany kept harking back
to was the presence of the prisoners in the big room. He described
carefully and accurately the appearance of the young soldier and
told as well as he could about the limp, unconscious girl who had
been carried out into the dark garden. Beany shuddered as he
spoke.
“I am sure the girl was dead, sir. She laid there for hours, I guess,
and she never moved at all, never batted an eyelash. And she was
white.... I never saw anybody so white. It was as though all her blood
had been drained out of her.”
“Was she wounded?” asked the General.
“She must have been, sir,” answered Beany. “I saw blood, just a
little of it running down her wrist under her sleeve. She had nice
clothes on, and I had a hunch all the time that I ought to know who
she was; but I couldn’t tell. Wish we knew what they did with them.
When it comes light, General, I can show you just where the door is.
I am sure I know where it opens.”
“It is light now,” said the General, pointing to the window. Every
one looked. Sure enough, the whole sky was a mass of pale gold
and pink and greenish blue, as lovely and soft and joyous as though
the distant rumble of the big guns was not shaking the casement as
they spoke. It was light; morning had come.
The General ordered coffee and rolls and insisted on both boys
eating something. They were tired and heavy eyed but excited at the
thought of unraveling perhaps a little more of the mystery of the past
night.
When at last the General dismissed them with a few terse orders,
they sped ahead of their escort through the silent garden, fearless
and curious and unconscious of the careful marksmen who followed,
protecting each foot of their advance.
Beany had spoken the truth. With the sureness of a young hound
he took his way through a wilderness of stones and bricks and
beams and plaster through the tangled, torn old garden, and round
to a spot marked by what seemed to be a clump of dense bushes
like low growing lilacs. Approaching this, Beany parted the branches
and peered in. Then he drew back with a cry of horror.
“Look!” he whispered.
It was indeed the ambush set over the outside entrance to the
dungeons. Down in the depths of the hole that yawned under the
encircling bushes something was tumbled in a pitiful, distorted heap.
Eagerly a half dozen men leaped down and with careful hands
straightened out the two forms lying in the bloody ooze. One after
the other they were lifted to the surface.
The man was quite dead but the girl still lived, though breathing
feebly.
Placing her on an improvised stretcher, a couple of the men
hurried away with her to the hospital while a couple more knelt
beside the dead boy and searched carefully through his torn and
blood-stained clothing for papers, letters—anything that could be
used as clues to his identity. There was not a scrap left to guide
them. The young officer’s pockets had been turned inside out. Even
the hems in his tunic and breeches had been slit and the soles had
been torn from his shoes. If there had been papers of any sort
secreted about him, they were gone—carried away by the ruthless
hands that had slain him.
Leaving a guard beside the body, the others leaped boldly into the
shallow pit and lifted the heavy bar which held the massive nail-
studded oaken door. It opened inward, and Beany led the way
through the passage into the chamber where he had sat bound,
gagged and waiting for the relentless hands of the clock to reach the
moment of his doom. He showed the device, and then, lighting the
stubs of candles, they went into the inner room. The dungeons were
dark as midnight, even in the clear morning light.
A careful search was made of the rooms. They stamped on the
floors, rapped on the walls with pistol butts, ripped up the silken
covers and the thick mattresses, but found nothing. The men finally
stopped their search, and gathered in a group around the massive
table. Beany, sitting on the edge of the table, jounced up and down
and thought that he had never seen a piece of furniture quite so
solid. He took out a penknife and tried to whittle the edge but the
keen blade scarcely made an impression on the ironwood seasoned
for ages. Porky, watching his brother, listened to the conversation.
“Somewhere down here there is a hiding place for papers or
money, or perhaps both,” said one of the officers, a keen-faced,
thoughtful man, studying the room as he could see it in the flickering
light of the two candles which, now burned down to the merest stubs,
afforded a dim, uncertain light.
“We have given it a pretty thorough combing over,” said another
officer, frowning.
“I can’t help it,” stubbornly answered the other. “It is in just such
places as this where valuable secrets are often hidden.”
“What about the dynamite?” demanded some one else. “It does
not seem as though they would hide anything of any value to
themselves in a spot that they were willing to blow up.”
“A bomb that size would not have wrecked this room. Did you
notice the thickness of the walls?”
The talk went on while Beany whittled and pried away
industriously at the table edge. He found a crack in the wood and
pried his knife blade into that. The blade entered in a tantalizing
manner, slipped smoothly along, then struck metal. Beany pushed.
Porky, who was watching, came closer and peered down the crack.
Beany pushed harder, pushed as hard as he could, and suddenly felt
himself flung off the table as the big top flew up and hurled him
aside.
Powerful springs had opened the two heavy slabs of oak that
formed the table. Two pieces now stood open like a pair of doors and
within lay a long, flat box which completely filled the space. The box
was of iron, heavily barred and padlocked. Four soldiers pried it from
its place and, escorted by the whole party, it was carried to General
Pershing, still working at his desk.
Once more the boys had unearthed a mystery.
CHAPTER II
THE CELLAR’S SECRET
Porky and Beany were too tired to care what happened next and,
taking quick advantage of a brief smile and nod of dismissal from the
General, they made their way to their quarters and soon were as
sound asleep as though they were lying on the softest down. They
slept and slept, losing all track of time, and by the General’s orders
were undisturbed. When they finally woke, really wide awake, they
found that a whole day and a night had passed since the early dawn
when they had staggered off to bed.
They woke at the same instant, as was their habit, and sitting bolt
upright, stared unblinkingly at the young officer sitting at the window
writing.
“Morning, Lieutenant,” said Porky, rubbing his eyes.
“What’s the time, sir?” said Beany, looking curiously at his wrist
watch.
“Yours stopped too?” asked Porky. “Mine has. Funny!”
“Not so very funny,” said Lieutenant Parker, closing his writing
tablet. “You have been asleep since yesterday morning, and I
imagine the watches ran down.”
“Yesterday morning!” gasped Porky. “Why didn’t some one call
us?”
“General’s orders,” said the Lieutenant. He laughed, “Gee, I wish
he would order me to bed for a week. You can bet I would go!”
“Well, it makes me mad to sleep like this,” said Porky in irritation.
“What all have we missed, anyhow?”
“Nothing much,” said the Lieutenant. “The biggest drive of the war
is on and to-morrow General Pershing with his staff will make the trip
along the front line trenches. I hope he counts me in on that.”
“You liked to be in the trenches, didn’t you?” asked Porky,
stooping to lace his puttees.
“You are right I did,” said Lieutenant Parker, wrinkling his smooth
young forehead. “I came over to fight, and it was just my luck to get
this measly scratch on my head, and blamed if they didn’t put me
here in this office doing paper work!”
“Well, you got to give your skull time to get well, haven’t you?”
asked Beany. “It was cracked, wasn’t it?”
“No, just a piece scooped out of it,” said the Lieutenant in a bored
tone.
The boys grinned. Lieutenant Parker was one of the best friends
they had, and they had learned that nothing teased him like being
quizzed about the deep, palpitating scar that creased his dark head,
the truth being that he had received the wound in an encounter that
had won him the coveted French war cross with the palms. Porky
and Beany considered modesty in others little less than a sin. They
were always so thirsty for tales of blood and glory that they could not
see why any one should hesitate to tell every possible detail of any
adventure. It happened, strangely enough, that they did not apply the
same rule to their own conduct. To get details out of the Potter twins
was, as their own father said, like drawing nails out of a green oak
board, accompanied by screeches of protest. The boys had had the
Lieutenant’s story, however, and they harked back to the news of the
day.
“I am going on that hike,” said Porky, standing up and stamping
himself comfortably into his clothes.
“So’m I,” said his brother, likewise stamping.
“Try for something else, kid,” said the Lieutenant. “You can’t get in
on this. It is strictly staff.”
“Watch me!” said young Porky, the cocksure. He hurried to the
door and disappeared, while Beany, a trifle slower in his dressing,
roared, “Wait for me!”
A muttered response of some sort was the only satisfaction given.
Beany grinned. “He is always so sudden!” he complained,
addressing the Lieutenant.
“Might as well stay here until he comes back. I never like to butt in
on Porky’s talky-talks. He most generally knows what he wants to
say, and he don’t need any help in getting it out of his system. I
certainly hope we can go with the General. You are always yelling
about that old silver plate you have on your topknot. Look at us:
seems like we just can’t get into a trench. Honest Injun, I’m so sick of
this old chateau—”
“I never did see such a pair!” said Lieutenant Parker. “Didn’t you
have enough of an adventure the other night to last you two or three
days?”
He was going on, when Porky burst into the room. He threw up his
hat.
“Better, much better than I ever hoped,” he crowed.
“Hand it out!” demanded Beany anxiously.
“Why, I was going to give the General a great line of talk, and I
didn’t have a chance to do a thing but salute. He was talking to a
French officer and the minute he went out, the General just said, ‘All
right to-day, young man?’ I said, ‘Yes, sir,’ and he said, ‘No time to
talk! Report in the courtyard to-morrow morning five-thirty, field
equipment, for special duty with my staff.’
“I saluted again and turned to come out, and the General said,
‘Potter, this is in the way of a reward for that little affair in the
dungeons,’ and I said, ‘Thank you, sir, but the pleasure was all ours,
sir,’ and he said, ‘No, not quite all; because some of the papers you
unearthed WILL HELP TO TURN THE TIDE.’ How’s that, old Beans,
will help to turn the tide. Gosh! you did it with your little penknife,
didn’t you?”
“Well, never mind that,” said Beany, wriggling. “Don’t you know
anything about this trip to-morrow?”
“Nary word,” said Porky, “but why should we worry? Main fact is
clear, we are going to be among those present.”
The boys spent a restless day getting their traveling equipment in
order and taking it apart again to put it together in some way they
fancied would make an eighth of an inch difference in some of its
dimensions. They strutted a little perhaps. It was truly a wonderful
thing to go with General Pershing on a trip of that sort. They
marveled at their good luck.
That good luck had hinged entirely on their ability to keep their
own counsel. That desire some have to tell all they know, a lot that
they guess, and a few things that they fear, did not exist in the Potter
twins. They could keep a secret without being told to, and that’s
some test. Whatever they overheard was safe. When they saw
things that were not intended for their eyes, they ignored them, or
made an effort to forget all about them. This high sense of what was
honorable and right was noticed immediately by the General as well
as by others whom they met daily.
So they spent the long day patting each other on the back, and
wondering at their great good fortune.
They kept closely to the rooms frequented by the officers. As
Porky pointed out to his brother, there was one old lady at least who
was not wasting any love on them, and they didn’t want to give her a
chance to turn a key on them and spoil all their fun. They had at
least gained a little caution, but how very little the trip was going to
show.
It was barely five next morning when Porky and Beany, like two
shadows, slipped from their quarters and went silently down to the
courtyard. Several automobiles stood ready, heavily guarded, and a
couple of mechanics were busily tightening nuts and testing various
parts of the machinery. No one spoke. The boys crossed the open
space, and in accordance with an agreement made previously, sat
down back to back on a ledge of the broken fountain. They were
taking no risks of surprise or attack from the rear. Silently the
minutes passed. The steady tramp of the sentries and the grating of
metal on metal as the mechanics worked quietly on the cars made
so little sound that distant noises were loud and acute.
The guns of the enemy had been silent for twelve hours. Even
Porky and Beany sensed something big and terrible in the air.
“Want to bet something?” asked Porky, poking his brother with a
backhand jab in the ribs.
He never found out whether Beany was game to bet or not for the
door of the chateau opened and a group of officers came out.
General Pershing led the group. The boys leaped to salute, the
sentries stopped and presented arms. Even the mechanics
straightened to their feet. There was perfect quiet, however, and five
minutes later they started away full speed in the darkness. On and
on they went, passing first through a country which showed very little

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Fundamental Rights Challenges:

Horizontal Effectiveness, Rule of Law

International law and armed conflict fundamental

The Rule of Law in Europe: Recent Challenges and

Tides of Revolution Information, Insurgencies, and the

The Internet And Constitutional Law The Protection Of

Illiberal Constitutionalism in Poland and Hungary: The

The International Court of Justice and the

SANS 642 3 Web Cryptography Sans

The Rule of Law Under Fire? 1st Edition Raymond Wacks

ISBN 978-3-030-72797-0 ISBN 978-3-030-72798-7 (eBook)

government. The traditionally ill-deﬁned judicial oversight is shifting in a question-

Madrid, Spain Cristina Izquierdo-Sans

Part I The Effectiveness of Fundamental Rights in Relations

Part II Human Rights and the Rule of Law

Part III The National Margin of Appreciation in Luxembourg

1 A Typical Debate in Constitutional Democracies

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 3

2 The Different Relation of Public Authorities

3 Democratic Constitutions for Democratic Societies

There is another way to justify the expansive effect of constitutional rights in

The constitutionalization of private law is fostered by a conception of the system of

4 A Problem Without “One” Solution

Ackerman B (1997) The rise of World Constitutionalism. Va Law Rev 83:771–797

Comanducci P, Ahumada M, González Lagier P (2009) Positivismo jurídico y

Juan Ignacio Ugartemendia

1 Theoretical Approaches to the Horizontal Effect

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 11

2 An Overview of the CJEU’s Case Law

3 Drittwirkung Through “Directives Which Contribute

See below some examples of this “directives-rights” connection or, in other

subsequent decisions will reiterate this recognition based on Egenberger.34 In

addition to giving concrete expression and a more precise framework to the

Nogueira-Guastavino M (2019) La STJUE de 14 de mayo de 2019, CCOO/Deutsche Bank (C-55/

Referring to the ﬁeld of application of the Charter of Fundamental Rights of the EU

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 23

2 “Member State” Under Article 51(1) CFREU, in Light

principle of the unity of the State”—counterpoint to the principle of self-

3 “Member State” Under Article 51(1) CFREU, in the Case

4 Horizontal Application of the Charter and Partial Loss

5 The Interplay Between the Concept of “State” Regarding

1 The Right to Paid Annual Leave As Acknowledged

This chapter has been written in January 2020.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 35

Article 17 of Directive 2003/88 enables Member States to set aside or derogate

unconditional clearly-worded right or rather an entitlement that requires further

2 The Interpretation of the Right to Paid Annual Leave

Title: The Boy Scout pathfinders

Author: George Durston

Release date: July 11, 2022 [eBook #68497]

Original publication: United States: The Saalfield Publishing

Credits: Roger Frank, Al Haines and the Online Distributed

*** START OF THE PROJECT GUTENBERG EBOOK THE BOY

THE SAALFIELD PUBLISHING COMPANY

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