Prior chapters recounted debates surrounding the horizontal application of constitutional rights to nonstate actors in national contexts. While the particularities of these constitutional orders vary dramatically, comparisons can be made across both time and place. In one way or another, republican themes recur in these discourses, as constitutional actors seek some parity in governing values across spheres and introduce, to a greater or lesser extent, a category of constitutional duty for private actors. As national courts have considered horizontal application, so too has the Court of Justice of the EU considered the extent to which EU law creates obligations for private or nonstate actors.

EU law is typically understood as binding Member States,Footnote ¹ requiring national institutions to adopt specific legislation or policies. Nevertheless, certain instances of EU law have been interpreted to obligate private actors as well. That EU “regulations” apply to private actors is more or less analogous to national statutes doing the same and, thus, not an issue of serious debate given the legislative function of the European Commission and Council. On the other hand, that such a foundational document as the Charter of Fundamental Rights might have horizontal application has been a source of controversy. Indeed, the constitutional nature of this document raises all of the same objections that jurists and scholars have leveled against horizontal application in national contexts and a host of others stemming from the fact that the EU is a supranational body.

What, then, might this book’s republican framework contribute to our understanding of the EU, and particularly horizontality in the EU? What can republican theory illuminate in a context where one cannot so easily take for granted shared commitments and bonds of citizenship? The EU is indeed very different from any other legal order this book considers and has been examined by scholars and practitioners in a way that the nation-states this book considers have not. Like the prior chapters, this chapter also recounts countervailing factors working against horizontality, as well as the republican themes that emerge in response. Those factors countervailing against horizontality in the EU’s political and scholarly debates are tied up with questions about the very nature and project of the Union. The question of integration and the extent to which the Union itself approximates a republic come into play as political and legal actors debate the place and limits of horizontality in Europe. Indeed, debates in both scholarship and cases of the European Court of Justice (ECJ) track these large questions about the character and aspirations of European unity.

Whereas Chapters 3 and 4 centered on the question of whether horizontality can be applied from a constitution, and Chapters 5 and 6 on the question of how far the constitution can be applied horizontally, this chapter’s inquiry is at a higher level. Specifically, underlying the arguments of scholars and actors in this context is the question of whether and in what ways the ECJ and other actors may even consider the question of horizontal application in the first place. Is the EU enough of a political community for its institutions to speak about a discernable private sphere, and therefore potentially to speak to private actors? Or, rather, does its supranational nature somehow serve as a theoretical (and practical) barrier against horizontal application?

These are different sorts of questions than those considered previously, to be sure; however, republican themes emerge from both Eurosceptic and more pro-European perspectives. Republican intuitions certainly underlie those who emphasize the Member States as political communities, but they are also present in those arguments that find potential for something like republican political community and, by extension, horizontality at the Union level. We still see concerns about parity among separate spheres, for example. However, in the European case, the concern is with parity across domestic legal systems with supranational legal commitments. Moreover, whereas prior chapters often recounted constitutional actors resisting horizontality to maintain autonomy in the private sphere, here we see political actors and institutions of Member States trying to maintain domestic autonomy vis-à-vis a broader transnational sphere. Likewise, questions concerning duty arise, but always in the context of larger questions about the nature of European citizenship. Thus, as the republican lens uncovers new theoretical significances in debates over horizontality in the EU, so too do the distinctive features of the EU show additional nuances in a republican conception of horizontality.

In a certain way, horizontality in the EU is actually relatively noncontroversial and is even built into the Union’s purpose. Indeed, the Union’s original goal of creating a common market necessarily implicates private economic activity and, on this basis, may itself be described as a horizontal project. On the other hand, it is the Member States themselves that are the primary parties to EU treaties. This leads to the distinctive situation in which certain EU legislation, known as directives, do not apply horizontally insofar as they are aimed at the Member States’ governments alone. However, the Charter of Fundamental Rights potentially does apply horizontally to private actors, as well as to applications of EU law, but does not necessarily bind the domestic law of individual Member States. Of course, this is in direct contrast with the typical arrangement within many nation-states in which ordinary legislation is the default mode of governing private actors, and higher law applies horizontally only sometimes, if at all. The EU certainly presents an unusual case when it comes to the question of horizontal application. However, it is precisely this unique character that makes the EU experience an important, if singular, bookend to a republican account of horizontality.

With the Charter’s introduction and other developments over time, EU law has increasingly transcended its original economic ends to encompass a broader net of political issues and, in turn, has raised questions about the evolving nature of the project. In connecting the horizontal application of the EU Charter with such larger foundational questions about a European res publica, the republican framework proves useful. As with prior chapters, it does not attempt to resolve the debates or even to craft one coherent narrative of this dynamic and indeterminate political experiment. Rather, this chapter applies a republican lens in order to appreciate certain theoretical potential in the arguments many European actors and scholars have made in these debates. The first section of this chapter briefly recapitulates some of the theoretical background of prior chapters to lay out more fully the question of republican horizontal application in the context of the EU. The second section turns to scholarship on the EU, examining debates concerning republican politics and citizenship and drawing out the implications of European unity to the more specific subject of horizontal application. This section argues that particular republican resources in the EU, and aspirations of some European actors, bear important theoretical connections with horizontal application. The final section takes a closer look at ECJ decisions and scholarly literature on horizontal application in order to highlight the republican themes that emerge from many of these lines of argument.

The Republican Framework Applied to Europe

This book argues that horizontal application constitutes a republican vein in liberal constitutionalism. This practice applies constitutional rights to create new duties of private actors, thereby achieving greater parity between public values and certain corners of the private sphere. In contrast with traditional understandings in which constitutions create obligations only for the state, judges and other constitutional actors operating on a horizontal understanding derive duties of both state and nonstate actors from the same constitutional source. Much in the same way that constitutional rights insulate certain subjects from the political process, a horizontal understanding shifts the venue for debating questions that arise in the private sphere from the realm of ordinary legislation to more durable, and more fundamental, constitutional law. Horizontal application thus alters traditional premises about the public–private divide to expand the function of a constitution and the scope of constitutional rights.

This republican framework arguably goes further than the conventional liberal logic to help us understand and ground horizontal application in national contexts. But can republicanism bear the same theoretical connection to horizontal application in such supranational contexts as the EU? Much in republican thought presupposes a common sense of polity and citizenship, concepts which many take for granted in national contextsFootnote ² but which people question in the EU. Perhaps scholars and jurists arguing for the horizontal application of the Charter may not as easily appeal to the shared sense of purpose or the sense of common membership that appeared in discourses surrounding horizontality in prior chapters.

To this extent, it seems possible that scholarly and political commentators might not be able to wield the same republican themes in pursuing horizontality at the continental level. At this high level, horizontality could potentially entail the reshaping of broad swaths of European society, applying the values of the Charter to private actors across Member States. Moreover, this step would admit rights claims of individuals within one Member State against individuals of a separate Member State. But could citizens of two different countries, albeit in the same global region, have duties to one another in the same sense as citizens of the same nation? Such suggestions are not beyond imagination and certainly seem possible today as a technical legal matter. Still, horizontal application in the EU poses a unique set of challenges, prompting additional examination to determine how the republican framework may yet apply in this context.

Republican Aspirations in the EU

Scholars have debated at length whether the EU is compatible with a republican conception of politics and citizenship. This broad, seemingly theoretical question speaks to the more practical issue of building and sustaining the EU as a genuine political community rather than just another international alliance. Moreover, the answer to this question bears on whether a republican account of horizontal application is theoretically possible in this context or if, instead, the case of the EU constitutes a limitation to this argument. Scholars tend to consider the republican credentials of the EU by asking two specific questions. First, to what kind and degree of integration does the European project actually aspire? Second, to what extent does (or can) a European identity permeate the popular imagination? If, per the first question, the ultimate goal is to establish a full-blown political community characterized by common rights and values rather than simply a close-knit international alliance revolving around economics and security,Footnote ³ then the ability to foster commitment to something like republican politics and citizenship, per the second question, becomes nothing less than an existential concern for the EU. Indeed, the success of the European project comes to hinge on a widespread identification with, as well as some responsibility toward, Europe and one’s fellow Europeans.Footnote ⁴ This chapter takes up these two questions in turn, reviewing important relevant debates in the EU in order to lay groundwork for an ensuing discussion of horizontal application.

What is the nature of the European project? Did it originally or does it now include what we might characterize as republican aspirations, as to establishing a distinct res publica or a European citizenry? Initially political actors, including judges serving on the ECJ, proceeded as if Europe were primarily an alliance centered around free movement and economics.Footnote ⁵ This mindset is manifested in the phenomenon that EU law sometimes is not effective unless a case involves some crossing of national borders, a fact that can prevent citizens’ residing within a country’s borders from invoking EU protections, so leading to the phenomenon of reverse discrimination.Footnote ⁶ The ability of law to touch individual citizens seems to be a crucial feature of political community in the full sense of the term.Footnote ⁷ If, then, this sort of crossing of borders is necessary to trigger EU law, Europe is still more of an international community than a federal-supranational one. In this case, the practical reality of the European project cannot but fall short of republican conceptions of the polis and civic feeling, even if Europeans aspire to something more.

Through a lengthy process punctuated by numerous treaties, actors in favor of the European project now more explicitly aim at securing a shared set of rights and recognition of some sort of constitution.Footnote ⁸ Some more hesitant scholars challenge attempts to apply such domestic concepts to this international context,Footnote ⁹ or label the expansion of the European project “competence creep.”Footnote ¹⁰ Others maintain that this commitment to a common European identity has been the aim of the project from the very beginning.Footnote ¹¹ Wherever one falls on these issues, it is difficult to deny the capaciousness and ambition of the European project at least since the Treaty of Lisbon. Therefore, considering the intended degree of integration, at least now it is clear that pro-European actors aspire to something beyond mere economic or security alliance. To this extent, the supranational institution must concern itself with questions of political community and citizenship, even if integration remains a stilted process, with such disruptions as Brexit.

While the European project is one of unity and integration, scholars and political actors still interpret differently what this means as a theoretical and practical matter. Some put greater weight on the limits of Lisbon and, previously, Maastricht, arguing that a robust national sovereignty remains a part of the larger plan.Footnote ¹² Others, in contrast, more readily concede European primacy.Footnote ¹³ However, even those who admit of a larger role for Union governance debate what this means for the Member States. Michel Rosenfeld, for example, understands integration as entailing some prior negation of national identity,Footnote ¹⁴ while others, such as Willem Maas, emphasize the possibility and practical reality of multilevel citizenship.Footnote ¹⁵ In some ways, these arguments may constitute a difference in emphasis rather than substance. Nevertheless, these different positions entail real consequences for the status of the EU vis-à-vis Member States, particularly regarding such contested questions as sovereignty and governing authority.

Of course, these debates are not restricted to academic fora. In the Lisbon Treaty case the Federal Constitutional Court of Germany sought to protect democratic legitimacy and national-constitutional identity for Germany while remaining open to the EU project of unity.Footnote ¹⁶ Essentially the Court was willing to cooperate with EU legislation and ECJ decisions, but not at the cost of Germany’s sovereignty. Accordingly, the FCC decided that it maintained competence to rule on whether the Treaty of Lisbon was compatible with Germany’s larger identity and fundamental commitments. While the Court would concede the “primacy of application of European law,” the fundamental principles of the Basic Law could not be annulled. In Rosenfeld’s terms, German governing institutions would only participate in the negation of national identity to a point. Nevertheless, this attempt by the German FCC to stake its ground in the ongoing disputes over competence and jurisdiction came only after other decisions that went a long way to assert the primacy of EU law and institutions, including Van Gend en Loos and Costa, discussed later.Footnote ¹⁷

Though there are legal articulations of the European project, as in the treaties mentioned above, what the nature and aspirations of the Union are depends on whom one asks. Is there something akin to a European polis or common good? Are there, in any meaningful sense, European values and European citizens? Or do the Member States remain the primary loci of politics and citizenship? The answers to these questions are largely political and remain to be worked out. Indeed, the answers may exist along a continuum rather than as an either–or formulation. As Besselink says, this is not a zero-sum game.Footnote ¹⁸ As long as the European project exists and actors continue to pursue integration, the debates in this context may still be understood through the republican lens. Such integration, though incomplete, may already resemble something like political community as understood in the republican tradition.

Pursuing a Civic Identity for Europe

In light of this republican understanding of debates over the European project, what might the republican lens show us about related questions concerning European citizenship and civic identity? In classical republican thought, one’s status as a citizen meant everything; it defined one’s rights, duties, and very way of life. It was with one’s fellow citizens that a person engaged in political deliberation and so determined the fate of the polity. What, then, does it take to have people identify as fellow citizens of a place? More specifically, can European identity plausibly constitute some degree of individuals’ understanding of self and duties? David Miller addresses this issue, explaining the need to have “something that can hold people together despite differences of class, religion, ethnicity, and so forth, and allow them to cooperate politically.”Footnote ¹⁹ He continues to explain that “[t]he mere fact of being subject to the same political system is not sufficient.”Footnote ²⁰ However, the resources available to classical republics, such as a cultural identity manifested in a common nationality, language, or religion, are not available to European institutions. Moreover, cultural identity cannot be manufactured, as such an imposition of culture would violate the rights of minorities according to our contemporary standards.Footnote ²¹ If European institutions cannot turn to these characteristics to cultivate a sense of peoplehood on the continental level, must they not look elsewhere?

Jürgen Habermas argues that a kind of “constitutional patriotism” may offer sufficient basis on which to found and cultivate a sense of peoplehood. Europeans include individuals of various ethnicities, native languages, and even nationalities, but they may share devotion to a European constitution. Taking this idea to heart, EU institutions and Member States moved to adopt a European Constitution in the Constitution Treaty of 2004.Footnote ²² However, this effort failed to garner necessary support for ratification in the national referenda of France and the Netherlands. Those arguing for Habermas’s constitutional patriotism post-2004 would have to contend with this mixed history as a result. Perhaps one could cite common values or a shared commitment to such foundational principles as those articulated in the Charter of Fundamental Rights. If European institutions could, in fact, cultivate and sustain a politics centered on such principles, then, Habermas seems to suggest, the prospect of a European civic identity may not be out of reach.

Writing just a few years after the failure of the European Constitution, Miller maintains that these efforts toward constitutional patriotism still come up short. He highlights Habermas’s own articulation of the objection that constitutional patriotism is “too weak a bond to hold together complex societies.”Footnote ²³ Miller raises several issues on this point. For one thing, he questions whether the rights articulated in such treaty documents as the Charter are so different from national constitutions that they would, in fact, inspire the requisite devotion to what is distinctly European. After all, do not many countries express commitments as to a right of human dignityFootnote ²⁴ and of equality before the lawFootnote ²⁵? And how might unity emerge if different actors and institutions among Member States interpret provisions in conflicting ways? In response to such objections, Habermas explains that the focus of loyalty need not be on any definitive account of the treaties but on the “common horizon of interpretation” a constitution provides for a people.Footnote ²⁶ In other words, it is the very debate about these principles that binds the people,Footnote ²⁷ the mere fact of being in dialogue about them, an idea not unlike the contestatory politics that figures prominently in republican thought. Habermas similarly explains in other places that “what unites a nation of citizens as opposed to a Volksnation, is not some primordial substrate but rather an intersubjectively shared context of possible mutual understanding.”Footnote ²⁸ Miller remains unconvinced, however, maintaining that such formulations seem “tantamount to admitting defeat” since “possible mutual understanding is surely something that exists between people everywhere.”Footnote ²⁹ This point is well taken, but Miller seems to give short shrift to the prospect that what is “possible mutual understanding” may ultimately become, or in some ways have already become, actual and, moreover, develop a distinctly European character.

To the extent that Miller does entertain the possibility of identifying a European common good as embodied in a constitution or treaty document, he is ultimately skeptical that this could inspire devotion in the common EU citizen. He joins many in arguing that EU politics suffer from a democratic deficit and do not create sufficient space for popular participation,Footnote ³⁰ what should be a staple in any republican political community. In a way Habermas recognizes these deficiencies, too. The difference, again, is that Habermas still sees a way forward. In particular he advocates the development of a European public sphere, “created on the one hand by a European-wide civil society of voluntary groups and on the other by a European party system whose members would address European rather than national issues.”Footnote ³¹ He accepts that European politics and citizenship will remain perfunctory and merely legal in the absence of such a public sphere. Perhaps it is this exchange that reveals the real impasse on the question of cultivating a European people. Indeed, it is at this point that we begin to see how Miller’s objections are rooted in basic beliefs about the scale on which republican politics may be conducted.Footnote ³² Miller states:

In Miller’s telling, there does not seem to be much that anyone or any institution can do to foster republican politics and citizenship on the broad scale of the EU. Indeed, interests inevitably remain diverseFootnote ³⁴ and, it would seem, centered around state, regional, and municipal divisions so that individuals simply do not have a reason to invest in politics on a continental level.

Of course, European politics can develop in any number of ways in the coming years. And although the possibility of realizing republican politics on the broad scale that is Europe is an empirical question beyond the scope of this chapter, it also depends on how we understand republican politics at all. Again, Maas illustrates in his account of multilevel citizenship that these issues of national and supranational identity need not be either–or questions.Footnote ³⁵ Moreover, these questions are not unique to the European community, but confront virtually all federal systems and even unitary countries that are diverse. In this understanding, Europe might have more resources at its disposal to cultivate a republican politics than some scholars concede. Time alone can shed further light on these questions where the theoretical and the practical intersect.

Republican Politics, Sovereignty, and Horizontality in the EU

How do these musings on the possibility of republican politics in the EU bear on the more specific question of horizontal application in the EU? Johan van der Walt begins to answer this question when he demonstrates how the issue of horizontal application, perhaps more than any other doctrinal issue courts confront, prompts questions about sovereignty. He points to the logic of the Lüth case to make this point.Footnote ³⁶ In this case, discussed in Chapters 2 and 5, the German FCC argued that the Basic Law included an “order of objective moral and legal principles” that “radiate” to affect public and private spheres alike. This sets up an understanding of the Basic Law as potentially speaking to all issues of law and life in Germany.Footnote ³⁷ Even though Van der Walt ultimately takes issue with other aspects of Lüth,Footnote ³⁸ he views this kind of power to govern all spheres of life in a polity as definitive of sovereignty. When the FCC declared that values of the Basic Law radiated to all spheres, therefore, the Court both presupposed and accrued a certain sovereignty on behalf of the Constitution and the institutions that give it effect – not least the Court itself, which exercised its ability to regulate private spaces in Lüth.Footnote ³⁹ This theoretical connection between the regulation of private entities that arises from horizontal application and the concept of sovereignty is a recurring theme within arguments that are more hesitant about horizontality in EU law.Footnote ⁴⁰ Indeed, when it applies EU law horizontally, the ECJ accumulates some measure of governing power to the European level of governance, probably at the expense of Member States.Footnote ⁴¹ It is for this reason that Van der Walt describes Lüth as having a dual destiny in Europe – while its initial instantiation in the 1958 case presupposed and bolstered the sovereignty of the German state over the private sphere, its subsequent applications in ECJ case law appropriate this same conception of sovereignty to the EU, over Germany and other Member States.Footnote ⁴²

Although republican political theory employs different language, its concepts convey something similar to Van der Walt’s discussion of sovereignty. Moreover, the republican framework does additional work to distinguish the phenomenon of horizontal application from other claims of the ECJ to sovereignty, as in such earlier cases as Van Gend en Loos and Costa.Footnote ⁴³ Put differently, republican theory and, specifically, the republican features this book has conceptualized as parity and duty move beyond the often imprecise language of sovereignty to uncover a thicker, more detailed account of what scholars and political actors understand to be at stake in the horizontal application of EU law.

First, Chapter 2 demonstrated how parity in the law governing both public and private spheres is a distinctive feature of horizontal application. As horizontal application rejects the strict separation of public and private spheres in favor of parity, it finds affinity in the republican idea of a common good encompassing the polity as a whole. Though government will always be in the business of regulating the private sphere, instances of horizontal application are distinct in that individual duties and duties of the state share a common origin in fundamental law. This common source of governance, of authority, implicitly recognizes a distinct “public thing,” an accepted common good, that governs a particular area and a particular people understood as its own body politic. In other words, the horizontal application of rights both presupposes and reinforces borders of place and people. When the ECJ applies EU law horizontally, it is akin to declaring a European “public thing” and a European people, perhaps even prior to those of the Member States.

Secondly, and relatedly, the concept of duty introduced in Chapter 2 speaks to this set of questions. Horizontal application, by definition, derives from public commitments certain duties of individuals vis-à-vis their fellow citizens. This presumes a particular “public thing,” as stated earlier, but also a particular people, charged with duties toward one another insofar as they all recognize and live under the same fundamental law. One can understand this in formal terms concerning people’s legal obligations in a particular place, or in more functional terms of what people actually recognize as their duties. In either case, horizontal application presupposes a discernable citizenry that recognizes the authority of a particular fundamental law giving rise to its duties. The republican lens thus shows the significance of the question of horizontal application by revealing how it relates to more basic questions about a European “public thing” that is acknowledged and accepted by the European citizenry.

The value of employing the language of republicanism here comes into sharper relief when we consider how horizontal application has developed and is debated differently in the context of the European Court of Human Rights (ECtHR).Footnote ⁴⁴ The ECJ is just one body in the panoply of EU institutions. Indeed, the EU includes institutions that correspond to the classic three branches of government and, in this sense, mirror the form and function of the national governments of the various Member States. While the scope of EU governance may be limited, its institutions comprise a fully operative government, whose ultimate aim is unity and integration. In theory, EU actors, institutions, and even individual citizens could begin to conceive of the Union as a republic or, in Van der Walt’s terms, begin to attribute a measure of sovereignty to the Union. On the other hand, the ECtHR is an international court, belonging to no particular government and maintaining no project beyond that of addressing violations of those rights articulated in the European Convention of Human Rights. There is no associated legislative function, nor any encompassing project of unity. To this extent, the role of the ECtHR does not rival its Member States in the same sense as does the EU.Footnote ⁴⁵

In light of these differences in institutional character, horizontal application has figured into accounts of the ECtHR differently than in scholarship on and decisions of the ECJ. The question of horizontal application is less controversial for the ECtHR, perhaps because the Convention constitutes an agreement among states without any aspiration to govern the people within individual countries. And indeed, the question of horizontal application was not even raised when the Convention was drafted in 1950.Footnote ⁴⁶ While some provisions of the Convention do amount to a charge for national governments to protect their citizens from private harms, these ultimately remain charges to the national governments and do not obligate individual citizens.Footnote ⁴⁷

To the extent that horizontal application has republican qualities, it naturally figures more prominently in debates over EU law and politics than in ECtHR discussions. The relevance of republican concepts to EU debates, however, does not mean that the EU consists of sufficiently republican elements to make those concepts work. The ability of EU institutions to count on certain republican resources, such as an acknowledged common good and a self-identifying citizenry, seems, at least on a theoretical level, to be requisite to horizontal application.Footnote ⁴⁸ On the other hand, a certain endogeneity seems plausible here, as the ECJ’s increasing application of horizontality may itself cultivate greater republican resources across the EU. Notwithstanding lingering theoretical issues, the ECJ has moved gradually to develop its doctrine of horizontality, as the next section explains in greater detail.

The Horizontal Application of EU Law

How, then, have judges of the ECJ developed the concept of horizontal application, and how have scholars understood this practice in the EU? The foregoing sections explained some of the theoretical questions that arise from a republican understanding of horizontal application in the context of the EU, including how the idea of the EU itself measures up against republican principles and the unique challenges of viewing horizontal application in the EU through a republican lens. This section, in turn, examines jurists’ and commentators’ concerns and the resources they perceive to be at their disposal in shaping the development of horizontal application in EU law. In this way, the remainder of this chapter examines discourses – how EU jurists and commentators articulate the issues surrounding horizontality, and how they propose to develop horizontal application accordingly. Of course, some of the perspectives articulated in some ECJ decisions and scholarship are ambitious, viewing horizontal application as something that can be expanded, while others prove more hesitant and seek limits to this legal practice.

The initial jurisprudential development that set the stage for the debate over horizontal application came in the important Van Gend en Loos case (1963).Footnote ⁴⁹ Following the early treaties establishing the European Community, the relationship between European and domestic law was a real question and one that could not be avoided for long. In Van Gend, the ECJ declared its understanding of the kind of integrated community it would have Europe become, even while, on some accounts, the Member States envisioned a future wherein greater differentiation remained among states.Footnote ⁵⁰ In particular, the Court articulated the principle of direct effect, not to be confused with direct horizontal effect but rather what scholars and jurists today describe as “the capacity of a provision of EU law to be invoked before a national court.”Footnote ⁵¹ With the establishment of direct effect, litigants in domestic courts could rely on provisions of EU law against national governments. The consequence of this, then and now, is that European law could be introduced into what previously might have been a purely domestic legal-political situation. Moreover, the principle necessarily enlists domestic courts for the task of enforcing Treaty provisions and directives.

Insofar as Member States did not explicitly assent to this principle of direct effect, Alec Stone Sweet goes so far as to describe Van Gend en Loos as a “juridical coup d’état.”Footnote ⁵² On the other hand, the “teleological methodology” the Court employs in its judgment assumes an alternative, arguably republican, account of the European vision. Speaking of the Treaty establishing the European Economic Community (EEC), the Court explains that this was more than an agreement of obligations among contracting states, citing as evidence the Treaty’s preamble, which refers not only to governments but also to peoples. Indeed, the Court argues, the Treaty establishes EU institutions endowed “with sovereign rights,” the exercise of which affects both the Member States and their citizens.Footnote ⁵³ In this telling, the European Community was always intended to be a political community in the full sense. In this way, the Court seized upon an opportunity to entrench a more Eurocentric vision, later cemented in the Costa case, that declared the primacy of European law.Footnote ⁵⁴

The establishment of the direct effect of EU law was debated alongside the additional question of horizontal direct effect – whether EU law could be invoked by litigants in national courts against private individuals or nonstate actors. This was, in fact, a separate question and one that needed to be answered. However, even at this high level of abstraction, it became complicated very quickly for a couple of reasons. Despite instances in European law that refer to the actual people living in Europe, as the Court in Van Gend en Loos finds in the EEC preamble, foundational documents of Europe by and large address the states. The 2009 Charter of Fundamental Rights, for example, specifically states in Article 51 that it obligates the Member States. While this is not necessarily the last word on the question, it has factored into the Court’s reasoning on horizontal direct effect.Footnote ⁵⁵

The issue of whom the treaties and the Charter address, moreover, speaks directly to the questions elaborated in the previous section – namely, whether these foundational documents establish a European “public thing” sufficiently so as to hold the individuals within Member States accountable for EU commitments on the basis of their membership in that larger community. Perhaps Van Gend and later Costa gesture toward an affirmative answer here in that they are premised on the contention that European law is relevant and supreme even in the context of domestic questions.Footnote ⁵⁶ Nevertheless, one would still have to make the argument that private entities are immediate participants in the European project and, therefore, that European law is equally binding on their actions. Such a step seems almost prerequisite to the argument that European commitments and values “radiate” through all spheres of life, to use the language of Lüth.Footnote ⁵⁷

The Court first took up the issue of horizontal direct effect of EU law in Defrenne v. Sabena (1976).Footnote ⁵⁸ This case identified the principle of equal pay for equal workFootnote ⁵⁹ of the Treaty of the European Economic Community (now the Treaty on the Functioning of the European Union) as having direct horizontal application despite the fact that certain provisions of the Treaty formally addressed Member States. In this case, a woman named Gabrielle Defrenne was forced to retire from her job as an airline attendant since, under Belgian law, female flight attendants were required to retire upon turning forty. This policy, Defrenne argued, prevented her from collecting a pension equal to that of her male colleagues in retirement. The Court of Justice decided the case on the basis that the Treaty required equal treatment on grounds of gender. In particular, it argued that the prohibition of discrimination was “mandatory in nature”Footnote ⁶⁰ and so must apply to both state actors and private actors. Defrenne ushered in a broad discussion about horizontal application. Though the decision itself only established the possibility of horizontal application for treaty law, and only “mandatory” treaty provisions for that matter, this decision was enormously consequential. Indeed, those treaties comprising the fundamental commitments of the EU would now apply to private individuals within Member States. The words of the Court make clear the significance of this step. Speaking of the equal pay principle, the Court states:

The Court in Defrenne clearly understood the project of the European Community as being to propagate a particular kind of society. More to the point, it deemed the Community’s “social objectives” to be of such a nature that they necessarily impact entities beyond the state. While the Court did identify the limiting principle only to apply horizontal application for mandatory provisions, it ultimately established that the primary law of the EU has the power to create obligations for private actors within the Member States.

That European law comes in so many forms, as seen in Defrenne, complicates the question of what kinds of law may be applied horizontally to nonstate actors. EU law includes regulations, directives, treaty articles, and the Charter of Fundamental Rights. Such distinctions bear on debates over horizontal application, as scholars and jurists argue the significance of these differences – whether to limit the ECJ’s extension of horizontal application or to argue the ultimate arbitrariness of these distinctions and thereby extend its reach. Insofar as EU regulations are akin to ordinary law, they do not necessarily raise the same difficult questions with respect to horizontal application. Similarly, directives are legal acts of the EU that bind Member States. Whereas regulations are self-executing, however, directives require implementation, a fact which has resulted in their further debate. Traditionally directives have not been applied horizontally because Article 228 of the Treaty of the Functioning of the European Union states that Member States are bound by a directive and bound only to the extent that the directive specifies a particular obligation.Footnote ⁶² Nevertheless, the ECJ has carved out some exceptions to apply directives horizontally. For example, it has broadened the very concept of “the state” to incorporate what otherwise would be categorized as private actors,Footnote ⁶³ and allowed private individuals to hold Member States accountable when they fail to implement directives.

The fact of such distinctions suggests a general hesitance with respect to horizontal application.Footnote ⁶⁴ Indeed, beginning with Defrenne’s distinction between “mandatory” and other provisions, a similar tendency emerged to limit the reach of horizontal application in treaty law and the Charter of Fundamental Rights, areas in which the stakes are arguably even higher. Indeed, these two areas of EU law are effectively constitutional in nature. In contrast with regulations and directives, applying treaty law and the Charter horizontally would be a clearer movement (both symbolic and practical) toward increased integration and the primacy of EU commitments. It is thus unsurprising that Defrenne’s establishment of the horizontal application of treaty law was considered to be so groundbreaking. Indeed, even decades later, such scholars as Johann van der Walt have continued to worry about the horizontal application of treaty law.

While debates unfold in courts in terms of doctrinal technicalities, scholarship treats horizontal application as raising deeper questions as well. Even after Defrenne, the scholarly literature reveals disagreement about the constitutional implications of horizontal application, including the ability of the ECJ to define values and priorities for the entire Union and, more broadly, the ability of EU institutions to define values and priorities for the Member States. Johan van der Walt, for example, worries that the original formulation of horizontal application in the German FCC’s Lüth case overlooks the possibility for disagreement over the content and prioritization of values. When this logic was appropriated from German jurisprudence by the ECJ, there was room for debate not only about which institutions were making these decisions (courts or legislatures) but also about the very government determining these values (individual countries or the EU).

Van der Walt’s book focuses on the “Laval quartet” of cases, including the Viking (2007) case that determined that labor unions violated treaty provisions on freedom of establishment when they prevented the Viking shipping company from moving their legal base from Finland to Estonia.Footnote ⁶⁵ Following the reasoning in Defrenne, the horizontal application of a treaty provision controlled the actions of the labor union in relation to the shipping company. Though, in earlier cases, the Court established criteria requiring treaty provisions to be clear and precise if they were to be applied horizontally, Van der Walt sees Viking as based fundamentally on judicial fiat. In the ECJ’s rhetoric of “balancing” and “harmonizing” the opposing social and economic concerns at play in Viking, Van der Walt finds the Court making crucial and constitutive decisions that, he argues, ought to be beyond its jurisdiction as a court and, more specifically, as a court for Europe.Footnote ⁶⁶ He explains that the ECJ had no resources for balancing the right of the unions against that of the shipping company in a principled way. However, insofar as it did decide in favor of the shipping company, it yielded a “case specific prioritizing of market freedom” over bargaining rights.Footnote ⁶⁷ Not only is this result not desirable policy, as far as Van der Walt is concerned, but it is not a necessary interpretation of the Treaty. In deciding Viking, therefore, the Court improperly assumed authority to make such a constitutional decision. He thus describes the case as a “crucial moment in the federalization”Footnote ⁶⁸ of Europe, insofar as the ECJ, an EU institution, made a decision for Member States whose own institutions may have chosen, and in fact had chosen, to order and weigh these values differently.

The Viking case faced criticism from legal scholars when it was decided, many worrying about its apparent derogation of certain principles of labor law. However, the general practice of applying treaty law horizontally, Van der Walt’s primary concern, is basically settled in ECJ jurisprudence. In Van der Walt’s assessment of Viking, we find a Court making claims about the kind of community the EU is, as well as its status in relation to Member States. And indeed, the ECJ judgment follows what was a common line of thinking, especially early on in the Community’s history, that prioritized matters of economics and transnational exchange in line with the EU’s original purpose to facilitate the freedom of movement and economic cooperation.Footnote ⁶⁹

Initially, one may take this prioritization of economic concerns as a sign of humility and restraint since the EU, as represented by the Court, was not trying to be anything more than a Union committed to economic cooperation. Nevertheless, Van der Walt argues that Viking did more than simply prioritize economic concerns as a matter of EU law. Rather, with the development of direct effect, the Court subverted the right of collective bargaining to the right of establishment within Member States.Footnote ⁷⁰ Moreover, and more specifically, with the development of horizontal direct effect, the Court created duties of unions (albeit negative duties) not to obstruct companies’ choices to relocate, even if such choices came at the expense of those the unions were obliged to protect. This latter result not only intervenes to limit the actions of a state but also assumes the role of government of the people within states. In establishing certain public values for Europe and arguing the relevance of these values across spheres, the Court asserts a European res publica or “public thing,” to use the language of this book’s republican framework, claiming itself as a locus of constitutive political decisions.

Van der Walt’s solution to these concerns is simple in theory though more complicated in practice. He thinks that courts in general and the ECJ in particular should refrain from weighing in on these kinds of substantive value judgments. He suggests, instead, an emphasis on the procedural so that courts leave fundamentally political questions to legislatures and, moreover, to national institutions that may better appreciate any deep social and political divisions that exist within a state.Footnote ⁷¹ The key for Van der Walt, in other words, is that we continue to recognize difference, including different political communities among Member States, where it still exists. Van der Walt argues for this devolution back to national governance as helping to mitigate the feeling among political losers that they are subject to rules “foreign” to them and rules they cannot identify as “their own,”Footnote ⁷² a rationale admittedly in line with the priority of self-government in republican thought.

While Van der Walt was writing before the 2009 entry into force of the Charter of Fundamental Rights, his misgivings about the horizontal application of treaty provisions are largely applicable to the Charter, as well, insofar as both documents are considered primary law and constitutive for the EU. Eleni Frantziou, on the other hand, focuses on the implications of the horizontal application of the Charter specifically and follows Van der Walt in emphasizing the weightiness of the question of horizontal application for Europe. She states explicitly that “discussion of the horizontal effect of rights involves a deeper inquiry into the kind of society the EU is setting itself out to be and the values that lie in its core.”Footnote ⁷³ Moreover, Frantziou shares Van der Walt’s assessment of the way the Court has faced the choice to rank values in cases concerning horizontal application. Noting the Viking case in particular, she describes the confrontation between the values of a “laissez-faire market economy,” on the one hand, and the “radical, inclusionary impact” of collective bargaining and equal pay (as in Defrenne), on the other.Footnote ⁷⁴ Frantziou worries that in continuing to develop its doctrine of horizontal application, the ECJ will prioritize laissez-faire economic values at the cost of the EU’s more inclusionary project concerned with substantive equality.Footnote ⁷⁵ Nevertheless, Franziou’s solution is not to recoil from horizontal application, pace Van der Walt. Rather, after the adoption of the Charter, Franziou would have the ECJ take up these defining questions for Europe even more directly.

Frantziou’s amenability to horizontal application is rooted in her broader understanding of Europe as a community. Whereas Van der Walt continues to emphasize the Member States as the locus of politics and governance, Frantziou describes the EU as its own “polity” with its own common good.Footnote ⁷⁶ Her qualms concern not the practice of horizontal application itself but the prospect of the Court reducing it to a technical question and thus ignoring its normative (one might say, republican) potential. And indeed, the Court’s early decision on the question of horizontal application of the Charter, the 2014 AMS case, tended toward the technical.Footnote ⁷⁷ This case concerned whether Article 27 of the Charter, guaranteeing the rights of workers to information and timely consultation, could be applied horizontally. The Court considered but ultimately did not apply this Charter provision horizontally, reasoning that the provision was not specific enough to ground a rights claim. Put differently, it was not so specific as to keep Member States from making their own exceptions with respect to the information and consultation that workers receive in their places of employment. Thus, the Court decided against horizontal application in this instance while leaving open the possibility that a Charter provision might apply horizontally, if sufficiently specific and precise.Footnote ⁷⁸

Although, like treaty law, the Charter rises to the level of primary or fundamental law of the EU, the AMS case revealed continued uncertainty on the part of the Court in giving these rights horizontal application. Scholars such as Frantziou criticized the mechanical distinctions the Court adopted from prior decisions, such as the requirement that a provision be “mandatory” or sufficiently specific. Rather than subjecting these cases to mechanical and what she views as arbitrary limiting principles, Frantziou would have the Court engage the substance of these questions, accounting for “what these claims can mean for people’s lives” – for example, “seeing one’s child, being able to work free from discrimination and receiving a pension.”Footnote ⁷⁹ A meaningful answer to cases of horizontal application, she continues, will account for such things and determine “how much a particular society values them.”Footnote ⁸⁰

Frantziou thus argues that the ECJ should decide cases of horizontal application in light of these substantive values for the very reason that they contribute to “the kind of society the EU is setting itself out to be.” To do anything else would be to give the important issues short shrift or even blindly decide against inclusionary rights protections. In this way, she argues that the Court should engage, proactively, the very questions Van der Walt wants the Court to avoid. Frantziou recognizes the political nature of these questions and does think there should be some limit to the scope of horizontal application.Footnote ⁸¹ Nevertheless, she takes as given a postnational context, referring to Europe as its own society.Footnote ⁸² In her view, taking up the horizontal application of Charter rights is necessary to building up a European society, à la Habermas. Not only is Frantziou more optimistic than Van der Walt with respect to what horizontal application can accomplish, but she is also comfortable with what horizontal application may engender. Indeed, she understands horizontal application as itself a key question, offering answers in the larger debate about the hierarchy of EU values. For Frantziou, the outlines of political community, of res publica, have already been drawn, and what remains to be debated is exactly how Europe, its people and institutions, understands its own common good.

In November 2018, nearly a decade after the adoption of the Charter, the ECJ took the decisive step to give virtually all of the Charter horizontal application.Footnote ⁸³ The judgment in Bauer et al. actually concerned two separate cases, both involving women seeking compensation from their late husbands’ employers in lieu of annual leave not taken before their deaths. In support of their case, they cited Article 31(2) of the Charter, which states: “[E]very worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.”Footnote ⁸⁴ In line with Frantziou’s own criticisms of the Court’s jurisprudence on horizontal application, the advocate general invited the Court to “reconsider previous categorisations based on general principles or ‘particularly important principles of EU social law’ … and to confirm, once and for all, that the social rights enshrined in the Charter are equally individual and fundamental as its other provisions.”Footnote ⁸⁵ In this way, the advocate general encouraged the Court to move beyond the privileging of economic and property rights over social rights and, more to the point, to recognize the complete range of the Charter as fundamental. Upon putting aside such distinctions, the Court affirmed that the Charter was “sufficient in itself to confer on individuals a right which they may rely on as such in a dispute with another individual.”Footnote ⁸⁶ In other words, there was no longer any need to render provisions more specific with additional legislation before considering their horizontal application; the Charter provisions could now be applied horizontally.

Later cases bring into sharp relief the complexity Europe’s legal pluralist environment poses for these questions. Specifically, the Right to Be Forgotten cases,Footnote ⁸⁷ decided by the German FCC in 2019, illustrate how greater integration may actually come simultaneously with the national institutions of Member States asserting their own authority.Footnote ⁸⁸ In these two cases, the German FCC considered the fundamental right in EU law to have private information removed from internet searches. Not only does this raise the horizontality question, specifically of the duties of internet search operators vis-à-vis individuals appearing in searches, but it brings to the fore the relationship between domestic and EU law, as well. Indeed, these cases constituted the first time that a national court interpreted for itself the Charter of Fundamental Rights. On the one hand, this is a clear sign of the development of European integration and buy-in on the part of national institutions. On the other hand, in so assuming this interpretive role, the German FCC also carved out for itself space to control the terms of integration.Footnote ⁸⁹ Indeed, the Court still maintained the priority of the German Basic Law in “matters not fully harmonized” with EU law.Footnote ⁹⁰ Moreover, the practice of proportionality review still allows ample interpretive space for the German Court to depart from the ECJ’s judgments as a practical matter, even while maintaining the appearance of accord.Footnote ⁹¹ So while these recent cases evince a republican parity of private actors with principles of higher law as well as conformity of German law with European rights commitments, one must note the complexity with which national institutions, such as the German FCC, continually engage with this development. Indeed, the FCC’s willingness (nay, eagerness) to assume a role in applying the Charter of Fundamental Rights highlights both the reality of something like a European res publica and the power of national institutions to shape its future.

Conclusion

In this supranational context, a republican understanding of horizontality calls for some European “public thing” or common good to justify the step of holding private entities within Member States accountable to EU values. Whereas one may understand horizontal application in national contexts as relying upon preexisting relationships among compatriots, some might describe horizontality in the EU as signifying the creation of new relationships and even individual duties across a supranational community. The application of horizontality itself answers larger theoretical questions about the European project in a certain way. Specifically, in taking the step of applying public values to private entities at the continental level, the ECJ assumes the existence of a European common good and the priority of this European good over national commitments. While one should resist assuming that the nature of the European project is a zero-sum competition for sovereignty between Member States and EU institutions, the practice of horizontal application tends to pit nations against the Union. To the extent the horizontal application of rights may elevate the values of the EU over those of Member States in individual cases, so too might a European “public thing” be privileged in legal, if not political, life.