'Clash of Titans' General Principles of EU Law: Balancing and Horizontal Direct Effect

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(2), 643-652 | European Forum Insight of 8 August 2016 | (Table of Contents) I. The background of the case. - II. The Opinion of Advocate General Bot. - III. The judgment of the Court. - IV. Legal analysis: - IV.1. Horizontal direct effect of general principles: here we go again? - IV.2. The clash between general principles of EU law: one winning or all losing? | (Abstract) More than 10 years after the first ruling on the horizontal effect of the principle of non-discrimination on grounds of age, in the Dansk Industri case the CJEU reiterates Mangold and Kücükdeveci. It has by now proclaimed a new form of horizontality, deriving from the combined application of two different sources of law, i.e. the directive and the general principle. According to the Court, neither the general principle of legal certainty, nor that of legitimate expectations, which can be jeopardised by the horizontal effect of non-discrimination on grounds of age, question the necessity to ensure its effectiveness. Protecting non-discrimination on grounds of age justifies not only a broader application of that principle, but also its hierarchical priority over other general principles of EU law. However, insofar as general principles equally protect other fundamental rights, some questions arise: can the judicial activism of the CJEU equally improve effectiveness and uniformity in the protection of fundamental rights within the EU? Or, as Dansk Industri suggests, does the former goal (i.e. effectiveness) necessarily affect the latter?

Keywords

• directive 2000/78
• cjeu
• general principle of non-discrimination on grounds of age
• principles of legal certainty and legitimate expectations
• balancing
• direct effect