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The principle of non-discrimination and the doctrine of the horizontal direct effect

This paper focuses on the horizontal direct effect of the EU principle of non-discrimination as enshrined in Article 21 of the Charter of Fundamental Rights. The doctrine of the direct effect has been developed through the practice of the CJEU. The transformation of the doctrine of the direct effect leads to the horizontal effect of fundamental rights (e.g in Mangold, Kuckdeveci). The implementation of the Article 21 of the Charter implies innovative questions regarding the division of competences between the Union and Member States, the internal EU separation of powers between the CJEU and EU legislator and the public-private divide. This debate represents a starting point for the analysis of the horizontal direct effect application of the principle of non-discrimination and its application outside the public sphere. Examining carefully the uses and non-uses of the Article 21 to date reveals some special features of this Charter provision and its relationship with anti-discrimination law. In contrast to the Article 19 TFEU, which contains a prohibition of certain forms of discrimination, listed exhaustively, the development of an alternative fundamental rights route for discrimination raises questions about the role left for Article 21 in such cases.

principle of non-discrimination, horizontal direct effect, fundamental rights, CJEU, EU Charter of Fundamental Rights

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